Exhibit 3.18
BYLAWS
OF
ATLAS, CORP.
Effective April 24, 1991
TABLE OF CONTENTS TO BYLAWS
OF
ATLAS, CORP.
Page
----
ARTICLE 1 -- OFFICES...........................................................1
Section 1. Principal and Registered Office..............................1
Section 2. Other Offices................................................1
ARTICLE 2 -- MEETINGS OF SHAREHOLDERS..........................................1
Section 1. Place of Meeting.............................................1
Section 2. Annual Meeting...............................................1
Section 3. Substitute Annual Meeting....................................1
Section 4. Special Meetings.............................................1
Section 5. Notice of Meetings...........................................1
Section 6. Quorum.......................................................2
Section 7. Shareholders' List...........................................2
Section 8. Voting of Shares.............................................3
Section 9. Action Without Meeting.......................................3
ARTICLE 3 -- BOARD OF DIRECTORS................................................3
Section 1. General Powers...............................................3
Section 2. Number, Term and Qualification...............................3
Section 3. Removal......................................................4
Section 4. Vacancies....................................................4
Section 5. Compensation.................................................4
ARTICLE 4 -- MEETINGS OF DIRECTORS.............................................4
Section 1. Annual and Regular Meetings..................................4
Section 2. Special Meetings.............................................4
Section 3. Notice of Meetings...........................................5
Section 4. Quorum.......................................................5
Section 5. Manner of Acting.............................................5
Section 6. Presumption of Assent........................................5
Section 7. Action Without Meeting.......................................5
Section 8. Meeting by Communications Device.............................5
ARTICLE 5 -- COMMITTEES........................................................6
Section 1. Election and Powers..........................................6
Section 2. Removal; Vacancies...........................................6
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Section 3. Meetings.................................................... 6
Section 4. Minutes..................................................... 6
ARTICLE 6 -- OFFICERS......................................................... 7
Section 1. Titles...................................................... 7
Section 2. Election; Appointment....................................... 7
Section 3. Removal..................................................... 7
Section 4. Vacancies................................................... 7
Section 5. Compensation................................................ 7
Section 6. Chairman and Vice Chairman of the Board of Directors........ 7
Section 7. President................................................... 7
Section 8. Vice Presidents............................................. 8
Section 9. Secretary................................................... 8
Section 10. Assistant Secretaries....................................... 8
Section 11. Treasurer................................................... 8
Section 12. Assistant Treasurers........................................ 9
Section 13. Controller and Assistant Controllers........................ 9
Section 14. Voting Upon Stocks.......................................... 9
ARTICLE 7 -- CAPITAL STOCK.................................................... 9
Section 1. Certificates................................................ 9
Section 2. Transfer of Shares..........................................10
Section 3. Transfer Agent and Registrar................................10
Section 4. Regulations.................................................10
Section 5. Fixing Record Date..........................................10
Section 6. Lost Certificates...........................................10
ARTICLE 8 -- INDEMNIFICATION OF DIRECTORS AND OFFICERS........................11
Section 1. Indemnification Provisions..................................11
Section 2. Definitions.................................................11
Section 3. Settlements.................................................11
Section 4. Litigation Expense Advances.................................11
Section 5. Approval of Indemnification Payments........................12
Section 6. Suits by Claimant...........................................12
Section 7. Consideration; Personal Representatives and Other Remedies..12
Section 8. Scope of Indemnification Rights.............................12
ARTICLE 9 -- GENERAL PROVISIONS...............................................13
Section 1. Dividends and other Distributions...........................13
Section 2. Seal........................................................13
Section 3. Waiver of Notice............................................13
Section 4. Checks......................................................13
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Section 5. Fiscal Year.................................................13
Section 6. Amendments..................................................13
Section 7. Shareholders' Agreement.....................................13
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BYLAWS
OF
ATLAS, CORP.
ARTICLE 1 -- OFFICES
--------------------
Section 1. Principal and Registered Office. The principal office of the
corporation shall be located at Charlotte, North Carolina, which shall also be
the registered office of the corporation.
Section 2. Other Offices. The corporation may have offices at such other
places, either within or without the State of North Carolina, as the board of
directors may from time to time determine.
ARTICLE 2 -- MEETINGS OF SHAREHOLDERS
-------------------------------------
Section 1. Place of Meeting. Meetings of shareholders shall be held at
the principal office of the corporation, or at such other place, either within
or without the State of North Carolina, as shall be designated in the notice of
the meeting.
Section 2. Annual Meeting. The annual meeting of shareholders shall be
held at 10:00 o'clock a.m. on the second Monday of April of each year, if not a
legal holiday, but if a legal holiday, then on the next business day which is
not a legal holiday, for the purpose of electing directors of the corporation
and the transaction of such other business as may be properly brought before the
meeting.
Section 3. Substitute Annual Meeting. If the annual meeting is not held
on the day designated by these bylaws, a substitute annual meeting may be called
in accordance with Section 4 of this Article. A meeting so called shall be
designated and treated for all purposes as the annual meeting.
Section 4. Special Meetings. Special meetings of the shareholders may be
called at any time by the president or the board of directors, and must be
called if the holders of at least ten percent of all the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to the corporation's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to be
held.
Section 5. Notice of Meetings. At least 10 and no more than 60 days prior
to any annual or special meeting of shareholders, the corporation shall notify
shareholders of the date,
time and place of the meeting and, in the case of a special or substitute annual
meeting or where otherwise required by law, shall briefly describe the purpose
or purposes of the meeting. Only business within the purpose or purposes
described in the notice may be conducted at a special meeting. Unless otherwise
required by the articles of incorporation or by law (for example, in the event
of a meeting to consider the adoption of a plan of merger or share exchange, a
sale of assets other than in the ordinary course of business or a voluntary
dissolution), the corporation shall be required to give notice only to
shareholders entitled to vote at the meeting. If an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
thereof need not be given if the new date, time or place is announced at the
meeting before adjournment. If a new record date for the adjourned meeting is
fixed pursuant to Article 7, Section 5 hereof, notice of the adjourned meeting
shall be given to persons who are shareholders as of the new record date. It
shall be the primary responsibility of the secretary to give the notice, but
notice may be given by or at the direction of the president or other person or
persons calling the meeting. If mailed, such notice shall be deemed to be
effective when deposited in the United States mail with postage thereon prepaid,
correctly addressed to the shareholder's address shown in the corporation's
current record of shareholders.
Section 6. Quorum. A majority of the votes entitled to be cast by a
voting group on a matter, represented in person or by proxy at a meeting of
shareholders, shall constitute a quorum for that voting group for any action on
that matter, unless quorum requirements are otherwise fixed by a court of
competent jurisdiction acting pursuant to Section 55-7-03 of the General
Statutes of North Carolina. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and any adjournment thereof, unless a new record date is or must be set
for the adjournment. Action may be taken by a voting group at any meeting at
which a quorum of that voting group is represented, regardless of whether action
is taken at that meeting by any other voting group. In the absence of a quorum
at the opening of any meeting of shareholders, such meeting may be adjourned
from time to time by a vote of the majority of the shares voting on the motion
to adjourn.
Section 7. Shareholders' List. After a record date is fixed for a
meeting, the secretary of the corporation shall prepare an alphabetical list of
the names of all its shareholders who are entitled to notice of the
shareholders' meeting. Such list shall be arranged by voting group (and within
each voting group by class or series of shares) and shall show the address of
and number of shares held by each shareholder. The shareholders' list shall be
made available for inspection by any shareholder beginning two business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting, at the corporation's principal office or at such
other place identified in the meeting notice in the city where the meeting will
be held. The corporation shall make the shareholders' list available at the
meeting, and any shareholder or his agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment.
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Section 8. Voting of Shares. Except as otherwise provided by the
articles of incorporation or by law, each outstanding share of voting capital
stock of the corporation shall be entitled to one vote on each matter submitted
to a vote at a meeting of the shareholders. Unless otherwise provided in the
articles of incorporation cumulative voting for directors shall not be allowed.
Action on a matter by a voting group for which a quorum is present is approved
if the votes cast within the voting group favoring the action exceed the votes
cast opposing the action, unless the vote of a greater number is required by law
or by the articles of incorporation. Voting on all matters shall be by voice
vote or by a show of hands, unless the holders of one-tenth of the shares
represented at the meeting shall demand a ballot vote on a particular matter.
Absent special circumstances, the shares of the corporation are not entitled to
vote if they are owned, directly or indirectly, by a second corporation,
domestic or foreign, and the corporation owns, directly or indirectly, a
majority of the shares entitled to vote for directors of the second corporation,
except that this provision shall not limit the power of the corporation to vote
shares held by it in a fiduciary capacity.
Section 9. Action Without Meeting. Any action which the shareholders
could take at a meeting may be taken without a meeting if one or more written
consents, setting forth the action taken, shall be signed, before or after such
action, by all the shareholders who would be entitled to vote upon the action at
a meeting. The consent shall be delivered to the corporation for inclusion in
the minutes or filing with the corporate records. If by law, the corporation is
required to give its nonvoting shareholders written notice of the proposed
action, it shall do so at least 10 days before the action is taken, and such
notice must contain or be accompanied by the same material that would have been
required by law to be sent to nonvoting shareholders in a notice of meeting at
which the proposed action would have been submitted to the shareholders for
action.
ARTICLE 3 -- BOARD OF DIRECTORS
-------------------------------
Section 1. General Powers. The business and affairs of the corporation
shall be managed under the direction of the board of directors except as
otherwise provided by the articles of incorporation or by a valid shareholders'
agreement.
Section 2. Number, Term and Qualification. The number of directors of
the corporation shall consist of one or more individuals. The shareholders at
any annual meeting may by resolution fix the number of directors to be elected
at the meeting; but in the absence of such resolution, the number of directors
elected at the meeting shall constitute the number of directors of the
corporation until the next annual meeting of shareholders, unless the number is
changed prior to such meeting by action of the shareholders. Each director's
term shall expire at the annual meeting next following the director's election
as a director, provided, that notwithstanding the election of the term of the
director, the director shall continue to hold office until a successor is
elected and qualifies or until his death, resignation, removal or
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disqualification or until there is a decrease in the number of directors.
Directors need not be residents of the State of North Carolina or shareholders
of the corporation unless the articles of incorporation so provide.
Section 3. Removal. Directors may be removed from office with or without
cause (unless the articles of incorporation provide that directors may be
removed only for cause) provided the notice of the shareholders' meeting at
which such action is to be taken states that a purpose of the meeting is removal
of the director and the number of votes cast to remove the director exceeds the
number of votes cast not to remove him.
Section 4. Vacancies. Except as otherwise provided in the article of
incorporation, a vacancy occurring in the board of directors, including, without
limitation a vacancy resulting from an increase in the number of directors or
from the failure by the shareholders to elect the full authorized number of
directors, may be filled by a majority of the remaining directors or by the sole
director remaining in office. The shareholders may elect a director at any time
to fill a vacancy not filled by the directors. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
Section 5. Compensation. The directors shall not receive compensation for
their services as such, except that by resolution of the board of directors, the
directors may be paid fees, which may include but are not restricted to fees for
attendance at meetings of the board or of a committee, and they may be
reimbursed for expenses of attendance. Any director may serve the corporation in
any other capacity and receive compensation therefor.
ARTICLE 4 -- MEETINGS OF DIRECTORS
----------------------------------
Section 1. Annual and Regular Meetings. The annual meeting of the board
of directors shall be held immediately following the annual meeting of the
shareholders. The board of directors may by resolution provide for the holding
of regular meetings of the board on specified date and at specified times.
Notice of regular meetings held at the principal office of the corporation and
at the usual scheduled time shall not be required. If any date for which a
regular meeting is scheduled shall be a legal holiday, the meeting shall be held
on a date designated in the notice of the meeting, if any, during either the
same week in which the regularly scheduled date falls or during the preceding or
following week. Regular meetings of the board shall be held at the principal
office of the corporation or at such other place as may be designated in the
notice of the meetings.
Section 2. Special Meetings. Special meetings of the board of directors
may be called by or at the request of the chairman of the board, the president
or any two directors. Such meetings may be held at the time and place
designated in the notice of the notice of the meeting.
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Section 3. Notice of Meetings. Unless the articles of incorporation
provide otherwise, the annual and regular meetings of the board of directors may
be held without notice of the date, time, place or purpose of the meeting. The
secretary or other person or persons calling a special meeting shall give notice
by any usual means of communication to be sent at least two days before the
meeting if notice is sent by means of telephone, telecopy or personal delivery
and at least five days before the meeting if notice is sent by mail. A
director's attendance at, or participation in, a meeting for which notice is
required shall constitute a waiver of notice, unless the director at the
beginning of the meeting (or promptly upon arrival) objects to holding the
meeting or transacting business at the meeting and does not thereafter vote for
or assent to action taken at the meeting.
Section 4. Quorum. Except as otherwise provided in the articles of
incorporation, a majority of the directors in office shall constitute a quorum
for the transaction of business at a meeting of the board of directors.
Section 5. Manner of Acting. Except as otherwise provided in the articles
of incorporation, the act of the majority of the directors present at a meeting
at which a quorum is present shall be the act of the board of directors.
Section 6. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken is deemed to have assented to the action taken unless he objects
at the beginning of the meeting (or promptly upon arrival) to holding, or
transacting business at, the meeting or unless his dissent or abstention is
entered in the minutes of the meeting or unless he shall file written notice of
his dissent or abstention to such action with the presiding officer of the
meeting before its adjournment or with the corporation immediately after
adjournment of the meeting. The right of dissent or abstention shall not apply
to a director who voted in favor of such action.
Section 7. Action Without Meeting. Unless otherwise provided in the
articles of incorporation, action required or permitted to be taken at a meeting
of the board of directors may be taken without a meeting if the action is taken
by all members of the board. The action must be evidenced by one or more
written consents signed by each director before or after such action, describing
the action taken, and included in the minutes or filed with the corporate
record. Action taken without a meeting is effective when the last director signs
the consents unless the consent specifies a different effective date.
Section 8. Meeting by Communications Device. Unless otherwise provided
in the articles of incorporation, the board of directors may permit any or all
directors to participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
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ARTICLE 5 -- COMMITTEES
-----------------------
Section 1. Election and Powers. Unless otherwise provided by the articles
of incorporation, a majority of the board of directors may create one or more
committees and appoint two or more directors to serve at the pleasure of the
board on each such committee. To the extent specified by the board of directors
or in the articles of incorporation, each committee shall have and may exercise
the powers of the board in the management of the business and affairs of the
corporation, except that no committee shall have authority to do the following:
(a) Authorize distributions.
(b) Approve or propose to shareholders action required to be approved by
shareholders.
(c) Fill vacancies on the board of directors or an any of its committees.
(d) Amend the articles of incorporation.
(e) Adopt, amend or repeal the bylaws.
(f) Approve a plan of merger not requiring shareholder approval.
(g) Authorize or approve the reacquisition of shares, except according to
a formula or method prescribed by the board of directors.
(h) Authorize or approve the issuance, sale or contract for sale of
shares, or determine the designation and relative rights, preferences and
limitations of a class or series of shares, except that the board of directors
may authorize the executive committee (or a senior executive officer of the
corporation) to do so within limits specifically prescribed by the board of
directors.
Section 2. Removal; Vacancies. Any member of a committee may be removed
at any time with or without cause, and vacancies in the membership of a
committee by means of death, resignation, disqualification or removal shall be
filled by a majority of the whole board of directors.
Section 3. Meetings. The provisions of Article 4 governing meetings of
the board of directors, action without meeting, notice, waiver of notice and
quorum and voting requirements shall apply to the committees of the board and
its members.
Section 4. Minutes. Each committee shall keep minutes of its proceedings
and shall report thereon to the board of directors at or before the next meeting
of the board.
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ARTICLE 6 -- OFFICERS
---------------------
Section 1. Titles. The officers of the corporation shall be a president,
a vice president, a secretary and a treasurer and may include a chairman and
vice chairman of the board of directors, an executive vice president, one or
more additional vice presidents, a controller, one or more assistant
secretaries, one or more assistant treasurers, one or more assistant
controllers, and such other officers as shall be deemed necessary. The Officer
shall have the authority and perform the duties as set forth herein or as from
time to time may be prescribed by the board of directors or by the president (to
the extent that the president is authorized by the board of directors to
prescribe the authority and duties of officers). Any two or more offices may be
held by the same individual but no officer may act in more than one capacity
where action of two or more officers is required.
Section 2. Election; Appointment. The officers of the corporation shall
be elected from time to time by the board of directors or appointed from time to
time by the president (to the extent that the president is authorized by the
board to appoint officers).
Section 3. Removal. Any officer may be removed by the board at any time
with or without cause whenever in its judgment the best interests of the
corporation will be served, but removal shall not itself affect the officer's
contract rights, if any, with the corporation.
Section 4. Vacancies. Vacancies among the officers may be filled and new
offices may be created and filled by the board of directors, or by the president
(to the extent authorized by the board).
Section 5. Compensation. The compensation of the officers shall be fixed
by, or under the direction of the board of directors.
Section 6. Chairman and Vice Chairman of the Board of Directors. The
chairman of the board of directors, if such officer is elected, shall preside at
meetings of the board of directors and shall have such other authority and
perform such other duties as the board of directors shall designate. The vice
chairman, if elected, shall preside at meetings of the board in the absence of
the chairman and shall have such other authority and perform such other duties
as the board of directors shall designate.
Section 7. President. The president shall be in general charge of the
affairs of the corporation in the ordinary course of its business and shall
preside at meetings of the shareholders. The president may perform such acts,
not inconsistent with applicable law or the provisions of these bylaws, as may
be performed by the president of a corporation and may sign and execute all
authorized notes, bonds, contracts and other obligations in the name of the
corporation. The president shall have such other powers and perform such other
duties as the
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board of directors shall designate or as may be provided by applicable law or
elsewhere in these bylaws.
Section 8. Vice Presidents. The executive vice president, if such officer
is elected or appointed, shall exercise the powers of the president during that
a officer's absence or inability to act. In default of both the president and
the executive vice president, any other vice president may exercise the powers
of the president. Any action taken by a vice president in the performance of the
duties of the president shall be presumptive evidence of the absence or
inability to act of the president at the time the action was taken. The vice
presidents shall have such other powers and perform such other duties as may be
assigned by the board of directors or by the president (to the extent that the
president is authorized by the board of directors to prescribe the authority and
duties of other officers).
Section 9. Secretary. The secretary shall keep accurate records of the
acts and proceedings of all meetings of shareholders and of the board of
directors and shall give all notice required by law and by these bylaws. The
secretary shall have general charge of the corporate books and records and shall
have the responsibility and authority to maintain and authenticate such books
and records. The secretary shall have general charge of the corporate seal and
shall affix the corporate seal to any lawfully executed instrument requiring it.
The secretary shall have general charge of the stock transfer books of the
corporation and shall keep at the principal office of the corporation a record
of shareholders showing the name and address of each shareholder and the number
and class of the shares held by each. The secretary shall sign such instruments
as may require the signature of the secretary, and in general shall perform the
duties incident to the office of secretary and such other duties as may be
assigned from time to time by the board of directors or the president (to the
extent that the president is authorized by the board of directors to prescribe
the authority and duties of other officers).
Section 10. Assistant Secretaries. Each assistant secretary, if such
officer is elected, shall have such powers and perform such duties as may be
assigned by the board of directors or the president (if authorized by the board
of directors to prescribe the authority and duties of other officers), and the
assistant secretaries shall exercise the powers of the secretary during that
officer's absence or inability to act.
Section 11. Treasurer. The treasurer shall have custody of all funds and
securities belonging to the corporation and shall receive, deposit or disburse
the same under the direction of the board of directors. The treasurer shall
keep full and accurate accounts of the finances of the corporation, which may be
consolidated or combined statements of the corporation and one or more of its
subsidiaries as appropriate, that include a balance sheet as of the end of the
fiscal year, an income statement for that year, and a statement of cash flows
for the year unless that information appears elsewhere in the financial
statements. If financial statements are prepared for the corporation on the
basis of generally accepted accounting principles, the annual financial
statements must also be prepared on that basis. The corporation shall mail the
annual financial
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statements, or a written notice of their availability, to each shareholder
within 120 days of the close of each fiscal year. The treasurer shall in
general perform all duties incident to the office and such other duties as may
be assigned from time to time by the board of directors or the president (to the
extent that the president is authorized by the board of directors to prescribe
the authority and duties of other officers).
Section 12. Assistant Treasurers. Each assistant treasurer, if such
officer is elected, shall have such powers and perform such duties as may be
assigned by the board of directors or the president (to the extent that the
president is authorized by the board of directors to prescribe the authority and
duties of other officers), and the assistant treasurers shall exercise the
powers of the treasurer during that officer's absence or inability to act.
Section 13. Controller and Assistant Controllers. The controller, if such
officer is elected, shall have charge of the accounting affairs of the
corporation and shall have such other powers and perform such other duties as
the board of directors or the president (to the extent that the president is
authorized by the board of directors to prescribe the authority and duties of
other officers) shall designate. Each assistant controller shall have such
powers and perform such duties as may be assigned by the board of directors or
the president (to the extent that the president is authorized by the board of
directors to prescribe the authority and duties of other officers), and the
assistant controllers shall exercise the powers of the controller during that
officer's absence or inability to act.
Section 14. Voting Upon Stocks. Unless otherwise ordered by the board of
directors, the president shall have full power and authority in behalf of the
corporation to attend, act and vote at meetings of the shareholders of any
corporation in which this corporation may hold stock, and at such meetings shall
possess and may exercise any and all rights and powers incident to the ownership
of such stock and which, as the owner, the corporation might have possessed and
exercised if present. The board of directors may by resolution from time to
time confer such power and authority upon any other person or persons.
ARTICLE 7 -- CAPITAL STOCK
--------------------------
Section 1. Certificates. Shares of the capital stock of the corporation
shall be represented by certificates. The name and address of the persons to
whom shares of capital stock of the corporation are issued, with the number of
shares and date of issue, shall be entered on the stock transfer records of the
corporation. Certificates for shares of the capital stock of the corporation
shall be in such form not inconsistent with the articles of incorporation of the
corporation as shall be approved by the board of directors. Each certificate
shall be signed (either manually or by facsimile) by (a) the president or any
vice president and by the secretary. assistant secretary, treasurer or assistant
treasurer or (b) any two officers designated by the board
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of directors. Each certificate may be sealed with the seal of the corporation
or a facsimile thereof.
Section 2. Transfer of Shares. Transfer of shares shall be made on the
stock transfer records of the corporation, and transfers shall be made only upon
surrender of the certificate for the shares sought to be transferred by the
recordholder or by a duly authorized agent, transferee or legal representative.
All certificates surrendered for transfer or reissue shall be canceled before
new certificates for the shares shall be issued.
Section 3. Transfer Agent and Registrar. The board or directors may
appoint one or more transfer agents and one or more registrars of transfers and
may require all stock certificates to be signed or countersigned by the transfer
agent and registered by the registrar of transfers.
Section 4. Regulations. The board of directors may make rules and
regulations as it deems expedient concerning the issue, transfer and
registration of shares of capital stock of the corporation.
Section 5. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders, or
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other purpose, the board of directors may fix in advance
a date as the record date for the determination of shareholders. The record date
shall be not more than 70 days before the meeting or action requiring a
determination of shareholders. A determination of shareholders entitled to
notice of or to vote at a shareholders' meeting shall be effective for any
adjournment of the meeting unless the board of directors taxes a new record
date, which it shall do if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting. If no record date is fixed for
the determination of shareholders, the record date shall be the day the notice
of the meeting is mailed or the day the action requiring a determination of
shareholders is taken. If no record date is fixed for action without a meeting,
the record date for determining shareholders entitled to take action without a
meeting shall be the date the first shareholder signs a consent to the action
taken.
Section 6. Lost Certificates. The board of directors must authorize the
issuance of a new certificate in place of a certificate claimed to have been
lost, destroyed or wrongfully taken, upon receipt of (a) an affidavit from the
person explaining the loss, destruction or wrongful taking and (b) a bond from
the claimant in a sum as the corporation may reasonably direct to indemnify the
corporation against loss from any claim with respect to the certificate claimed
to have been lost, destroyed or wrongfully taken. The board of directors may,
in its discretion, waive the affidavit and bond and authorize the issuance of a
new certificate in place of a certificate claimed to have been lost, destroyed
or wrongfully taken.
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ARTICLE 8 -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
------------------------------------------------------
Section 1. Indemnification Provisions. Any person who at any time serves
or has served as a director or officer of the corporation or of any wholly owned
subsidiary of the corporation or in such capacity at the request of the
corporation for any other foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, or as a trustee or administrator under any
employee benefit plan of the corporation or of any wholly owned subsidiary
thereof (a "Claimant"), shall have the right to be indemnified and held harmless
by the corporation to the fullest extent from time to time permitted by law
against all liabilities and litigation expenses (as hereinafter defined) in the
event a claim shall be made or threatened against that person in, or that person
is made or threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, and whether or not brought by or on behalf of the corporation,
including all appeals therefrom (a "proceeding"), arising out of such service;
provided, that such indemnification shall not be effective with respect to (a)
that portion of any liabilities or litigation expenses with respect to which the
Claimant is entitled to receive payment under any insurance policy or (b) any
liabilities or litigation expenses incurred on account of any of the Claimant's
activities which were at the time taken known or believed by the Claimant to be
clearly in conflict with the best interests of the corporation.
Section 2. Definitions. As used in this Article, (a) "liabilities"
shall include, without limitation, (1) payments in satisfaction of any judgment,
money decree, excise tax, fine or penalty for which Claimant had become liable
in any proceeding and (2) payments in settlement of any such proceeding subject,
however, to Section 3 of this Article 8; (b) "litigation expenses" shall
include, without limitation, (1) reasonable costs and expenses and attorneys'
fees and expenses actually incurred by the Claimant in connection with any
proceeding and (2) reasonable costs and expenses and attorneys' fees and
expenses in connection with the enforcement of rights to the indemnification
granted hereby or by applicable law, if such enforcement is successful in whole
or in part; and (c) "disinterested directors" shall mean directors who are not
party to the proceeding in question.
Section 3. Settlements. The corporation shall not be liable to indemnify
the Claimant for any amounts paid in settlement of any proceeding effected
without the corporation's written consent. The corporation will not unreasonably
withhold its consent to any proposed settlement.
Section 4. Litigation Expense Advances.
(a) Except as provided in subsection (b) below, any litigation expenses
shall be advanced to any Claimant within 30 days of receipt by the secretary of
the corporation of a demand therefor, together with an undertaking by or on
behalf of the Claimant to repay to the corporation such amount unless it is
ultimately determined that the Claimant is entitled to be
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indemnified by the corporation against such expense. The secretary shall
promptly forward notice of the demand and undertaking immediately to all
directors of the corporation.
(b) Within 10 days after mailing of notice to the directors pursuant to
subsection (a) above, any disinterested director may, if desired, call a meeting
of all disinterested directors to review the reasonableness of the expenses so
requested. No advance shall be made if a majority of the disinterested directors
affirmatively determines that the item of expense is unreasonable in amount; but
if the disinterested directors determine that a portion of the expense item is
reasonable, the corporation shall advance such portion.
Section 5. Approval of Indemnification Payments. Except as provided in
Section 4 of this Article, the board of directors of the corporation shall take
all such action as may be necessary and appropriate to authorize the corporation
to pay the indemnification requited by Section 1 of this Article, including,
without limitation, making a good faith evaluation of the manner in which the
Claimant acted and of the reasonable amount of indemnity due the Claimant. In
taking any such action any Claimant who is a director of the corporation shall
not be entitled to vote on any matter concerning such Claimant's right to
indemnification.
Section 6. Suits by Claimant. No Claimant shall be entitled to bring suit
against the corporation to enforce his rights under this Article until sixty
days after a written claim has been received by the corporation, together with
any undertaking to repay as required by Section 4 of this Article. It shall be a
defense to any such action that the Claimant's liabilities or litigation
expenses were incurred on account of activities described in clause (b) of
Section 1, but the burden of proving this defense shall be on the corporation.
Neither the failure of the corporation to determine that indemnification of the
Claimant is proper, nor determination by the corporation that indemnification is
not due because of application of clause (b) of Section 1 shall be a defense to
the action or create a presumption that the Claimant has not met the applicable
standard of conduct.
Section 7. Consideration; Personal Representatives and Other Remedies.
Any Claimant who during such time as this Article or corresponding provisions of
predecessor bylaws is or has been in effect serves or has served in any of the
capacities described in Section 1 shall be deemed to be doing so or to have done
so in reliance upon, and as consideration for, the right of indemnification
provided herein or therein. The right of indemnification provided herein or
therein shall inure to the benefit of the legal representatives of any Claimant
hereunder, and the right shall not be exclusive of any other rights to which the
Claimant or legal representative may be entitled apart from this Article.
Section 8. Scope of Indemnification Rights. The rights granted herein
shall not be limited by the provisions of Section 55-8-51 of the General
Statutes of North Carolina or any successor statute.
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ARTICLE 9 -- GENERAL PROVISIONS
-------------------------------
Section 1. Dividends and other Distributions. The board of directors may
from time to time declare and the corporation may pay dividends or make other
distributions with respect to its outstanding shares in the manner and upon the
terms and conditions provided by law.
Section 2. Seal. The seal of the corporation shall be any form approved
from time to time or at any time by the board of directors.
Section 3. Waiver of Notice. Whenever notice is required to be given to a
shareholder, director or other person under the provisions of these bylaws, the
articles of incorporation or applicable law, a waiver in writing signed by the
person or persons entitled to the notice, whether before or after the date and
time stated in the notice and delivered to the corporation shall be equivalent
to giving the notice.
Section 4. Checks. All checks, drafts or orders for the payment of money
shall be signed by the officer or officers or other individuals that the board
of directors may from time to time designate.
Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed
by the board of directors.
Section 6. Amendments. Unless otherwise provided in the articles of
incorporation or a bylaw adopted by the shareholders or by law, these bylaws may
be amended or repealed by the board of directors, except that a bylaw adopted,
amended or repealed by the shareholders may not be readopted, amended or
repealed by the board of directors if neither the articles of incorporation nor
a bylaw adopted by the shareholders authorize the board of directors to adopt,
amend or repeal that particular bylaw or the bylaws generally. These bylaws may
be amended or repealed by the shareholders even though the bylaws may also be
amended or repealed by the board of directors. A bylaw that fixes a greater
quorum or voting requirement for the board of directors may be amended or
repealed (a) if originally adopted by the shareholders, only by the
shareholders, unless such bylaw as originally adopted by the shareholders
provides that such bylaw may be amended or repealed by the board of directors or
(b) if originally adopted by the board of directors, either by the shareholders
or by the board of directors. A bylaw that fixes a greater quorum or voting
requirement may not be adopted by the board of directors by a vote less than a
majority of the directors then in office and may not itself be amended by a
quorum or vote of the directors less than the quorum or vote prescribed in such
bylaw or prescribed by the shareholders.
Section 7. Shareholders' Agreement. In the event of a conflict between
these bylaws and a valid shareholders' agreement, the shareholders' agreement
shall control.
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THIS IS TO CERTIFY that the above bylaws of Atlas, Corp., were adopted by
the board of directors of the corporation by consent to action without meeting
effective as of April 24, 1991.
This 15th day of May, 1991.
/s/ WILSON LING
-----------------------------------------
Wilson Ling
Secretary
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