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EXHIBIT 3.26
BYLAWS
OF
FIELDCREST CANNON LICENSING INC.
EFFECTIVE DECEMBER 8, 1994
ARTICLE I
Offices
Section 1. Principal and Registered Offices. The principal
office of the Corporation shall be located at such place as the Board of
Directors may specify from time to time. The registered office of the
Corporation shall be located at 306 South State Street, Kent County, Dover,
Delaware.
Section 2. Other Offices. The Corporation may have offices
at such other places, either within or without the State of Delaware, as the
Board of Directors may from time to time determine.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meeting. Meetings of stockholders shall
be held at the principal office of the Corporation or at such other place or
places, either within or without the State of Delaware, as shall either (i) be
designated in the notice of the meeting or (ii) be agreed upon at or before the
meeting by a majority of the stockholders entitled to vote at the meeting.
Section 2. Annual Meetings. The annual meeting of
stockholders shall be at such time as determined by the Board of Directors 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 Meetings. 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 II. A
meeting so called shall be designated and treated for all purposes as the
annual meeting.
Section 4. Special Meetings. Special meetings of the
stockholders for any purpose or purposes may be called at any time by the
President or by order of the Board of Directors, and shall be called by the
President or by order of the Board of Directors upon the written request of any
member of the Board of Directors or the holder or holders of at least 10% of
all the shares of capital stock entitled to vote at the meeting.
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Section 5. Notice of Meetings. Written or printed notice,
stating the time and place of the meeting and, in the case of a special
meeting, briefly describing the purpose or purposes of the meeting, shall be
given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder of record entitled to vote at the meeting, by
delivering a written notice thereof to him personally, or by mailing such
notice in a postage prepaid envelope directed to him at his last address as it
appears on the stock records of the Corporation. 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 a matter (other than the election of directors) is to be considered
at an annual meeting on which a vote of stockholders is required by law or
otherwise, notice shall be given as if the meeting were a special meeting. If
any stockholder shall, in person or by attorney thereunto authorized, waive in
writing notice of any meeting of the stockholders, whether prior to or after
such meeting, notice thereof need not be given to him. Notice of any adjourned
meeting of the stockholders shall not be required to be given, except where
expressly required by law.
Section 6. Proxies. A stockholder may attend, represent,
and vote his shares at any meeting in person, or be represented and have his
shares voted for by a proxy which such stockholder has duly executed in
writing. No proxy shall be valid after eleven (11) months from the date of its
execution unless a longer period is expressly provided in the proxy. Each
proxy shall be revocable unless otherwise expressly provided therein or unless
otherwise made irrevocable by law.
Section 7. Quorum. Except as otherwise provided by law, the
holders of a majority of the shares entitled to vote, represented in person or
by proxy, shall constitute a quorum at a meeting of stockholders. In the
absence of a quorum, any officer entitled to preside at, or act as Secretary
of, such meeting, shall have the power to adjourn the meeting from time to time
until a quorum shall be constituted. At any such adjourned meeting at which a
quorum shall be present any business may be transacted which might have been
transacted at the meeting as originally called. When a quorum is once present
to organize a meeting, the stockholders present may continue to do business at
the meeting or at any adjournment thereof notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
Section 8. Voting of Shares. 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 stockholders, except as
otherwise provided in the certificate of incorporation. The vote by the holders
of a majority of the shares voted on any matter at a meeting of stockholders at
which a quorum is present shall be the act of the stockholders on that matter,
unless the vote of a greater number is required by law, by the certificate of
incorporation, or by these bylaws of the Corporation. Voting on all matters
shall be by voice vote or by a show of hands, unless the holders of 10% of the
shares represented at the meeting shall demand a vote by written ballot on a
particular matter.
Section 9. Action Without Meeting. Any action which the
stockholders could take at a meeting may be taken without a meeting if a consent
in writing, setting forth the action taken, shall be signed by the holders of
outstanding stock having not less than the minimum.
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number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
The consent shall be filed with the Secretary of the Corporation as part of the
corporate records. Such written consent shall have the same force and effect
as a vote of stockholders, and may be stated as such in any articles,
certificates or documents filed with the Secretary of State of Delaware, or any
other state wherein the Corporation may do business.
Section 10. Meeting by Use of Conference Telephone.
Subject to the requirement for notice of meetings and if permitted by
applicable law, stockholders may participate in and hold a meeting of such
stockholders by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such a meeting shall constitute presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Section 11. Record Date. The Board of Directors may fix,
in advance, a date as the record date for the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
or stockholders entitled to receive payment of any dividend or the allotment of
any rights, or in order to make a determination of stockholders for any other
proper purpose. Such date, in any case, shall be not more than sixty days, and
in case of a meeting of stockholders not less ten days, prior to the date on
which the particular action requiring such determination of stockholders is to
be taken. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned
meeting. If the stock transfer books are not closed, and no record date is
fixed for the determination of stockholders, or of stockholders entitled to
receive payment of a dividend, the date on which notice of the meeting is
mailed, or the date on which the resolution of the Board of Directors declaring
the dividend is adopted, as the case may be, shall be the record date for the
determination of stockholders.
Section 12. List of Stockholders. It shall be the duty of
the Secretary or other officer of the Corporation who shall have charge of the
stock records, either directly or through a transfer agent appointed by the
Board of Directors, to prepare and make, at least ten days before every
stockholders meeting, a complete list of stockholders entitled to vote at such
meeting arranged in alphabetical order. Such list shall be open to the
examination of any stockholder at the principal office of the Corporation for
said ten days before such meeting, and shall be produced and kept at the time
and place of the meeting during the whole time thereof and shall be subject to
the inspection of any stockholder who may be present. The stock records of the
Corporation shall be the only evidence of who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
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ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by the Board of Directors except as otherwise
provided by law, by the certificate of incorporation of the Corporation or by
these bylaws.
Section 2. Number, Term and Qualification. The Board of
Directors of the Corporation shall consist of one or more members, the number
of which shall be set each year by the stockholders of the Corporation. Tne
initial number of directors shall be four. Each director shall hold office
until the next annual meeting of stockholders and until a successor is elected
and qualified, or until his death, resignation or removal pursuant to these
bylaws. Directors need not be residents of the State of Delaware or
stockholders of the Corporation.
Section 3. Removal. Directors may be removed from office
with or without cause by a vote of stockholders who hold shares entitled to
vote at an election of directors that constitute a majority of the aggregate
voting power of the outstanding capital stock of the Corporation. If any
directors are so removed, new directors may be elected at the same meeting.
Section 4. Resignation. Any director of the Corporation may
resign at any time by giving written notice to the President or the Secretary
of the Corporation. The resignation of any director shall take effect upon
receipt of notice thereof or at such later time as shall be specified therein.
The acceptance of such resignation shall not be necessary to make it effective.
Section 5. Vacancies. Any vacancy in the Corporation's
Board of Directors may be filled by a majority of the remaining directors (or
the sole remaining director). Any vacancy created by an increase in the
authorized number of directors shall be filled only by election at an annual
meeting or at a special meeting of stockholders called for that purpose. The
stockholders may elect a director at any time to fill a vacancy not filled by
the directors.
Section 6. Compensation. The directors shall not receive
compensation for their services as such, except that the directors shall be
entitled to be reimbursed for any reasonable expenses paid by them by reason of
their attendance at any regular or special meeting of the Board of Directors or
any of its committees, and 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 any of its committees. Any director
may serve the Corporation in any other capacity and receive compensation
therefor.
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ARTICLE IV
Meetings of Directors
Section 1. Annual and Regular Meetings. The annual meeting
of the Board of Directors for the purpose of electing officers and transacting
such other business as may be brought before the meeting shall be held
immediately following the annual meeting of the stockholders. The Board of
Directors may by resolution provide for the holding of regular meetings of the
Board on specified dates and at specified times. If any date for which a
regular meeting is scheduled shall be a legal holiday, the meeting shall be
held on the next business day that is not a legal holiday or on a date
designated in the notice of the meeting 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
meeting. Notice of annual meetings or any regular meetings held at the
principal office of the Corporation and at the usual scheduled time shall not
be required.
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 one director. Such meetings may be held at the time and
place designated in the notice of the meeting.
Section 3. Notice of Meetings. The Secretary or other
person or persons calling a meeting for which notice is required shall give
notice by mail or telegram at least five days before the meeting, or by
telephone at least twenty-four hours before the meeting. Oral notice may be
substituted for such written notice if given not less than five days before the
meeting. Notice of the time, place and purpose of such meeting may be waived in
writing before or after such meeting, and shall be equivalent to the giving of
the notice. Attendance by a director at a meeting for which notice is required
shall constitute a waiver of notice, except where a director attends the
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called. Except as otherwise herein
provided, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in this
notice of such meeting.
Section 4. Quorum. A majority of the directors in office
shall constitute a quorum for the transaction of business at a meeting of the
Board of Directors, but a smaller number may adjourn the meeting from time to
time until a quorum shall be present. Any regular or special directors' meeting
may be adjourned from time to time by those present, whether a quorum is
present or not.
Section 5. Manner of Acting. Except as otherwise provided
by law, these bylaws or the certificate of incorporation of the Corporation or
otherwise, 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. Action Without Meeting. Action taken by a
majority of the directors or of a committee of directors without a meeting is
nevertheless Board or committee
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action, if written consent to the action is signed by all the director or
members of the committee, as the case may be, and filed with the minutes of the
proceedings of the Board or committee, whether done before or after the action
is taken. Such unanimous written consent shall have the same force and effect
as a unanimous vote at a meeting, and may be stated as such in any articles,
certificates or documents filed with the Secretary of State of Delaware, or any
other state wherein the corporation may do business.
Section 7. Meetings by Use of Conference Telephone. Any one
or more directors or members of a committee may participate in a meeting of the
Board or any of its committees by means of a conference telephone or similar
communications device which allows all persons participating in the meeting to
hear each other, and such participation in a meeting shall be deemed presence
in person at such meeting, except where a person participates in the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE V
Committees
Section 1. Designation of Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in these bylaws or in the resolution of
the Board of Directors establishing the same, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Such committees or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 2. Executive Committee. There may be an Executive
Committee of not more than three directors designated by resolution passed by a
majority of the whole Board of Directors. Such committee may meet at stated
times, or on notice to all by any of their own number. During intervals between
meetings of the Board of Directors, the Executive Committee shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation, except that the Executive Committee shall not
have authority to authorize or approve the following matters:
(a) The dissolution, merger or consolidation of
the Corporation or the sale, lease or exchange of all or
substantially all the property or assets of the Corporation.
(b) The designation of an Executive Committee or
any other committee of directors having power to exercise any
of the authority of the Board of Directors in the management
of the Corporation or the filling of vacancies in the Board of
Directors or in such committee.
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(c) Fixing of compensation of the directors
for serving on the Board or on such committee.
(d) The amendment or repeal of the bylaws, or the
adoption of new bylaws.
(e) The amendment or repeal of any resolution of
the Board of Directors which by its terms shall not be so
amendable or repealable.
Vacancies in the membership of the Executive Committee shall be filled by a
majority of the whole Board of Directors at a regular meeting or at a special
meeting called for that purpose.
Section 3. 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.
Section 4. Action Without Meeting Telephonic Meeting.
Action may be taken by each committee in the manner allowed by the Board of
Directors pursuant to Sections 6 and 7 of Article IV.
ARTICLE VI
Officers
Section 1. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a President, a Secretary
and a Treasurer. The Board of Directors may also elect a 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 it shall deem necessary. Except as otherwise provided in these
bylaws, the additional officers shall have the authority and perform the duties
as from time to time may be prescribed by the Board of Directors. 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 and Term. The officers of the
Corporation shall be elected by the Board of Directors at the regular meeting
of the Board held each year immediately following the annual meeting of the
stockholders. Each officer shall hold office until the next regular meeting at
which officers are to be elected and until a successor is elected and qualifies
or until his death, resignation, or removal pursuant to these bylaws.
Section 3. Removal. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board whenever in its
judgment the best interests of the Corporation will be served, but removal
shall be without prejudice to any contract rights of the individual removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
Section 4. Vacancies. Vacancies among the officers may be
created and filled by the Board of Directors.
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Section 5. Compensation. The compensation and all other
terms of employment of the officers shall be fixed by the disinterested members
of the Board of Directors. No officer shall be prevented from receiving such
compensation by reason of the fact that such officer is also a director of the
Corporation.
Section 6. 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.
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 stockholders. The President may
perform such acts, not inconsistent with the 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 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, shall exercise the powers of the President during
that 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.
Section 9. 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 and shall cause a true statement of the assets and liabilities of
the Corporation as of the close of each fiscal year and of the results of its
operations and of changes in surplus, all in reasonable detail, to be made and
filed at the principal office of the Corporation within four months after the
end of the fiscal year. The statement shall be available for inspection by any
stockholder for a period of ten years, and the Treasurer shall mail or
otherwise deliver a copy of the latest statement to any stockholder upon
written request. 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
President or by the Board of Directors.
Section 10. Assistant Treasurers. Each Assistant Treasurer
shall have such powers and perform such duties as may be assigned by the Board
of Directors, and the Assistant Treasurers shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
Section 11. Controller and Assistant Controllers. The
Controller shall have charge of the accounting affairs of the Corporation and
shall have such other powers and
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perform such other duties as the Board of Directors shall designate. Each
Assistant Controller shall have such powers and perform such duties as may be
assigned by the Board of Directors and the Assistant Controllers shall exercise
the powers of the Controller during that officer's absence or inability to act.
Section 12. Secretary. The Secretary shall keep accurate
records of the acts and proceedings of all meetings of stockholders and of the
Board of Directors and shall give all notices required by law and by these
bylaws. Tne Secretary shall have general charge of the corporate books and
records and 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 stockholders, showing the name
and address of each stockholder 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 President or by the Board of Directors.
Section 13. Assistant Secretaries. Each Assistant Secretary
shall have such powers and perform such duties as may be assigned by the Board
of Directors, and the Assistant Secretaries shall exercise the powers of the
Secretary 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
stockholders 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 VII
Capital Stock
Section 1. Certificates. Certificates for shares of the
capital stock of the Corporation shall be in such form not inconsistent with
the certificate of incorporation of the Corporation as shall be approved by the
Board of Directors. The certificates shall be consecutively numbered or
otherwise identified. The name and address of the persons to whom they are
issued, with the number of shares and date of issue, shall be entered on the
stock transfer records of the Corporation. Each certificate shall be signed by
the President or any Vice President and by the Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer; provided, that where a certificate is signed
by a transfer agent or assistant transfer agent of the Corporation, the
signatures of such officers of the Corporation upon the certificate may be by
facsimile, engraved or printed. Each certificate shall be sealed with the seal
of the Corporation or a facsimile thereof.
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Section 2. Transfer of Shares. Transfer of shares shall be
made on the stock transfer books of the Corporation only upon surrender of the
certificate for the shares sought to be transferred by the record holder or by
a duly authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be cancelled before new certificates for the
transferred shares shall be issued.
Section 3. Transfer Agent and Registrar. The Board of
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 shall have
power and authority to make rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
capital stock of the Corporation.
Section 5. Lost Certificates. The Board of Directors may
authorize the issuance of a new certificate in place of a certificate claimed
to have been lost or destroyed, upon receipt of an affidavit from the person
explaining the loss or destruction. When authorizing issuance of a new
certificate, the Board may require the claimant to give the Corporation a bond
in a sum as it may direct to indemnify the Corporation against loss from any
claim with respect to the certificate claimed to have been lost or destroyed;
or the Board may, by resolution reciting that the circumstances justify such
action, authorize the issuance of the new certificate without requiring a bond.
ARTICLE VIII
General Provisions
Section 1. Dividends. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends out of its earned
surplus on its outstanding shares in the manner and upon the terms and
conditions provided by law.
Section 2. Seal. The seal of the Corporation shall have
inscribed thereon the name of the Corporation and "Delaware" around the
perimeter, and the words "Corporate Seal" in the center.
Section 3. Waiver of Notice. Whenever notice is required
to be given to a stockholder, director or other person under the provisions of
these bylaws, the certificate of incorporation of the Corporation or by
applicable law, a waiver in writing signed by the person or persons entitled to
the notice, whether before or after the time stated in the notice, shall be
equivalent to giving the notice.
Section 4. Depositories and Checks. All funds of the
Corporation shall be deposited in the name of the Corporation in such bank,
banks, or other financial institutions as the Board of Directors may from time
to time designate and shall be drawn out on checks, drafts
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or other orders signed on behalf of the Corporation by such person or persons
as the Board of Directors may from time to time designate.
Section 5. Bond. The Board of Directors may by
resolution require any or all officers, agents and employees of the Corporation
to give bond to the Corporation, with sufficient sureties, conditioned on the
faithful performance of the duties of their respective offices or positions,
and to comply with such other conditions as may from time to time be required
by the Board.
Section 6. Loan. No loans shall be contracted on behalf
of the Corporation and no evidence of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
Section 7. Taxable Year. The taxable year of the
Corporation shall be the period ending on December 31 of each year or such
other period as the Board of Directors shall from time to time determine.
Section 8. Indemnification of Directors and Officers.
(a) Right to Indemnification. Each person who was or is
made a party to or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter
a "proceeding"), by reason of the fact that he or she is or
was a director, officer or employee of the Corporation or is
or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide
prior to such amendment), against all expense, liability and
loss (including attorneys' fees, judgments, finds, ERISA
excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue
as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof with
respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The
right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that if the
Delaware General Corporation Law requires, an advancement of
expenses
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incurred by an indemnitee in his or her capacity as a director
or officer (and not in any other capacity in which service was
or is rendered by such indemnitee, including without
limitation, service to an employee benefit plan) shall be made
only upon delivery to the Corporation of an undertaking, by or
on behalf of such indemnitee, to repay all amounts so advanced
if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal that such
indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise (hereinafter and
"undertaking").
(b) Right of Indemnitee to Bring Suit. If a claim
under paragraph (a) of this Section is not paid in full by the
Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for
an advancement of expenses, in which case the applicable
period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part
in any such suit or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also
the expense of prosecuting or defending such suit. In (i) any
suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking the Corporation shall be entitled
to recover such expenses upon a final adjudication that, the
indemnitee has not met the applicable standard of conduct set
forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the
circumstances, because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent
legal counsel or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by
the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right hereunder, or by
the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Section or otherwise shall
be on the Corporation.
(c) Non-Exclusivity of Right. The rights to
indemnification and to the advancement of expenses conferred
in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any
statute, this certificate of incorporation, these bylaws, by
agreement, by vote of stockholders or disinterested directors
or otherwise.
(d) Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
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corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss under the
Delaware General Corporation Law.
(e) Indemnification of Agents of the Corporation.
The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses, to any
agent of the Corporation to the fullest extent of the
provisions of the Section with respect to the indemnification
and advancement of expenses of directors, officers and
employees of the Corporation.
Section 9. Amendments. Except as otherwise provided
herein, these bylaws may be amended or repealed and new bylaws may be adopted
by the affirmative vote of the holders of shares of the Corporation then issued
and entitled to vote at any annual meeting or at any special meeting of
stockholders called for the purpose of considering such action that constitute
at least a majority of the aggregate voting power of the outstanding capital
stock of the Corporation.
Section 10. Stockholders Agreement. To the extent that
the provisions of these bylaws are inconsistent with any stockholders agreement
subsequently entered into by the holders of the Corporation's capital stock,
the stockholders agreement shall control.
THIS IS TO CERTIFY that the above bylaws of Fieldcrest Cannon
Licensing, Inc. were duly adopted by the Board of Directors of the Corporation
by action taken by unanimous written consent effective the 8th day of December,
1994.
This 8th day of December, 1994.
/s/ [ILLEGIBLE]
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Secretary
[Corporate Seal]
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