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EXHIBIT 3.28
BYLAWS
OF
FIELDCREST CANNON SURE FIT, INC.
EFFECTIVE JANUARY 6, 1995
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 Meeting. 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 Meeting. If the annual meeting is not
held on the day designated by these bylaws, a substitute annual meeting may he
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 stockholders for
any purpose or purposes may be called at any time by the Chief Executive Officer
or by order of the Board of Directors, and shall be called by the Chief
Executive Officer 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.
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
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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 Chief Executive Officer 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 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
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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. The 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 Chief Executive Officer 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 TV
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
Chief Executive Officer 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.
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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 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) The 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. Titles. The officers of the Corporation shall be elected
by the Board of Directors and shall consist of a Chief Executive Officer, a
President, a Secretary, a Chief Financial Officer 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 saved, 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.
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Section 4. Vacancies. Vacancies among the officers may be created and
filled by the Board of Directors.
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. Chief Executive Officer. The Chief Executive Officer 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 Chief
Executive Officer may perform such acts, not inconsistent with the applicable
law or the provisions of these bylaws, as may be performed by the chief
executive officer of a corporation and may sign and execute all authorized
notes, bonds, contracts and other obligations in the name of the Corporation.
The Chief Executive Officer 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. 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, each in the absence of the Chief
Executive Officer. 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 9. Vice Presidents. The Executive Vice President if such
officer is elected, shall exercise the powers of the Chief Executive Officer or
President during that officer's absence or inability to act. In default of the
Chief Executive Officer, the President and the Executive Vice President, any
other Vice President may exercise the powers of the Chief Executive Officer.
Any action taken by a Vice President in the performance of the duties of the
Chief Executive Officer shall be presumptive evidence of the absence or
inability to act of the Chief Executive Officer 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 10. Chief Financial Officer/Treasurer. The Chief Financial
Officer/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
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chief financial officer/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 Chief
Financial Officer/Treasurer shall mail or otherwise deliver a copy of the
latest statement to any stockholder upon written request. The Chief Financial
Officer/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 Chief
Executive Officer or by the Board of Directors.
Section 11. 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 12. Controller and Assistant Controllers. The Controller
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 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 13. 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. The
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 Chief Executive Officer
or by the Board of Directors.
Section 14. 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 15. Voting Upon Stocks. Unless otherwise ordered by the Board
of Directors, the Chief Executive Officer 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.
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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 Chief
Executive Officer 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 seated 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 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.
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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 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. Loans. 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
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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 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 an 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
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the indemnitee is proper in the circumstances because 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 Rights. 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 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.
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THIS IS TO CERTIFY that the above bylaws of Fieldcrest Cannon Sure
Fit, Inc. were duly adopted by the Board of Directors of the Corporation by
action taken by unanimous written consent effective the 6th day of January,
1995.
This 16th day of January, 1995.
/s/ M. KENNETH DOSS
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Secretary
[Corporate Seal]
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