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EXHIBIT 3.12
AMENDED AND RESTATED
BYLAWS
OF
BEACON MANUFACTURING COMPANY
(a North Carolina corporation)
Effective December 1, 1994
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TABLE OF CONTENTS TO
AMENDED AND RESTATED BYLAWS
OF
BEACON MANUFACTURING COMPANY
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 5
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 6
Section 8. Meeting by Communications Device 6
ARTICLE 5 - COMMITTEES 6
Section 1. Election and Powers 6
Section 2. Removal; Vacancies 7
Section 3. Meetings 7
Section 4. Minutes 7
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ARTICLE 6 - OFFICERS 7
Section 1. Titles 7
Section 2. Election; Appointment 7
Section 3. Removal 7
Section 4. Vacancies 8
Section 5. Compensation 8
Section 6. Chairman and Vice Chairman
of the Board of Directors 8
Section 7. Chief Executive Office 8
Section 8. President 8
Section 9. Vice Presidents 9
Section 10. Secretary 9
Section 11. Assistant Secretaries 9
Section 12. Treasurer 9
Section 13. Assistant Treasurers 10
Section 14. Controller and Assistant Controllers 10
Section 15. Voting Upon Stocks 10
ARTICLE 7 - CAPITAL STOCK 10
Section 1. Certificates 10
Section 2. Transfer of Shares 11
Section 3. Transfer Agent and Registrar 11
Section 4. Regulations 11
Section 5. Fixing Record Date 11
Section 6. Lost Certificates 11
ARTICLE 8 - INDEMNIFICATION OF DIRECTORS AND OFFICERS 12
Section 1. Indemnification Provisions 12
Section 2. Definitions 12
Section 3. Settlements 13
Section 4. Litigation Expense Advances 13
Section 5. Approval of Indemnification Payments 13
Section 6. Suits by Claimant 13
Section 7. Consideration; Personal Representatives
and Other Remedies 14
Section 8. Scope of Indemnification Rights 14
ARTICLE 9 - GENERAL PROVISIONS 14
Section 1. Dividends and other Distributions 14
Section 2. Seal 14
Section 3. Waiver of Notice 14
Section 4. Checks 14
Section 5. Fiscal Year 15
Section 6. Amendments 15
Section 7. Shareholders' Agreement 15
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AMENDED AND RESTATED BYLAWS
OF
BEACON MANUFACTURING COMPANY
ARTICLE 1 - OFFICES
Section 1. Principal and Registered Office. The principal office of
the corporation shall be located at 4111 Mint Way, Dallas, Texas 75237. The
registered office of the corporation shall be located at 225 Hillsborough
Street, Raleigh, North Carolina 27603.
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 9 o'clock a.m. on the second Wednesday 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 in accordance with 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.
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,
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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 or by law, 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
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shareholders, unless the number is changed prior to such meeting by action of
the shareholders. The board of directors shall have the authority to increase or
decrease by thirty percent within any twelve-month period the number of
directors. Each director's term shall expire at the annual meeting next
following the director's election as a director, provided, that notwithstanding
the expiration 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 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 articles 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 - MEETING 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 dates 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
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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 meeting.
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 meeting.
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 of 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 affirmative vote of a 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.
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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 records.
Action taken without a meeting is effective when the last director signs the
consent, 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.
ARTICLE 5 - COMMITTEES
Section 1. Election and Powers. Unless otherwise provided by the
articles of incorporation or the bylaws, 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 on 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.
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(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 a
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.
ARTICLE 6 - OFFICERS
Section 1. Titles. The officers of the corporation shall be a
president and a secretary and may include a chairman and vice chairman of the
board of directors, an executive vice president, a treasurer, 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 officers 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.
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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. Chief Executive Officer. The chief executive officer of the
corporation shall have, subject to the provisions of these bylaws, general
supervision of the affairs of the corporation and general and active control of
all its business. He shall preside, in the absence of the chairman of the board,
at all meetings of shareholders and at all meetings of the board of directors.
He shall see that all orders and resolutions of the board of directors and the
shareholders are carried into effect. He shall have general authority to execute
bonds, deeds and contracts in the name of the corporation and affix the
corporate seal thereto; to sign stock certificates; to cause the employment or
appointment of such employees and agents of the corporation as the proper
conduct of operations may require, and to fix their compensation, subject to the
provisions of these bylaws; to remove or suspend any employee or agent who shall
have been employed or appointed under his authority or under authority of an
officer subordinate to him; to suspend for cause, pending final action by the
authority which shall have elected or appointed him, any officer subordinate to
the chairman of the board; and, in general, to exercise all the powers and
authority usually appertaining to the chief executive officer of a corporation,
except as otherwise provided in these bylaws.
Section 8. President. The president shall be the chief operating
officer of the corporation, shall in the absence or disability of the chief
executive officer perform the duties and exercise the powers of the chief
executive officer, and shall have, subject to review and approval of the chief
executive officer, responsibility for the general day-to-day operations of the
corporation's properties and facilities and such other duties and
responsibilities as (i) are customarily possessed by a chief operating officer
of a corporation similar in size and line of business as the corporation and
(ii) may be delegated to him from time to time by the board of directors of the
corporation.
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Section 9. Vice Presidents. The executive vice president, if such
officer is elected or appointed, 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 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 10. 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 notices 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 11. 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 12. 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
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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 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 13. 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 14. 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 15. Voting Upon Stocks. Unless otherwise ordered by the board
of directors, the president shall have full power and authority on 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
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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
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 cancelled before
new certificates for the 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 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 fixes 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
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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.
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 a
party to the proceeding in question.
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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 indemnified by
the corporation against such expenses. 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.
(c) Without limiting the rights contained in subsection (a) above,
the board of directors may take action to advance any litigation expenses to a
Claimant upon receipt of 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 indemnified by the corporation against such expenses.
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 required 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
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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 of this Article, 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 of this Article 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 of this Article 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.
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
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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 authorizes 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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CERTIFICATION
THIS IS TO CERTIFY that the above amended and restated bylaws of Beacon
Manufacturing Company, a North Carolina corporation (the "Corporation"), were
adopted by the board of directors of the Corporation by action taken without a
meeting effective as of December 1, 1994
This 1st day of December, 1994.
/s/ JEFFREY D. CORDES
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JEFFREY D. CORDES, Secretary
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