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EXHIBIT (3B)
RESTATED BY-LAWS
OF
UNIFI, INC.
(Effective August 31,2001)
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RESTATED BY-LAWS
OF
UNIFI, INC.
ARTICLE I
SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The Annual Meeting of Shareholders
for the election of Directors and the transaction of such other business as may
come before it shall be held on such date in each calendar year, not later than
the one hundred fiftieth (150) day after the close of the Corporation's
preceding fiscal year, and at such place as shall be fixed by the President and
stated in the notice or waiver of notice of the meeting.
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the
shareholders, for any purpose of purposes, may be called at any time by any
Director, the President, any Vice President, the Treasurer or the Secretary or
by resolution of the Board of Directors. Special meetings of the shareholders
shall be held at such place as shall be fixed by the person or persons calling
the meeting and stated in the notice or waiver of notice of the meeting.
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SECTION 1.03. NOTICE OF MEETINGS OF SHAREHOLDERS. Whenever
shareholders are required or permitted to take any action at a meeting, written
notice shall state the place, date and hour of the meeting and, unless it is the
Annual Meeting, indicate that it is being issued by or at the direction of the
person or persons calling the meeting. Notice of a special meeting shall also
state the purpose or purposes for which the meeting is called. If, at any
meeting, action is proposed to be taken which would, if taken, entitle
shareholders fulfilling the requirements of Section 623 of the Business
Corporation Law to receive payment for their shares, the notice of such meeting
shall include a statement of that purpose to that effect. A copy of the notice
of any meeting shall be given, personally or by mail, not less than ten nor more
than fifty days before the date of the meeting, to each shareholder entitled to
vote at such meeting. If mailed, such notice is given when deposited in the
United States mail, with postage thereon prepaid, directed to the shareholder at
his address as it appears on the record of shareholders, or, if he shall have
filed with the Secretary of the Corporation a written request that notices to
him be mailed to some other address, then directed to him at such other address.
When a meeting is adjourned to another time or place, it shall not be
necessary to give any notice of the adjourned meeting if the
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time and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted on the original date of the meeting.
However, if after the adjournment, the Board of Directors fixes a new record
date for the adjourned meeting, a notice of the adjourned meeting shall be given
to each shareholder of record on the new record date entitled to notice under
the next preceding paragraph.
SECTION 1.04. WAIVERS OF NOTICE. Notice of meeting need not be
given to any shareholder who submits a signed Waiver of Notice, in person or by
proxy, whether before or after the meeting. The attendance of any shareholder at
a meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a Waiver of
Notice by him.
SECTION 1.05. QUORUM. The holders of a majority of the shares
entitled to vote thereat shall constitute a quorum at a meeting of shareholders
for the transaction of any business, provided that when a specified item of
business is required to be voted on by a class or series, voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum for the transaction of such specified item of business.
When a quorum is once present to organize a meeting, it is not broken
by the subsequent withdrawal of any shareholders.
The shareholders present may adjourn the meeting despite the
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absence of a quorum and at any such adjourned meeting at which the requisite
amount of voting stock shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
SECTION 1.06. FIXING RECORD DATE. For the purpose of determining
the shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment thereof, or to express consent to or dissent from any
proposal without a meeting, or for the purpose of determining shareholders
entitled to receive payment of any dividend or the allotment of any rights, or
for the purpose of any other action, the Board of Directors may fix, in advance,
a date as the record date for any such determination of shareholders. Such date
shall not be more than fifty nor less than ten days before the date of such
meeting, nor more than fifty days prior to any other action.
When a determination of shareholders of record entitled to notice of or
to vote at any meeting or shareholders has been made as provided in this
Section, such determination shall apply to any adjournment thereof, unless the
Board of Directors fixes a new record date under this Section for the adjourned
meeting.
SECTION 1.07. LIST OF SHAREHOLDERS AT MEETING. A list of
shareholders as of the record date, certified by the corporate officer
responsible for its preparation or by a transfer agent, shall be produced at any
meeting of shareholders upon the request thereat or prior thereto of any
shareholder. If the right to vote
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at any meeting is challenged, the inspectors of election, or person presiding
thereat, shall require such list of shareholders to be produced as evidence of
the right of the persons challenged to vote at such meeting, and all persons who
appear from such list to be shareholders entitled to vote thereat may vote at
such meeting.
SECTION 1.08. PROXIES. Every shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent without a meeting may
authorize another person or persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided in
this Section.
The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the shareholder who executed the proxy unless,
before the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the Corporate Officer responsible
for maintaining the list of shareholders.
Except when other provision shall have been made by written agreement
between the parties, the record holder of shares which are held by a pledgee as
security or which belong to another, upon demand therefor and payment of
necessary expenses thereof, shall issue to the pledgor or to such owner of such
shares a proxy to
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vote or take other action thereon.
A shareholder shall not sell his vote or issue a proxy to vote to any
person for any sum of money or anything of value, except as authorized in this
Section and Section 620 of the Business Corporation Law.
A proxy which is entitled "irrevocable proxy" and which states that it
is irrevocable, is irrevocable when it is held by any of the following or a
nominee of any of the following:
(1) A Pledgee;
(2) A person who has purchased or agreed to purchase the shares;
(3) A creditor or creditors of the Corporation who extend or
continue credit to the Corporation in consideration of the
proxy if the proxy states that it was given in consideration
of such extension or continuation of credit, the amount
thereof, and the name of the person extending or continuing
credit;
(4) A person who has contracted to perform services as an Officer
of the Corporation, if a proxy is required by the contract of
employment, if the proxy states that it was given in
consideration of such contract of employment, the name of the
employee and the period of employment contracted for;
(5) A person designated by or under an agreement under paragraph
(a) of said Section 620.
Notwithstanding a provision in a proxy, stating that it is irrevocable,
the proxy becomes revocable after the pledge is redeemed, or the debt of the
Corporation is paid, or the period of employment provided for in the contract of
employment has terminated, or the agreement under paragraph (a) of said Section
620 has terminated, and becomes revocable, in a case provided for in
subparagraph (3) or (4) above, at the end of the period, if any,
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specified therein as the period during which it is irrevocable, or three years
after the date of the proxy, whichever period is less, unless the period of
irrevocability is renewed from time to time by the execution of a new
irrevocable proxy as provided in this Section. This paragraph does not affect
the duration of a proxy under the second paragraph of this Section.
A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the existence of the
provision unless the existence of the proxy and its irrevocability is noted
conspicuously on the face or back of the certificate representing such shares.
SECTION 1.09. SELECTION AND DUTIES OF INSPECTORS. The Board of
Directors, in advance of any shareholders' meeting, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed, the person presiding at a shareholders' meeting may, and on
the request of any shareholder entitled to vote thereat shall, appoint one or
more inspectors. In case any person appointed failed to appear or act, the
vacancy may be filled by appointment made by the Board in advance of the meeting
or at the meeting by the person presiding thereat. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at
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the meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all shareholders. On request of
the person presiding at the meeting or any shareholder entitled to vote thereat,
the inspectors shall make a report in writing of any challenge, question or
matter determined by them and execute a certificate of any fact found by them.
Any report or certificate made by them shall be prima facie evidence of the
facts stated and of the vote as certified by them.
Unless appointed by the Board of Directors or requested by a
shareholder, as above provided in this Section, inspectors shall be dispensed
with at all meetings of shareholders.
The vote upon any question before any shareholders' meeting need not be
by ballot.
SECTION 1.10. QUALIFICATION OF VOTERS. Every shareholder of record
shall be entitled at every meeting of shareholders to one vote for every share
standing in his name on the record of shareholders, except as expressly provided
otherwise in this Section and except as otherwise expressly provided in the
Certificate of Incorporation of the Corporation.
Treasury shares and shares held by another domestic or foreign
corporation of any type or kind, if a majority of the shares entitled to vote in
the election of Directors of such other
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corporation is held by the Corporation, shall not be shares entitled to vote or
to be counted in determining the total number of outstanding shares.
Shares held by an administrator, executor, guardian, conservator,
committee, or other fiduciary, except a Trustee, may be voted by him, either in
person or by proxy, without transfer of such shares into his name. Shares held
by a Trustee may be voted by him, either in person or by proxy, only after the
shares have been transferred into his name as Trustee or into the name of his
nominee.
Shares held by or under the control of a receiver may be voted by him
without the transfer thereof into his name if authority so to do is contained in
an order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, or a
nominee of the pledgee.
Redeemable shares which have been called for redemption shall not be
deemed to be outstanding shares for the purpose of voting or determining the
total number of shares entitled to vote on any matter on and after the date on
which written notice of redemption has been sent to holders thereof and a sum
sufficient to redeem such shares has been deposited with a bank or trust company
with irrevocable instruction and authority to pay the redemption price to the
holders of the shares upon surrender of certificates
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therefor.
Shares standing in the name of another domestic or foreign corporation
of any type or kind may be voted by such Officer, agent or proxy as the By-Laws
of such corporation may provide, or, in the absence of such provision, as the
Board of Directors of such corporation may determine.
When shares are registered on the record of shareholders of the
Corporation in the name of, or have passed by operation of law or by virtue of
any deed of trust or other instrument to two or more fiduciaries, and if the
fiduciaries shall be equally divided as to voting such shares, any court having
jurisdiction of their accounts, upon petition by any of such fiduciaries or by
any party in interest, may direct the voting of such shares for the best
interest of the beneficiaries. This paragraph shall not apply in any case where
the instrument or order of the court appointing such fiduciaries shall otherwise
direct how such shares shall be voted.
Notwithstanding the foregoing paragraphs of this Section, the
Corporation shall be protected in treating the persons whose names shares stand
on the record of shareholders as the owners thereof for all purposes.
SECTION 1.11. VOTE OF SHAREHOLDERS. Directors shall be elected by
a plurality of the votes cast at a meeting of shareholders by the holders of
shares entitled to vote in the election. Whenever any corporate action, other
than the election of Directors, is to be taken by vote of the shareholders, it
shall, except as otherwise required by the Business Corporation Law or by
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the Certificate of Incorporation of the Corporation, be authorized by a majority
of the votes cast at a meeting of shareholders by the holders of shares entitled
to vote thereon.
SECTION 1.12. WRITTEN CONSENT OF SHAREHOLDERS. Whenever under the
Business Corporation Law shareholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
setting forth the action so taken, signed by the holders of all outstanding
shares entitled to vote thereon. This paragraph shall not be construed to alter
or modify the provisions of any section of the Business Corporation Law or any
provision in the Certificate of Incorporation of the Corporation not
inconsistent with the Business Corporation Law under which the written consent
of the holders of less than all outstanding shares is sufficient for corporate
action.
Written consent thus given by the holders of all outstanding shares
entitled to vote shall have the same effect as a unanimous vote of shareholders.
ARTICLE II
DIRECTORS
SECTION 2.01. MANAGEMENT OF BUSINESS; QUALIFICATIONS OF DIRECTORS.
The business of the Corporation shall be managed by its
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Board of Directors, each of whom shall be at least twenty-one years of age.
Directors need not be Stockholders.
The Board of Directors, in addition to the powers and authority
expressly conferred upon it herein, by statute, by the Certificate of
Incorporation of the Corporation and otherwise, is hereby empowered to exercise
all such powers as may be exercised by the Corporation, except as expressly
provided otherwise by the statutes of the State of New York, by the Certificate
of Incorporation of the Corporation and these By-Laws.
SECTION 2.02. NUMBER OF DIRECTORS. The number of Directors which
shall constitute the entire Board shall be ten (10), but this number may be
increased and subsequently again increased or decreased from time to time by the
affirmative vote of the majority of Directors, except that the number of
Directors shall not be less than nine (9).
SECTION 2.03. CLASSIFICATION AND ELECTION. (a) The Directors
shall be divided into three classes designated as Class 1, Class 2 and Class 3.
All classes shall be as nearly equal in number as possible and no class shall
include less than three (3) Directors. The term of office of the Directors
initially classified shall be as follows: Class 1 shall expire at the next
(1992) Annual Meeting of the Shareholders, Class 2 shall expire at the second
succeeding (1993) Annual Meeting of the Shareholders, and Class 3 shall expire
at the third succeeding (1994) Annual Meeting of the Shareholders. (b) At each
Annual Meeting after
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such initial classification, Directors to replace those whose terms expired at
such Annual Meeting shall be elected to hold office until the third succeeding
Annual Meeting of the Shareholders. A Director shall hold office until the
Annual Meeting for the year in which his term expires and subject to prior
death, resignation, retirement, or removal from office, until his successor
shall be elected and qualified.
SECTION 2.04. NEWLY CREATED DIRECTORSHIP AND VACANCIES. Newly
created Directorships or any decrease in Directorship shall be apportioned among
the classes as to make all classes as nearly equal in number as possible. Newly
created Directorships resulting from an increase in the number of Directors and
vacancies caused by death, resignation, retirement, or removal from office,
subject to Section 2.05(b), may be filled by the majority of the Directors
voting on the particular matter, if a quorum is present. If the number of
Directors then in office is less than a quorum, such newly created Directorships
and vacancies may be filled by the affirmative vote of a majority of the
Directors in office. When the number of Directors is increased by the Board, and
the newly created Directorships are filled by the Board, there shall be no
classification of the additional Directors until the next Annual Meeting of the
shareholders. Any Director elected by the Board to fill a vacancy shall serve
until the next meeting of the shareholders, at which the election of the
Directors is in the regular order of business, and until his successor is
elected and qualified.
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In no case will a decrease in the number of Directors shorten the term
of an incumbent Director.
SECTION 2.05(A). RESIGNATIONS. Any Director of the Corporation may
resign at any time by giving written notice to the Board of Directors, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, if any, or if no time is specified
therein, then upon receipt of such notice by the addressee; and, unless
otherwise provided therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 2.05(B). REMOVAL OF DIRECTORS. Any or all of the Directors
may be removed at any time (i) for cause by vote of the shareholders or by
action on the Board of Directors or (ii) without cause by vote of the
shareholders, except as expressly provided otherwise by Section 706 of the
Business Corporation Law. The Board of Directors shall fill vacancies occurring
in the Board by reason of removal of Directors for cause. Vacancies occurring by
reason of removal without cause shall be filled by the Shareholders.
SECTION 2.06. QUORUM OF DIRECTORS. At all meetings of the Board of
Directors, a majority of the number of Directors then office shall be necessary
and sufficient to constitute a quorum for the transaction of business and the
act of a majority of the Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as expressly provided
otherwise
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by the statutes of the State of New York and except as provided in the third
sentence of Section 2.04, in Section 2.11 and Section 7.09 hereof.
A majority of the Directors present, whether or not a quorum is
present, may adjourn any meeting of the Directors to another time and place.
Notice of any adjournment need not be given if such time and place are announced
at the meeting.
SECTION 2.07. ANNUAL MEETING. The Board of Directors shall meet
immediately following the adjournment of the Annual Meeting of shareholders in
each year at the same place and no notice of such meeting shall be necessary.
SECTION 2.08. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such time and place as shall from time to time be fixed
by the Board and no notice thereof shall be necessary.
SECTION 2.09. SPECIAL MEETINGS. Special meetings may be called at
any time by any Director, the President, any Vice President, the Treasurer, or
the Secretary or by resolution of the Board of Directors. Special meetings shall
be held at such place as shall be fixed by the person or persons calling the
meeting and stated in the notice or waiver of notice of the meeting.
SECTION 2.10. COMPENSATION. Directors shall receive such fixed
sums and expenses of attendance for attendance at each meeting of the Board or
of any committee and/or such salary as may be determined from time to time by
the Board of Directors; provided
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that nothing herein contained shall be construed to preclude any Director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 2.11. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the entire Board, may designate from among its members an
Executive Committee and other committees, each consisting of three or more
Directors, and each of which, to the extent provided in the resolution, shall
have the authority of the Board of Directors, except that no such committee
shall have authority as to the following matters:
(a) The submission to shareholders of any action that needs
shareholder's authorization under the Business Corporation
Law.
(b) The filling of vacancies in the Board of Directors or in any
committee.
(c) The fixing of compensation of the Directors for serving on the
Board of Directors or on any committee.
(d) The amendment or repeal of the By-Laws, or the adoption of new
By-Laws.
(e) The amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amendable or
repealable.
The Board may designate one or more Directors as alternate members of
any such committee, who may replace any absent member or members at any meeting
of such committee. Each such committee shall serve at the pleasure of the Board
of Directors.
Regular meetings of any such committee shall be held at such time and
place as shall from time to time be fixed by such committee and no notice
thereof shall be necessary.
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Special meetings may be called at any time by any Officer of the Corporation or
any member of such committee. Notice of each special meeting of each such
committee shall be given (or waived) in the same manner as notice of a special
meeting of the Board of Directors. A majority of the members of any such
committee shall constitute a quorum for the transaction of business and the act
of a majority of the members present at the time of the vote, if a quorum is
present at such time, shall be the act of the committee.
SECTION 2.12. INTERESTED DIRECTORS. No contract or other
transaction between the Corporation and one or more of its Directors, or between
the Corporation and any other corporation, firm, association or other entity in
which one or more of the Corporation's Directors are Directors or Officers, or
are financially interested, shall be either void or voidable for this reason
alone or by reason alone that such Director or Directors are present at the
meeting of the Board of Directors, or of a committee thereof, which approves
such contract or transaction, or that his or their votes are counted for such
purpose:
(1) If the fact of such common Directorship, Officership or
financial interest is disclosed or known to the Board or
committee, and the Board or committee approves such contract
or transaction by a vote sufficient for such purpose without
counting the vote or votes of such interested Director or
Directors;
(2) If such common Directorship, Officership or financial interest
is disclosed or known to the shareholders entitled to vote
thereon, and such contract or transaction is approved by vote
of the shareholders; or
(3) If the contract or transaction is fair and reasonable as to
the Corporation at the time it is approved by the Board, a
committee of the shareholders.
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Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee which approves
such contract or transaction.
SECTION 2.13. LOANS TO DIRECTORS. A loan shall not be made by the
Corporation to any Director unless it is authorized by vote of the shareholders.
For this purpose, the shares of the Director who would be the borrower shall not
be shares entitled to vote. A loan made in violation of this Section shall be a
violation of the duty to the Corporation of the Directors approving it, but the
obligation of the borrower with respect to the loan shall not be affected
thereby.
SECTION 2.14. CONSENT TO ACTION. Any action required or permitted
to be taken by the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or committee consent in writing,
whether done before or after the action so taken, to the adoption of a
resolution authorizing the action. The resolution and the written consent
thereto shall be filed with the Minutes of the proceeding of the Board or the
committee.
ARTICLE III
OFFICERS
SECTION 3.01. ELECTION OR APPOINTMENT: NUMBER. The Chairman of the
Board of Directors and Officers of the Corporation shall be elected or appointed
by the Board of Directors. The Officers
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shall be a President, a Secretary, a Treasurer, and such number of Executive
Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant
Treasurers, and such other Officers, as the Board may from time to time
determine. Any person may hold two or more offices at the same time, except the
offices of President and Secretary. An Officer may, but no Officer need, be
chosen from among the Board of Directors.
SECTION 3.02. TERM. Subject to the provisions of Section 3.03
hereof, all officers shall be elected or appointed to hold office until the
meeting of the Board of Directors following the next Annual Meeting of
shareholders, and each officer shall hold office for the term for which he is
elected or appointed and until his successor has been elected or appointed and
qualified. The Board may require any Officer to give security for the faithful
performance of his duties.
SECTION 3.03. REMOVAL. Any Officer elected or appointed by the
Board of Directors may be removed by the Board with or without cause.
The removal of an Officer without cause shall be without prejudice to
his contract rights, if any. The election or appointment of an Officer shall not
of itself create contract rights.
SECTION 3.04. AUTHORITY. Any Director or such other person as may
be designated by the Board of Directors, and in the absence of such Director or
other person, the President shall be the Chief
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Executive Officer ("CEO") of the Corporation. The CEO shall oversee the general
operations of the Corporation and set company policy that would be implemented,
interpreted and carried out by the President of the Corporation who will report
directly to the CEO. The Chairman of the Board shall preside at all meetings of
the Board of Directors unless some other person is designated by the Board.
SECTION 3.05. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers or notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice-President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any Corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
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ARTICLE IV
CAPITAL STOCK
SECTION 4.01. STOCK CERTIFICATES. The shares of the Corporation
shall be represented by certificates signed by the Chairman of the Board or the
President or a Vice-President and the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer of the Corporation, and may be sealed with
the seal of the Corporation or a facsimile thereof. The signatures of the
Officers upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or its employee. In case any Officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such Officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such Officer at the date of
issue.
Each certificate representing shares shall also set fort such
additional material as is required by subdivisions (b) and (c) of Section 508 of
the Business Corporation Law.
SECTION 4.02. TRANSFERS. Stock of the Corporation shall be
transferable in the manner prescribed by the laws of the State of New York and
in these By-Laws Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, which
shall be canceled before the new certificate shall be issued.
SECTION 4.03. REGISTERED HOLDERS. The Corporation shall be
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entitled to treat and shall be protected in treating the persons in whose names
shares or any warrants, rights or options stand on the record of shareholders,
warrant holders, right holders or option holders, as the case may be, as the
owners thereof for all purposes and shall not be bound to recognize any
equitable or other claim to, or interest in, any such share, warrant, right or
option on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided otherwise by the Statutes of
the State of New York.
SECTION 4.04. NEW CERTIFICATES. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Directors may, in their
discretion, require the owner of the lost, stolen or destroyed certificate, or
his legal representatives, to give the Corporation a bond sufficient (in the
judgment of the Directors) to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or theft of any such
certificate or the issuance of such new certificate. A new certificate may be
issued without requiring any bond when, in the judgment of the Directors, it is
proper so to do.
ARTICLE V
FINANCIAL NOTICES TO SHAREHOLDERS
SECTION 5.01. DIVIDENDS. When any dividend is paid or any other
distribution is made, in whole or in part, from sources other than earned
surplus, it shall be accompanied by a written notice
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(1) disclosing the amounts by which such dividend or distribution affects stated
capital, capital surplus and earned surplus, or (2) if such amounts are not
determinable at the time of such notice, disclosing the approximate effect of
such dividend or distribution upon stated capital, capital surplus and earned
surplus and stating that such amounts are not yet determinable.
SECTION 5.02. SHARE DISTRIBUTION AND CHANGES. Every distribution to
shareholders of certificates representing a share distribution or a change of
shares which affects stated capital, capital surplus or earned surplus shall be
accompanied by a written notice (1) disclosing the amounts by which such
distribution or change affects stated capital, capital surplus or earned
surplus, or (2) if such amounts are not determinable at the time of such notice,
disclosing the approximate effect of such distribution or change upon stated
capital, capital surplus and earned surplus and stating that such amounts are
not yet determinable.
When issued shares are changed in any manner which affects stated
capital, capital surplus or earned surplus, and no distribution to shareholders
of certificates representing any shares resulting from such change is made,
disclosure of the effect of such change upon the stated capital, capital surplus
and earned surplus shall be made in the next financial statement covering the
period in which such change is made that is furnished by the Corporation to
holders of shares of the class or series so changed or, if practicable, in the
first notice of dividend or share
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distribution or change that is furnished to such shareholders between the date
of the change and shares and the next such financial statement, and in any event
within six months of the date of such change.
SECTION 5.03. CANCELLATION OF REACQUIRED SHARES. When reacquired
shares other than converted shares are canceled, the stated capital of the
Corporation shall be reduced by the amount of stated capital then represented by
such shares plus any stated capital not theretofore allocated to any designated
class or series which is thereupon allocated to the shares canceled. The amount
by which stated capital has been reduced by cancellation of required shares
during a stated period of time shall be disclosed in the next financial
statement covering such period that is furnished by the Corporation to all its
shareholders or, if practicable, in the first notice of dividend or share
distribution that is furnished to the holders of each class or series of its
shares between the end of the period and the next such financial statement, and
in any event to all its shareholders within six months of the date of the
reduction of capital.
SECTION 5.04. REDUCTION OF STATED CAPITAL. When a reduction of
stated capital has been effected under Section 516 of the Business Corporation
Law, the amount of such reduction shall be disclosed in the next financial
statement covering the period in which such reduction is made that is furnished
by the Corporation to all its shareholders or, if practicable, in the first
notice of dividend or share distribution that is furnished to the holders of
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each class or series of its shares between the date of such reduction and the
next such financial statement, and in any event to all its shareholders within
six months of the date of such reduction.
SECTION 5.05. APPLICATION OF CAPITAL SURPLUS TO ELIMINATION OF A
DEFICIT. Whenever the Corporation shall apply any part or all of its capital
surplus to the elimination of any deficit in the earned surplus account, such
application shall be disclosed in the next financial statement covering the
period in which such elimination is made that is furnished by the Corporation to
all its shareholders or, if practicable, in the first notice of dividend or
share distribution that is furnished to holders of each class or series of its
shares between the date of such elimination and the next such financial
statement, and in any event to all its shareholders within six months of the
date of such action.
SECTION 5.06. CONVERSION OF SHARES. Should the Corporation issue
any convertible shares, then, when shares have been converted, disclosure of the
conversion of shares during a stated period of time and its effect, if any, upon
stated capital shall be made in the next financial statement covering such
period that is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share distribution that is
furnished to the holders of each class or series of its shares between the end
of such period and the next financial statement, and in any event to all its
shareholders within six
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months of the date of the conversion of shares.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. RIGHT TO INDEMNIFICATION. The Corporation shall
indemnify, defend and hold harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, investigative or
other, including appeals, by reason of the fact that he 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 or employee of any Corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a Director, Officer or employee or in
any other capacity while serving as a Director, Officer or employee, to the
fullest extent authorized by the New York Business Corporation Law, as the same
exists or may hereafter be amended, against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith; provided, however, that except as provided
in Section 6.02 hereof with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify
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any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article shall be a
contract right and shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if required by law at the time of such
payment, the payment of such expenses incurred by a Director or Officer in his
capacity as a Director or Officer (and not in any other capacity in which
service was or is rendered by such person while a Director or Officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such Director or Officer,
to repay all amounts so advanced if it should be determined ultimately that such
Director or Officer is not entitled to be indemnified under this Section or
otherwise.
"Employee" as used herein, includes both an active employee in the
Corporation's service, as well as a retired employee who is or has been a party
to a written agreement under which he might be, or might have been, obligated to
render services to the Corporation.
SECTION 6.02. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
Section 6.01 is not paid in full by the Corporation within sixty (60) days or,
in cases of advances of expenses, twenty (20)
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days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it permissible
under the New York Business Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the New York Business Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its shareholders) that the claimant had not met such
applicable standard of conduct shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct. The
Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to this Article that the procedures and presumptions of this
Article are not valid, binding and
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enforceable and shall stipulate in any such proceeding that the Corporation is
bound by all provisions of this Article.
SECTION 6.03. NONEXCLUSIVENESS. The indemnification and advances of
expenses granted pursuant to, or provided by, this Article shall not be deemed
exclusive of any other rights to which a Director or Officer seeking
indemnification or advancement or expenses may be entitled, whether contained in
the Certificate of Incorporation or these By-Laws, and the Board of Directors is
authorized, from time to time in its discretion, to enter into agreements with
one or more Directors, Officers and other persons providing for the maximum
indemnification allowed by applicable law.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article (a) shall apply to acts or omissions antedating the adoption of this
By-Law, (b) shall be severable, (c) shall not be exclusive of other rights to
which any Director, Officer or employee may now or hereafter become entitled
apart from this Article, (d) shall continue as to a person who has ceased to be
such Director, Officer or employee and (e) shall inure to the benefit of the
heirs, Executors and Administrators of such a person.
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SECTION 6.04. INSURANCE FOR INDEMNIFICATION OF DIRECTORS AND
OFFICERS. The Corporation shall have the power to purchase and maintain
insurance (a) to indemnify the Corporation for any obligations which it incurs
as the result of the indemnification of Directors and Officers under the
provisions of this Article; (b) to indemnify Directors and Officers in instances
which they may be indemnified by the Corporation under the provisions of this
Article; and (c) to indemnify Directors and Officers in instances in which they
may not otherwise be indemnified by the Corporation under the provisions of this
Article, provided the contract of insurance covering such Directors and Officers
provides, in a manner acceptable to the Superintendent of Insurance of the State
of New York, for a retention amount and for co-insurance.
No insurance under the preceding paragraph of this Section may provide
for any payment, other than the cost of defense, to or on behalf of any Director
of Officer: (i) if a judgment or other final adjudication adverse to the insured
Director or Officer establishes that his acts of active and deliberate
dishonesty were material to the cause of action so adjudicated or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled, or (ii) in relation to any risk the insurance of which is
prohibited under the insurance laws of the State of New York.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. OFFICES. The principal office of the Corporation
shall be in the City of New York, County of New York, State of New York. The
Corporation may also have offices at other places, within and/or without the
State of New York.
SECTION 7.02. SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its incorporation and the words
"Corporate Seal of New York".
SECTION 7.03. CHECKS. All checks or demands for money shall be
signed by such person or persons as the Board of Directors may from time to time
determine.
SECTION 7.04. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the 1st day of July in each year and shall end on the 30th day of June
of the ensuing year and the first fiscal year shall end on June 30, 1969.
SECTION 7.05. BOOKS AND RECORDS. The Corporation shall keep correct
and complete books and records of accounts and shall keep minutes of the
proceedings of its shareholders, Board of Directors and Executive Committee, if
any, and shall keep at the office of the Corporation in New York State or at the
office of its transfer agent or registrar in New York State, a record containing
the names and addresses of all shareholders, the number and class of shares held
by each and the dates when they respectively became the owners of record
thereof. Any of the foregoing books, minutes or records may be in written form
or in any other form capable of being converted into written form within a
reasonable time.
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SECTION 7.6. DUTY OF DIRECTORS AND OFFICERS. Directors and Officers
shall discharge the duties of their respective positions in good faith and with
that degree of diligence, care and skill which ordinarily prudent men would
exercise under similar circumstances in like positions. In discharging their
duties, Directors and Officers, when acting in good faith, may rely upon
financial statements of the Corporation represented to them to be correct by the
President or the Officer of the Corporation having charge of its books of
accounts, or stated in a written report by an independent public or certified
public accountant or firm of such accountants fairly to reflect the financial
condition of the Corporation.
SECTION 7.07. WHEN NOTICE OR LAPSE OF TIME UNNECESSARY; NOTICE
DISPENSED WITH WHEN DELIVERY IS PROHIBITED. Whenever, under the Business
Corporation Law or the Certificate of Incorporation or the By-Law of the
Corporation or by the terms of any agreement or instrument, the Corporation or
the Board of Directors or any committee thereof is authorized to take any action
after notice to any person or persons or after the lapse of a prescribed period
of time, such action may be taken without notice and without the lapse of such
period of time, if at any time before or after such action is completed the
person or persons entitled to such notice or entitled to participate in the
action to be taken or, in the case of a shareholder, by his attorney-in-fact,
submit a signed waiver of notice of such requirements.
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Whenever any notice or communication is required to be given to any
person by the Business Corporation Law, the Certificate of Incorporation of the
Corporation or theses By-Laws, or by the terms of any agreement or instrument,
or as a condition precedent to taking any corporate action and communication
with such person is then unlawful under any statute of the State of New York or
of the United States or any regulation, proclamation or order issued under said
statutes, then the giving of such notice or communication to such person shall
not be required and there shall be no duty to apply for license or other
permission to do so. Any affidavit, certificate or other instrument which is
required to be made or filed as proof of the giving of any notice or
communication required the Business Corporation Law shall, if such notice or
communication to any person is dispensed with under this paragraph, include a
statement that such notice or communication was not given to any person with
whom communication is unlawful. Such affidavit, certificate or other instrument
shall be as effective for all purposes as though such notice or communication
had been personally given to such person.
SECTION 7.08. ENTIRE BOARD. As used in these By-Laws, the term
"Entire Board" means the total number of Directors which the Corporation would
have if there were no vacancies.
SECTION 7.09. AMENDMENT OF BY-LAWS. These By-Laws may be amended or
repealed and new By-Laws adopted by the Board of Directors or by vote of the
holders of the shares at the time entitled to vote of the holders of the shares
at the time
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entitled to vote in the election of any Directors, except that any amendment by
the Board changing the number of Directors shall require the vote of a majority
of the Entire Board and except that any By-Laws adopted by the Board may be
amended or repealed by the shareholders entitled to vote thereon as provided in
the Business Corporation Law.
If any By-Law regulating an impending election of Directors is adopted,
amended or repealed by the Board, the shall be set forth in the notice of the
next meeting of shareholders for the election of Directors the By-Law so
adopted, amended or repealed, together with a concise statement of the changes
made.
SECTION 7.10 NONAPPLICATION OF NORTH CAROLINA SHAREHOLDER PROTECTION
ACT. The provisions of North Carolina General Statutes 55-75 through 55-79
shall not be applicable to this Corporation.
SECTION 7.11. SECTION HEADINGS. The Headings to the Articles and
Sections of these By-Laws have been inserted for convenience of reference only
and shall not be deemed to be a part of these By-Laws.
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