BYLAWS
OF
Holiday Products, Inc.
ARTICLE I
Offices
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Section 1. Principal Office. The principal office of the Corporation shall be
located in the City of Gastonia, County of Gaston, North Carolina,
or at such other place as the Board of Directors shall determine
from time to time.
Section 2. Registered Office. The registered office of the Corporation required
by law to be maintained in the State of North Carolina may be, but
need not be, identical with the principal office.
Section 3. Other Offices. The Corporation may have any number of additional
offices, at such other places as the Board of Directors may from
time to time determine, or as the affairs of the Corporation may
require.
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings. All 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 determined
by the Board of Directors or agreed upon by a majority of the
shareholders entitled to vote thereat and designated in the notice
of the meeting.
Section 2. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held on the fourth Monday in April of each year
if not a legal holiday, but if a legal holiday, on the next business
day, for the purpose of electing directors of the Corporation and
for the transaction of such other business as may be properly
brought before the meeting.
Section 3. Substitute Annual Meeting. If the annual meeting shall not be held
on the day designated by these Bylaws, a substitute annual meeting
may be called in accordance with the provisions of 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 Chairman of the Board, the President, the
Secretary, or the Board of Directors of the Corporation, or by any
shareholder pursuant to written request of the holders of not less
than one-tenth of all stock entitled to vote. Special meetings shall
be held at the principal office of the Corporation, or at such other
place as shall be designated in the notice of meeting. Special
meetings called by shareholders pursuant to this provision shall be
held within thirty (30) days of the written request for the meeting
by shareholders.
Section 5. Notice of Meetings. Written or printed notice stating the time and
place of the meeting shall be delivered not less than ten nor more
than sixty days before the date thereof, either personally or by
mail, by or at the direction of the Chairman of the Board, the
President, the Secretary or other person calling the meeting, to
each shareholder of record entitled to vote at such meeting;
provided, that each shareholder, whether or not entitled to vote,
shall be given notice of any meeting called for the purpose of
approving a plan of merger or share exchange, a proposed sale of
assets other than in the ordinary course of business, or the
proposed dissolution of the Corporation.
In the case of an annual meeting, the notice of meeting need not
specifically state the business to be transacted thereat unless it
is a matter, other than the election of directors, on which the vote
of shareholders is expressly required by the provisions of the North
Carolina Business
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Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for which
the meeting is called.
When a meeting is adjourned, it is not necessary to give any notice
of the adjourned meeting other than by announcement at the meeting
at which the adjournment is taken, unless a new record date is or
must be fixed under the provisions of the following Section 6. If a
new record date is or must be so fixed, notice of the adjourned
meeting must be given in accordance with this Section 5 to persons
who are shareholders as of the new record date.
Section 6. Record Date. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof or determining shareholders entitled to take any
other action, the Board of Directors may fix any future date as the
record date provided that such date is not more than seventy days
before the date set for the meeting or action. A new record date
must be established if the meeting is adjourned to a date more than
one hundred twenty days after the date fixed for the original
meeting.
Section 7. Voting Lists. On or before the second business day after notice of a
shareholder meeting is given, the Secretary shall prepare an
alphabetical list of the shareholders who are entitled to vote at
such shareholder meeting. The list shall be arranged by voting group
(and within each voting group by class or series of shares) and show
the address and number of shares held by each shareholder. The
shareholders list shall be available for inspection by any
shareholder, beginning two business days after notice of the meeting
is given and continuing through the meeting, at the Corporation's
principal office or at a place identified in the meeting notice in
the city where the meeting will be held.
Section 8. Quorum. Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum exists with respect
to that matter. Unless the North Carolina Business Corporation Act
provides otherwise, a majority of the votes entitled to be cast on
the matter by the voting group shall constitute a quorum of that
voting group for action on that matter. If there
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is no quorum at the opening of a meeting of shareholders, such
meeting may be adjourned from time to time by the vote of a majority
of the shares voting on the motion to adjourn; and, at any adjourned
meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting. 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 for
any adjournment of the meeting unless a new record date is or must
be set for the adjourned meeting.
Section 9. Proxies. Shares may be voted either in person or by one or more
agents authorized by a written proxy executed by the shareholder or
by his duly authorized attorney-in-fact. A proxy is not valid after
the expiration of eleven months from the date of its execution,
unless the person executing it specifies therein some other period
of time for which it is to continue in force, or limits its use to a
particular meeting.
Section 10. Voting of Shares. Unless the Articles of Incorporation provide
otherwise, each outstanding share having voting rights with respect
to a matter submitted to a vote at a meeting of shareholders shall
be entitled to one vote on such matter. If a quorum exists, action
on a matter (other than the election of directors) by a voting group
is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless the
Articles of Incorporation, a Bylaw adopted by the shareholders or
the North Carolina Business Corporation Act requires a greater
number of affirmative votes. Voting on all matters, except the
election of directors, 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, prior to the voting on any matter, demand a ballot
vote on that particular matter.
Section 11. Informal Action by Shareholders. Any action which may be taken at a
meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be
signed by all of the persons who would be entitled to vote upon any
such action at a meeting, and filed with the Secretary of the
Corporation to be kept in the corporate minute book. Unless
otherwise fixed in accordance with
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Section 6 above or the North Carolina Business Corporation Act, the
record date for determining shareholders entitled to take action
without a meeting is the date the first shareholder signs the
consent. If the North Carolina Business Corporation Act requires
that notice of the proposed action be given to nonvoting
shareholders, written notice of the proposed action must be given to
the nonvoting shareholders at least ten days before the action is
taken by unanimous consent of the voting shareholders.
ARTICLE III
Directors
---------
Section 1. General Powers. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors or under the
direction of such committees as the Board may establish pursuant to
these Bylaws.
Section 2. Number, Term, and Qualification. The number of directors of the
Corporation shall be not more than eight (8) but not less than two
(2), the actual number to serve in each year to be fixed by the
Board of Directors prior to the annual meeting. Each director shall
hold office until his death, resignation, retirement, removal,
disqualification, or his successor is elected and qualifies.
Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
Section 3. Election of Directors. Except as provided in Section 5 of this
Article, the directors shall be elected at each annual meeting of
shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. If any shareholder so
demands, election of directors shall be by ballot.
Section 4. Removal. A Director may be removed from office with or without cause
by a vote of shareholders only if the number of votes cast to remove
such director exceeds the number of votes cast against removal.
However, if the shareholders are entitled to vote cumulatively for
the election of directors, an individual director may not be removed
if the number of shares voting against the removal would be
sufficient to elect such director if such shares were voted
cumulatively at an annual election. Notwithstanding the foregoing,
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the entire Board of Directors may be removed from office by a vote
of the shareholders if the number of votes cast to remove the entire
Board of Directors exceeds the number of votes cast against removal.
If any directors are so removed, new directors may be elected at the
same meeting. A director may not be removed by the shareholders at a
meeting unless the notice of the meeting states that the purpose or
one of the purposes of the meeting is removal of the director;
provided, however, that a director may be removed by the unanimous
written consent of the shareholders.
Section 5. Vacancies. A vacancy occurring in the Board of Directors, including
a vacancy created by an increase in the authorized number of
directors, may be filled by a majority of the remaining directors,
though less than a quorum, or by the sole remaining director. The
shareholders may elect a director at any time to fill a vacancy not
filled by the directors.
ARTICLE IV
Meetings of Directors
---------------------
Section 1. Regular Meetings. A regular meeting of the Board of Directors shall
be held immediately after, and at the same place as, the annual
meeting of shareholders. In addition, the Board of Directors may
provide, by resolution, the time and place, either within or without
the State of North Carolina for the holding of additional regular
meetings.
Section 2. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, the
President, or any two directors. Such meetings may be held either
within or without the State of North Carolina.
Section 3. Notice of Meetings. Regular meetings of the Board of Directors may
be held without notice. The person or persons calling a special
meeting of the Board of Directors shall, at least two days before
the meeting, give notice thereof by any usual means of communication
(including oral notice), provided that such notice need not specify
the purpose for which the meeting is called. Attendance by a
director at, or his participation in, a meeting shall constitute a
waiver of notice of such meeting, unless the director at the
beginning of the meeting (or promptly upon his
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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. 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 shall be presumed to have assented to the
action taken unless he objects at the beginning of the meeting (or
promptly upon his arrival) to holding the meeting or transacting
business at the meeting or unless his contrary vote is recorded or
his dissent is otherwise entered in the minutes of the meeting or
unless he shall file his written dissent or abstention with the
person acting as the secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent or abstention shall not apply to
a director who voted in favor of such action.
Section 5. Quorum. A majority of the directors fixed by or pursuant to these
Bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors.
Section 6. Manner of Acting. Except as otherwise provided in the Articles of
Incorporation or in these Bylaws, if a quorum is present when the
vote is taken, the act of a majority of the directors present shall
be the act of the Board of Directors.
Section 7. Telephonic Meetings. Unless otherwise restricted by the Articles of
Incorporation, the Board of Directors may permit any or all of the
directors to participate in a regular or special meeting of the
Board or any committee thereof by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
Section 8. Informal Action by Directors. Action taken by a majority of the
directors without a meeting is nevertheless Board action, if written
consent to the action in question is signed by all the directors and
filed with the minutes of the proceedings of the Board, whether done
before or after the action so taken. The action taken
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without a meeting shall be effective when the last director signs
the consent, unless the consent specifies a different effective
date.
ARTICLE V
Committees of the Board
-----------------------
Section 1. Creation. The Board of Directors, by resolution adopted by a
majority of the number of directors fixed by or pursuant to these
Bylaws, may designate two or more directors to constitute an
Executive Committee or other committees, each of which, to the
extent authorized by law and provided in the resolution shall have
and may exercise all of the authority of the Board of Directors in
the management of the Corporation, except as set forth in Section 6
of this Article V.
Section 2. Vacancy. Any vacancy occurring in an Executive Committee or other
committee shall be filled by a majority of the number of directors
fixed by or pursuant to these Bylaws at a regular or special meeting
of the Board of Directors.
Section 3. Removal. Any member of an Executive Committee or other committee may
be removed at any time, with or without cause, by a majority of the
number of directors fixed by or pursuant to these Bylaws.
Section 4. Minutes. The Executive Committee and any other committee shall keep
regular minutes of its proceedings and report the same to the Board
when required.
Section 5. Responsibility of Directors. The designation of an Executive
Committee or other committee and the delegation thereto of authority
shall not alone operate to relieve the Board of Directors or any
member thereof, of any responsibility or liability imposed upon it
or him by law.
Section 6. Restrictions on Committees. Neither the Executive Committee nor any
other committee shall have the authority to (a) authorize
distributions; (b) approve or propose to shareholders action that
the North Carolina Business Corporation Act requires 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 Bylaws; (f) approve a plan of merger not
requiring shareholder approval; (g) authorize or approve
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reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; or (h) authorize or approve
the issuance or 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 within limits specifically
prescribed by the Board of Directors.
ARTICLE VI
Officers
--------
Section 1. Number. The Board of Directors may elect from its own number a
Chairman of the Board, and shall elect a President, a Treasurer and
a Secretary (who may or may not be directors); and it may elect or
appoint from time to time such Vice Presidents and other or
additional officers as in its opinion are desirable for the conduct
of the business of the Corporation. The Board of Directors may by
resolution empower any officer or officers of the Corporation to
appoint from time to time such Vice Presidents and other or
additional officers as in the opinion of the officer(s) so empowered
by the Board are desirable for the conduct of the business of the
Corporation. Any two or more offices may be held by the same person,
but no individual may act in more than one capacity where action of
two or more officers is required.
Section 2. Election and Term. The officers of the Corporation shall be elected
or appointed by the Board of Directors or appointed by an officer
empowered by the Board in accordance with Section 1 above. Such
elections by the Board of Directors may be held at any regular or
special meeting of the Board. Each officer shall hold office for a
period of one year or until his death, resignation, retirement,
removal, disqualification, or his successor is elected and
qualifies.
Section 3. Removal. Any officer or agent elected or appointed by the Board of
Directors or appointed by an officer empowered by the Board may be
removed by the Board with or without cause; but such removal shall
be without prejudice to the contract rights, if any, of the persons
so removed.
Section 4. Compensation. The compensation of all officers of the Corporation
shall be fixed by the Board of Directors.
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Section 5. Chairman of the Board. The Chairman of the Board of Directors, if
elected, or, failing his election, the President, shall preside at
all meetings of the Board of Directors and shall perform such other
duties as may be prescribed from time to time by the Board of
Directors or by the Bylaws.
Section 6. President. The President shall be the principal executive officer of
the Corporation and, subject to the control and direction of the
Board of Directors, shall supervise and control the management of
the Corporation. He shall preside at all meetings of the directors
in the absence of the Chairman of the Board and, in general, he
shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Chairman of the Board
or by the Board of Directors from time to time.
Section 7. Vice Presidents. In the absence or disability of the President or in
the event of his death, inability or refusal to act, the Vice
Presidents, in the order of their length of service as such, unless
otherwise determined by the Board of Directors, shall perform the
duties and exercise the powers of the President. In addition, the
Vice President shall perform such other duties and have such other
powers as the Board of Directors shall prescribe.
Section 8. Secretary and Assistant Secretary. The Secretary shall keep accurate
records of the acts and proceedings of all meetings of shareholders
and directors. He shall give all notices required by law and by
these Bylaws. He shall have general charge of the corporate books
and records and of the corporate seal, and he shall affix, or attest
the affixing of, the corporate seal to any lawfully executed
instrument requiring it. He shall have general charge of the stock
transfer books of the Corporation and shall keep, at the registered
or principal office of the Corporation, a record of the shareholders
showing the name and address of each shareholder, and the number and
class of the shares held by each. The Secretary shall keep or cause
to be kept the following records of the Corporation at the principal
office of the Corporation: (i) the Articles of Incorporation with
all amendments thereto currently in effect; (ii) the Bylaws, as
amended; (iii) minutes of all shareholder meetings and all
shareholder written consents, in each case, for
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the immediately preceding three years; (iv) the names and business
addresses of the current officers; (v) the most recent annual report
delivered to the Secretary of State of North Carolina; (vi) any and
all resolutions adopted by the Board of Directors creating one or
more classes or series of shares, and fixing their relative rights,
preferences, and limitations, if shares issued pursuant to those
resolutions are outstanding; (vii) all written communications to
shareholders generally within the past three years; and (viii) the
financial statements required to be available to the shareholders
for the past three years. The Secretary shall sign such instruments
as may require his signature, and, in general, shall perform all
duties as may be assigned to him from time to time by the Chairman
of the Board, the President or by the Board of Directors. The
Assistant Secretary shall render assistance to the Secretary in all
the responsibilities hereinabove assigned.
Section 9. Treasurer and Assistant 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. He shall keep full and accurate accounts of the
finances of the Corporation in books especially provided for that
purpose; he shall prepare or cause to be prepared annual financial
statements of the Corporation, including 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, and otherwise conforming to
the requirements of ss. 55-16-20 of the North Carolina General
Statutes or any successor provision. The financial statements so
prepared shall be kept available for inspection by any shareholder
for a period of three years. The Treasurer shall mail the annual
financial statements, or a written notice of their availability, to
each shareholder within 120 days after the close of each fiscal
year, and shall mail or otherwise deliver a copy of the latest such
statement to any shareholder upon his written request therefor.
The Treasurer shall also prepare and file, or cause to be prepared
and filed, all reports and returns required by Federal, State or
local law and shall generally perform all other duties incident to
his office and such other duties as may be assigned to him from time
to time by the
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Chairman of the Board, the President or the Board of Directors. The
Assistant Treasurer shall render assistance to the Treasurer in all
the responsibilities hereinabove assigned.
Section 10. Bonds. The Board of Directors may, by resolution, require any or all
officers, agents and employees of the Corporation to give bond to
the Corporation, with sufficient securities, conditioned on faithful
performance of the duties of their respective offices or positions,
and to comply with such other conditions as may from time to time be
required by the Board of Directors.
ARTICLE VII
Contracts, Loans and Deposits
-----------------------------
Section 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and
deliver any instrument on behalf of the Corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other orders for the
payment of money issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in
such depositories as the Board of Directors shall direct.
ARTICLE VIII
Stock Certificates and Their Transfer
-------------------------------------
Section 1. Certificates for Shares. Certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors
shall determine, to every shareholder for the
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fully paid shares owned by him. These certificates shall be signed
by the Chairman of the Board, the President or the Vice President
and the Secretary or Treasurer (or Assistant Secretary or Assistant
Treasurer). They shall be consecutively numbered or otherwise
identified; and the name and address of the persons to whom they are
issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the Corporation.
Section 2. Transfer of Shares. Transfer of shares shall be made on the stock
transfer books of the Corporation only upon surrender of the
certificates for the shares sought to be transferred by the record
holder thereof or by his duly authorized agent, transferee or legal
representative. All certificates surrendered for transfer shall be
cancelled before new certificates for the transferred shares shall
be issued.
Section 3. Lost Certificates. The Board of Directors may authorize the issuance
of a new share certificate in place of a certificate claimed to have
been lost or destroyed, upon receipt of an affidavit of such fact
from the person claiming the loss or destruction. When authorizing
such issuance of a new certificate, the Board may require the
claimant to give the Corporation a bond in such sum as it may direct
to indemnify the Corporation against loss from any claim with
respect to the certificate claimed to have been lost or destroyed;
or the Board may, by resolution reciting that the circumstances
justify such action, authorize the issuance of the new certificate
without requiring such a bond.
Section 4. Holder of Record. The Corporation may treat as absolute owner of
shares the persons in whose name the shares stand of record on its
books, just as if that person has full competency, capacity and
authority to exercise all rights of ownership, irrespective of any
knowledge or notice to the contrary or any description indicating a
representative, pledge or other fiduciary relationship or any
reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate,
except that any person furnishing to the Corporation proof of his
appointment as a fiduciary shall be treated as if he were a holder
of record of its shares.
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ARTICLE IX
General Provisions
------------------
Section 1. Distributions to Shareholders. The Board of Directors may from time
to time authorize, and the Corporation may make, distributions to
its shareholders (including, without limitation, dividends and
distributions involving acquisition of the Corporation's shares) in
the manner and upon the terms and conditions provided by law, and
subject to the provisions of its Articles of Incorporation. If the
Board of Directors does not fix the record date for determining
shareholders entitled to a distribution, the record date shall be
the date the Board of Directors authorizes the distribution;
provided, that no record date is necessary for distributions
involving the acquisition by the Corporation of its own shares from
a specific shareholder or group of shareholders.
Section 2. Seal. The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the Corporation and
North Carolina and in the center of which is inscribed "Corporate
Seal."
Section 3. Waiver of Notice. Whenever any notice is required to be given to any
shareholder or director under the provisions of the North Carolina
Business Corporation Act or under the provisions of the Articles of
Incorporation or Bylaws of this Corporation, a waiver thereof in
writing signed by the person or persons entitled to such notice and
delivered to the Corporation for inclusion in the minutes or filing
in the corporate records, whether before or after the time stated
therein, shall be equivalent to the giving of such notice.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors.
Section 5. Amendments. Except as otherwise provided herein, in the Articles of
Incorporation or in the North Carolina Business Corporation Act,
these Bylaws (including this Section 5) may be amended or repealed
and new Bylaws may be adopted at any regular or special meeting of
the Board of Directors. The Board of Directors shall have no power
to amend or repeal any Bylaw, or to adopt any new Bylaw, which in
either case has the effect of: (1) requiring the presence of more
votes for a
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quorum of any voting group of shareholders than is required by law;
(2) requiring more affirmative votes to constitute action on a
particular matter by any voting group of shareholders than are
required by law; (3) changing the size of the Board of Directors
from a fixed number to a variable-range or vice versa, changing the
range of a variable-range size board, or expanding the authority of
the Board of Directors to otherwise increase, decrease or fix the
number of directors; (4) classifying and staggering the election of
directors; or (5) expanding the right(s) of directors to
indemnification from the Corporation beyond the indemnification
authorized or mandated under Sections 55-8-51 and 55-8-52,
respectively, of the North Carolina General Statutes, unless such
expansion meets one or more of the requirements of Section
55-8-31(a)(1), (2) and (3) of the North Carolina General Statutes.
No Bylaws adopted, amended or repealed by the shareholders may be
readopted, amended or repealed by the Board of Directors unless the
Articles of Incorporation or a Bylaw adopted by the shareholders
authorizes the Board of Directors to adopt, amend or repeal that
particular Bylaw or the Bylaws generally.
A Bylaw that fixes a greater quorum or voting requirement for the
Board of Directors may be adopted, amended or repealed only in
accordance with the provisions of ss. 55-10-22 of the North Carolina
General Statutes.
Section 6. Indemnification. Any person who at any time serves or has served as
a director or officer 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 trustee or administrator under an employee benefit plan, shall
have a right to be indemnified by the Corporation to the fullest
extent permitted by law against (a) reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in
connection with 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, seeking to hold him liable by reason of the fact that
he is or was acting in such capacity, and (b) reasonable payments
made by him in satisfaction of any judgment, money decree,
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fine, penalty or settlement for which he may have become liable in
any such action, suit or proceeding.
To the extent permitted by law, expenses incurred by a director or
officer in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, upon receipt of an undertaking
by or on behalf of such director or officer to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified hereunder by the Corporation.
If a person claiming a right to indemnification under this Section
obtains a non-appealable judgment against the Corporation requiring
it to pay substantially all of the amount claimed, the claimant
shall be entitled to recover from the Corporation the reasonable
expense (including reasonable legal fees) of prosecuting the action
against the Corporation to collect the claim.
Notwithstanding the foregoing provisions, the Corporation shall not
indemnify or agree to indemnify any person against liability or
litigation expense he may incur (i) on account of such person's
activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the
Corporation; or (ii) as a result of any improper benefit realized by
such person.
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 this bylaw, including without
limitation, to the extent needed, making a good faith evaluation of
the manner in which the claimant for indemnity acted and of the
reasonable amount of indemnity due him and giving notice to, and
obtaining approval by, the shareholders of the Corporation.
Any person who at any time after the adoption of this bylaw serves
or has served in any of the aforesaid capacities for or on behalf of
the Corporation shall be deemed to be doing or to have done so in
reliance upon, and as consideration for, the right of
indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and
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shall not be exclusive of any other rights to which such person may
be entitled apart from the provision of this bylaw.
Unless otherwise provided herein, the indemnification extended to a
person that has qualified for indemnification under the provisions
of this Section 6 shall not be terminated when the person has ceased
to be a director or officer for all causes of action against the
indemnified party based on acts and events occurring prior to the
termination of the relationship with the Corporation and shall inure
to the benefit of the heirs, executors and administrators of such
person.
The rights granted herein shall not be limited by the provisions
contained in Section 55-8-51 of the North Carolina General Statutes
or any successor to such statute.
* * * * * * * * * * * * * * * * * * * *
THESE BYLAWS READ, APPROVED AND ADOPTED BY THE BOARD OF DIRECTORS OF THE
CORPORATION AS OF THE 14TH DAY OF DECEMBER, 1992.
/s/Donald G. Walser
-------------------
Donald G. Walser, Secretary
EGS/596
-17-