Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
KRISPY KREME DOUGHNUTS, INC.
Effective January 18, 2005
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ARTICLE I. - OFFICES
Section 1. Registered Office: The registered office of the corporation shall
be at 370 Knollwood Street, Winston-Salem, North Carolina 27103.
Section 2. Principal Office: The principal office of the corporation shall
be located at the same address as the registered office or such
other place as may be designated by the Board of Directors.
Section 3. 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, 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 registered 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 or agreed on by a
majority of the shareholders entitled to vote thereat.
Section 2. Annual Meetings:
(a) The annual meeting of shareholders shall be held on a date
and at a place at an hour to be fixed by the Chief Executive
Officer and affirmed by the Board of Directors from time to time,
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.
(b) No business shall be transacted at an annual meeting of
shareholders, except such business as shall be (i) specified in
the notice of meeting given as provided in Article II, Section 5,
(ii) otherwise brought before the meeting by or at the direction
of the Board of Directors or (iii) otherwise brought before the
meeting by a shareholder of record entitled to vote at the
meeting, in compliance with the procedures set forth in this
Article II, Section 2(b).
For business to be brought before an annual meeting by a
shareholder pursuant to (iii) above, the shareholder must have
given timely notice in writing to the Secretary of the Company.
To be timely, a shareholder's notice must be delivered to, or
mailed to and received at, the principal office of the
corporation not less than forty days nor more than ninety days
prior to the meeting. If less than
fifty days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the
shareholder will be timely if received by the Secretary of the
Company not later than the close of business on the tenth day
following the day on which such notice of the date of the meeting
or such public disclosure was given or made. Notice of the date
of the meeting shall be deemed to have been given by the
corporation more than fifty days in advance of the annual meeting
if the annual meeting is called on the date prescribed by Article
II, Section 2(a), without regard to whether notice or public
disclosure thereof is made. Notice of action to be brought before
the annual meeting pursuant to (iii) above shall set forth as to
each such matter the shareholder proposes to bring before the
annual meeting (A) a brief description of the business desired to
be brought before the annual meeting and the reasons for bringing
such business before the annual meeting, (B) the name and
address, as they appear on the corporation's books, of each
shareholder proposing such business, (C) the classes and number
of shares of the corporation that are owned of record and
beneficially by each such shareholder, and (D) any material
interest of such shareholders in such business other than any
interest as a shareholder of the corporation. Notwithstanding
anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the
provisions set forth in this Article II, Section 2(b). If the
chairman of the annual meeting determines that any business was
not properly brought before the meeting in accordance with the
provisions of these Bylaws, he shall so declare to the meeting
and, to the extent permitted by law, any such business not
properly brought before the meeting shall not be transacted.
Section 3. Substitute Annual Meeting: If the annual meeting shall not be
held on the day designated by these bylaws, a substitute 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 President, Secretary or Board of
Directors of the corporation.
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 fifty days before the date thereof, either personally
or by mail, by or at the direction of the Chairman, the
President, the Secretary, or other person calling the meeting, to
each shareholder of record entitled to vote at such meeting.
In the case of an annual or substitute annual meeting, the notice
of meeting need not specifically state the business to be
transacted thereat unless it is a matter, other than election of
Directors, on which the vote of shareholders is expressly
required by the provisions of the North Carolina Business
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.
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When a meeting is adjourned for one hundred twenty days or more,
notice of the adjourned meeting shall be given as in the case of
an original meeting. When a meeting is adjourned for less than
one hundred twenty days in any one adjournment, 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.
Section 6. Voting Lists: After fixing the record date for a meeting, the
Secretary of the corporation shall prepare an alphabetical list
of the shareholders entitled to notice of such meeting or any
adjournment thereof, arranged by voting group, class and series,
with the address of and number of shares held by each. Such list
shall be kept on file at the principal office of the corporation,
or at a place identified in the meeting notice in the city where
the meeting will be held, beginning two business days after
notice of such meeting is given and continuing through the
meeting, and on written demand shall be subject to inspection or
copying by any shareholder, his agent or attorney at any time
during regular business hours. This list shall also be produced
and kept open at the time and place of the meeting and shall be
subject to inspection by any shareholder during the whole time of
the meeting.
Section 7. Quorum: The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at
meetings of shareholders. If there 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.
The shareholders at a meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 8. Voting of Shares: Each outstanding share having voting rights
shall be entitled to one vote on each matter submitted to a vote
at a meeting of shareholders.
Except in the election of Directors the vote of a majority of the
shares voted on any matter at a meeting of shareholders at which
a quorum is present shall be the act of the shareholders on that
matter, unless the vote of a greater number is required by law.
In the election of Directors those receiving the greatest number
of votes shall be deemed elected even though not receiving a
majority.
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, prior to the voting on any matter, demand a
ballot vote on that particular matter. The election of directors
is governed by Article III, Section 3.
Section 9. 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, set-
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ting forth the action so taken, shall be signed by all of the
persons who would be entitled to vote upon such action at a
meeting, and filed with the Secretary of the corporation to be
kept in the Corporate Minute Book.
Section 10. Proxies: At all meetings of shareholders, shares may be voted
either in person or by one or more agents authorized by a written
proxy executed by the shareholder or his duly authorized
attorney-in-fact. A telegram, cablegram, wireless message or
photogram appearing to have been transmitted by a shareholder, or
a photographic, photostatic or equivalent reproduction of a
writing appointing one or more agents shall be deemed a written
proxy within the meaning of this section.
ARTICLE III. - DIRECTORS
Section 1. General Powers: The business and affairs of the corporation shall
be managed by the Board of Directors.
Section 2. Number, Term and Qualifications:
(a) The number of Directors constituting the whole Board shall be
not more than fifteen nor less than nine. The authorized number
of Directors, within the limits above specified, shall be
determined by the affirmative vote of a majority of the whole
Board given at a regular or special meeting of the Board of
Directors; provided that, if the number so determined is to be
increased, or decreased, notice of the proposed increase or
decrease shall be included in the notice of such meeting, or all
of the Directors at the time in office be present at such
meeting, or those not present at any time waive or have waived
notice thereof in writing; and provided, further, that the number
of Directors which shall constitute the whole Board shall not be
less than nine nor shall it be reduced to a number less than the
number of Directors then in office unless such reduction shall
become effective only at and after the next ensuing meeting of
shareholders for the election of Directors.
(b) The directors of the corporation shall be divided into the
following three classes: Class I, Class II and Class III. The
number of directors in each class shall be as nearly equal in
number as possible. Each initial director in Class I shall be
elected to an initial term of one (1) year, each initial director
in Class II shall be elected to an initial term of two (2) years
and each initial director in Class III shall be elected to an
initial term of three (3) years. Each director shall hold office
until the election and qualification of his successor or his
earlier death, resignation, retirement or removal from office.
Upon the expiration of the initial term for each class of
directors, the directors of each class shall be elected for a
term of three (3) years. Directors need not be residents of the
State of North Carolina or shareholders of the corporation.
Section 3. Nomination and Election of Directors: Except as provided in
Section 5 and Section 2 of this Article, the Directors shall be
elected at the annual meeting of
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shareholders. If any shareholder so demands, election of
Directors shall be by ballot.
Only persons who are nominated in accordance with the provisions
set forth in these bylaws shall be eligible to be elected as
directors at an annual or special meeting of shareholders.
Nomination of election to the Board of Directors shall be made by
or at the direction of the Board of Directors or a committee
appointed thereby.
Nomination for election of any person to the Board of Directors
may also be made by a shareholder entitled to vote on such
election if written notice of the nomination of such person shall
have been delivered to the Secretary of the corporation at the
principal office of the corporation not less than forty days nor
more than ninety days prior to the meeting. If less than fifty
days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the
shareholder will be timely if received by the Secretary of the
Company not later than the close of business on the tenth day
following the day on which such notice of the date of the meeting
or such public disclosure was given or made. Notice of the date
of the meeting shall be deemed to have been given by the
corporation more than fifty days in advance of the annual meeting
if the annual meeting is called on the date prescribed by Article
II, Section 2(a), without regard to whether notice or public
disclosure thereof is made. Each such notice shall set forth: (i)
the name and address of the shareholder who intends to make the
nomination; (ii) a representation that such shareholder is a
holder of record of shares of the corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; (iii) as to each person to be nominated (A) such person's
name and address, employment history for the past five years,
affiliations, if any, with the corporation and other
corporations, the class and number of shares of the corporation
that are owned of record or beneficially by such person and
information concerning any transaction in such shares within the
prior sixty days, whether such person has been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) within the past five years and the details thereof,
whether such person has been a party to any proceeding or subject
to any judgment, decree or final order with respect to violations
of federal or state securities laws within the past five years
and the details thereof, and the details of any contract,
arrangement, understanding or relationships with any person with
respect to any securities of the corporation; (B) such person's
written consent to being named as a nominee and to serving as
director if elected and (C) a description of all arrangements or
understandings between the shareholder and each such nominee and
any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by
the shareholder. The chairman of the meeting shall refuse to
acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
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Section 4. Removal: Directors may be removed from office only with cause by
a vote of shareholders holding 66 2/3% of the outstanding shares
entitled to vote at an election of Directors. If any Directors
are so removed, new Directors may be elected at the same meeting.
Section 5. Vacancies: A vacancy occurring in the Board of Directors may be
filled by a majority of the remaining Directors though less than
a quorum, or by the sole remaining Director; but a vacancy
created by an increase in the authorized number of Directors
outside of the range specified in Section 2 of this Article shall
be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose. The shareholders
may elect a Director at any time to fill any vacancy not filled
by the Directors.
Section 6. Compensation: The Board of Directors may compensate Directors for
their services as such and may provide for the payment of all
expenses incurred by the Directors in attending regular and
special meetings of the Board.
Section 7. Emeritus Directors: The Board of Directors may, from time to
time, by majority vote, elect one or more of its former Directors
to serve as Emeritus Directors for one or more consecutive
one-year terms or until earlier resignation or removal by a
majority of the Board of Directors. Emeritus Directors may be
asked to serve as consultants to the Board of Directors and may
be appointed by the Board of Directors to serve as consultants to
committees of the Board of Directors. Emeritus Directors may be
invited to attend meetings of the Board of Directors or any
committee of the Board of Directors for which they have been
appointed to serve as consultants. Emeritus Directors shall not
be permitted to vote on matters brought before the Board of
Directors or any committee thereof and shall not be counted for
the purpose of determining whether a quorum of the Board or
Directors or the committee is present. Emeritus Directors will be
entitled to receive fees and reimbursement for expenses of
meeting attendance, as recommended by the Chairman of the Board
of Directors and approved by the Board of Directors. Emeritus
Directors may be removed at any time by the Board of Directors.
An Emeritus Director shall not have any of the responsibilities
or liabilities of a director, nor any of a director's rights,
powers or privileges. Reference in these Bylaws to "Directors"
shall not mean or include Emeritus Directors.
Section 8. Director Retirement: A Director shall retire as of the annual
meeting coincident with the end of term in which such Director
attains age 70, except that any Director having attained the age
of 70 as of the annual meeting of the shareholders held in 2003
shall be permitted to complete such Director's present term and
stand for reelection for one additional term.
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 the share-
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holders. In addition, to the annual meeting of the Board of
Directors, there shall be three regular meetings of the Board of
Directors to be held at the offices of the corporation or at such
other place as may be designated by the Chairman of the Board or
the President in August and November (on the third Tuesday
thereof after the closing of the corporation's previous fiscal
month) and on the last Tuesday in January prior to close of each
fiscal year. The Chairman of the Board may designate the time of
the meetings.
Section 2. Special Meetings: Special meetings of the Board of Directors may
be called by or at the request of the Chairman, President or any
two Directors. Such meetings may be held 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. Such notice
need not specify the purpose for which the meeting is called.
Attendance by a Director at a meeting shall constitute a waiver
of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called.
Section 4. Quorum: A majority of the Directors fixed by these bylaws shall
constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 5. Manner of Acting: Except as otherwise provided in this section,
the act of the majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of
Directors.
Section 6. 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.
Section 7. Meeting by Telephone: Any one or more members of any such
committee may participate in a meeting of the committee by means
of a conference telephone or similar communications device which
allows all persons participating in the meeting to hear each
other and such participation in a meeting shall be deemed
presence in person at such meeting.
ARTICLE V. - EXECUTIVE AND OTHER COMMITTEES
Section 1. Appointment: The Board of Directors, by resolution adopted by a
majority of the number of Directors then in office, may designate
from among its members
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an Executive Committee or one or more other committees, each
consisting of two or more Directors. The designation of any such
committee and the delegation thereto of authority shall not
operate to relieve the Board of Directors, or any member thereof,
of any responsibility or liability imposed upon it or him by law.
Section 2. Authority: Any such committee shall have and exercise all
authority of the Board of Directors in the management of the
corporation except to the extent, if any, that such authority
shall be limited by the resolution appointing such committee and
except also to the extent limited by law.
Section 3. Tenure and Qualifications: Each member of any such committee
shall hold office until the next regular annual meeting of the
Board of Directors following his designation and until his
successor is designated as a member of any such committee and is
elected and qualified.
Section 4. Meetings: Regular meetings of any such committee may be held
without notice at such time and place as such committee may fix
from time to time by resolution. Special meetings of any such
committee may be called by any member thereof upon not less than
one day's notice stating the place, date and hour of such
meeting, which notice may be written or oral, and if mailed,
shall be deemed to be delivered when deposited in the United
States mail addressed to any member of the Executive Committee at
his business address. Any member of the Executive Committee may
waive notice of any meeting and no notice of any meeting need be
given to any member thereof to attend in person. The notice of a
meeting of the Executive Committee need not state the business
proposed to be transacted at the meeting.
Section 5. Quorum: A majority of the members of any such committee shall
constitute a quorum for the transaction of business at any
meeting thereof, and actions of such committee must be authorized
by the affirmative vote of a majority of the members present at
the meeting at which a quorum is present.
Section 6. Informal Action: Action taken by a majority of the members of any
such committee without meeting is nevertheless action of such
committee if written consent to the action in question is signed
by all of the members of such committee and filed with the
minutes of the proceedings of the committee, whether done before
or after the actions so taken.
Section 7. Removal: Any member of any such committee may be removed at any
time with or without cause by resolution adopted by a majority of
the Board of Directors.
Section 8. Vacancies: Any vacancy in any such committee may be filled by
resolution adopted by a majority of the Board of Directors.
Section 9. Procedure: Any such committee shall elect a presiding officer
from among its members and may fix its own rules of procedure
which shall not be inconsis-
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tent with these bylaws. It shall keep regular minutes of its
proceedings and report the same to the Board of Directors for its
information at the meeting thereof held next after the
proceedings shall have been taken.
Section 10. Meeting by Telephone: Any one or more members of any such
committee may participate in a meeting of the committee by means
of a conference telephone or similar communications device which
allows all persons participating in the meeting to hear each
other and such participation in a meeting shall be deemed
presence in person at such meeting.
ARTICLE VI. - OFFICERS
Section 1. Number: The officers of the corporation shall consist of a
Chairman of the Board, a Chief Executive Officer, a President, a
Chief Operating Officer, a Secretary, a Treasurer and such
Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other
officers as the Board of Directors may from time to time elect.
Any two or more offices may be held by the same person, except
the offices of Chief Executive Officer, on the one hand, and
Secretary, on the other hand, may not be held by the same person.
Section 2. Election and Term: The officers of the corporation shall be
selected by the Board of Directors. Such elections 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 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 person so removed.
Section 4. Chairman of the Board: The Chairman of the Board shall preside at
all meetings of the Board of Directors and shareholders and shall
perform such other duties and have such other powers as the Board
of Directors prescribe.
Section 5. Chief Executive Officer: The Chief Executive Officer, subject to
the control of the Board of Directors, shall supervise and
control the management of the corporation in accordance with
these bylaws. He shall be permitted to sign, as shall any other
proper officer, certificates for shares of the corporation and
any deeds, mortgages, bonds, contracts or other instruments which
may be lawfully executed on behalf of the corporation, except
where required by law to be otherwise signed and executed and
except where the signing and execution thereof shall be delegated
by the Board of Directors exclusively to some other officer(s) or
agent(s); and, in general, he shall perform such other duties as
may be prescribed by the Board of Directors from time to time.
Section 6. President: Unless otherwise determined by the Board of Directors,
the President, in the absence or disability of the Chief
Executive Officer, shall perform
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the duties of that office. In addition the President shall
perform such other duties and have such other powers as the Board
of Directors prescribe.
Section 7. Chief Operating Officer: The Chief Operating Officer shall
perform such other duties and have such powers as the Board of
Directors prescribe.
Section 8. Vice Presidents: The Executive Vice Presidents, Senior Vice
Presidents, and Vice Presidents in the order of their election,
unless otherwise determined by the Board of Directors, shall, in
the absence or disability of the President, perform the duties
and exercise the powers of that office. In addition, they shall
perform such other duties and have such other powers as the Board
of Directors shall prescribe.
Section 9. Section 9. Secretary: The Secretary shall keep a correct record
of all the proceedings of the meetings of the shareholders and
Directors. He shall attend to the giving of notices, have custody
of the corporate seal, and affix it to all instruments required
to be executed under seal as authorized by the Board of
Directors. He shall perform such other duties as are incident to
the office of Secretary, and shall have such other powers and
duties as may be conferred upon him by the Board of Directors.
Section 10. Treasurer: The Treasurer shall have charge of all the moneys and
securities belonging to the corporation. He shall deposit said
property with such banks as the Board of Directors shall
designate and in the name of the corporation. He shall keep a
record of all receipts and disbursements, and shall have charge
of all records of the corporation relating to its finances. He
shall perform such other duties as are incident to the office of
Treasurer, and shall have such other powers and duties as may be
conferred upon him by the Board of Directors.
Section 11. Assistant Secretaries and Treasurers: The Assistant Secretaries
and Assistant Treasurers shall, in the absence or disability of
the Secretary or the Treasurer, respectively, perform the duties
and exercise the powers of those offices, and they shall, in
general, perform such other duties as shall be assigned to them
by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
Section 12. 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 sureties, conditioned on
the faithful performance of the duties of their respective
offices or positions, and to comply with such other conditions as
may from time to time be required by the Board of Directors.
Section 13. Vacancies: A vacancy in any office because of death, resignation,
removal, disqualification, or other reason, may be filled by the
Board of Directors for the unexpired portion of the term.
ARTICLE VII. - INDEMNIFICATION
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Section 1. Expenses and Liabilities:
(a) Any person who at any time serves or has served (1) as a
Director, Emeritus Director, officer, employee or agent of the
corporation, (2) at the request of the corporation as a Director,
Emeritus Director, officer, partner, trustee, employee or agent
of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, or (3) at the request of the
corporation as a trustee or administrator under an employee
benefit plan, shall have a right to be indemnified by the
corporation to the fullest extent from time to time permitted by
law against Liability and Expenses in any Proceeding (including
without limitation a Proceeding brought by or on behalf of the
corporation itself) arising out of his or her status as such or
activities in any of the foregoing capacities or results from him
being called as a witness at a time when he has not been made a
named defendant or respondent to any Proceeding.
(b) 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
provision, 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.
(c) Any person who at any time 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 rights provided for herein. Any repeal or
modification of these indemnification provisions shall not affect
any rights or obligations existing at the time of such repeal or
modification. The rights provided for herein shall inure to the
benefit of the legal representatives of any such person and shall
not be exclusive of any other rights to which such person may be
entitled apart from this provision.
(d) The rights granted herein shall not be limited by the
provisions contained in Sections 55-8-51 through 55-8-56 of the
North Carolina General Statutes or any successor to such statute.
Section 2. Advance Payment of Expenses: The Corporation shall (upon receipt
of an undertaking by or on behalf of the Director, Emeritus
Director, officer, employee or agent involved to repay the
Expenses described herein unless it shall ultimately be
determined that he or she is entitled to be indemnified by the
corporation against such Expenses) pay Expenses incurred by such
Director, Emeritus Director, officer, employee or agent in
defending a Proceeding or appearing as a witness at a time when
he or she has not been named as a defendant or a respondent with
respect thereto in advance of the final disposition of such
Proceeding.
Section 3. Insurance: The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
Director, Emeritus Director, officer, employee or agent of the
corporation, or is or was serving at the re-
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quest of the corporation as a Director, Emeritus Director,
officer, employee or agent of another domestic or foreign
corporation, partnership, joint venture, trust or other
enterprise or as a trustee or administrator under an employee
benefit plan against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising out
of his or her status as such, whether or not the corporation
would have the power to indemnify him or her against such
liability.
Section 4. Definitions: The following terms as used in this Article shall
have the following meanings. "Proceeding" means any threatened,
pending or completed action, suit, or proceeding and any appeal
therein (and any inquiry or investigation that could lead to such
action, suit, or proceeding), whether civil, criminal,
administrative, investigative or arbitrative and whether formal
or informal. "Expenses" means expenses of every kind, including
counsel fees. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), reasonable expenses
incurred with respect to a Proceeding, and all reasonable
expenses incurred in enforcing the indemnification rights
provided herein. "Director" and "Emeritus Director" include the
estate or personal representative of such Director or Emeritus
Director. "Corporation" shall include any domestic or foreign
predecessor of this corporation in a merger or other transaction
in which the predecessor's existence ceased upon consummation of
the transaction.
ARTICLE VIII. - CONTRACTS, CHECKS 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. 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 3. 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 IX. - CERTIFICATES FOR SHARES AND TRANSFER THEREOF
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 fully
paid shares owned by him. These certificates shall be signed by
the President or any Vice President, and the Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer. They shall be
consecutively numbered or otherwise identified; and the name and
address of the per-
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sons 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 canceled before new certificates for the
transferred shares shall be issued.
Section 3. Closing Transfer Books and Fixing 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 entitled
to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books
shall be closed for a stated period but not to exceed, in any
case, seventy days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice or
to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of shareholders, such record date in any case
to be not more than seventy days and, in case of a meeting of
shareholders, not less than ten days immediately preceding the
date on which the particular action, requiring such determination
of shareholders, is to be taken.
If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, or shareholders entitled
to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the
Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of
shareholders.
Section 4. Lost Certificates: The Board of Directors may authorize the
issuance of a new certificate in place of a certificate claimed
to have been lost or destroyed, upon receipt of an affidavit 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 said 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
a new certificate without requiring such a bond.
ARTICLE X. - GENERAL PROVISIONS
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Section 1. Dividends: The Board of Directors may from time to time declare,
and the corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law
and by its charter.
Section 2. Seal: The seal shall be in the form of a circle with the name of
the corporation and N.C. on the circumference and the word "SEAL"
in the center as shown by the impress of the corporate seal on
the margin of this section of the bylaws.
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
charter or bylaws of this corporation a waiver thereof in writing
signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be equivalent to
the giving of such notice.
Section 4. Fiscal Year: Unless otherwise ordered by the Board of Directors
by action recorded in the minutes, the fiscal year of the
corporation shall end on the Sunday in either January or February
closest to January 31.
Section 5. Amendments: Except as otherwise provided herein, these bylaws may
be amended or repealed and new bylaws may be adopted by the
affirmative vote of a majority of the Directors then holding
office at any regular or special meeting of the Board of
Directors.
The Board of Directors shall have no power to adopt a bylaw: (1)
requiring more than a majority of the voting shares for a quorum
at a meeting of shareholders or more than a majority of the votes
cast to constitute action of the shareholders, except where
higher percentages are required by law; or (2) providing for the
management of the corporation other than by the Board of
Directors or a committee thereof.
No bylaw adopted or amended by the shareholders shall be altered
or repealed by the Board of Directors. Notwithstanding any
provision contained in these Bylaws to the contrary, the
affirmative vote of at least 66 2/3% of the outstanding shares of
Common Stock of the corporation shall be required to amend or
repeal the following provisions of these Bylaws: Article II,
Section 2(b) (Annual Meetings); Article II, Section 4 (Special
Meetings); Article II, Section 5 (Notice of Meetings); Article
III, Section 2 (Directors - Number, Term and Qualifications); or
Article III, Section 4 (Directors - Removal).
No alteration, amendment or rescission of a bylaw shall be voted
upon unless notice thereof has been given in the notice of the
meeting or unless all of the Directors of the corporation execute
a written waiver of notice stating that action upon the bylaws is
to be taken at the meeting, and the original of such waiver shall
be recorded in the Minute Book.
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