BY-LAWS AS AMENDED THROUGH 4/20/94
OF
BRENDLE'S INCORPORATED
ARTICLE I.
OFFICES
Section 1. Principal Office: The principal office of the
Corporation shall be located at 1919 N. Bridge Street Ext., Elkin,
North Carolina.
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 offices
at such other places, either within or without the State of North
Carolina, as the Board of Directors may designate or as the affairs
of the Corporation may require from time to time.
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 designated in the notice of the meeting or
agreed upon by a majority of the Shareholders entitled to vote
thereat.
Section 2. Annual Meetings: The annual meeting of
Shareholders shall be held at a time designated by the Board of
Directors on a business day in the months of May or June in each
year 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 By-Laws, a
substitute annual meeting may be called in accordance with the
provisions of Section 4 of this Article II. 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, or by any Shareholder
pursuant to the written request of the holders of not less than
one-tenth (1/10th) of all the shares entitled to vote at the
meeting.
Section 5. Notice of Meeting: Written or printed notice
stating the time and place of the meeting shall be delivered not
less than ten (10) nor more than fifty (50) days before the date of
any Shareholders' meeting, either personally or by mail, by or at
the direction of the President, the Secretary or other person
calling the meeting, to each Shareholder of record entitled to vote
at such meeting; provided that such notice must be given not less
than twenty (20) days before the date of any meeting at which a
merger or consolidation is to be considered. If mailed, such
notice shall be deemed to be delivered when deposited in the United
States mail, addressed to the Shareholder at his address as it
appears on the record of Shareholders of the Corporation, with
postage thereon paid.
In the case of a special meeting, the notice of meeting
shall specifically state the purpose or purposes for which the
meeting is called; but, 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 such a statement is
required by the provisions of the North Carolina Business
Corporation Act.
When a meeting is adjourned for thirty (30) 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 thirty
(30) 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: At least ten (10) days before each
meeting of Shareholders, the Secretary of the Corporation shall
prepare an alphabetical list of the Shareholders entitled to vote
at such meeting or any adjournment thereof, with the address of and
number of shares held by each, which list shall be kept on file at
the registered office of the Corporation for a period of ten (10)
days prior to such meeting, and shall be subject to inspection by
any Shareholder at any time during the usual 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: A majority of the outstanding shares of
the Corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of Shareholders,
except that at a substitute annual meeting of Shareholders the
number of shares there represented either in person or by proxy,
even though less than a majority, shall constitute a quorum for the
purpose of such meeting.
The Shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding
the withdrawal of enough Shareholders to leave less than a quorum.
In the absence of a quorum at the opening of any meeting
of Shareholders, such meeting may be adjourned from time to time by
a vote of the majority of the shares voting on the motion to
adjourn; 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.
Section 8. 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 (11) months from the date
of its execution, unless the person executing it specified therein
the length of time for which it is it continue in force, or limits
its use to a particular meeting, but no proxy shall be valid after
ten (10) years from the date of its execution.
Section 9. Voting of Shares: Subject to the provisions of
Section 4 of Article III, each outstanding share entitled to vote
shall be entitled to one vote on each matter submitted to a vote at
a meeting of Shareholders.
Except in the election of Directors as governed by the
provisions of Section 3 of Article III, 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
or by the Charter or By-Laws of this Corporation.
Shares of its own stock owned by the Corporation,
directly or indirectly, through a subsidiary corporation or
otherwise, shall not be voted at any meeting and shall not be
counted in determining the total number of shares entitled to vote,
except that shares held in a fiduciary capacity may be voted and
shall be counted to the extent provided by law.
Section 10. 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 such action at a meeting, and filed with the
Secretary of the Corporation to be kept as part of the corporate
records.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. General Powers: The business and affairs of the
Corporation shall be managed by its Board of Directors.
Section 2. Number, Term and Qualifications: The number of
Directors constituting the Board of Directors shall be not less
than seven (7) nor more than eleven (11), as may be fixed or
changed from time to time, within the minimum and maximum, by the
Shareholders or by the Board of Directors. 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 III, the Directors shall be elected at
the 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, the election of Directors shall be
by ballot.
Section 4. Removal: Any Director may be removed at any time
with or without cause by a vote of the Shareholders holding a
majority of the outstanding shares entitled to vote at an election
of Directors. However, unless the entire Board is removed, an
individual Director shall not be removed when the number of shares
voting against the proposal for removal would be sufficient to
elect a Director if such shares could be voted cumulatively at an
annual election. If any Directors are so removed, new Directors
may be elected at the same meeting.
Section 5. Vacancies: Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of
the remaining Directors even though less than a quorum, or by the
sole remaining Director. A Director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in
office.
Section 6. Chairman of the Board: There may be a Chairman of
the Board of Directors elected by the Directors from their number
at any meeting of the Board. The Chairman shall preside at all
meetings of the Board of Directors and perform such other duties as
may be directed by the Board.
Section 7. Compensation: The Board of Directors may
compensate Directors for their services as such and may provide for
the payment of any or all expenses incurred by Directors in
attending regular and special meetings of the Board.
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 placed, either
within or without the State of North Carolina, for 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 President or
any two (2) Directors. Such a meeting may be held either within or
without the State of North Carolina, as fixed by the person or
persons calling the meeting.
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 (2) days before the meeting
give notice thereby by any usual means of communication. Such
notice need not specify the purpose for which the meeting is
called.
Section 4. Waiver of Notice: Any Director may waive notice
of any meeting. The 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 or convened.
Section 5. Quorum: A majority of the number of Directors
fixed by these By-Laws 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
these By-Laws, 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 7. 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 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 to such action
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 shall not apply
to a Director who voted in favor of such action.
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.
ARTICLE V.
EXECUTIVE AND OTHER COMMITTEES
Section 1. Creation: The Board of Directors, by resolution
adopted by a majority of the number of Directors fixed by these
By-Laws may designate two (2) or more Directors to constitute an
Executive Committee, which committee, to the extent provided in
such resolution, shall have and may exercise all of the authority
of the Board of Directors in the management of the Corporation.
Section 2. Vacancy: Any vacancy occurring in an Executive
Committee shall be filled by a majority of the number of Directors
fixed by these By-Laws at a regular of special meeting of the Board
of Directors.
Section 3. Removal: Any member of an Executive Committee may
be removed at any time with or without cause by a majority of the
number of Directors fixed by these By-Laws.
Section 4. Minutes: The Executive 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 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.
If action taken by the Executive Committee is not
thereafter formally considered by the Board, a Director may dissent
from such action by filing his written objection with the Secretary
with reasonable promptness after learning of such action.
Section 6. Other Committees: The Board of Directors, by
resolution adopted by a majority of the entire Board, may appoint
from among its members one or more other committees, each to
consist of at least three members and to be authorized, by the
resolution appointing the members thereof, to have and exercise the
powers and authority specified in such resolution, except that no
such committee shall be authorized to exercise any power or
authority which the Executive Committee of the Board of Directors
may not exercise. A majority of any such committee shall
constitute a quorum. Actions taken at a meeting of any such
committee shall be reported to the next succeeding meeting of the
Board of Directors unless otherwise directed by the Board of
Directors. The Board of Directors may appoint other committees,
whose members may but need not be Directors, to perform the
administrative and ministerial functions, not requiring action by
the Board of Directors, with respect to the business and affairs of
the Corporation and to recommend action to the Board of Directors.
Any such other committees shall not be deemed committees of the
Board of Directors and shall perform such duties as the Board of
Directors may from time to time direct.
ARTICLE VI.
OFFICERS
Section 1. Officers of the Corporation: The officers of
the Corporation may consist of a Chairman of the Board, a Vice
Chairman of the Board, a President, a Chief Executive Officer or an
Office of the Chief Executive composed of three (3) persons
appointed by the Board of Directors, a Chief Operating Officer, a
Chief Financial Officer, one (1) or more Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents, a Secretary, a
Treasurer and such Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers as the Board
of Directors may from time to time appoint. Any two (2) or more
offices may be held by the same person, but no officer may act in
more than one (1) capacity where action of two (2) or more officers
is required. The title of any officer may include any additional
designation descriptive of such officer's duties as the Board of
Directors may prescribe.
Section 2. Appointment and Term: The officers of the
Corporation shall be appointed from time to time by the Board of
Directors; provided, that the Board of Directors may authorize a
duly appointed officer to appoint one or more other officers or
assistant officers, other than appointment of the Chief Executive
Officer, the Chairman of the Board, the President, the Chief
Operating Officer or the Chief Financial Officer. Each officer
shall serve as such at the pleasure of the Board of Directors.
Section 3. Removal: Any officer may be removed by the
Board of Directors at any time with or without cause; but such
removal shall not itself affect the contract rights, if any, of the
person so removed.
Section 4. Bonds: The Board of Directors may by
resolution require any officer, agent or employee of the
Corporation to give bond to the Corporation, with sufficient
sureties, conditioned on the faithful performance of the duties of
his respective office or position, and to comply with such other
conditions as may from time to time be required by the Board of
Directors.
Section 5. Compensation: The compensation of all officers
of the Corporation shall be fixed by, or in the manner prescribed
by, the Board of Directors.
Section 6. Chief Executive Officer: If there is a
Chairman of the Board and the Board of Directors designates the
Chairman of the Board as the Chief Executive Officer, then the
Chairman of the Board shall be the Chief Executive Officer of the
Corporation. Subject to the direction and control of the Board of
Directors, the Chief Executive Officer shall supervise and control
the management of the Corporation and shall have such duties and
authority as are normally incident to the position of chief
executive officer of a corporation and such other duties and
authority as may be prescribed from time to time by the Board of
Directors or as are provided for elsewhere in these Bylaws. The
title of the Chairman of the Board or President, as the case may
be, serving as the Chief Executive Officer may, but need not, also
refer to his or her position as Chief Executive Officer.
Section 7. Office of the Chief Executive: The Board of
Directors may, but need not, appoint an Office of the Chief
Executive composed of three (3) persons appointed by them. When
there has been appointed and is functioning an Office of the Chief
Executive, any member of the Office of the Chief Executive may act
with the authority of a Chief Executive Officer, as set forth in
Section 6 above, so long as said action has been consented to by a
majority of the members of the Office of the Chief Executive. The
Office of the Chief Executive, if appointed, shall supervise and
control the management of the Corporation and shall have such
duties and authority as may be prescribed from time to time by the
Board of Directors. The Office of the Chief Executive shall
operate through a majority vote of its members.
Section 8. Chairman of the Board: The Board of Directors
may, but need not, appoint from among its members an officer
designated as the Chairman of the Board. If there is appointed a
Chairman of the Board and such Chairman of the Board is also
designated by the Board of Directors to be the Chief Executive
Officer, then the Chairman of the Board shall have all of the
duties and authority of the Chief Executive Officer and shall also,
when present, preside over meetings of the Board of Directors. If
there is a Chairman of the Board but such Chairman of the Board is
not also designated as the Chief Executive Officer, then the
Chairman of the Board shall, when present, preside over meetings of
the Board of Directors and shall have such other duties and
authority as may be prescribed from time to time by the Board of
Directors or as are provided for elsewhere in these Bylaws.
Section 9. Chief Operating Officer: If there is appointed
a Chairman of the Board who is also the Chief Executive Officer,
then the President shall be the Chief Operating Officer. Subject
to the direction and control of the Chief Executive Officer and the
Board of Directors, the Chief Operating Officer shall supervise and
control the operations of the Corporation, shall have such duties
and authority as are normally incident to the position of chief
operating officer of a corporation and such other duties as may be
prescribed from time to time by the Chief Executive Officer or the
Board of Directors, and, in the absence or disability of the Chief
Executive Officer, shall have the authority and perform the duties
of the Chief Executive Officer. The title of the President or
other officer serving as the Chief Operating Officer may, but need
not, also refer to his or her position as Chief Operating Officer.
Section 10. President: Unless there is appointed a
Chairman of the Board who is also designated the Chief Executive
Officer, the President shall be the Chief Executive Officer of the
Corporation and shall have all of the duties and authority of that
office. If the President is not the Chief Executive Officer, then
the President shall be the Chief Operating Officer and shall have
all of the duties and authority of that office. If the president
shall be the Chief Executive Officer and no other officer shall
have been designated by the Board of Directors as the Chief
Operating Officer, then the President shall also have all of the
duties and authority of the Chief Operating Officer. The President
shall also have such other duties and authority as may be
prescribed from time to time by the Board of Directors.
Section 11. Vice President: The Board of Directors may
appoint such Executive Vice Presidents, Senior Vice Presidents or
other Vice Presidents as they shall desire, with such authority and
duties as they see fit. In the absence of clear resolutions of the
Board to the contrary, in the absence of the President, an
Executive Vice President, without specific designation of areas of
responsibility, shall act in place of the President. For example,
an Executive Vice President would act before an Executive Vice
President - Store Operations.
In addition, each Executive Vice President, with specific
area of responsibility designated, Senior Vice President or Vice
President shall perform such other duties and have such other
powers as are normally incident to their offices or as shall be
prescribed by the Chief Executive Officer, the Chief Operating
Officer or the Board of Directors.
Section 12. Secretary: The Secretary shall have the
responsibility and authority to maintain and authenticate the
records of the Corporation; shall keep, or cause to be kept,
accurate records of the acts and proceedings of all meetings of
Shareholders, Directors and Committees; shall give, or cause to be
given, all notices required by law and by these Bylaws; shall have
general charge of the corporate books and records and of the
corporate seal, and shall affix the corporate seal to any lawfully
executed instrument requiring it; shall have general charge of the
stock transfer books of the Corporation and shall keep, or cause to
be kept, all records of Shareholders as are required by applicable
law or these Bylaws; shall sign such instruments as may require the
signature of the Secretary; and, in general, shall perform all
duties incident to the office of Secretary and such other duties as
may be assigned to him or her from time to time by the Chief
Executive Officer, the Chief Operating Officer, or the Board of
Directors.
Section 13. Chief Financial Officer: The Chief Financial
Officer shall have responsibility for all funds and securities
belonging to the Corporation and shall receive, deposit or disburse
the same under the direction of the Board of Directors; shall keep,
or cause to be kept, full and accurate accounts of the finances of
the Corporation in books especially provided for that purpose, and
shall generally have charge over the Corporation's accounting and
financial records; shall cause a true statement of its assets and
liabilities as of the close of each fiscal year, and of the results
of its operations and of cash flows for such fiscal year, all in
reasonable detail, including particulars as to convertible
securities then outstanding, to be made as soon as practicable
after the end of such fiscal year. The Chief Financial Officer
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 the office of
Chief Financial Officer and such other duties as may be assigned to
him or her from time to time by the Chief Executive Officer, the
Chief Operating Officer or the Board of Directors.
Section 14. Treasurer: The Treasurer shall be appointed by
the Board of Directors and shall act to assist the Chief Financial
Officer in carrying out the duties of the office of Chief Financial
Officer. In the absence or in the event of the disability of the
Chief Financial Officer, the Treasurer shall have the authority and
shall perform the duties of the office of the Chief Financial
Officer. The Treasurer shall also perform such other duties as may
be assigned to him or her from time to time by the Chief Executive
Officer, the Chief Financial Officer, the Chief Operating Officer
or the Board of Directors.
Section 15. Assistant Secretaries and Assistant Treasurers:
The Assistant Secretaries and Assistant Treasurers, if any, shall,
in the absence or disability of the Secretary or the Treasurer,
respectively, have all the powers and perform all of the duties 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 Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or the Board of
Directors.
ARTICLE VII.
CONTRACTS, LOANS, 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 in the name of and
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 evidences 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 may select.
ARTICLE VIII.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares: Certificates
representing shares of the Corporation shall be in such form as
shall be determined by the Board of Directors. The Corporation
shall issue and deliver to each Shareholder certificates
representing all fully paid shares owned by him. Certificates
shall be signed by the President or a Vice President and by the
Secretary or Treasurer or an Assistant Secretary or an Assistant
Treasurer. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the
number and class of shares and the date of issue, shall be entered
on the stock transfer books of the Corporation.
Section 2. Transfer of Shares: Transfer of shares of the
Corporation shall be made only on the stock transfer books of the
Corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney, thereunto authorized by power of
attorney duly executed and filed with the Secretary, and on
surrender for cancellation of the certificate for such shares.
Section 3. Lost Certificate: The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation claimed to have been lost or
destroyed, upon receipt of an Affidavit of such fact from the
person claiming the certificate of stock to have been lost or
destroyed. When authorizing such issue of a new certificate, the
Board of Directors shall require that the owner of such lost or
destroyed certificate, or his legal representative, give the
Corporation a bond in such sum as the Board may direct as indemnity
against any claim that may be made against the Corporation with
respect to the certificate claimed to have been lost or destroyed,
except where the Board of Directors by resolution finds that in the
judgment of the Directors the circumstances justify omission of a
bond.
Section 4. 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, fifty (50) days. If the stock transfer books shall be closed
for the purpose of determining Shareholders entitled to notice of
or to vote at a meeting of Shareholders, such books shall be closed
for at least ten (10) 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 fifty (50) days and, in the case of a meeting of
Shareholders, not less than ten (10) 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.
When a determination of Shareholders entitled to vote at
any meeting of Shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof,
except where the determination has been made through the closing of
the stock transfer books and the stated period of closing has
expired.
Section 5. Holder of Record: The Corporation may treat as
absolute owner of shares the person in whose name the shares stand
of record on its books just as if that person had 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
relation or any reference to any other instrument or to the rights
of any other person appearing upon its record or upon the share
certificates, 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.
Section 6. Treasury Shares: Treasury shares of the
Corporation shall consist of such shares as have been issued and
thereafter acquired but not cancelled by the Corporation. Treasury
shares shall not carry voting or dividend rights.
ARTICLE IX.
GENERAL PROVISIONS
Section 1. Dividends: The Board of Directors may from time
to time declare, and the Corporation may pay, dividends on its
outstanding shares in cash, property or its own shares pursuant to
law and subject to the provisions of its Charter.
Section 2. Seal: The corporate seal of the Corporation shall
consist of two concentric circles between which is the name of the
Corporation and in the center of which is inscribed "SEAL"; and
such seal, as impressed on the margin hereof, is hereby adopted as
the corporate seal of the Corporation.
Section 3. Waiver of Notice: Whenever any notice is required
to be given to any Shareholder or Director by law, by the Charter
or by these By-Laws, 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. Indemnification:
(a) The Corporation hereby agrees to indemnify, to the
fullest extent permitted by law at the time of indemnity, any
person who at any time serves or has served as a Director or
Officer of the Corporation, or in any such capacity at the request
of the Corporation for any other corporation, partnership, joint
venture, trust or other enterprise, or as a trustee or an
administrator under an employee benefit plan for the Corporation or
any of its subsidiaries, against liability and litigation expense,
including reasonable attorneys' fees, arising out of their status
as such or their activities in any of the foregoing capacities;
provided, however, that the Corporation does not agree to indemnify
any such person against liability or litigation expense he may
incur on account of his activities which were at the time taken
known or believed by him to be clearly in conflict with the best
interests of the Corporation.
(b) It is specifically provided further, however, that
nothing stated heretofore in this Section shall be construed to
limit the allowable indemnification by the Corporation of Directors
or Officers or of employees or agents of the Corporation to the
fullest extent permitted by law at the time of any such
indemnification, against: (i) reasonable costs and expenses,
including attorneys' fees, actually and necessarily incurred by him
in connection with any threatened, pending or completed action,
suit or proceedings, 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 (ii) liability for any
judgment, money decree, fine, penalty or settlement for which he
may have become liable in any such action, suit or proceeding.
(c) In addition to the foregoing, any such Director of
Officer may recover from the Corporation reasonable costs, expenses
and attorneys' fees in connection with the enforcement of his
rights to indemnification granted herein. Expenses incurred by a
Director or Officer in defending an administrative, civil or
criminal action, suit or proceeding may be paid by the Corporation
in advance of the final disposition of such action, suit or
proceeding, as authorized by the Board of Directors in the specific
case, or as authorized or required under any Charter or By-Law
provision or by any applicable resolution or contract, upon receipt
of an undertaking by or on behalf of the Director or Officer to
repay such amount unless it ultimately be determined that such
person is entitled to be indemnified by the Corporation against
such expenses. Expenses incurred by other employees and agents may
be so paid upon such terms and conditions (if any) as the Board of
Directors deems appropriate.
(d) 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 By-Law,
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.
(e) Any person who at any time after the adoption of this
By-Law 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
of indemnification provided herein. Such rights 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 the provisions of this By-Law.
(f) The indemnification provided by this Section shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote
of Shareholders of the Corporation or disinterested Directors or
otherwise, both as to action in such person's official capacity and
as to action in any other capacity while holding such office, and
shall continue as to a person who has ceased to be a Director,
Officer, employee or agent, and shall inure to the benefit of the
estate, heirs, executors and administrators of such a person.
(g) The Corporation shall have the power to provide such
other, further or additional indemnities of Directors, Officers,
employees or agents as shall be permitted by the laws of the State
of North Carolina, as amended from time to time.
(h) Anything in this Section to the contrary notwithstanding,
the Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a Director, Officer, employee
or agent of the Corporation, or is or was serving at the request of
the Corporation as a Director, Officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, or as a trustee or administrator under an employee
benefit plan governed either by State law or by an act of congress
entitled "The Employee Retirement Income Security Act of 1974"
("ERISA"), as amended, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power
to indemnify him against such liability.
Section 5. Fiscal Year: The fiscal year of the corporation
shall be fixed by the Board of Directors.
Section 6. Amendments: Except as otherwise provided herein,
these By-Laws may be amended or repealed and new By-Laws may be
adopted by the affirmative votes 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
by-law: (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 by the Shareholders, except
where higher percentages are required by law; (2) providing for the
management of the Corporation otherwise than by the Board of
Directors or its Executive Committees; (3) increasing or decreasing
the number of Directors; (4) classifying and staggering the
election of Directors.
No by-law adopted or amended by the Shareholders shall be
altered or repealed by the Board of Directors, except to the extent
that such by-law expressly authorizes its amendment or repeal by
the Board of Directors. The fact that the Shareholders have
adopted these By-Laws shall not limit the authority of the Board of
Directors to amend them.
Section 7. Statutes Not Applicable: The provisions of
Article 9 known as "The North Carolina Shareholder Protection Act"
(North Carolina General Statutes (Section Mark) 55-9-01, et seq.) shall not be
applicable to the Corporation. The provisions of Article 9A known
as "The North Carolina Control Share Acquisition Act" (North
Carolina General Statutes (Section Mark) 55-9A-01, et seq.) shall not be
applicable to the Corporation.