EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
LADD FURNITURE, INC.
Amended and Restated
February 28, 1991
Amended October 9, 1991
Amended February 25, 1993
Amended March 5, 1996
TABLE OF CONTENTS
ARTICLE I
OFFICES
1. Principal Office . . . . . . . . . . . . . . . . . . . . . . . 1
2. Registered Office . . . . . . . . . . . . . . . . . . . . . . . 1
3. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Substitute Annual Meeting . . . . . . . . . . . . . . . . . . . 1
4. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
5. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 2
6. Shareholders List . . . . . . . . . . . . . . . . . . . . . . . 3
7. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. Voting of Shares and Voting Groups . . . . . . . . . . . . . . 3
9. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10. Inspectors of Election . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
DIRECTORS
1. General Powers . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Number, Term, and Qualification . . . . . . . . . . . . . . . . 5
3. Election of Directors . . . . . . . . . . . . . . . . . . . . . 5
4. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Chairman . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. Executive and Other Committees . . . . . . . . . . . . . . . . 6
ARTICLE IV
MEETINGS OF DIRECTORS
1. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 8
2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 8
3. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 8
4. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. Manner of Acting . . . . . . . . . . . . . . . . . . . . . . . 8
6. Informal Action by Directors . . . . . . . . . . . . . . . . . 9
7. Attendance by Telephone . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V
OFFICERS
1. Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Appointment and Term . . . . . . . . . . . . . . . . . . . . . 10
3. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. President . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6. Executive Vice Presidents, Senior Vice Presidents, and Vice
Presidents . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9. Assistant Secretaries and Treasurers . . . . . . . . . . . . . 11
10. Corporate Controller and Assistant Controllers . . . . . . . . 12
11. Executive Officers . . . . . . . . . . . . . . . . . . . . . . 12
12. Chairman Emeritus . . . . . . . . . . . . . . . . . . . . . . . 12
13. Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14. Voting Upon Stocks . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
CERTIFICATES FOR AND TRANSFER OF SHARES
1. Certificates for Shares . . . . . . . . . . . . . . . . . . . . 12
2. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . 13
3. Transfer Agent and Registrar . . . . . . . . . . . . . . . . . 13
4. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . 14
6. Holder of Record . . . . . . . . . . . . . . . . . . . . . . . 14
7. Shares held by Nominees . . . . . . . . . . . . . . . . . . . . 14
8. Acquisition by Corporation of its Own Shares . . . . . . . . . 15
9. Shareholder Protection Act . . . . . . . . . . . . . . . . . . 15
10. Control Share Acquisition Act . . . . . . . . . . . . . . . . . 15
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Indemnification for Expenses and Liabilities . . . . . . . . . 15
2. Advance Payment of Expenses . . . . . . . . . . . . . . . . . . 16
3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
GENERAL PROVISIONS
1. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. Effective Date of Notice. . . . . . . . . . . . . . . . . . . . 17
5. Corporate Records . . . . . . . . . . . . . . . . . . . . . . . 17
6. Bylaw Amendments . . . . . . . . . . . . . . . . . . . . . . . 18
7. Amendments to Articles of Incorporation . . . . . . . . . . . . 18
AMENDED AND RESTATED BYLAWS
OF
LADD FURNITURE, INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be
located in High Point, Guilford County, North Carolina or such other place as is
designated by the Board of Directors.
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.
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
(Amended March 5, 1996)
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.
2. Annual Meeting. The annual meeting of the 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, on such day and at such time during the
second quarter of the Corporation's fiscal year as the Board of Directors shall
from time to time determine, 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.
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 Paragraph 4 of this Article II. A meeting so called shall be
designated and treated for all purposes as the annual meeting.
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.
5. Notice of Meetings.
(a) 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 telegraph, teletype or other form of wire or
wireless communication, or by facsimile transmission, mail, or by private
carrier, or by any other means permitted by law, by or at the direction of the
Chairman of the Board, Board of Directors, President, 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 to all shareholders, including
nonvoting shareholders, with respect to any meeting at which a merger, share
exchange, sale of assets other than in the regular course of business, or
voluntary dissolution is to be considered and in such other instances as
required by law. If a new record date for the adjourned meeting is fixed
pursuant to Paragraph 4 of Article VII, notice of the adjourned meeting shall be
given to persons who are shareholders as of the new record date. 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 prepaid.
(b) 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 the
shareholders is expressly required by the provisions of the North Carolina
Business Corporation Act or notice of such purpose is otherwise required by law
to be provided. In the case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the meeting is called.
(c) When a meeting is adjourned for more than one hundred twenty days or a
new record date is or must be fixed as required by law, notice of the adjourned
meeting shall be given as in the case of an original meeting. When a meeting is
adjourned for one hundred twenty days or less in any one adjournment, it shall
not be necessary to give any notice of the new date, time and place of the
adjourned meeting or of the business to be transacted thereat other than by
announcement at the meeting at which the adjournment is taken.
(d) A shareholder in a signed writing may waive notice of any meeting
before or after the date and time stated in the notice by delivering such waiver
to the Corporation for inclusion in the minutes. Attendance by a shareholder at
a meeting constitutes a waiver of notice of such meeting, unless at the
beginning of the meeting the shareholder objects to holding the meeting or
transacting business at the meeting, or objects to considering a matter not
within the purpose or purposes described in the meeting notice before it is
voted on.
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6. Shareholders List. 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, his agent or attorney during the entire time of
the meeting or any adjournment.
7. Quorum.
(a) Unless otherwise provided by law, a majority of the votes entitled to
be cast on a matter by a separate voting group shall constitute a quorum of such
voting group on that matter at a meeting of shareholders. Abstentions and broker
non-votes shall be counted for purposes of determination of the presence of a
quorum. A separate voting group may only take action on a matter at a meeting if
a quorum of those shares are present with respect to that matter. In the absence
of a quorum at the opening of any 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, but no other business may be transacted until and unless
a quorum is present. When a quorum is present at any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting. If a quorum is present at the original meeting, a quorum need not be
present at an adjourned meeting to transact business.
(b) At a meeting at which a quorum is present, a separate voting group may
continue to do business until adjournment, notwithstanding the withdrawal of
sufficient shareholders to leave less than a quorum of the separate voting
group.
8. Voting of Shares and Voting Groups.
(a) Except as otherwise provided by the Articles of Incorporation or by
law, each outstanding share having voting rights shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders. All shares
entitled to vote and be counted together collectively on a matter as provided by
the Articles of Incorporation or by the North Carolina Business Corporation Act
shall constitute a single voting group. Additional required voting groups shall
be determined in accordance with the Articles of Incorporation, the Bylaws, and
the North Carolina Business Corporation Act.
(b) Except in the election of Directors, at a shareholder meeting duly held
and at which a quorum is present, action on a matter by a voting group shall be
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the vote by a greater number is
required by law or by the Articles of
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Incorporation or Bylaws of the Corporation. For such actions, abstentions and
broker non-votes shall not be treated as negative votes and shall only be
counted for purposes of determining whether a quorum is present at the meeting.
Corporate action on such matters shall be taken only when approved by each and
every voting group entitled to vote as a separate voting group on such matter as
provided by the Articles of Incorporation or Bylaws or by the North Carolina
Business Corporation Act.
(c) Voting on all matters except the election of Directors shall be by
voice vote or by a show of hands, unless prior to the voting on any matter, the
chairman of the meeting directs that voting on such matter shall be by ballot.
(d) Absent special circumstances, shares of the Corporation shall not be
entitled to vote if they are owned, directly or indirectly, by another
corporation in which the Corporation owns, directly or indirectly, a majority of
the shares entitled to vote for directors of the second corporation; provided
that this provision does not limit the power of the Corporation to vote its own
shares held by it in a fiduciary capacity.
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 shall not be valid after the expiration of
eleven months from the date of its execution, unless the person executing it
specifies therein the length of time for which it is to continue in force, or
limits its use to a particular meeting. Any proxy shall be revocable by the
shareholder unless the written appointment expressly and conspicuously provides
that it is irrevocable and the appointment is coupled with an interest as
required by law. The shareholder may revoke the proxy by filing with the
Secretary of the Corporation either a written instrument of revocation or a duly
executed proxy bearing a later date or by attending the meeting and voting his
shares in person.
10. Inspectors of Election.
(a) Appointment of Inspectors of Election. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting may appoint inspectors of election at the meeting.
The number of inspectors shall be either one or three. In case any person
appointed as inspector fails to appear or fails or refuses to act, the vacancy
may be filled by appointment by the Board of Directors in advance of the meeting
or at the meeting by the person acting as chairman.
(b) Duties of Inspectors. The inspectors of election shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes, ballots or consents, hear and
determine all challenges and questions in any way arising in connection with the
right to vote, count and tabulate all votes or consents, determine the result
and do
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such acts as may be proper to conduct the election or vote with fairness to all
shareholders. The inspectors of election shall perform their duties impartially,
in good faith, to the best of their ability and as expeditiously as is
practical.
(c) Vote of Inspectors. If there are three inspectors of election, the
decision, act, or certificate of a majority shall be effective in all respects
as the decision, act, or certificate of all.
(d) Report of Inspectors. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge or question or matter
determined by them and shall execute a certificate of any fact found by them.
Any report or certificate made by them shall be prima facie evidence of the
facts stated therein.
ARTICLE III
DIRECTORS
(Amended February 25, 1993 and March 5, 1996)
1. General Powers. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
by, the Board of Directors or by such committees as the Board of Directors may
establish pursuant to these Bylaws.
2. Number, Term, and Qualification. The number of Directors of the
Corporation shall be not less than three nor more than nine as may be fixed or
changed from time to time, within the minimum and maximum, by the shareholders
or by the Board of Directors. If the number of Directors so determined within
such range is to be increased or decreased by the Board of Directors, then
notice of the meeting at which such action is proposed to be taken shall be
given, stating that a purpose of the meeting is such increase or decrease; or
all of the Directors then in office shall be present at such meeting; or those
not present at any time shall waive notice thereof in writing. 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.
3. Election of Directors. Except as provided in Paragraph 5 of this Article
III, Directors shall be elected at the annual meeting of shareholders; and those
persons who receive the highest number of votes at a meeting at which a quorum
is present shall be deemed to have been elected. If any shareholder so demands,
election of Directors shall be by ballot.
4. Removal. Directors may be removed from office with or without cause by a
vote of shareholders at a shareholders' meeting duly held at which a quorum is
present, provided
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the notice of the shareholders' meeting at which such action is to be taken
states that a purpose of the meeting is removal of the director and the number
of votes cast to remove the Director exceeds the number of votes cast not to
remove him. If a Director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove him. If
any Directors are so removed, new Directors may be elected at the same meeting.
5. Vacancies. A vacancy occurring in the Board of Directors, including,
without limitation, a vacancy created by an increase in the authorized number of
Directors or resulting from the shareholders' failure to elect the full
authorized number of Directors, may be filled by the Board of Directors or, if
the Directors remaining in office constitute less than a quorum of the
Directors, by the affirmative vote of a majority of all remaining Directors or
by the sole remaining Director. If the vacant office was held by a Director
elected by a voting group, only the remaining Director or Directors elected by
that voting group or the holders of shares of that voting group are entitled to
fill the vacancy. A Director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. The shareholders may elect a
Director at any time to fill any vacancy not filled by the Directors.
6. Chairman. The Board of Directors shall elect from their number a
Chairman of the Board at any meeting of the Board of Directors. The position of
Chairman of the Board shall be a non-officer position. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shareholders, and,
in consultation with the President, shall plan and develop the agenda for such
meetings. He shall have the power to call the regular and any special meetings
of the Board of Directors. The Chairman of the Board shall be available to the
President for consultation with respect to the formulation and implementation of
corporate strategic plans and goals. When requested by the Board or the
President, he shall assist in recruiting and appraising compatible companies for
acquisition and mergers which would increase the profitability and growth of the
Corporation. Together with the President, he shall represent the Corporation to
external groups such as shareholders, consumer groups, the business community,
industry organizations, the general public and federal, state and local
governments. He shall assist appropriate committees of the Board in the
evaluation, selection and recruitment of directors.
7. Compensation. The Board of Directors may provide for the compensation of
Directors for their services as such and may provide for the payment of any and
all expenses incurred by the Directors in connection with such services.
8. Executive and Other Committees.
(a) The Board of Directors, by resolution adopted by a majority of the
number of Directors then in office, may designate from among its members an
Executive Committee and one or more other committees, each consisting of two or
more Directors and each of which, to the extent authorized by law or provided in
the resolution, shall have and may exercise all of the authority of the Board of
Directors, except no such committee may:
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(1) authorize distributions; (2) approve or propose to shareholders action that
is required to be approved by shareholders under the North Carolina Business
Corporation Act or any successor to such statutes; (3) fill vacancies on the
Board of Directors or on any of its committees; (4) amend the Articles of
Incorporation; (5) adopt, amend, or repeal these Bylaws; (6) approve a plan of
merger not requiring shareholder approval; (7) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the Board of Directors; or (8) 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 that the
Board of Directors may authorize a committee (or a senior executive officer of
the Corporation) to do so within limits specifically prescribed by the Board of
Directors.
(b) Any resolutions adopted or other action taken by any such committee
within the scope of the authority delegated to it by the Board of Directors
shall be deemed for all purposes to be adopted or taken by the Board of
Directors. The designation of any 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.
(c) 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 committee at his business address. Any member of any committee may in a
signed writing waive notice of any meeting, and no notice of any meeting need be
given to any member thereof who attends in person. The notice of a meeting of
any committee need not state the business proposed to be transacted at the
meeting.
(d) 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 of such committee.
(e) 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, and
vacancies in the membership of a committee resulting from death, resignation,
disqualification or removal shall be filled by a majority of the Board of
Directors.
(f) Any such committee shall elect a presiding officer from among its
members and may fix its own rules of procedure which shall not be inconsistent
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.
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(g) In the event the Board of Directors desires to establish a committee
composed of outside directors, the term "outside directors" shall be deemed to
mean any director who has never served as an officer of the Corporation.
ARTICLE IV
MEETINGS OF DIRECTORS
(Amended February 25, 1993 and March 5, 1996)
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.
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.
3. Notice of Meetings.
(a) Regular meetings of the Board of Directors may be held without notice.
(b) The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice thereof
either personally or by telephone, telegraph, teletype or other form of wire or
wireless communication or by facsimile transmission, mail or private carrier or
by any other means permitted by law. Such notice need not specify the business
to be transacted at, or the purpose of, the meeting that is called. Notice of an
adjourned meeting need not be given if the time and place are fixed at the
meeting adjourning and if the period of adjournment does not exceed ten days in
any one adjournment.
(c) A Director, in a signed writing, may waive notice of any meeting before
or after the date and time stated in the notice. 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 and does not vote for or assent to action taken at the meeting.
4. Quorum. A majority of the Directors in office immediately before the
meeting shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
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5. Manner of Acting.
(a) Except as otherwise provided in this paragraph, the act of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless a greater number is required by law, the
Articles of Incorporation, or a Bylaw adopted by the shareholders.
(b) A Director 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 of dissent shall not apply to a Director
who voted in favor of such action.
(c) The vote of a majority of the number of Directors then in office shall
be required to adopt a resolution constituting an Executive Committee or other
committee of the Board of Directors. The vote of a majority of the Directors
then holding office shall be required to adopt, amend or repeal a Bylaw or to
adopt a resolution dissolving the Corporation without action by the shareholders
in circumstances authorized by law. Vacancies in the Board of Directors may be
filled as provided in Paragraph 5 of Article III of these Bylaws.
6. Informal Action by Directors. Action taken by the Directors or members
of a committee of the Board of Directors without a meeting is nevertheless Board
or committee action if written consent to the action in question is signed by
all of the Directors or members of the committee, as the case may be, and filed
with the minutes of the proceedings of the Board of Directors or committee,
whether done before or after the action so taken. Such action will become
effective when the last Director or committee member signs the consent, unless
the consent specifies a different date. Such consent will have the same force
and effect as a unanimous vote of the Board of Directors or the committee, as
the case may be.
7. Attendance by Telephone. Any one or more Directors or members of a
committee may participate in a meeting of the Board of Directors or committee by
means of a conference telephone or similar communications device which allows
all persons participating in the meeting to hear each other simultaneously, and
such participation in the meeting shall be deemed presence in person at such
meeting.
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ARTICLE V
OFFICERS
(Amended October 9, 1991, February 25, 1993 and March 5, 1996)
1. Number. The officers of the Corporation shall consist of a President, 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 appoint. Any two
or more offices, other than that of President and Secretary, may be held by the
same person. In no event, however, may an officer act in more than one capacity
where action of two or more officers is required.
2. Appointment and Term. The officers of the Corporation shall be appointed
by the Board of Directors. Such appointment may be held at any regular or
special meeting of the Board of Directors. Each officer shall hold office until
his death, resignation, retirement, removal, disqualification, or his successor
is appointed and qualifies. If so authorized by the Board of Directors, the
President may appoint one or more officers or assistant officers as he deems
necessary.
3. Removal. Any officer or agent 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.
4. Compensation. The compensation of all officers of the Corporation shall
be fixed by the Board of Directors or by an officer designated by the Board of
Directors for such purpose.
5. President. The President shall be the chief executive officer of the
Corporation and, subject to the control of the Board of Directors, shall
supervise and control the management of the Corporation. As chief executive
officer of the Corporation, the President shall be responsible for the overall
sales and profit growth of the Corporation in accordance with the mission,
policies, goals and objectives of the Corporation established by the Board of
Directors. He shall be responsible for the development of corporate strategies
and the goals with respect to the Corporation's operations, personnel, financial
performance and growth. He shall be responsible for the Corporation's
acquisition activities and for communications with the financial community. He,
or any Executive Vice Presidents or Senior Vice Presidents and Vice Presidents
shall sign, with 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 or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be delegated by the Board of
Directors to some other officer or agent; and, in general, he shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
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6. Executive Vice Presidents, Senior Vice Presidents, and Vice Presidents.
The Executive Vice Presidents and Senior Vice Presidents shall be superior in
authority to all other Vice Presidents and shall have such duties and
responsibilities as may be assigned by the Board of Directors from time to time.
The Executive Vice President or Executive Vice Presidents, if more than one, may
be designated by the Board of Directors as the chief operating officer(s) of
various business groups and/or business functions the Corporation. The Executive
Vice President or Executive Vice Presidents, if more than one, may supervise and
control the day-to-day operation of such business groups and/or business
functions of the Corporation in accordance with the direction of the President
and these Bylaws and shall have such direct responsibility for the supervision
and control of various business groups and/or business functions of the
Corporation as may be designated from time to time by the Board of Directors.
The Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, in
the order of their appointment, 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 and shall have authority to sign,
with 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 or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be delegated by the Board of Directors to
some other officer or agent. In addition, they shall perform such other duties
and have such other powers as the President or the Board of Directors shall
prescribe. The Board of Directors may designate one or more Vice Presidents to
be responsible for certain functions, including, without limitation, Marketing,
Finance, Manufacturing and Personnel.
7. Secretary. The Secretary shall keep accurate records of the acts and
proceedings of all meetings of shareholders, Directors and committees. 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 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 shareholders showing the name and address of each shareholder and the number
and class of the shares held by each. He shall deliver to the Secretary of State
of North Carolina for filing annual reports as required under the provisions
contained in Section 55-16-22 of the North Carolina Business Corporation Act or
any successor to such statute. He shall sign such instruments as may require his
signature, and, in general, attest the signature or certify the incumbency or
signature of any other officer of the Corporation and shall perform all duties
incident to the office of Secretary and such other duties as may be assigned him
from time to time by the President or by the Board of Directors.
8. 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, which may be consolidated or combined statements of the
Corporation and one or more of its subsidiaries as appropriate,
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that include a balance sheet as of the end of the fiscal year, an income
statement for that year, and a statement of cash flows for the year unless that
information appears elsewhere in the financial statements. If financial
statements are prepared for the Corporation on the basis of generally accepted
accounting principles, the annual financial statements must also be prepared on
that basis. The Corporation shall mail the annual financial statements, or a
written notice of their availability, to each shareholder within one hundred
twenty days of the close of each fiscal year. The Treasurer shall, in general,
perform all duties incident to his office and such other duties as may be
assigned to him from time to time by the President or by the Board of Directors.
9. Assistant Secretaries and Treasurers. The Assistant Secretaries and
Assistant Treasurers shall, in the absence or disability of the Secretary or the
Treasurer, perform the respective duties and exercise the respective 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 by the Board of Directors.
10. Corporate Controller and Assistant Controllers. The Corporate
Controller, if one has been appointed, shall have charge of the accounting
affairs of the Corporation and shall have such other powers and perform such
other duties as the Board of Directors shall designate. Each Assistant
Controller shall have such powers and perform such duties as may be assigned by
the Board of Directors, and the Assistant Controllers shall exercise the powers
of the Corporate Controller during that officer's absence or inability to act.
11. Executive Officers. Except as otherwise designated by the Board of
Directors, the Corporation's executive officers, being those persons in
policy-making functions of the Corporation, shall consist of the President, and
such of the Executive, Senior, and other Vice Presidents responsible for major
corporate functions as the Board of Directors may from time to time specifically
designate as executive officers.
12. Chairman Emeritus. The Board of Directors may, by a resolution duly
adopted, appoint a Chairman Emeritus of the Board of Directors in recognition
for having provided outstanding contributions to the Corporation. Such position
shall be honorary with duties and responsibilities limited to those assigned by
the Board or the President from time to time. The Chairman Emeritus shall advise
and consult with the President as requested from time to time and shall be
entitled to reimbursement for reasonable expenses incurred in connection with
the performance of the duties of this office. The Chairman Emeritus may be, but
is not required to be, an employee of the Corporation.
13. Bonds. The Board of Directors, by resolution, may 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.
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14. Voting Upon Stocks. Unless otherwise ordered by the Board of Directors,
the President shall have full power and authority on behalf of the Corporation
to attend, act, and vote at meetings of the shareholders of any corporation in
which this Corporation may hold stock, and at such meetings shall possess and
may exercise any and all rights and powers incident to the ownership of such
stock and which, as the owner, the Corporation might have possessed and
exercised if present. The Board of Directors may by resolution from time to time
confer such power and authority upon any other person or persons.
ARTICLE VI
CERTIFICATES FOR AND TRANSFER OF SHARES
(Amended March 5, 1996)
1. Certificates for Shares. Shares of the capital stock of the Corporation
shall be represented by certificates. Such certificates shall be in such form as
required by law and as determined by the Board of Directors and shall be issued
to every shareholder for the fully paid shares owned by him. Each certificate
shall be signed by the President, any Senior or Executive Vice President, and by
the Secretary, Assistant Secretary, Treasurer, or Assistant Treasurer and may be
sealed with the seal of the Corporation or a facsimile thereof. The signatures
of any such officers upon a certificate may be facsimiles or may be engraved or
printed. In case any officer who has signed or whose facsimile or other
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue. The
certificates 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.
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.
3. Transfer Agent and Registrar. The Board of Directors may appoint one or
more transfer agents and one or more registrars of transfer and may require all
stock certificates to be signed or countersigned by the transfer agent and
registered by the registrar of transfers.
4. Record Date.
(a) 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 fix in
advance a date as the record date for any such
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determination of shareholders, such date in any case not to be more than seventy
days before the meeting or action requiring a determination of shareholders.
(b) If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders or of 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.
(c) When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this paragraph, such determination
shall apply to any adjournment thereof unless the Board of Directors fixes a new
record date, which it shall do if the meeting is adjourned to a date more than
one hundred twenty days after the date fixed for the original meeting.
5. 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 of Directors 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 of Directors may, by resolution reciting that the circumstances
justify such action, authorize the issuance of the new certificate without
requiring such a bond.
6. Holder of Record. Except as otherwise required by law, the Corporation
may treat the person in whose name the shares stand of record on its books as
the absolute owner of the shares and the person exclusively entitled to receive
notification and distributions, to vote, and otherwise to exercise the rights,
powers, and privileges of ownership of such shares.
7. Shares held by Nominees.
(a) The Corporation shall recognize the beneficial owner of shares
registered in the name of a nominee as the owner and shareholder of such shares
for certain purposes if the nominee in whose name such shares are registered
files with the Secretary of the Corporation a written certificate in a form
prescribed by the Corporation, signed by the nominee and indicating the
following: (1) the name, address, and taxpayer identification number of the
nominee; (2) the name, address, and taxpayer identification number of the
beneficial owner; (3) the number and class or series of shares registered in the
name of the nominee as to which the beneficial owner shall be recognized as the
shareholder; and (4) the purposes for which the beneficial owner shall be
recognized as the shareholder.
(b) The purposes for which the Corporation shall recognize a beneficial
owner as the shareholder may include the following: (1) receiving notice of,
voting at and otherwise
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participating in shareholders' meetings; (2) executing consents with respect to
the shares; (3) exercising dissenters' rights under Article 13 of the North
Carolina Business Corporation Act; (4) receiving distributions and share
dividends with respect to the shares; (5) exercising inspection rights; (6)
receiving reports, financial statements, proxy statements, and other
communications from the Corporation; (7) making any demand upon the Corporation
required or permitted by law; and (8) exercising any other rights or receiving
any other benefits of a shareholder with respect to the shares.
(c) The certificate shall be effective ten business days after its receipt
by the Corporation and until it is changed by the nominee, unless the
certificate specifies a later effective time or an earlier termination date.
(d) If the certificate affects less than all of the shares registered in
the name of the nominee, the Corporation may require the shares affected by the
certificate to be registered separately on the books of the Corporation and be
represented by a share certificate that bears a conspicuous legend stating that
there is a nominee certificate in effect with respect to the shares represented
by that share certificate.
8. Acquisition by Corporation of its Own Shares. The Corporation may
acquire its own shares and shares so acquired shall constitute authorized but
unissued shares. Unless otherwise prohibited by the Articles of Incorporation,
the Corporation may reissue such shares. If reissue is prohibited, the Articles
of Incorporation shall be amended to reduce the number of authorized shares by
the number of shares so acquired. Such required amendment may be adopted by the
Board of Directors without shareholder action.
9. Shareholder Protection Act. The provisions of Article 9 of Chapter 55 of
the General Statutes of North Carolina, as such Article may be amended from time
to time, shall not apply to the Corporation.
10. Control Share Acquisition Act. The provisions of Article 9A of Chapter
55 of the General Statutes of North Carolina, as such Article may be amended
from time to time, shall not apply to the Corporation.
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Indemnification for Expenses and Liabilities.
(a) Any person who at any time serves or has served: (1) as a director,
officer, employee or agent of the Corporation, (2) at the request of the
Corporation as a director,
15
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 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 was not 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 Business
Corporation Act or any successor to such statutes.
2. Advance Payment of Expenses. The Corporation shall (upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent involved
to repay the Expenses described herein unless it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation against such
Expenses) pay Expenses incurred by such Director, officer, employee or agent in
defending a Proceeding or appearing as a witness at a time when he has not been
named as a defendant or a respondent with respect thereto in advance of the
final disposition of such Proceeding.
3. Insurance. The Corporation shall have the 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, partner, trustee, 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 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 or her against such liability.
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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," "officer," "employee," and "agent" include the estate or personal
representative of a Director, officer, employee, or agent. "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
GENERAL PROVISIONS
(Amended February 25, 1993)
1. Distributions. The Board of Directors may from time to time declare, and
the Corporation may pay, distributions and share dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and by
its Articles of Incorporation.
2. Seal. The corporate seal shall have the name of the Corporation
inscribed thereon and shall be in such form as may be approved from time to time
by the Board of Directors. Such seal may be an impression or stamp and may be
used by the officers of the Corporation by causing it, or a facsimile thereof,
to be impressed or affixed or in any other manner reproduced. In addition to any
form of seal adopted by the Board of Directors, the officers of the Corporation
may use as the corporate seal a seal in the form of a circle containing the name
of the Corporation and the state of its incorporation (or an abbreviation
thereof) on the circumference and the word "Seal" in the center.
3. Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors.
4. Effective Date of Notice. Except as provided in Paragraph 5(a) of
Article II, written notice shall be effective at the earliest of the following:
(1) when received; (2) five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed with postage thereon prepaid and correctly
addressed; (3) upon confirmation of receipt by answerback code, if sent by
facsimile transmission; (4) upon transmission, if sent by telegraph or teletype;
or (5) on the date shown on the return receipt, if sent by registered or
certified
17
mail, return receipt requested and the receipt is signed by or on behalf of the
addressee. Oral notice is effective when actually communicated to the person
entitled thereto.
5. Corporate Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and
minute books, may be kept on or be in the form of punch cards, magnetic tape,
photographs, microphotographs or any other information storage device; provided
that the records so kept can be converted into clearly legible form within a
reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same. The Corporation shall
maintain at its principal office the following records: (1) Articles of
Incorporation or Restated Articles of Incorporation and all amendments thereto;
(2) Bylaws or Restated Bylaws and all amendments thereto; (3) resolutions by the
Board of Directors creating classes or series of shares and affixing rights,
preferences or limitations to shares; (4) minutes of all shareholder meetings or
action taken without a meeting for the past three years; (5) all written
communications to shareholders for the past three years, including financial
statements; (6) a list of the names and business addresses of its current
directors and officers; and (7) the Corporation's most recent annual report
filed with the North Carolina Secretary of State.
6. Bylaw Amendments.
(a) 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 present at any regular or special meeting of the Board of
Directors at which a quorum is present or by affirmative vote of a majority of
the shares entitled to vote on the matter represented at any regular or special
meeting of shareholders at which a quorum is present.
(b) The Board of Directors shall have no power to adopt a Bylaw: (1)
changing the statutory requirement for a quorum of Directors or action by
Directors or changing the statutory requirement for a quorum of shareholders or
action by shareholders; (2) providing for the management of the Corporation
otherwise than by the Board of Directors or the committees thereof; (3)
increasing or decreasing the fixed number for the size of the Board of Directors
or range of Directors, or changing from a fixed number to a range, or vice
versa; or (4) classifying and staggering the election of Directors.
(c) No Bylaw adopted, amended or repealed by the shareholders may be
readopted, amended or repealed by the Board of Directors, except to the extent
that 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.
7. Amendments to Articles of Incorporation. To the extent permitted by law,
the Board of Directors may amend the Articles of Incorporation without
shareholder approval to (1) delete the initial directors' names and addresses;
(2) change the initial registered agent or office in any state in which it is
qualified to do business, provided such change is on file with
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the respective Secretary of State; (3) change each issued and unissued share of
an outstanding class into a greater number of whole shares, provided that class
is the Corporation's only outstanding share class; (4) change the corporate name
by substituting "corporation," "incorporated," "company," "limited," or the
abbreviations therefor for a similar word or abbreviation or by adding, deleting
or changing a geographic designation in the name; (5) make any other change
expressly permitted by the North Carolina Business Corporation Act to be made
without shareholder action. All other amendments to the Articles of
Incorporation must be approved by the appropriate voting group or groups as
required by law.
The foregoing Amended and Restated Bylaws were adopted by the Board of
Directors at a meeting held on February 28, 1991 and further amended on October
9, 1991, February 25, 1993, and March 5, 1996 and ordered attested by the
Secretary and filed as part of the minutes of the meeting.
Secretary
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