(Exhibit 3b)
RESTATED BY-LAWS
OF
UNIFI, INC.
(Effective July 22,1999)
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TABLE OF CONTENTS
ARTICLE I
SHAREHOLDERS
Section 1.01 - Annual Meeting....................................1
Section 1.02 - Special meetings..................................1
Section 1.03 - Notice of Meetings of Shareholders................1
Section 1.04 - Waivers of Notice.................................3
Section 1.05 - Quorum............................................3
Section 1.06 - Fixing Record Date................................3
Section 1.07 - List of Shareholders at Meeting...................4
Section 1.08 - Proxies...........................................4
Section 1.09 - Selection of Duties of Inspectors.................7
Section 1.10 - Qualification of Voters...........................8
Section 1.11 - Vote of Shareholders.............................10
Section 1.12 - Written Consent of Shareholders..................10
ARTICLE II
DIRECTORS
Section 2.01 - Management of Business;
Qualification of Directors.......................11
Section 2.02 - Number of Directors..............................12
Section 2.03 - Classification and Election......................12
Section 2.04 - Newly Created Directorships and Vacancies........12
Section 2.05(a) - Resignations.....................................13
Section 2.05(b) - Removal of Directors.............................14
Section 2.06 - Quorum of Directors..............................14
Section 2.07 - Annual Meetings..................................14
Section 2.08 - Regular Meetings.................................15
Section 2.09 - Special Meetings.................................15
Section 2.10 - Compensation.....................................15
Section 2.11 - Committees.......................................15
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Section 2.12 - Interested Directors.............................16
Section 2.13 - Loans to Directors...............................17
Section 2.14 - Consent to Action................................17
ARTICLE III
OFFICERS
Section 3.01 - Election or Appointment;
Number...........................................18
Section 3.02 - Term.............................................18
Section 3.03 - Removal..........................................19
Section 3.04 - Authority........................................19
Section 3.05 - Voting Securities Owned by the Corporation.......19
ARTICLE IV
CAPITAL STOCK
Section 4.01 - Stock Certificates...............................20
Section 4.02 - Transfers........................................21
Section 4.03 - Registered Holders...............................21
Section 4.04 - New Certificates.................................21
ARTICLE V
FINANCIAL NOTICES TO SHAREHOLDERS
Section 5.01 - Dividends........................................22
Section 5.02 - Share Distribution and Changes...................22
Section 5.03 - Cancellation of Reacquired Shares................23
Section 5.04 - Reduction of Stated Capital......................24
Section 5.05 - Application of Capital Surplus
to Elimination of a Deficit......................24
Section 5.06 - Conversion of Shares.............................24
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ARTICLE VI
INDEMNIFICATION
Section 6.01 - Right to Indemnification.........................25
Section 6.02 - Right of Claimant to Bring Suit..................27
Section 6.03 - Nonexclusiveness.................................28
Section 6.04 - Insurance for Indemnification
of Directors and Officers........................29
ARTICLE VII
MISCELLANEOUS
Section 7.01 - Offices..........................................30
Section 7.02 - Seal.............................................30
Section 7.03 - Checks...........................................30
Section 7.04 - Fiscal Year......................................30
Section 7.05 - Books and Records................................30
Section 7.06 - Duty of Directors and Officers...................31
Section 7.07 - When Notice or Lapse of Time Unnecessary; Notices
Dispensed With When Delivery is Prohibited.......31
Section 7.08 - Entire Board.....................................32
Section 7.09 - Amendment of By-Laws.............................32
Section 7.10 - Nonapplication of North Carolina
Shareholder Protection Act.......................33
Section 7.11 - Section Headings.................................33
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RESTATED BY-LAWS
OF
UNIFI, INC.
ARTICLE I
Shareholders
Section 1.01. Annual Meeting. The Annual Meeting of Shareholders for the
election of Directors and the transaction of such other business as may come
before it shall be held on such date in each calendar year, not later than the
one hundred fiftieth (150) day after the close of the Corporation's preceding
fiscal year, and at such place as shall be fixed by the President and stated in
the notice or waiver of notice of the meeting. Section 1.02. Special Meetings.
Special meetings of the shareholders, for any purpose of purposes, may be called
at any time by any Director, the President, any Vice President, the Treasurer or
the Secretary or by resolution of the Board of Directors. Special meetings of
the shareholders shall be held at such place as shall be fixed by the person or
persons calling the meeting and stated in the notice or waiver of notice of the
meeting.
Section 1.03. Notice of Meetings of Shareholders. Whenever shareholders are
required or permitted to take any action at a meeting, written notice shall
state the place, date and hour of the meeting and, unless it is the Annual
Meeting, indicate that it is being issued by or at the direction of the person
or persons calling the meeting. Notice of a special meeting shall also state the
purpose or purposes for which the meeting is called. If, at any meeting, action
is proposed to be taken which would, if taken, entitle shareholders fulfilling
the requirements of Section 623 of the Business Corporation Law to receive
payment for their shares, the notice of such meeting shall include a statement
of that purpose to that effect. A copy of the notice of any meeting shall be
given, personally or by mail, not less than ten nor more than fifty days before
the date of the meeting, to each shareholder entitled to vote at such meeting.
If mailed, such notice is given when deposited in the United States mail, with
postage thereon prepaid, directed to the shareholder at his address as it
appears on the record of shareholders, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed to
some other address, then directed to him at such other address. When a meeting
is adjourned to another time or place, it shall not be necessary to give any
notice of the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken, and at
the adjourned meeting any business may be transacted that might have been
transacted on the original date of the meeting. However, if after the
adjournment, the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record on the new record date entitled to notice under the next preceding
paragraph.
Section 1.04. Waivers of Notice. Notice of meeting need not be given to any
shareholder who submits a signed Waiver of Notice, in person or by proxy,
whether before or after the meeting.
The attendance of any shareholder at a meeting, in person or by proxy, without
protesting prior to the conclusion of the meeting the lack of notice of such
meeting, shall constitute a Waiver of Notice by him.
Section 1.05. Quorum. The holders of a majority of the shares entitled to vote
thereat shall constitute a quorum at a meeting of shareholders for the
transaction of any business, provided that when a specified item of business is
required to be voted on by a class or series, voting as a class, the holders of
a majority of the shares of such class or series shall constitute a quorum for
the transaction of such specified item of business.
When a quorum is once present to organize a meeting, it is not broken by the
subsequent withdrawal of any shareholders.
The shareholders present may adjourn the meeting despite the absence of a quorum
and at andy such adjourned meeting at which the requisite amount of voting stock
shall be represented, any business may be transacted which might have been
transacted at the meeting as originally noticed.
Section 1.06. Fixing Record Date. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of shareholders. Such date shall
not be more than fifty nor less than ten days before the date of such meeting,
nor more than fifty days prior to any other action. When a determination of
shareholders of record entitled to notice of or to vote at any meeting or
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date under this Section for the adjourned meeting.
Section 1.07. List of Shareholders at Meeting. A list of shareholders as of the
record date, certified by the corporate officer responsible for its preparation
or by a transfer agent, shall be produced at any meeting of shareholders upon
the request thereat or prior thereto of any shareholder. If the right to vote at
any meeting is challenged, the inspectors of election, or person presiding
thereat, shall require such list of shareholders to be produced as evidence of
the right of the persons challenged to vote at such meeting, and all persons who
appear from such list to be shareholders entitled to vote thereat may vote at
such meeting.
Section 1.08. Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact. No proxy
shall be valid after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the shareholder executing it, except as otherwise provided in this
Section.
The authority of the holder of a proxy to act shall not be revoked by the
incompetence or death of the shareholder who executed the proxy unless, before
the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the Corporate Officer responsible
for maintaining the list of shareholders.
Except when other provision shall have been made by written agreement between
the parties, the record holder of shares which are held by a pledgee as security
or which belong to another, upon demand therefor and payment of necessary
expenses thereof, shall issue to the pledgor or to such owner of such shares a
proxy to vote or take other action thereon.
A shareholder shall not sell his vote or issue a proxy to vote to any person for
any sum of money or anything of value, except as authorized in this Section and
Section 620 of the Business Corporation Law.
A proxy which is entitled "irrevocable proxy" and which states that it is
irrevocable, is irrevocable when it is held by any of the following or a nominee
of any of the following:
(1) A Pledgee;
(2) A person who has purchased or agreed to purchase the shares;
(3) A creditor or creditors of the Corporation who extend or continue credit to
the Corporation in consideration of the proxy if the proxy states that it was
given in consideration of such extension or continuation of credit, the amount
thereof, and the name of the person extending or continuing credit;
(4) A person who has contracted to perform services as an Officer of the
Corporation, if a proxy is required by the contract of employment, if the proxy
states that it was given in consideration of such contract of employment, the
name of the employee and the period of employment contracted for;
(5) A person designated by or under an agreement under paragraph (a) of said
Section 620.
Notwithstanding a provision in a proxy, stating that it is irrevocable, the
proxy becomes revocable after the pledge is redeemed, or the debt of the
Corporation is paid, or the period of employment provided for in the contract of
employment has terminated, or the agreement under paragraph (a) of said Section
620 has terminated, and becomes revocable, in a case provided for in
subparagraph (3) or (4) above, at the end of the period, if any, specified
therein as the period during which it is irrevocable, or three years after the
date of the proxy, whichever period is less, unless the period of irrevocability
is renewed from time to time by the execution of a new irrevocable proxy as
provided in this Section. This paragraph does not affect the duration of a proxy
under the second paragraph of this Section.
A proxy may be revoked, notwithstanding a provision making it irrevocable, by a
purchaser of shares without knowledge of the existence of the provision unless
the existence of the proxy and its irrevocability is noted conspicuously on the
face or back of the certificate representing such shares.
Section 1.09. Selection and Duties of Inspectors. The Board of Directors, in
advance of any shareholders' meeting, may appoint one or more inspectors to act
at the meeting or any adjournment thereof. If inspectors are not so appointed,
the person presiding at a shareholders' meeting may, and on the request of any
shareholder entitled to vote thereat shall, appoint one or more inspectors. In
case any person appointed failed to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
The inspectors shall determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a quorum,
the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by them
and execute a certificate of any fact found by them. Any report or
certificate made by them shall be prima facie evidence of the facts stated and
of the vote as certified by them.
Unless appointed by the Board of Directors or requested by a shareholder, as
above provided in this Section, inspectors shall be dispensed with at all
meetings of shareholders.
The vote upon any question before any shareholders' meeting need not be by
ballot.
Section 1.10. Qualification of Voters. Every shareholder of record shall be
entitled at every meeting of shareholders to one vote for every share standing
in his name on the record of shareholders, except as expressly provided
otherwise in this Section and except as otherwise expressly provided in the
Certificate of Incorporation of the Corporation.
Treasury shares and shares held by another domestic or foreign corporation of
any type or kind, if a majority of the shares entitled to vote in the election
of Directors of such other corporation is held by the Corporation, shall not be
shares entitled to vote or to be counted in determining the total number of
outstanding shares.
Shares held by an administrator, executor, guardian, conservator, committee, or
other fiduciary, except a Trustee, may be voted by him, either in person or by
proxy, without transfer of such shares into his name. Shares held by a Trustee
may be voted by him, either in person or by proxy, only after the shares have
been transferred into his name as Trustee or into the name of his nominee.
Shares held by or under the control of a receiver may be voted by him without
the transfer thereof into his name if authority so to do is contained in an
order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, or a
nominee of the pledgee.
Redeemable shares which have been called for redemption shall not be deemed to
be outstanding shares for the purpose of voting or determining the total number
of shares entitled to vote on any matter on and after the date on which written
notice of redemption has been sent to holders thereof and a sum sufficient to
redeem such shares has been deposited with a bank or trust company with
irrevocable instruction and authority to pay the redemption price to the holders
of the shares upon surrender of certificates therefor.
Shares standing in the name of another domestic or foreign corporation of any
type or kind may be voted by such Officer, agent or proxy as the By-Laws of such
corporation may provide, or, in the absence of such provision, as the Board of
Directors of such corporation may determine.
When shares are registered on the record of shareholders of the Corporation in
the name of, or have passed by operation of law or by virtue of any deed of
trust or other instrument to two or more fiduciaries, and if the fiduciaries
shall be equally divided as to voting such shares, any court having jurisdiction
of their accounts, upon petition by any of such fiduciaries or by any party in
interest, may direct the voting of such shares for the best interest of the
beneficiaries. This paragraph shall not apply in any case where the instrument
or order of the court appointing such fiduciaries shall otherwise direct how
such shares shall be voted.
Notwithstanding the foregoing paragraphs of this Section, the Corporation shall
be protected in treating the persons whose names shares stand on the record of
shareholders as the owners thereof for all purposes.
Section 1.11. Vote of Shareholders. Directors shall be elected by a plurality of
the votes cast at a meeting of shareholders by the holders of shares entitled to
vote in the election. Whenever any corporate action, other than the election of
Directors, is to be taken by vote of the shareholders, it shall, except as
otherwise required by the Business Corporation Law or by the Certificate of
Incorporation of the Corporation, be authorized by a majority of the votes cast
at a meeting of shareholders by the holders of shares entitled to vote thereon.
Section 1.12. Written Consent of Shareholders. Whenever under the Business
Corporation Law shareholders are required or permitted to take any action by
vote, such action may be taken without a meeting on written consent, setting
forth the action so taken, signed by the holders of all outstanding shares
entitled to vote thereon. This paragraph shall not be construed to alter or
modify the provisions of any section of the Business Corporation Law or any
provision in the Certificate of Incorporation of the Corporation not
inconsistent with the Business Corporation Law under which the written consent
of the holders of less than all outstanding shares is sufficient for corporate
action.
Written consent thus given by the holders of all outstanding shares
entitled to vote shall have the same effect as a unanimous vote of shareholders.
ARTICLE II
Directors
Section 2.01. Management of Business; Qualifications of Directors. The business
of the Corporation shall be managed by its Board of Directors, each of whom
shall be at least twenty-one years of age.
Directors need not be Stockholders.
The Board of Directors, in addition to the powers and authority expressly
conferred upon it herein, by statute, by the Certificate of Incorporation of the
Corporation and otherwise, is hereby empowered to exercise all such powers as
may be exercised by the Corporation, except as expressly provided otherwise by
the statutes of the State of New York, by the Certificate of Incorporation of
the Corporation and these By-Laws.
Section 2.02. Number of Directors. The number of Directors which shall
constitute the entire Board shall be eleven (11), but this number may be
increased and subsequently again increased or decreased from time to time by the
affirmative vote of the majority of Directors, except that the number of
Directors shall not be less than nine (9).
Section 2.03. Classification and Election. (a) The Directors shall be divided
into three classes designated as Class 1, Class 2 and Class 3. All classes shall
be as nearly equal in number as possible and no class shall include less than
three (3) Directors. The term of office of the Directors initially classified
shall be as follows: Class 1 shall expire at the next (1992) Annual Meeting of
the Shareholders, Class 2 shall expire at the second succeeding (1993) Annual
Meeting of the Shareholders, and Class 3 shall expire at the third succeeding
(1994) Annual Meeting of the Shareholders. (b) At each Annual Meeting after such
initial classification, Directors to replace those whose terms expired at such
Annual Meeting shall be elected to hold office until the third succeeding Annual
Meeting of the Shareholders. A Director shall hold office until the Annual
Meeting for the year in which his term expires and subject to prior death,
resignation, retirement, or removal from office, until his successor shall be
elected and qualified.
Section 2.04. Newly Created Directorship and Vacancies. Newly created
Directorships or any decrease in Directorship shall be apportioned among the
classes as to make all classes as nearly equal in number as possible. Newly
created Directorships resulting from an increase in the number of Directors and
vacancies caused by death, resignation, retirement, or removal from office,
subject to Section 2.05(b), may be filled by the majority of the Directors
voting on the particular matter, if a quorum is present. If the number of
Directors then in office is less than a quorum, such newly created Directorships
and vacancies may be filled by the affirmative vote of a majority of the
Directors in office. When the number of Directors is increased by the Board, and
the newly created Directorships are filled by the Board, there shall be no
classification of the additional Directors until the next Annual Meeting of the
shareholders. Any Director elected by the Board to fill a vacancy shall serve
until the next meeting of the shareholders, at which the election of the
Directors is in the regular order of business, and until his successor is
elected and qualified.
In no case will a decrease in the number of Directors shorten the term of an
incumbent Director.
Section 2.05(a). Resignations. Any Director of the Corporation may resign at any
time by giving written notice to the Board of Directors, the President or the
Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, if any, or if no time is specified therein, then upon receipt
of such notice by the addressee; and, unless otherwise provided therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 2.05(b). Removal of Directors. Any or all of the Directors may be
removed at any time (i) for cause by vote of the shareholders or by action on
the Board of Directors or (ii) without cause by vote of the shareholders, except
as expressly provided otherwise by Section 706 of the Business Corporation Law.
The Board of Directors shall fill vacancies occurring in the Board by reason of
removal of Directors for cause. Vacancies occurring by reason of removal without
cause shall be filled by the Shareholders.
Section 2.06. Quorum of Directors. At all meetings of the Board of Directors, a
majority of the number of Directors then office shall be necessary and
sufficient to constitute a quorum for the transaction of business and the act of
a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as expressly provided
otherwise by the statutes of the State of New York and except as provided in the
third sentence of Section 2.04, in Section 2.11 and Section 7.09 hereof.
A majority of the Directors present, whether or not a quorum is present, may
adjourn any meeting of the Directors to another time and place. Notice of any
adjournment need not be given if such time and place are announced at the
meeting.
Section 2.07. Annual Meeting. The Board of Directors shall meet immediately
following the adjournment of the Annual Meeting of shareholders in each year at
the same place and no notice of such meeting shall be necessary.
Section 2.08. Regular Meetings. Regular meetings of the Board of Directors may
be held at such time and place as shall from time to time be fixed by the Board
and no notice thereof shall be necessary.
Section 2.09. Special Meetings. Special meetings may be called at any time by
any Director, the President, any Vice President, the Treasurer, or the Secretary
or by resolution of the Board of Directors. Special meetings shall be held at
such place as shall be fixed by the person or persons calling the meeting and
stated in the notice or waiver of notice of the meeting.
Section 2.10. Compensation. Directors shall receive such fixed sums and expenses
of attendance for attendance at each meeting of the Board or of any committee
and/or such salary as may be determined from time to time by the Board of
Directors; provided that nothing herein contained shall be construed to preclude
any Director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 2.11. Committees. The Board of Directors, by resolution adopted by a
majority of the entire Board, may designate from among its members an Executive
Committee and other committees, each consisting of three or more Directors, and
each of which, to the extent provided in the resolution, shall have the
authority of the Board of Directors, except that no such committee shall have
authority as to the following matters:
(a) The submission to shareholders of any action that needs shareholder's
authorization under the Business Corporation Law.
(b) The filling of vacancies in the Board of Directors or in any committee.
(c) The fixing of compensation of the Directors for serving on the Board of
Directors or on any committee.
(d) The amendment or repeal of the By-Laws, or the adoption of new By-Laws.
(e) The amendment or repeal of any resolution of the Board of Directors which by
its terms shall not be so amendable or repealable.
The Board may designate one or more Directors as alternate members of any such
committee, who may replace any absent member or members at any meeting of such
committee. Each such committee shall serve at the pleasure of the Board of
Directors.
Regular meetings of any such committee shall be held at such time and place as
shall from time to time be fixed by such committee and no notice thereof shall
be necessary. Special meetings may be called at any time by any Officer of the
Corporation or any member of such committee.
Notice of each special meeting of each such committee shall be given (or waived)
in the same manner as notice of a special meeting of the Board of Directors. A
majority of the members of any such committee shall constitute a quorum for the
transaction of business and the act of a majority of the members present at the
time of the vote, if a quorum is present at such time, shall be the act of the
committee.
Section 2.12. Interested Directors. No contract or other transaction between the
Corporation and one or more of its Directors, or between the Corporation and any
other corporation, firm, association or other entity in which one or more of the
Corporation's Directors are Directors or Officers, or are financially
interested, shall be either void or voidable for this reason alone or by reason
alone that such Director or Directors are present at the meeting of the Board of
Directors, or of a committee thereof, which approves such contract or
transaction, or that his or their votes are counted for such purpose:
(1) If the fact of such common Directorship, Officership or financial interest
is disclosed or known to the Board or committee, and the Board or committee
approves such contract or transaction by a vote sufficient for such purpose
without counting the vote or votes of such interested Director or Directors;
(2) If such common Directorship, Officership or financial interest is disclosed
or known to the shareholders entitled to vote thereon, and such contract or
transaction is approved by vote of the shareholders; or
(3) If the contract or transaction is fair and reasonable as to the Corporation
at the time it is approved by the Board, a committee of the shareholders.
Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board or of a committee which approves such contract
or transaction.
Section 2.13. Loans to Directors. A loan shall not be made by the Corporation to
any Director unless it is authorized by vote of the shareholders. For this
purpose, the shares of the Director who would be the borrower shall not be
shares entitled to vote. A loan made in violation of this Section shall be a
violation of the duty to the Corporation of the Directors approving it, but the
obligation of the borrower with respect to the loan shall not be affected
thereby.
Section 2.14. Consent to Action. Any action required or permitted to be taken by
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee consent in writing, whether done before
or after the action so taken, to the adoption of a resolution authorizing the
action. The resolution and the written consent thereto shall be filed with the
Minutes of the proceeding of the Board or the committee.
ARTICLE III
Officers
Section 3.01. Election or Appointment: Number. The Officers shall be a Chairman,
a Vice-Chairman, a President, a Secretary, a Treasurer, and such number of
Executive Vice-Presidents, Vice-Presidents, Assistant Secretaries and Assistant
Treasurers, and such other Officers as the
Board may from time to time determine. Any person may hold two or more offices
at the same time, except the offices of President and Secretary. Any Officer,
except the Chairman, Vice-Chairman and the President of the Corporation, may but
does not need to be chosen from among the Board of Directors.
Section 3.02. Term. Subject to the provisions of Section 3.03 hereof, all
officers shall be elected or appointed to hold office until the meeting of the
Board of Directors following the next Annual Meeting of shareholders, and each
officer shall hold office for the term for which he is elected or appointed and
until his successor has been elected or appointed and qualified.
The Board may require any Officer to give security for the faithful performance
of his duties. Section 3.03. Removal. Any Officer elected or appointed by the
Board of Directors may be removed by the Board with or without cause.
The removal of an Officer without cause shall be without prejudice to his
contract rights, if any. The election or appointment of an Officer shall not of
itself create contract rights.
Section 3.04. Authority. Any Director or such other person as may be designated
by the Board of Directors, and in the absence of such Director or other person,
the President shall be the Chief Executive Officer of the Corporation. The
Chairman shall oversee the general operations of the Corporation and set company
policy which would be implemented, interpreted and carried out by the President
and Chief Executive Officer who will report directly to the Chairman. The
Chairman shall preside at all meetings of the Board of Directors unless some
other person is designated by the Board.
Section 3.05. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers or notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the President or any Vice-President and any such
officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any Corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
ARTICLE IV
Capital Stock
Section 4.01. Stock Certificates. The shares of the Corporation shall be
represented by certificates signed by the Chairman of the Board or the President
or a Vice-President and the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer of the Corporation, and may be sealed with the seal of
the Corporation or a facsimile thereof. The signatures of the Officers upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or its
employee. In case any Officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such Officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such Officer at the date of issue.
Each certificate representing shares shall also set fort such additional
material as is required by subdivisions (b) and (c) of Section 508 of the
Business Corporation Law. Section 4.02. Transfers. Stock of the Corporation
shall be transferable in the manner prescribed by the laws of the State of New
York and in these By-Laws Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, which
shall be canceled before the new certificate shall be issued.
Section 4.03. Registered Holders. The Corporation shall be entitled to treat and
shall be protected in treating the persons in whose names shares or any
warrants, rights or options stand on the record of shareholders, warrant
holders, right holders or option holders, as the case may be, as the owners
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to, or interest in, any such share, warrant, right or option on the
part of any other person, whether or not the Corporation shall have notice
thereof, except as expressly provided otherwise by the Statutes of the State of
New York.
Section 4.04. New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Directors may, in their discretion,
require the owner of the lost, stolen or destroyed certificate, or his legal
representatives, to give the Corporation a bond sufficient (in the judgment of
the Directors) to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or theft of any such certificate or
the issuance of such new certificate. A new certificate may be issued without
requiring any bond when, in the judgment of the Directors, it is proper so to
do.
ARTICLE V
Financial Notices to Shareholders
Section 5.01. Dividends. When any dividend is paid or any other distribution is
made, in whole or in part, from sources other than earned surplus, it shall be
accompanied by a written notice (1) disclosing the amounts by which such
dividend or distribution affects stated capital, capital surplus and earned
surplus, or (2) if such amounts are not determinable at the time of such notice,
disclosing the approximate effect of such dividend or distribution upon stated
capital, capital surplus and earned surplus and stating that such amounts are
not yet determinable.
Section 5.02. Share Distribution and Changes. Every distribution to shareholders
of certificates representing a share distribution or a change of shares which
affects stated capital, capital surplus or earned surplus shall be accompanied
by a written notice (1) disclosing the amounts by which such distribution or
change affects stated capital, capital surplus or earned surplus, or (2) if such
amounts are not determinable at the time of such notice, disclosing the
approximate effect of such distribution or change upon stated capital, capital
surplus and earned surplus and stating that such amounts are not yet
determinable.
When issued shares are changed in any manner which affects stated capital,
capital surplus or earned surplus, and no distribution to shareholders of
certificates representing any shares resulting from such change is made,
disclosure of the effect of such change upon the stated capital, capital surplus
and earned surplus shall be made in the next financial statement covering the
period in which such change is made that is furnished by the Corporation to
holders of shares of the class or series so changed or, if practicable, in the
first notice of dividend or share distribution or change that is furnished to
such shareholders between the date of the change and shares and the next such
financial statement, and in any event within six months of the date of such
change.
Section 5.03. Cancellation of Reacquired Shares. When reacquired shares other
than converted shares are canceled, the stated capital of the Corporation shall
be reduced by the amount of stated capital then represented by such shares plus
any stated capital not theretofore allocated to any designated class or series
which is thereupon allocated to the shares canceled. The amount by which stated
capital has been reduced by cancellation of required shares during a stated
period of time shall be disclosed in the next financial statement covering such
period that is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share distribution that is
furnished to the holders of each class or series of its shares between the end
of the period and the next such financial statement, and in any event to all its
shareholders within six months of the date of the reduction of capital.
Section 5.04. Reduction of Stated Capital. When a reduction of stated capital
has been effected under Section 516 of the Business Corporation Law, the amount
of such reduction shall be disclosed in the next financial statement covering
the period in which such reduction is made that is furnished by the Corporation
to all its shareholders or, if practicable, in the first notice of dividend or
share distribution that is furnished to the holders of each class or series of
its shares between the date of such reduction and the next such financial
statement, and in any event to all its shareholders within six months of the
date of such reduction.
Section 5.05. Application of Capital Surplus to Elimination of a Deficit.
Whenever the Corporation shall apply any part or all of its capital surplus to
the elimination of any deficit in the earned surplus account, such application
shall be disclosed in the next financial statement covering the period in which
such elimination is made that is furnished by the Corporation to all its
shareholders or, if practicable, in the first notice of dividend or share
distribution that is furnished to holders of each class or series of its shares
between the date of such elimination and the next such financial statement, and
in any event to all its shareholders within six months of the date of such
action.
Section 5.06. Conversion of Shares. Should the Corporation issue any convertible
shares, then, when shares have been converted, disclosure of the conversion of
shares during a stated period of time and its effect, if any, upon stated
capital shall be made in the next financial statement covering such period that
is furnished by the Corporation to all its shareholders or, if practicable, in
the first notice of dividend or share distribution that is furnished to the
holders of each class or series of its shares between the end of such period and
the next financial statement, and in any event to all its shareholders within
six months of the date of the conversion of shares.
ARTICLE VI
Indemnification
Section 6.01. Right to Indemnification. The Corporation shall indemnify, defend
and hold harmless any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, investigative or other, including
appeals, by reason of the fact that he is or was a Director, Officer or employee
of the Corporation, or is or was serving at the request of the Corporation as a
Director, Officer or employee of any Corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a Director, Officer or employee or in any other capacity while
serving as a Director, Officer or employee, to the fullest extent authorized by
the New York Business Corporation Law, as the same exists or may hereafter be
amended, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that except as provided in Section 6.02 hereof
with respect to proceedings seeking to enforce rights to indemnification, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
The right to indemnification conferred in this Article shall be a contract right
and shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if required by law at the time of such payment, the payment of
such expenses incurred by a Director or Officer in his capacity as a Director or
Officer (and not in any other capacity in which service was or is rendered by
such person while a Director or Officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such Director or Officer, to repay all
amounts so advanced if it should be determined ultimately that such Director or
Officer is not entitled to be indemnified under this Section or otherwise.
"Employee" as used herein, includes both an active employee in the Corporation's
service, as well as a retired employee who is or has been a party to a written
agreement under which he might be, or might have been, obligated to render
services to the Corporation.
Section 6.02. Right of Claimant to Bring Suit. If a claim under Section 6.01 is
not paid in full by the Corporation within sixty (60) days or, in cases of
advances of expenses, twenty (20) days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the New York Business
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defence shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the New York Business Law, nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel, or
its shareholders) that the claimant had not met such applicable standard of
conduct shall be a defense to the action or create a presumption that claimant
had not met the applicable standard of conduct. The Corporation shall be
precluded from asserting in any judicial proceeding commenced pursuant to this
Article that the procedures and presumptions of this Article are not valid,
binding and enforceable and shall stipulate in any such proceeding that the
Corporation is bound by all provisions of this Article.
Section 6.03. Nonexclusiveness. The indemnification and advances of expenses
granted pursuant to, or provided by, this Article shall not be deemed exclusive
of any other rights to which a Director or Officer seeking indemnification or
advancement or expenses may be entitled, whether contained in the Certificate of
Incorporation or these By-Laws, and the Board of Directors is authorized, from
time to time in its discretion, to enter into agreements with one or more
Directors, Officers and other persons providing for the maximum indemnification
allowed by applicable law.
The right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article (a)
shall apply to acts or omissions antedating the adoption of this By-Law, (b)
shall be severable, (c) shall not be exclusive of other rights to which any
Director, Officer or employee may now or hereafter become entitled apart from
this Article, (d) shall continue as to a person who has ceased to be such
Director, Officer or employee and (e) shall inure to the benefit of the heirs,
Executors and Administrators of such a person.
Section 6.04. Insurance for Indemnification of Directors and Officers. The
Corporation shall have the power to purchase and maintain insurance (a) to
indemnify the Corporation for any obligations which it incurs as the result of
the indemnification of Directors and Officers under the provisions of this
Article; (b) to indemnify Directors and Officers in instances which they may be
indemnified by the Corporation under the provisions of this Article; and (c) to
indemnify Directors and Officers in instances in which they may not otherwise be
indemnified by the Corporation under the provisions of this Article, provided
the contract of insurance covering such Directors and Officers provides, in a
manner acceptable to the Superintendent of Insurance of the State of New York,
for a retention amount and for co-insurance.
No insurance under the preceding paragraph of this Section may provide for any
payment, other than the cost of defense, to or on behalf of any Director of
Officer: (i) if a judgment or other final adjudication adverse to the insured
Director or Officer establishes that his acts of active and deliberate
dishonesty were material to the cause of action so adjudicated or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled, or (ii) in relation to any risk the insurance of which is
prohibited under the insurance laws of the State of New York.
ARTICLE VII
Miscellaneous
Section 7.01. Offices. The principal office of the Corporation shall be in the
City of New York, County of New York, State of New York. The Corporation may
also have offices at other places, within and/or without the State of New York.
Section 7.02. Seal. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its incorporation and the words "Corporate Seal of
New York".
Section 7.03. Checks. All checks or demands for money shall be signed by such
person or persons as the Board of Directors may from time to time determine.
Section 7.04. Fiscal Year. The fiscal year of the Corporation shall begin on the
1st day of July in each year and shall end on the 30th day of June of the
ensuing year and the first fiscal year shall end on June 30, 1969.
Section 7.05. Books and Records. The Corporation shall keep correct and complete
books and records of accounts and shall keep minutes of the proceedings of its
shareholders, Board of Directors and Executive Committee, if any, and shall keep
at the office of the Corporation in New York State or at the office of its
transfer agent or registrar in New York State, a record containing the names and
addresses of all shareholders, the number and class of shares held by each and
the dates when they respectively became the owners of record thereof. Any of the
foregoing books, minutes or records may be in written form or in any other form
capable of being converted into written form within a reasonable time.
Section 7.6. Duty of Directors and Officers. Directors and Officers shall
discharge the duties of their respective positions in good faith and with that
degree of diligence, care and skill which ordinarily prudent men would exercise
under similar circumstances in like positions. In discharging their duties,
Directors and Officers, when acting in good faith, may rely upon financial
statements of the Corporation represented to them to be correct by the President
or the Officer of the Corporation having charge of its books of accounts, or
stated in a written report by an independent public or certified public
accountant or firm of such accountants fairly to reflect the financial condition
of the Corporation.
Section 7.07. When Notice or Lapse of Time Unnecessary; Notice Dispensed With
When Delivery is Prohibited. Whenever, under the Business Corporation Law or the
Certificate of Incorporation or the By-Law of the Corporation or by the terms of
any agreement or instrument, the Corporation or the Board of Directors or any
committee thereof is authorized to take any action after notice to any person or
persons or after the lapse of a prescribed period of time, such action may be
taken without notice and without the lapse of such period of time, if at any
time before or after such action is completed the person or persons entitled to
such notice or entitled to participate in the action to be taken or, in the case
of a shareholder, by his attorney-in-fact, submit a signed waiver of notice of
such requirements.
Whenever any notice or communication is required to be given to any person by
the Business Corporation Law, the Certificate of Incorporation of the
Corporation or theses By-Laws, or by the terms of any agreement or instrument,
or as a condition precedent to taking any corporate action
and communication with such person is then unlawful under any statute of the
State of New York or of the United States or any regulation, proclamation or
order issued under said statutes, then the giving of such notice or
communication to such person shall not be required and there shall be no duty to
apply for license or other permission to do so. Any affidavit, certificate or
other instrument which is required to be made or filed as proof of the giving of
any notice or communication required the Business Corporation Law shall, if such
notice or communication to any person is dispensed with under this paragraph,
include a statement that such notice or communication was not given to any
person with whom communication is unlawful. Such affidavit, certificate or other
instrument shall be as effective for all purposes as though such notice or
communication had been personally given to such person.
Section 7.08. Entire Board. As used in these By-Laws, the term "Entire Board"
means the total number of Directors which the Corporation would have if there
were no vacancies.
Section 7.09. Amendment of By-Laws. These By-Laws may be amended or repealed and
new By-Laws adopted by the Board of Directors or by vote of the holders of the
shares at the time entitled to vote of the holders of the shares at the time
entitled to vote in the election of any Directors, except that any amendment by
the Board changing the number of Directors shall require the vote of a majority
of the Entire Board and except that any By-Laws adopted by the Board may be
amended or repealed by the shareholders entitled to vote thereon as provided in
the Business Corporation Law.
If any By-Law regulating an impending election of Directors is adopted, amended
or repealed by the Board, the shall be set forth in the notice of the next
meeting of shareholders for the election of Directors the By-Law so adopted,
amended or repealed, together with a concise statement of the changes made.
Section 7.10 Nonapplication of North Carolina Shareholder Protection Act. The
provisions of North Carolina General Statutes 55-75 through 55-79 shall not be
applicable to this Corporation. Section 7.11. Section Headings. The Headings to
the Articles and Sections of these By-Laws have been inserted for convenience of
reference only and shall not be deemed to be a part of these By-Laws.
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