Bylaws - Krispy Kreme Doughnuts Inc.
AMENDED AND RESTATED BYLAWS
OF
KRISPY KREME DOUGHNUTS, INC.
Effective March 21, 2003
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ARTICLE I. - OFFICES
Section 1. Registered Office: The registered office of the corporation
shall be at 370 Knollwood Street, Winston-Salem, North
Carolina 27103.
Section 2. Principal Office: The principal office of the corporation
shall be located at the same address as the registered office
or such other place as may be designated by the Board of
Directors.
Section 3. Other Offices: The corporation may have offices at such other
places, either within or without the State of North Carolina,
as the Board of Directors may from time to time determine, or
as the affairs of the corporation may require.
ARTICLE II. - MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings: All meetings of shareholders shall be held
at the registered office of the corporation, or at such other
place, either within or without the State of North Carolina,
as shall be designated in the notice of the meeting or agreed
on by a majority of the shareholders entitled to vote thereat.
Section 2. Annual Meetings: (a) The annual meeting of shareholders shall
be held on a date and at a place at an hour to be fixed by the
Chief Executive Officer and affirmed by the Board of Directors
from time to time, for the purpose of electing directors of
the corporation and for the transaction of such other business
as may be properly brought before the meeting.
(b) No business shall be transacted at an annual meeting of
shareholders, except such business as shall be (i) specified
in the notice of meeting given as provided in Article II,
Section 5, (ii) otherwise brought before the meeting by or at
the direction of the Board of Directors or (iii) otherwise
brought before the meeting by a shareholder of record entitled
to vote at the meeting, in compliance with the procedures set
forth in this Article II, Section 2(b).
For business to be brought before an annual meeting by a
shareholder pursuant to (iii) above, the shareholder must have
given timely notice in writing to the Secretary of the
Company. To be timely, a shareholder's notice must be
delivered to, or mailed to and received at, the principal
office of the corporation not less
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than forty days nor more than ninety days prior to the
meeting. If less than fifty days' notice or prior public
disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder will be timely if
received by the Secretary of the Company not later than the
close of business on the tenth day following the day on which
such notice of the date of the meeting or such public
disclosure was given or made. Notice of the date of the
meeting shall be deemed to have been given by the corporation
more than fifty days in advance of the annual meeting if the
annual meeting is called on the date prescribed by Article II,
Section 1, without regard to whether notice or public
disclosure thereof is made. Notice of action to be brought
before the annual meeting pursuant to (iii) above shall set
forth as to each such matter the shareholder proposes to bring
before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting and
the reasons for bringing such business before the annual
meeting, (B) the name and address, as they appear on the
corporation's books, of each shareholder proposing such
business, (C) the classes and number of shares of the
corporation that are owned of record and beneficially by each
such shareholder, and (D) any material interest of such
shareholders in such business other than any interest as a
shareholder of the corporation. Notwithstanding anything in
these Bylaws to the contrary, no business shall be conducted
at an annual meeting except in accordance with the provisions
set forth in this Article II, Section 2(b). If the chairman of
the annual meeting determines that any business was not
properly brought before the meeting in accordance with the
provisions of these Bylaws, he shall so declare to the meeting
and, to the extent permitted by law, any such business not
properly brought before the meeting shall not be transacted.
Section 3. Substitute Annual Meeting: If the annual meeting shall not be
held on the day designated by these bylaws, a substitute
meeting may be called in accordance with the provisions of
Section 4 of this Article. A meeting so called shall be
designated and treated for all purposes as the annual meeting.
Section 4. Special Meetings: Special meetings of the shareholders may be
called at any time by the President, Secretary or Board of
Directors of the corporation.
Section 5. Notice of Meetings: Written or printed notice stating the time
and place of the meeting shall be delivered not less than ten
nor more than fifty days before the date thereof, either
personally or by mail, by or at the direction of the Chairman,
the President, the Secretary, or other person calling the
meeting, to each shareholder of record entitled to vote at
such meeting.
In the case of an annual or substitute annual meeting, the
notice of meeting need not specifically state the business to
be transacted thereat unless it is a matter, other than
election of Directors, on which the vote of shareholders is
expressly required by the provisions of the North Carolina
Business Corporation Act. In the
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case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the
meeting is called.
When a meeting is adjourned for one hundred twenty days or
more, notice of the adjourned meeting shall be given as in the
case of an original meeting. When a meeting is adjourned for
less than one hundred twenty days in any one adjournment, it
is not necessary to give any notice of the adjourned meeting
other than by announcement at the meeting at which the
adjournment is taken.
Section 6. Voting Lists: After fixing the record date for a meeting, the
Secretary of the corporation shall prepare an alphabetical
list of the shareholders entitled to notice of such meeting or
any adjournment thereof, arranged by voting group, class and
series, with the address of and number of shares held by each.
Such list shall be kept on file at the principal office of the
corporation, or at a place identified in the meeting notice in
the city where the meeting will be held, beginning two
business days after notice of such meeting is given and
continuing through the meeting, and on written demand shall be
subject to inspection or copying by any shareholder, his agent
or attorney at any time during regular business hours. This
list shall also be produced and kept open at the time and
place of the meeting and shall be subject to inspection by any
shareholder during the whole time of the meeting.
Section 7. Quorum: The holders of a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a
quorum at meetings of shareholders. If there is no quorum at
the opening of a meeting of shareholders, such meeting may be
adjourned from time to time by the vote of a majority of the
shares voting on the motion to adjourn; and, at any adjourned
meeting at which a quorum is present, any business may be
transacted which might have been transacted at the original
meeting.
The shareholders at a meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 8. Voting of Shares: Each outstanding share having voting rights
shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
Except in the election of Directors the vote of a majority of
the shares voted on any matter at a meeting of shareholders at
which a quorum is present shall be the act of the shareholders
on that matter, unless the vote of a greater number is
required by law. In the election of Directors those receiving
the greatest number of votes shall be deemed elected even
though not receiving a majority.
Voting on all matters shall be by voice vote or by a show of
hands unless the holders of one tenth of the shares
represented at the meeting shall, prior to the voting on any
matter, demand a ballot vote on that particular matter. The
election of directors is governed by Article III, Section 3.
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Section 9. Informal Action by Shareholders: Any action which may be taken
at a meeting of the shareholders may be taken without a
meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the persons who would be
entitled to vote upon such action at a meeting, and filed with
the Secretary of the corporation to be kept in the Corporate
Minute Book.
Section 10. Proxies: At all meetings of shareholders, shares may be voted
either in person or by one or more agents authorized by a
written proxy executed by the shareholder or his duly
authorized attorney-in-fact. A telegram, cablegram, wireless
message or photogram appearing to have been transmitted by a
shareholder, or a photographic, photostatic or equivalent
reproduction of a writing appointing one or more agents shall
be deemed a written proxy within the meaning of this section.
ARTICLE III. - DIRECTORS
Section 1. General Powers: The business and affairs of the corporation
shall be managed by the Board of Directors.
Section 2. Number, Term and Qualifications: (a) The number of Directors
constituting the whole Board shall be not more than fifteen
nor less than nine. The authorized number of Directors, within
the limits above specified, shall be determined by the
affirmative vote of a majority of the whole Board given at a
regular or special meeting of the Board of Directors; provided
that, if the number so determined is to be increased, or
decreased, notice of the proposed increase or decrease shall
be included in the notice of such meeting, or all of the
Directors at the time in office be present at such meeting, or
those not present at any time waive or have waived notice
thereof in writing; and provided, further, that the number of
Directors which shall constitute the whole Board shall not be
less than nine nor shall it be reduced to a number less than
the number of Directors then in office unless such reduction
shall become effective only at and after the next ensuing
meeting of shareholders for the election of Directors.
(b) The directors of the corporation shall be divided into the
following three classes: Class I, Class II and Class III. The
number of directors in each class shall be as nearly equal in
number as possible. Each initial director in Class I shall be
elected to an initial term of one (1) year, each initial
director in Class II shall be elected to an initial term of
two (2) years and each initial director in Class III shall be
elected to an initial term of three (3) years. Each director
shall hold office until the election and qualification of his
successor or his earlier death, resignation, retirement or
removal from office. Upon the expiration of the initial term
for each class of directors, the directors of each class shall
be elected for a term of three (3) years. Directors need not
be residents of the State of North Carolina or shareholders of
the corporation.
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Section 3. Nomination and Election of Directors: Except as provided in
Section 5 and Section 2 of this Article, the Directors shall
be elected at the annual meeting of shareholders. If any
shareholder so demands, election of Directors shall be by
ballot.
Only persons who are nominated in accordance with the
provisions set forth in these bylaws shall be eligible to be
elected as directors at an annual or special meeting of
shareholders. Nomination of election to the Board of Directors
shall be made by or at the direction of the Board of Directors
or a committee appointed thereby.
Nomination for election of any person to the Board of
Directors may also be made by a shareholder entitled to vote
on such election if written notice of the nomination of such
person shall have been delivered to the Secretary of the
corporation at the principal office of the corporation not
less than forty days nor more than ninety days prior to the
meeting. If less than fifty days' notice or prior public
disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder will be timely if
received by the Secretary of the Company not later than the
close of business on the tenth day following the day on which
such notice of the date of the meeting or such public
disclosure was given or made. Notice of the date of the
meeting shall be deemed to have been given by the corporation
more than fifty days in advance of the annual meeting if the
annual meeting is called on the date prescribed by Article II,
Section 1, without regard to whether notice or public
disclosure thereof is made. Each such notice shall set forth:
(i) the name and address of the shareholder who intends to
make the nomination; (ii) a representation that such
shareholder is a holder of record of shares of the corporation
entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or
persons specified in the notice; (iii) as to each person to be
nominated (A) such person's name and address, employment
history for the past five years, affiliations, if any, with
the corporation and other corporations, the class and number
of shares of the corporation that are owned of record or
beneficially by such person and information concerning any
transaction in such shares within the prior sixty days,
whether such person has been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) within the past five years and the details
thereof, whether such person has been a party to any
proceeding or subject to any judgment, decree or final order
with respect to violations of federal or state securities laws
within the past five years and the details thereof, and the
details of any contract, arrangement, understanding or
relationships with any person with respect to any securities
of the corporation; (B) such person's written consent to being
named as a nominee and to serving as director if elected and
(C) a description of all arrangements or understandings
between the shareholder and each such nominee and any other
person or persons (naming such person or
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persons) pursuant to which the nomination or nominations are
to be made by the shareholder. The chairman of the meeting
shall refuse to acknowledge the nomination of any person not
made in compliance with the foregoing procedure.
Section 4. Removal: Directors may be removed from office only with cause
by a vote of shareholders holding 66 2/3% of the outstanding
shares entitled to vote at an election of Directors. If any
Directors are so removed, new Directors may be elected at the
same meeting.
Section 5. Vacancies: A vacancy occurring in the Board of Directors may
be filled by a majority of the remaining Directors though less
than a quorum, or by the sole remaining Director; but a
vacancy created by an increase in the authorized number of
Directors outside of the range specified in Section 2 of this
Article shall be filled by election at an annual meeting or at
a special meeting of shareholders called for that purpose. The
shareholders may elect a Director at any time to fill any
vacancy not filled by the Directors.
Section 6. Compensation: The Board of Directors may compensate Directors
for their services as such and may provide for the payment of
all expenses incurred by the Directors in attending regular
and special meetings of the Board.
Section 7. Emeritus Directors: The Board of Directors may, from time to
time, by majority vote, elect one or more of its former
Directors to serve as Emeritus Directors for one or more
consecutive one-year terms or until earlier resignation or
removal by a majority of the Board of Directors. Emeritus
Directors may be asked to serve as consultants to the Board of
Directors and may be appointed by the Board of Directors to
serve as consultants to committees of the Board of Directors.
Emeritus Directors may be invited to attend meetings of the
Board of Directors or any committee of the Board of Directors
for which they have been appointed to serve as consultants.
Emeritus Directors shall not be permitted to vote on matters
brought before the Board of Directors or any committee thereof
and shall not be counted for the purpose of determining
whether a quorum of the Board or Directors or the committee is
present. Emeritus Directors will be entitled to receive fees
and reimbursement for expenses of meeting attendance, as
recommended by the Chairman of the Board of Directors and
approved by the Board of Directors. Emeritus Directors may be
removed at any time by the Board of Directors. An Emeritus
Director shall not have any of the responsibilities or
liabilities of a director, nor any of a director's rights,
powers or privileges. Reference in these Bylaws to "Directors"
shall not mean or include Emeritus Directors.
Section 8. Director Retirement: A Director shall retire as of the annual
meeting coincident with the end of term in which such Director
attains age 70, except that any Director having attained the
age of 70 as of the annual meeting of the shareholders held in
2003 shall be permitted to complete such Director's present
term and stand for reelection for one additional term.
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ARTICLE IV. - MEETINGS OF DIRECTORS
Section 1. Regular Meetings: A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the
annual meeting of the shareholders. In addition, to the annual
meeting of the Board of Directors, there shall be three
regular meetings of the Board of Directors to be held at the
offices of the corporation or at such other place as may be
designated by the Chairman of the Board or the President in
August and November (on the third Tuesday thereof after the
closing of the corporation's previous fiscal month) and on the
last Tuesday in January prior to close of each fiscal year.
The Chairman of the Board may designate the time of the
meetings.
Section 2. Special Meetings: Special meetings of the Board of Directors
may be called by or at the request of the Chairman, President
or any two Directors. Such meetings may be held within or
without the State of North Carolina.
Section 3. Notice of Meetings: Regular meetings of the Board of Directors
may be held without notice.
The person or persons calling a special meeting of the Board
of Directors shall, at least two days before the meeting, give
notice thereof by any usual means of communication. Such
notice need not specify the purpose for which the meeting is
called.
Attendance by a Director at a meeting shall constitute a
waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not
lawfully called.
Section 4. Quorum: A majority of the Directors fixed by these bylaws
shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors.
Section 5. Manner of Acting: Except as otherwise provided in this
section, the act of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors.
Section 6. Informal Action by Directors: Action taken by a majority of
the Directors without a meeting is nevertheless Board action
if written consent to the action in question is signed by all
the Directors and filed with the minutes of the proceedings of
the Board, whether done before or after the action so taken.
Section 7. Meeting by Telephone: Any one or more members of any such
committee may participate in a meeting of the committee by
means of a conference telephone or similar communications
device which allows all persons participating in the meeting
to hear each other and such participation in a meeting shall
be deemed presence in person at such meeting.
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ARTICLE V. - EXECUTIVE AND OTHER COMMITTEES
Section 1. Appointment: The Board of Directors, by resolution adopted by
a majority of the number of Directors then in office, may
designate from among its members an Executive Committee or one
or more other committees, each consisting of two or more
Directors. The designation of any such committee and the
delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any
responsibility or liability imposed upon it or him by law.
Section 2. Authority: Any such committee shall have and exercise all
authority of the Board of Directors in the management of the
corporation except to the extent, if any, that such authority
shall be limited by the resolution appointing such committee
and except also to the extent limited by law.
Section 3. Tenure and Qualifications: Each member of any such committee
shall hold office until the next regular annual meeting of the
Board of Directors following his designation and until his
successor is designated as a member of any such committee and
is elected and qualified.
Section 4. Meetings: Regular meetings of any such committee may be held
without notice at such time and place as such committee may
fix from time to time by resolution. Special meetings of any
such committee may be called by any member thereof upon not
less than one day's notice stating the place, date and hour of
such meeting, which notice may be written or oral, and if
mailed, shall be deemed to be delivered when deposited in the
United States mail addressed to any member of the Executive
Committee at his business address. Any member of the Executive
Committee may waive notice of any meeting and no notice of any
meeting need be given to any member thereof to attend in
person. The notice of a meeting of the Executive Committee
need not state the business proposed to be transacted at the
meeting.
Section 5. Quorum: A majority of the members of any such committee shall
constitute a quorum for the transaction of business at any
meeting thereof, and actions of such committee must be
authorized by the affirmative vote of a majority of the
members present at the meeting at which a quorum is present.
Section 6. Informal Action: Action taken by a majority of the members of
any such committee without meeting is nevertheless action of
such committee if written consent to the action in question is
signed by all of the members of such committee and filed with
the minutes of the proceedings of the committee, whether done
before or after the actions so taken.
Section 7. Removal: Any member of any such committee may be removed at
any time with or without cause by resolution adopted by a
majority of the Board of Directors.
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Section 8. Vacancies: Any vacancy in any such committee may be filled by
resolution adopted by a majority of the Board of Directors.
Section 9. Procedure: Any such committee shall elect a presiding officer
from among its members and may fix its own rules of procedure
which shall not be 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.
Section 10. Meeting by Telephone: Any one or more members of any such
committee may participate in a meeting of the committee by
means of a conference telephone or similar communications
device which allows all persons participating in the meeting
to hear each other and such participation in a meeting shall
be deemed presence in person at such meeting.
ARTICLE VI. - OFFICERS
Section 1. Number: The officers of the corporation shall consist of a
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 elect. Any two or
more offices may be held by the same person, except the
offices of President and Secretary may not be held by the same
person.
Section 2. Election and Term: The officers of the corporation shall be
selected by the Board of Directors. Such elections may be held
at any regular or special meeting of the Board. Each officer
shall hold office for a period of one year or until his death,
resignation, retirement, removal, disqualification or his
successor is elected and qualifies.
Section 3. Removal: Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board with or without
cause; but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
Section 4. President: The President, subject to the control of the Board
of Directors, shall supervise and control the management of
the corporation in accordance with these bylaws. He shall
preside at all meetings of shareholders and directors. He
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 such other duties as
may be prescribed by the Board of Directors from time to time.
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Section 5. Vice Presidents: The Executive Vice Presidents, Senior Vice
Presidents, and Vice Presidents in the order of their
election, unless otherwise determined by the Board of
Directors, shall, in the absence or disability of the
President, perform the duties and exercise the powers of that
office. In addition, they shall perform such other duties and
have such other powers as the Board of Directors shall
prescribe.
Section 6. Secretary: The Secretary shall keep a correct record of all
the proceedings of the meetings of the shareholders and
Directors. He shall attend to the giving of notices, have
custody of the corporate seal, and affix it to all instruments
required to be executed under seal as authorized by the Board
of Directors. He shall perform such other duties as are
incident to the office of Secretary, and shall have such other
powers and duties as may be conferred upon him by the Board of
Directors.
Section 7. Treasurer: The Treasurer shall have charge of all the moneys
and securities belonging to the corporation. He shall deposit
said property with such banks as the Board of Directors shall
designate and in the name of the corporation. He shall keep a
record of all receipts and disbursements, and shall have
charge of all records of the corporation relating to its
finances. He shall perform such other duties as are incident
to the office of Treasurer, and shall have such other powers
and duties as may be conferred upon him by the Board of
Directors.
Section 8. Assistant Secretaries and Treasurers: The Assistant
Secretaries and Assistant Treasurers shall, in the absence or
disability of the Secretary or the Treasurer, respectively,
perform the duties and exercise the powers of those offices,
and they shall, in general, perform such other duties as shall
be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 9. Bonds: The Board of Directors may by resolution require any or
all officers, agents and employees of the corporation to give
bond to the corporation, with sufficient sureties, conditioned
on the faithful performance of the duties of their respective
offices or positions, and to comply with such other conditions
as may from time to time be required by the Board of
Directors.
Section 10. Vacancies: A vacancy in any office because of death,
resignation, removal, disqualification, or other reason, may
be filled by the Board of Directors for the unexpired portion
of the term.
ARTICLE VII. - INDEMNIFICATION
Section 1. Expenses and Liabilities: (a) Any person who at any time
serves or has served (1) as a Director, Emeritus Director,
officer, employee or agent of the corporation, (2) at the
request of the corporation as a Director, Emeritus Director,
officer, partner, trustee, employee or agent of another
foreign or domestic corporation, partnership,
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joint venture, trust, or other enterprise, or (3) at the
request of the corporation as a trustee or administrator under
an employee benefit plan, shall have a right to be indemnified
by the corporation to the fullest extent from time to time
permitted by law against Liability and Expenses in any
Proceeding (including without limitation a Proceeding brought
by or on behalf of the corporation itself) arising out of his
or her status as such or activities in any of the foregoing
capacities or results from him being called as a witness at a
time when he has not been made a named defendant or respondent
to any Proceeding.
(b) The Board of Directors of the corporation shall take all
such action as may be necessary and appropriate to authorize
the corporation to pay the indemnification required by this
provision, including without limitation, to the extent needed,
making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of
indemnity due him.
(c) Any person who at any time serves or has served in any of
the aforesaid capacities for or on behalf of the corporation
shall be deemed to be doing or to have done so in reliance
upon, and as consideration for, the rights provided for
herein. Any repeal or modification of these indemnification
provisions shall not affect any rights or obligations existing
at the time of such repeal or modification. The rights
provided for herein shall inure to the benefit of the legal
representatives of any such person and shall not be exclusive
of any other rights to which such person may be entitled apart
from this provision.
(d) The rights granted herein shall not be limited by the
provisions contained in Sections 55-8-51 through 55-8-56 of
the North Carolina General Statutes or any successor to such
statute.
Section 2. Advance Payment of Expenses: The Corporation shall (upon
receipt of an undertaking by or on behalf of the Director,
Emeritus Director, officer, employee or agent involved to
repay the Expenses described herein unless it shall ultimately
be determined that he or she is entitled to be indemnified by
the corporation against such Expenses) pay Expenses incurred
by such Director, Emeritus Director, officer, employee or
agent in defending a Proceeding or appearing as a witness at a
time when he or she has not been named as a defendant or a
respondent with respect thereto in advance of the final
disposition of such Proceeding.
Section 3. Insurance: The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a
Director, Emeritus Director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a Director, Emeritus Director, officer,
employee or agent of another domestic or foreign corporation,
partnership, joint venture, trust or other enterprise or as a
trustee or administrator under an employee benefit plan
against any liability asserted against him or her and incurred
by him or her in any such
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capacity, or arising out of his or her status as such, whether
or not the corporation would have the power to indemnify him
or her against such liability.
Section 4. Definitions: The following terms as used in this Article shall
have the following meanings. "Proceeding" means any
threatened, pending or completed action, suit, or proceeding
and any appeal therein (and any inquiry or investigation that
could lead to such action, suit, or proceeding), whether
civil, criminal, administrative, investigative or arbitrative
and whether formal or informal. "Expenses" means expenses of
every kind, including counsel fees. "Liability" means the
obligation to pay a judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee
benefit plan), reasonable expenses incurred with respect to a
Proceeding, and all reasonable expenses incurred in enforcing
the indemnification rights provided herein. "Director" and
"Emeritus Director" include the estate or personal
representative of such Director or Emeritus Director.
"Corporation" shall include any domestic or foreign
predecessor of this corporation in a merger or other
transaction in which the predecessor's existence ceased upon
consummation of the transaction.
ARTICLE VIII. - CONTRACTS, CHECKS AND DEPOSITS
Section 1. Contracts: The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or
execute and deliver any instrument on behalf of the
corporation and such authority may be general or confined to
specific instances.
Section 2. Checks and Drafts: All checks, drafts or other orders for the
payment of money issued in the name of the corporation shall
be signed by such officer or officers, agent or agents, of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 3. Deposits: All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the
corporation in such depositories as the Board of Directors
shall direct.
ARTICLE IX. - CERTIFICATES FOR SHARES AND TRANSFER THEREOF
Section 1. Certificates for Shares: Certificates representing shares of
the corporation shall be issued, in such form as the Board of
Directors shall determine, to every shareholder for the fully
paid shares owned by him. These certificates shall be signed
by the President or any Vice President, and the Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer. They
shall be consecutively numbered or otherwise identified; and
the name and address of the 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.
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Section 2. Transfer of Shares: Transfer of shares shall be made on the
stock transfer books of the corporation only upon surrender of
the certificates for the shares sought to be transferred by
the record holder thereof or by his duly authorized agent,
transferee or legal representative. All certificates
surrendered for transfer shall be canceled before new
certificates for the transferred shares shall be issued.
Section 3. Closing Transfer Books and Fixing Record Date: For the purpose
of determining shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or
entitled to receive payment of any dividend, or in order to
make a determination of shareholders for any other proper
purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to
exceed, in any case, fifty days. If the stock transfer books
shall be closed for the purpose of determining shareholders
entitled to notice or to vote at a meeting of shareholders,
such books shall be closed for at least ten days immediately
preceding such meeting.
In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of shareholders, such record date in any
case to be not more than fifty days and, in case of a meeting
of shareholders, not less than ten days immediately preceding
the date on which the particular action, requiring such
determination of shareholders, is to be taken.
If the stock transfer books are not closed and no record date
is fixed for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record
date for such determination of shareholders.
Section 4. Lost Certificates: The Board of Directors may authorize the
issuance of a new certificate in place of a certificate
claimed to have been lost or destroyed, upon receipt of an
affidavit of such fact from the person claiming the loss or
destruction. When authorizing such issuance of a new
certificate, the Board may require the claimant to give the
corporation a bond in said sum as it may direct to indemnify
the corporation against loss from any claim with respect to
the certificate claimed to have been lost or destroyed; or the
Board may, by resolution reciting that the circumstances
justify such action, authorize the issuance of a new
certificate without requiring such a bond.
ARTICLE X. - GENERAL PROVISIONS
Section 1. Dividends: The Board of Directors may from time to time
declare, and the corporation may pay, dividends on its
outstanding shares in the manner and upon the terms and
conditions provided by law and by its charter.
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Section 2. Seal: The seal shall be in the form of a circle with the name
of the corporation and N.C. on the circumference and the word
"SEAL" in the center as shown by the impress of the corporate
seal on the margin of this section of the bylaws.
Section 3. Waiver of Notice: Whenever any notice is required to be given
to any shareholder or Director under the provisions of the
North Carolina Business Corporation Act or under the
provisions of the charter or bylaws of this corporation a
waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time
stated therein, shall be equivalent to the giving of such
notice.
Section 4. Fiscal Year: Unless otherwise ordered by the Board of
Directors by action recorded in the minutes, the fiscal year
of the corporation shall end on the Sunday in either January
or February closest to January 31.
Section 5. Amendments: Except as otherwise provided herein, these bylaws
may be amended or repealed and new bylaws may be adopted by
the affirmative vote of a majority of the Directors then
holding office at any regular or special meeting of the Board
of Directors.
The Board of Directors shall have no power to adopt a bylaw:
(1) requiring more than a majority of the voting shares for a
quorum at a meeting of shareholders or more than a majority of
the votes cast to constitute action of the shareholders,
except where higher percentages are required by law; or (2)
providing for the management of the corporation other than by
the Board of Directors or a committee thereof.
No bylaw adopted or amended by the shareholders shall be
altered or repealed by the Board of Directors. Notwithstanding
any provision contained in these Bylaws to the contrary, the
affirmative vote of at least 66 2/3% of the outstanding shares
of Common Stock of the corporation shall be required to amend
or repeal the following provisions of these Bylaws: Article
II, Section 2(b) (Annual Meetings); Article II, Section 4
(Special Meetings); Article II, Section 5 (Notice of
Meetings); Article III, Section 2 (Directors - Number, Term
and Qualifications); or Article III, Section 4 (Directors -
Removal).
No alteration, amendment or rescission of a bylaw shall be
voted upon unless notice thereof has been given in the notice
of the meeting or unless all of the Directors of the
corporation execute a written waiver of notice stating that
action upon the bylaws is to be taken at the meeting, and the
original of such waiver shall be recorded in the Minute Book.
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