EXHIBIT 3.2
BYLAWS
OF
CREE RESEARCH, INC.
(as amended through May 28, 1999)
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be
located in Durham County, North Carolina or such other place as is designated by
the Board of Directors.
2. Registered Office. The registered office of the Corporation required by
law to be maintained in the State of North Carolina may be, but need not be,
identical with the principal office.
3. Other Offices. The Corporation may have offices at such other places,
either within or without the State of North Carolina, as the Board of Directors
may from time to time determine or as the affairs of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. Place of Meetings. All meetings of shareholders shall be held at the
principal office of the Corporation or at such other place, either within or
without the State of North Carolina, as shall be designated in the notice of the
meeting or agreed upon by a majority of the shareholders entitled to vote
thereat.
2. Annual Meeting. The annual meeting of the shareholders shall be held at
the principal office of the Corporation at ten o'clock (10:00) a.m., on the
first Tuesday in October of each year if not a legal holiday, and if such, the
next secular day following, 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 close.
3. Substitute Annual Meeting. If the annual meeting shall not be held on
the day designated by these Bylaws, a substitute annual meeting may be called in
accordance with the provisions of paragraph 4 of this Article II. A meeting so
called shall be designated and treated for all purposes as the annual meeting.
4. Special Meetings. Special meetings of the shareholders may be called at
any time by the Board of Directors of the Corporation or by the Chairman.
5. Notice of Meetings.
(a) Written or printed notice stating the time and place of the meeting
shall be delivered not less than ten (10) nor more than fifty (50) days before
the date thereof, either personally or by mail, by or
at the direction of the President, the Secretary, or other person calling the
meeting, to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
record of shareholders of the Corporation, with postage thereon prepaid.
(b) In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of Directors, on which the vote of the
shareholders is expressly required by the provisions of the North Carolina
Business Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for which the meeting
is called.
(c) When a meeting is adjourned for thirty (30) days or more, notice of
the adjourned meeting shall be given as in the case of an original meeting. When
a meeting is adjourned for less than thirty (30) days in any one adjournment, it
is not necessary to give any notice of the time and place of the adjourned
meeting or of the business to be transacted thereat other than by announcement
at the meeting at which the adjournment is taken.
6. Voting Lists. At least ten (10) days before each meeting of shareholders
the Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to vote at such meeting or any adjournment thereof, with
the address of and number of shares held by each, which list shall be kept on
file at the registered office of the Corporation for a period of ten (10) days
prior to such meeting, and shall be subject to inspection by any shareholder at
any time during the usual business hours. This list shall also be produced and
kept open at the time and place of the meeting and shall be subject to
inspection by any shareholder during the whole time of the meeting.
7. Quorum.
(a) Unless otherwise provided by law, the holders of a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of shareholders. In the absence of a quorum at the opening
of any meeting of shareholders, such meeting may be adjourned from time to time
by the vote of a majority of the shares voting on the motion to adjourn, but no
other business may be transacted until and unless a quorum is present. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the original meeting.
(b) The shareholders at a meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
sufficient shareholders to leave less than a quorum.
8. Voting of Shares
(a) Each outstanding share having voting rights shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders.
(b) Except in the election of Directors, the vote of a majority of the
shares voted on any matter at a meeting of shareholders, duly held and at which
a quorum is present, shall be the act of the shareholders on that matter, unless
the vote by a greater number is required by law or by the charter or Bylaws of
the Corporation.
(c) Voting on all matters except the election of Directors 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.
9. Proxies. Shares may be voted either in person or by one or more agents
authorized by a written proxy executed by the shareholder or by his duly
authorized attorney-in-fact. A proxy is not valid after the expiration of eleven
(11) months from the date of its execution, unless the person executing it
specifies therein the length of time for which it is to continue in force, or
limits its use to a particular meeting, but no proxy, whether or not designated
as irrevocable, shall be valid after ten (10) years from the date of its
execution, unless renewed or extended at any time before its expiration for not
more than ten (10) years from the date of such renewal or extension.
10. Notice of Shareholder Business and Nominations.
(a) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the shareholders
may be made at an annual meeting of shareholders: (a) pursuant to the notice of
meeting pursuant to Article II, Section 5 of these Bylaws; (b) by or at the
direction of the Board of Directors; or (c) by any shareholder of the
Corporation who was a shareholder of record at the time of giving of notice
provided for in this Bylaw (Article II, Section 10), who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this Bylaw.
(ii) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (c) of paragraph (a)(i) of
this Bylaw, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for shareholder action. To be timely, a shareholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th calendar day nor
earlier than the close of business on the 90th calendar day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 calendar days
before or more than 60 calendar days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 90th calendar day prior to such annual meeting and not later
than the close of business on the later of the 60th calendar day prior to such
annual meeting or the 10th calendar day following the calendar day on which
public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above. Such shareholder's notice shall set forth: (a) as to
each person whom the shareholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the shareholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
the name and address of such shareholder, as they appear on the Corporation's
books,
and of such beneficial owner and the class and number of shares of the
Corporation which are owned beneficially and of record by such shareholder and
such beneficial owner.
(b) Special Meetings of Shareholders.
(i) Only such business shall be conducted at a special meeting of
shareholders as shall have been brought before the meeting pursuant to the
notice of meeting under Article II, Section 5 of these Bylaws. If directors are
to be elected at a special meeting of shareholders pursuant to the notice of
meeting, nominations of persons for election to the Board of Directors at such
meeting may be made (a) by or at the direction of the Board of Directors, or (b)
by any shareholder of the Corporation who is a shareholder of record at the time
of giving of notice provided for in this Bylaw, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this Bylaw.
(ii) In the event a special meeting of shareholders is called for the
purpose of electing one or more directors to the Board of Directors, any
shareholder may, pursuant to clause (b) above, nominate a person or persons (as
the case may be) for election to such position(s) as specified in the notice of
meeting, if the shareholder shall have delivered notice containing the
information specified in paragraph (a)(ii) of this Bylaw to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 90th calendar day prior to such special meeting and not later
than the close of business on the later of the 60th calendar day prior to such
special meeting or the 10th calendar day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures
set forth in this Bylaw shall be eligible to serve as directors and only such
business shall be conducted at a meeting of shareholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Articles of Incorporation or
these Bylaws, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination or business
is not in compliance with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported a national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Bylaw, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Bylaw. Nothing in this Bylaw shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
11. Informal Action by Shareholders. Any action which is required or
permitted to 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, whether done before or
after the action so taken. Such consent shall have the same force and effect as
a unanimous vote of shareholders.
ARTICLE III
DIRECTORS
1. General Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors or by such committees as the Board may
establish pursuant to these Bylaws.
2. Number, Term and Qualification. The number of Directors of the
Corporation shall be not less than three (3), the exact number of which shall be
determined from time to time by resolution of the shareholders. Each Director
shall hold office until his death, resignation, retirement, removal,
disqualification, or his successor is elected and qualifies. Directors need not
be residents of the State of North Carolina or shareholders of the Corporation.
3. Election of Directors. Except as provided in paragraph 6 of this Article
III, the Directors shall be elected at the annual meeting of shareholders; and
those persons who receive the highest number of votes shall be deemed to have
been elected. If any shareholder so demands, election of Directors shall be by
ballot.
4. Cumulative Voting. At each election for Directors, every shareholder
entitled to vote at such election shall have the right to vote, in person or by
proxy, the number of shares standing of record in his name for as many persons
as there are Directors to be elected and for whose election he has a right to
vote, or to cumulate his vote by giving one candidate as many votes as the
number of such Directors multiplied by the number of his shares shall equal, or
by distributing such votes on the same principle among any number of such
candidates. This right of cumulative voting shall not be exercised unless some
shareholder or proxy holder announces in open meeting, before the voting for
Directors starts, his intention so to vote cumulatively; and if such
announcement is made, the chair shall declare that all shares entitled to vote
have the right to vote cumulatively and shall announce the number of shares
present in person and by proxy and shall thereupon grant a recess of not less
than one hour nor more than four hours, as he shall determine, or of such other
period of time as is unanimously then agreed upon.
5. Removal. Directors may be removed from office with or without cause by a
vote of shareholders holding a majority of the outstanding shares entitled to
vote at an election of Directors; provided, however, unless the entire Board is
removed, an individual Director may not be removed if the number of shares
voting against the removal would be sufficient to elect a Director if such
shares were voted cumulatively at an annual election. If any Directors are so
removed, new Directors may be elected at the same meeting.
6. Vacancies. A vacancy occurring in the Board of Directors, including a
vacancy created by an increase in the authorized number of Directors approved by
the shareholders in accordance with these Bylaws, may be filled by a majority of
the remaining Directors, though less than a quorum, or by the sole remaining
Director. The shareholders may elect a Director at any time to fill any vacancy
not filled by the Directors.
7. Chairman. There may be a Chairman of the Board of Directors elected by
the Directors from their number at any meeting of the Board. The Chairman shall
serve as an officer of the Corporation as provided in Article V and shall
preside at all meetings of the shareholders and of the Board of Directors and
perform such other duties as may be directed by the Board of Directors.
8. Compensation. The Board of Directors may compensate Directors for their
services as such and may provide for the payment of all expenses incurred by
Directors in attending regular and special meetings of the Board.
9. Executive and Other Committees.
(a) The Board of Directors, by resolution adopted by a majority of the
number of Directors then in office, may designate from among its members an
Executive Committee and one or more other committees, each consisting of two or
more directors, and each of which, to the extent provided in the resolution,
shall have and may exercise all of the authority of the Board of Directors,
except no such committee shall have authority as to the following matters:
(i) The dissolution, merger or consolidation of the Corporation;
or the sale, lease or exchange of all or substantially all of the property of
the Corporation.
(ii) The designation of any such committee or the filling of
vacancies in the Board of Directors or on any such committee.
(iii) The fixing of compensation of the Directors for serving on the
Board or on any such committee.
(iv) The amendment or repeal of the Bylaws or adoption of new
Bylaws.
(v) The amendment or repeal of any resolution of the Board which by
its terms shall not be so amendable or repealable.
(b) Any such committee, or any member thereof, may be discharged or
removed by action of the majority of the Board of Directors. Any resolutions
adopted or other action taken by any such committee within the scope of the
authority delegated to it by the Board of Directors shall be deemed for all
purposes to be adopted or taken by the Board of Directors.
ARTICLE IV
MEETINGS OF DIRECTORS
1. Regular Meetings. A regular meeting of the Board of Directors shall be
held immediately after, and at the same place as, the annual meeting of
shareholders. In addition, the Board of Directors may provide, by resolution,
the time and place, either within or without the State of North Carolina, for
the holding of additional regular meetings.
2. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, if one has been duly
elected, the President or any two Directors. Such meetings may be held either
within or without the State of North Carolina.
3. Notice of Meetings.
(a) The Secretary shall give notice, at least two days before the meeting,
by any usual means of communication of any regular meeting of the Board of
Directors.
(b) The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice thereof by
any usual means of communication. Such notice or waiver of notice shall specify
the business to be transacted at, or the purpose of, the meeting that is called.
Notice of an adjourned meeting need not be given if the time and place are fixed
at the meeting adjourning and if the period of adjournment does not exceed ten
(10) days in any one adjournment.
(c) Attendance by a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
4. Quorum. A majority of the Directors in office shall constitute a quorum
for the transaction of business at any meeting of the Board of Directors.
5. Manner of Acting.
(a) Except as otherwise provided in Paragraph 5, the act of a majority of
the Directors then in office shall be the act of the Board of Directors, unless
a greater number is required by law, the charter of the Corporation, or a Bylaw
adopted by the shareholders.
(b) The vote of a majority of the number of Directors then in office shall
be required to adopt a resolution constituting an Executive Committee or other
committee of the Board. The vote of a majority of the Directors then holding
office shall be required to adopt, amend or repeal a Bylaw, or to adopt a
resolution dissolving the Corporation without action by the shareholders, in
circumstances authorized by law. Vacancies in the Board of Directors may be
filled as provided in paragraph 6 of Article III of these Bylaws.
6. Informal Action by Directors. Action taken by the Directors or members
of a committee of the Board of Directors without a meeting is nevertheless Board
or committee action if written consent to the action in question is signed by
all of the Directors or members of the committee, as the case may be, and filed
with the minutes of the proceedings of the Board or committee, whether done
before or after the action so taken.
7. Attendance by Telephone. Any one or more Directors or members of a
committee may participate in a meeting of the Board or 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 the
meeting shall be deemed presence in person at such meeting.
ARTICLE V
OFFICERS
1. Officers. The officers of the Corporation shall consist of a Chairman, a
President, a Secretary, a Treasurer and such other officers (including, without
limitation, one or more Executive Vice
Presidents, Vice Presidents, Assistant Secretaries and Assistant Treasurers) as
may from time to time be appointed in accordance with these Bylaws. The Chairman
shall be chosen from among the directors.
2. Appointment and Term. The Chairman, the President and any Executive Vice
Presidents shall be appointed by the Board of Directors. Other officers may be
appointed either by the Board of Directors or by the Chairman. The Board of
Directors may appoint officers at any regular meeting or at any special meeting
called for such purpose. Each officer shall hold office until his death,
resignation, retirement, removal or disqualification, or until his successor is
appointed and qualifies.
3. Removal. Any officer or other agent appointed by the Board of Directors
may be removed by the Board, with or without cause, and any officer or other
agent appointed by the Chairman may be removed either by the Board or by the
Chairman, with or without cause. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
4. Chairman. The Chairman shall be the chief executive officer of the
Corporation. Subject to the direction of the Board of Directors, he shall have
general executive charge, management and control of the properties, business and
operations of the Corporation with all such powers as may be reasonably incident
to such responsibilities. He may sign certificates for shares of capital stock
of the Corporation and may agree upon and execute leases, contracts, evidences
of indebtedness and other obligations in the name of the Corporation, and any
deeds, mortgages, bonds or other instruments which may be lawfully executed on
behalf of the Corporation, except where required by law to be otherwise signed
or executed and except where the signing and execution thereof shall be
delegated by the Board of Directors to some other officer or agent. He shall
have such other powers and duties as from time to time may be assigned to him by
the Board of Directors.
5. President. The President shall be the chief operating officer of the
Corporation. Subject to the direction of the Chairman, he shall supervise the
day-to-day operation of the Corporation, shall act in a general executive
capacity and shall assist the Chairman in the administration and operation of
the Corporation's business and general supervision of its policies and affairs.
Unless the Board of Directors otherwise determines, the President shall have the
authority to sign certificates for shares of capital stock of the Corporation
and may agree upon and execute leases, contracts, evidences of indebtedness and
other obligations in the name of the Corporation, and any deeds, mortgages,
bonds or other instruments which may be lawfully executed on behalf of the
Corporation, except where required by law to be otherwise signed or executed and
except where the signing and execution thereof shall be delegated by the Board
of Directors to some other officer or agent. Unless the Board of Directors
otherwise determines, the President shall, in the absence of or because of the
inability to act of the Chairman, perform all duties of the Chairman and preside
at all meetings of shareholders and (should he be a director) of the Board of
Directors. He shall have such other powers and duties as from time to time may
be assigned to him by the Board of Directors or the Chairman.
6. Executive Vice Presidents. The Executive Vice Presidents, in the order
of their appointment unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the President, perform the duties and
exercise the powers of that office. In addition, they shall perform such other
duties and have such other powers as the Board of Directors or the Chairman
shall prescribe.
7. Vice Presidents. The Vice Presidents shall perform such duties and have
such powers as the Board of Directors or the Chairman or President shall
prescribe.
8. Secretary. The Secretary shall keep accurate records of the acts and
proceedings of all meetings of shareholders, directors and committees. He shall
give all notices required by law and by these Bylaws. He shall have general
charge of the corporate books and records and of the corporate seal, and he
shall affix the corporate seal to any lawfully executed instrument requiring it.
He shall have general charge of the stock transfer books of the Corporation and
shall keep, at the registered or principal office of the Corporation or at the
offices of any transfer agent designated by the Corporation, a record of
shareholders showing the name and address of each shareholder and the number and
class of the shares held by each. He shall sign such instruments as may require
his signature, and, in general, attest the signature or certify the incumbency
or signature of any other officer of the Corporation and shall perform all
duties incident to the office of Secretary and such other duties as may be
assigned from time to time by the Board of Directors or the Chairman.
9. Treasurer. The Treasurer shall have custody of all funds and securities
belonging to the Corporation and shall receive, deposit or disburse the same
under the direction of the Chairman. The Treasurer shall keep full and accurate
accounts of the finances of the Corporation in books especially provided for
that purpose, which may be consolidated or combined statements of the
Corporation and one or more of its subsidiaries as appropriate, that include a
balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of cash flows for the year unless that information appears
elsewhere in the financial statements. If financial statements are prepared for
the Corporation on the basis of generally accepted accounting principles, the
annual financial statements must also be prepared on that basis. The Treasurer
shall, in general, perform all duties incident to such office and such other
duties as may be assigned from time to time by the Board of Directors or the
Chairman.
10. Assistant Secretaries and Treasurers. The Assistant Secretaries and
Assistant Treasurers shall, in the absence or disability of the Secretary or the
Treasurer, perform the respective duties and exercise the respective powers of
those offices, and they shall, in general, perform such other duties as shall be
assigned to them by the Board of Directors or Chairman, or by the Secretary or
the Treasurer, respectively.
11. Bonds. The Board of Directors, by resolution, may require any or all
officers, agents and employees of the Corporation to give bond to the
Corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of their respective offices or positions, and to comply with such
other conditions as may from time to time be required by the Board of Directors.
12. Action With Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the Chairman shall have power to
vote and otherwise act on behalf of the Corporation, in person or by proxy, at
any meeting of security holders of or with respect to any action of security
holders of any other corporation in which this Corporation may hold securities
and otherwise to exercise any and all rights and powers which this Corporation
may possess by reason of its ownership of securities in such other corporation.
ARTICLE VI
CONTRACTS, LOANS AND DEPOSITS
1. Contracts. The Board of Directors may authorize any officer or officers,
or 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.
2. Loans. No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
3. Checks and Drafts. All checks, drafts or other orders for the payment of
money issued in the name of the Corporation shall be signed by such officer or
officers, or 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.
4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such depository
or depositories as the Board of Directors shall direct.
ARTICLE VII
CERTIFICATES FOR SHARES AND OTHER TRANSFER
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 or a person
who has been designated as the chief executive officer of the Corporation and by
the Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and sealed
with the seal of the Corporation or a facsimile thereof. The signatures of any
such officers upon a certificate may be facsimiles or may be engraved or printed
or omitted if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile or other
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue. 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.
2. Transfer of Shares. Transfer of shares shall be made on the stock
transfer books of the Corporation only upon surrender of the certificates for
the shares sought to be transferred by the record holder thereof or by his duly
authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be canceled before new certificates for the
transferred shares shall be issued.
3. Closing Transfer Books and Fixing Record Date.
(a) For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, fifty (50) days. If the stock transfer books shall be
closed for he purpose of determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall be closed for at least ten
(10) full days immediately preceding the date of such meeting.
(b) 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 date in any case to be not more
than sixty (60) days and, in case of a meeting of shareholders, not less than
ten (10) full days immediately preceding the date on which the particular
action, requiring such determination of shareholders, is to be taken.
(c) 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 of shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
(d) When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this Section 3, such determination
shall apply to any adjournment thereof regardless of its length except where the
determination has been made through the closing of the stock transfer books and
the stated period of closing has expired.
4. Lost Certificates. The Board of Directors may authorize the issuance of
a new share certificate in place of a certificate claimed to have been lost or
destroyed, upon receipt of an affidavit of such fact from the person claiming
the loss or destruction. When authorizing such issuance of a new certificate,
the Board may require the claimant to give the Corporation a bond in such sum as
it may direct to indemnify the Corporation against loss from any claim with
respect to the certificate claimed to have been lost or destroyed; or the Board
may, by resolution reciting that the circumstances justify such action,
authorize the issuance of the new certificate without requiring such a bond.
ARTICLE VIII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Expenses and Liabilities: The Corporation shall have the power to
indemnify any present or former director, officer, employee or agent of the
Corporation, or any person who has served or is serving in such capacity at the
request of the Corporation in any other corporation, partnership, joint venture,
trust or other enterprise or as a trustee or administrator under an employee
benefit plan, with respect to any liability or litigation expenses, including
reasonable attorneys' fees, incurred by any such person to the extent and upon
the terms and conditions provided by law. Therefore, to the extent and upon the
terms and conditions provided by law, the Corporation shall so indemnify any and
all of its officers and directors against liability and litigation expenses,
including reasonable attorneys' fees, arising out of their status as such or
their activities in any of the foregoing capacities (excluding, however,
liability or litigation expenses which any of the foregoing may incur on account
of his or her activities which were, at the time taken, known or believed by him
or her to be clearly in conflict with the best interest of the Corporation).
Such officers and directors shall be entitled to recover from the Corporation,
and the Corporation shall pay, all reasonable costs, expenses, and attorneys'
fees in connection with the enforcement of rights to indemnification granted
herein. Any person who at any time after the adoption of this bylaw serves or
has served in either 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 right of indemnification provided herein. Such right
shall inure to the benefit of the legal representatives of any such person and
shall not be exclusive of any other rights to which such person may be entitled
apart from the provisions of this bylaw.
The right of indemnification hereinabove provided for shall not be
exclusive of any rights to which any such director, officer, employee or agent
may otherwise be entitled under any bylaw, agreement, vote of the Board of
Directors or shareholders or otherwise with respect to any liability or
litigation expenses arising out of his activities in such capacity.
2. Advance Payment of Expenses. Expenses incurred by a director, officer,
employee or agent in defending a civil or criminal action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding, as authorized by the Board of Directors in the
specific case, upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he or she is entitled to be indemnified by the Corporation
against such expenses. Notwithstanding the above, the Corporation shall, upon
receipt of an undertaking by or on behalf of the director or officer involved to
repay the expenses described in the first paragraph of this Article VIII unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the Corporation against such expenses, pay such expenses incurred by such
director or officer in defending a civil or criminal action, suit or proceeding
in advance of the final disposition of such action, suit or proceeding.
3. Insurance. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or as a trustee or administrator under
an employee benefit plan against any liability asserted against him and incurred
by him in such capacity, or arising out of his status as such, whether or not
the Corporation or other such enterprise would have the power to indemnify him
against such liability.
ARTICLE IX
GENERAL PROVISIONS
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.
2. Seal. The corporate seal of the Corporation shall consist of two
concentric circles between which is the name of the Corporation and in the
center of which is inscribed "1987", and such seal, as impressed on the margin
hereof, is hereby adopted as the corporate seal of the Corporation.
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 the
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.
4. Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors.
5. Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage
device; provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
6. 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 or by affirmative vote of shareholders entitled to
exercise a majority of voting power of the Corporation.
The Board of Directors shall have no power to adopt a Bylaw:
(1) Changing the statutory requirement for a quorum of Directors or action
by Directors or changing the statutory requirement for a quorum of shareholders
or action by shareholders;
(2) Providing for the management of the Corporation otherwise than by the
Board of Directors or the committees thereof;
(3) Increasing or decreasing the number of Directors; or
(4) Classifying and staggering the election of Directors.
No Bylaw adopted or amended by the shareholders may be altered or repealed
by the Board of Directors.