EXHIBIT 3.02
BYLAWS OF
CAPITAL BANK CORPORATION
ARTICLE I
DEFINITIONS
In these bylaws, unless otherwise provided, the following terms shall
have the following meanings:
(1) "Act" shall mean the North Carolina Business Corporation Act as
codified in Chapter 55 of the North Carolina General Statutes effective July 1,
1990, and as amended from time to time;
(2) "Articles of incorporation" shall mean the Corporation's articles
of incorporation, including amended and restated articles of incorporation and
articles of merger;
(3) "Corporation" shall mean Capital Bank Corporation.
(4) "Distribution" shall mean a direct or indirect transfer of money or
other property (except the Corporation's own shares) or incurrence of
indebtedness by the Corporation to or for the benefit of its shareholders in
respect of any of its shares. A distribution may be in the form of a declaration
or payment of a dividend, a purchase, redemption, or other acquisition of
shares, a distribution of indebtedness, or otherwise;
(5) "Emergency" shall mean a catastrophic event which prevents a quorum
of the board of directors from being readily assembled;
(6) "Shares" shall mean the units into which the proprietary interests
in the Corporation are divided; and
(7) "Voting group" shall mean all shares of one or more classes or
series that under the articles of incorporation or the Act are entitled to vote
and be counted together collectively on a matter at a meeting of shareholders.
All shares entitled by the articles of incorporation or the Act to vote
generally on a matter are for that purpose a single voting group.
ARTICLE II
OFFICES
SECTION 1. Principal Office: The principal office of the Corporation
shall be located at 4400 Falls of Neuse Road, Raleigh, Wake County, North
Carolina 27609, or at such other place as may be determined from time to time by
the directors.
SECTION 2. Registered Office: The registered office of the Corporation
shall be located at 4400 Falls of Neuse Road, Raleigh, Wake County, North
Carolina 27609. The mailing address of the registered office of the Corporation
shall be P.O. Box 18949, Raleigh, North Carolina 27619-8949.
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 III
MEETINGS OF SHAREHOLDERS
SECTION 1. Place of Meetings: All meetings of shareholders shall be
held at the principal office of the Corporation, or at such other place, either
within or without the State of North Carolina, as shall be designated in the
notice of the meeting or as may be agreed upon by a majority of the shareholders
entitled to vote at the meeting.
SECTION 2. Annual Meeting: The annual meeting of shareholders for the
election of directors and the transaction of other business shall be held
annually, on any day (except Saturday, Sunday or a legal holiday) not later than
the thirtieth (30th) day of June in each year as fixed by the board of
directors.
SECTION 3. Substitute Annual Meeting: If the annual meeting shall not
be held on the day designated pursuant to these bylaws, a substitute annual
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 chief executive officer, president, secretary, or
board of directors. In addition, special meetings may be called at any time by
the shareholders if the holders of at least ten percent (10%) of all the votes
entitled to be cast on any issue proposed to be considered at the proposed
special meeting sign, date, and deliver to the secretary a written demand for
the meeting describing the purpose or purposes for which it is to be held;
provided, however, the shareholders shall not have such right to call a special
meeting if the Corporation has a class of shares registered under Section 12 of
the Securities Exchange Act of 1934, as amended. Only business within the
purpose or purposes described in the meeting notice specified in Section 5 of
this Article may be conducted at a special meeting of shareholders.
SECTION 5. Notice of Meeting: Written or printed notice stating the
time and place of the meeting shall be delivered not less than ten (10) nor more
than sixty (60) days before the date of any shareholders' meeting, either
personally, by mail, by telegraph, by teletype, or by facsimile transmission, by
or at the direction of the chief executive officer, 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 the shareholders of the
Corporation, with postage thereon prepaid.
In the case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the meeting is called. In
the case of an annual or substitute annual meeting, the notice of meeting need
not specifically state the business to be transacted unless such a statement is
required by the Act.
When an annual or special meeting is adjourned to a different date,
time, and place, 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;
provided, however, that if a new record date for the adjourned meeting is or
must be set, notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date.
The record date for determining the shareholders entitled to notice of
and to vote at an annual or special meeting shall be fixed as provided in
Section 3 of Article VIII.`
SECTION 6. Waiver of Notice: A shareholder may waive notice of any
meeting either before or after such meeting. Such waiver shall be in writing,
signed by the shareholder, and filed with the minutes or corporate records. A
shareholder's attendance at a meeting: (i) waives objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting;
and (ii) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter before it is voted
upon.
SECTION 7. Shareholder List: Commencing two (2) business days after
notice of a meeting of shareholders is given and continuing through such
meeting, the secretary of the Corporation shall maintain at the principal office
of the Corporation an alphabetical list of the shareholders entitled to vote at
such meeting, arranged by voting group, with the address of and number of shares
held by each. This list shall be subject to inspection by any shareholder or his
agent or attorney at any time during usual business hours and may be copied at
the shareholder's expense.
SECTION 8. Quorum: A majority of the votes entitled to be cast on a
matter by any voting group, represented in person or by proxy, shall constitute
a quorum of that voting group for action on that matter. The shareholders
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum.
In the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by a majority of
the votes voting on the motion to adjourn; and at any adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the original meeting.
SECTION 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 may take the form of a telegram,
telex, facsimile or other form of wire or wireless communication which appears
to have been transmitted by a shareholder. A proxy is effective when received by
the secretary or other officer or agent authorized to tabulate votes. 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.
SECTION 10. Voting of Shares: Subject to the provisions of Section 4 of
Article IV, the articles of incorporation, and the Act, each outstanding voting
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of shareholders.
Except for the election of directors, which is governed by the
provisions of Section 3 of Article IV, if a quorum is present, action on a
matter by a voting group is approved if the votes cast within the voting group
favoring the action exceed the votes cast against the action, unless the vote of
a greater number is required by the Act, the articles of incorporation, or these
bylaws.
Shares of the Corporation are not entitled to vote if: (i) they are
owned, directly or indirectly, by the Corporation, unless they are held by it in
a fiduciary capacity; (ii) they are owned, directly or indirectly, by a second
corporation in which the Corporation owns a majority of the shares entitled to
vote for directors of the second corporation; or (iii) they are redeemable
shares and (x) notice of redemption has been given and (y) a sum sufficient to
redeem the shares has been deposited with a bank, trust company, or other
financial institution under an irrevocable obligation to pay the holders the
redemption price upon surrender of the shares.
SECTION 11. 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, is signed by all of the
persons who would be entitled to vote upon such action at a meeting and is
delivered to the Corporation to be included in the minutes or to be kept as part
of the corporate records.
SECTION 12. Corporation's Acceptance of Votes: If the name signed on a
vote, consent, waiver, or proxy appointment corresponds to the name of a
shareholder, the Corporation is entitled to accept the vote, consent, waiver, or
proxy appointment and to give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, or proxy appointment
does not correspond to the name of its shareholder, the Corporation is
nevertheless entitled to accept the vote, consent, waiver, or proxy appointment
and to give it effect as the act of the shareholder if: (i) the shareholder is
an entity and the name signed purports to be that of an officer or agent of the
entity; (ii) the name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy appointment; (iii)
the name signed purports to be that of a receiver or trustee in bankruptcy of
the shareholder and, if the Corporation requests, evidence of its status
acceptable to the Corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment; (iv) the name signed purports to be that
of a beneficial owner or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder has been presented with respect to the
vote, consent, waiver, or proxy appointment; or (v) two or more persons are the
shareholder as co-tenants or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person signing appears to be
acting on behalf of all the co-owners.
The Corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the secretary or other officer or agent authorized to tabulate
votes has a reasonable basis for doubt about the validity of the signature on it
or about the signatory's authority to sign for the shareholder.
SECTION 13. Number of Shareholders: The following persons or entities
identified as a shareholder in the Corporation's current record of shareholders
constitute one shareholder for purposes of these bylaws: (i) all co-owners of
the same shares; (ii) a corporation, partnership, trust, estate, or other
entity; (iii) the trustees, guardians, custodians, or other fiduciaries of a
single trust, estate, or account. Shareholdings registered in substantially
similar names constitute one shareholder if it is reasonable to believe that the
names represent the same person.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 1. General Powers: All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the Corporation shall
be managed under the direction of, its board of directors. The board of
directors may delegate powers as provided in these bylaws.
SECTION 2. Number, Term and Qualifications: The number constituting the
board of directors shall be not less than one (1) nor more than twenty-five
(25). The number of directors within this variable range may be fixed or changed
from time to time by the shareholders or the board of directors. So long as the
number of directors is at least nine (9), the board of directors shall be
divided into three (3) classes as provided for in the articles of incorporation.
Each director shall hold office until his death, resignation, retirement,
removal, disqualification, or until his successor is elected and qualified.
Directors need not be residents of the State of North Carolina or shareholders
of the Corporation.
SECTION 3. Election of Directors: Except as provided in Section 6 of
this Article and in the articles of incorporation, the directors shall be
elected at the annual meeting of shareholders, and those persons who receive the
highest number of votes shall be deemed to have been elected. If any shareholder
so demands, the election of directors shall be by ballot.
SECTION 4. No Cumulative Voting: The shareholders of the Corporation
shall have no right to cumulate their votes for the election of directors.
SECTION 5. Removal: Any director, or the entire board of directors, may
be removed from office at any time, with or without cause, but only if the
number of votes cast to remove him exceeds the number of votes cast not to
remove him. If a director is elected by a voting group of shareholders, only
members of that voting group may participate in the vote to remove him. A
director may not be removed by the shareholders at a meeting unless the notice
of the meeting specifies such removal as one of its purposes. If any directors
are removed, new directors may be elected at the same meeting.
SECTION 6. Vacancies: Any vacancy occurring in the board of directors,
including, without limitation, a vacancy resulting from an increase in the
number of directors or from the failure by the shareholders to elect the full
authorized number of directors, shall be filled by the shareholders or the board
of directors. If such vacancy is to be filled by the board of directors, and if
the directors remaining in office constitute fewer than a quorum of the board,
such vacancy may be filled by the affirmative vote of a majority of the
remaining directors or by the sole remaining director. If the vacant office was
held by a director elected by a voting group of shareholders, only the remaining
director or directors elected by that voting group or the holders of shares of
that voting group are entitled to fill the vacancy. The term of a director
elected to fill a vacancy shall expire at the next shareholders' meeting at
which directors (or directors of that class, if the directors have been divided
into Classes as described in Article IV, Section 2 above) are elected.
SECTION 7. Chairman of the Board: There may be a chairman of the board
of directors elected by the directors from their number at any meeting of the
board. The chairman shall preside at all meetings of the board of directors and
perform such other duties as may be directed by the board.
SECTION 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.
SECTION 9. Committees: The board of directors may create an executive
committee and other committees of the board, each of which shall have at least
two (2) members, all of whom shall be directors. The creation of a committee and
the appointment of members to it must be approved by a majority of all the
directors in office when the action is taken. Each committee may, as specified
by the board of directors, exercise some or all of the authority of the board
except that a committee may not: (i) authorize distributions; (ii) approve or
propose to shareholders action that the Act requires be approved by
shareholders; (iii) fill vacancies on the board of directors or on any of its
committees; (iv) amend the articles of incorporation pursuant to N.C. Gen. Stat.
Section 55-10-02 or its successor; (v) adopt, amend, or repeal bylaws; (vi)
approve a plan of merger not requiring shareholder approval; (vii) authorize or
approve a reacquisition of shares, except according to a formula or method
prescribed by the board of directors; or (viii) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
and relative rights, preferences, and limitations of a class or series of
shares, except that the board of directors may authorize a committee to do so
within limits specifically prescribed by the board of directors. The provisions
of Article V, which govern meetings of the board of directors, shall likewise
apply to meetings of any committee of the board.
ARTICLE V
MEETINGS OF DIRECTORS
SECTION 1. Regular Meetings: A regular meeting of the board of
directors shall be held immediately before or after, and at the same place as,
the annual meeting of the shareholders, or at another place that may be
designated in advance of the meeting by the chairman of the board or the chief
executive officer. 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.
SECTION 2. Special Meetings: Special meetings of the board of directors
may be called by or at the request of the chairman of the board or the chief
executive officer. Such meetings may be held either within or without the State
of North Carolina, as fixed by the person or persons calling the meeting.
SECTION 3. Notice of Meetings: Regular meetings of the board of
directors may be held without notice. The person or persons calling a special
meeting of the board of directors shall, at least two (2) days before the
meeting, give notice of the meeting by any usual means of communication,
including by telephone, telegraph, teletype, mail, private carrier, facsimile
transmission, or other form of wire or wireless communication. Such notice may
be oral and need not specify the purpose for which the meeting is called.
SECTION 4. Waiver of Notice: Any director may waive notice of any
meeting either before or after such meeting. Such waiver shall be in writing,
signed by the director, and filed with the minutes or corporate records;
provided, however, that a director's attendance at or participation in a meeting
waives any required notice to him unless the director at the beginning of the
meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
SECTION 5. Quorum: A majority of the directors fixed by or pursuant to
these bylaws shall constitute a quorum for the transaction of business at any
meeting of the board of directors, or if no number is so fixed, a majority of
directors in office immediately before the meeting begins shall constitute a
quorum.
SECTION 6. Manner of Acting: The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors, unless a greater number is required by the articles of
incorporation or these bylaws.
SECTION 7. Presumption of Assent: A director of the Corporation who is
present at a meeting of the board of directors or a committee of the board of
directors when corporate action is taken is deemed to have assented to the
action taken unless: (i) he objects at the beginning of the meeting (or promptly
upon his arrival) to holding it or transacting business at the meeting; (ii) his
dissent or abstention from the action taken is entered in the minutes of the
meeting; or (iii) he files written notice of his dissent or abstention with the
presiding officer of the meeting before its adjournment or with the Corporation
immediately after adjournment of the meeting. This right of dissent or
abstention is not available to a director who votes in favor of the action
taken.
SECTION 8. Participation in Meetings: Any or all of the directors may
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
simultaneously hear each other during the meeting.
SECTION 9. Action Without Meeting: Action which may be taken at a board
of directors meeting may be taken without a meeting if the action is taken by
all members of the board and is evidenced by one or more written consents signed
by each director before or after such action, which describes the action taken
and is included in the minutes or filed with the corporate records. Such action
is effective when the last director signs the consent, unless the consent
specifies a different effective date.
ARTICLE VI
OFFICERS
SECTION 1. Officers of the Corporation: The officers of the Corporation
may consist of a chief executive officer, president, secretary, treasurer, and
such vice presidents, assistant secretaries, assistant treasurers, and other
officers as the board of directors may from time to time appoint. Any two or
more offices may be held by the same person, but no officer may act in more than
one capacity where action of two or more officers is required.
SECTION 2. Appointment and Term: The officers of the Corporation shall
be appointed by the board of directors. A duly appointed officer may appoint one
or more officers or assistant officers if authorized by the board of directors.
Each officer shall hold office until his or her death, resignation, retirement,
removal, disqualification or until his or her successor is appointed and
qualifies. The appointment of an officer does not itself create contract rights
for either the officer or the Corporation.
SECTION 3. Compensation of Officers: The compensation of officers of
the Corporation shall be fixed by the board of directors. No officer shall
receive compensation for serving the Corporation in any other capacity unless
such additional compensation be authorized by the board of directors.
SECTION 4. Resignation and Removal: An officer may resign at any time
by communicating his or her resignation to the Corporation. A resignation is
effective when it is communicated unless it specifies in writing a later date.
If a resignation is made effective as of a later date and the Corporation
accepts the future effective date, the board of directors may fill the pending
vacancy before the effective date if the board provides that the successor does
not take office until the effective date. An officer's resignation does not
affect the Corporation's contract rights, if any, with the officer. Any officer
or agent appointed by the board of directors may be removed by the board at any
time, with or without cause, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
SECTION 5. Bonds: The board of directors may by resolution require any
officer, agent, or employee of the Corporation to give bond to the Corporation,
with sufficient sureties, conditioned on the faithful performance of the duties
of his respective office or position, and to comply with such other conditions
as may from time to time be required by the board of directors.
SECTION 6. Chief Executive Officer: The chief executive officer shall
be the chief executive officer of the Corporation and, subject to the control of
the board of directors, shall supervise and control the management of the
Corporation in accordance with these bylaws.
The chief executive officer 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 shall perform all duties incident to the office of chief executive
officer and such other duties as may be prescribed by the board of directors
from time to time. In addition, the chief executive officer may perform all of
the duties of treasurer if at the time of performance, the Corporation does not
have a treasurer.
SECTION 7. President: The authority and powers of the president in
respect to the execution of contracts or instruments pertaining to assets of the
Corporation shall be the same as the authority and powers of the chief executive
officer except as otherwise provided by statute or limited by the board of
directors or by the chief executive officer. The president shall have such other
authority and shall perform such other duties as may from time to time be
conferred upon him or her by the board of directors or by the chief executive
officer.
SECTION 8. Vice President: Vice presidents shall be designated as
senior executive vice president, executive vice presidents, senior vice
presidents and vice presidents, or otherwise as specified by the board of
directors. In the absence of the president or in the event of his or her death,
inability, or refusal to act, the senior executive vice president or in the
event of his or her death, inability, or refusal to act, the vice presidents in
the order determined by the board of directors, or in the absence thereof, in
the order of seniority of executive vice presidents, senior vice presidents, and
vice presidents, respectively, shall perform the duties of the president, and
when so acting shall have all the powers of and be subject to all the
restrictions upon the president. Any vice president may sign, with the secretary
or an assistant secretary, certificates for shares of the Corporation; and shall
perform such other duties as from time to time may be assigned to him or her by
the chief executive officer, the president, or board of directors.
SECTION 9. Secretary: The secretary shall: (i) keep the minutes of the
meetings of shareholders, of the board of directors, and of all committees of
the board in one or more books provided for that purpose; (ii) see that all
notices are duly given in accordance with the provisions of these bylaws or as
required by law; (iii) be custodian of the seal of the Corporation and see that
the seal of the Corporation is affixed to all documents the execution of which
on behalf of the Corporation under its seal is duly authorized; (iv) keep a
register of the mailing address of each shareholder which shall be furnished to
the secretary by such shareholder; (v) sign, with the chief executive officer,
the president, or a vice president, certificates for shares, the issuance of
which shall have been authorized by resolution of the board of directors; (vi)
have general charge of the stock transfer books of the Corporation; (vii) keep
or cause to be kept in the State of North Carolina at the Corporation's
principal office a record of the Corporation's shareholders, giving the names
and addresses of all shareholders and the number and class of shares held by
each, and prepare or cause to be prepared a shareholder list prior to each
meeting of shareholders as required by the Act; (viii) maintain and authenticate
the books and records of the Corporation; (ix) with the assistance of the
treasurer and other officers, prepare and deliver to the Corporation's
shareholders such financial statements, notices, and reports as may be required
by N.C. Gen. Stat.ss.ss.55-16-20 and 55-16-21 (or their successors); (x) prepare
and file with the North Carolina Secretary of State the annual report required
by N.C. Gen. Stat.ss. 55-16-22 (or its successor); and (xi) in general perform
all duties incident to the office of secretary and such other duties as from
time to time may be assigned to him by the president or the board of directors.
SECTION 10. Assistant Secretaries: In the absence of the secretary or
in the event of his or her death, inability, or refusal to act, the assistant
secretaries in the order of their length of service as assistant secretary,
unless otherwise determined by the board of directors, shall perform the duties
of the secretary, and when so acting shall have all the powers of and be subject
to all the restrictions upon the secretary. They shall perform such other duties
as may be assigned to them by the secretary, the chief executive officer, the
president, or the board of directors. Any assistant secretary may sign, with the
chief executive officer, president, or a vice president, certificates for
shares.
SECTION 11. Treasurer: The treasurer shall: (i) have charge and custody
of and be responsible for all funds and securities of the Corporation; (ii)
receive and give receipts for monies due and payable to the Corporation from any
source whatsoever, and deposit all such monies in accordance with the provisions
of Section 4 of Article VII; (iii) prepare, or cause to be prepared, an annual
financial statement in accordance with Section 3 of Article IX; and (iv) in
general, perform all of the duties incident to the office of treasurer and such
other duties as from time to time may be assigned to him or her by the chief
executive officer, the president, or the board of directors, or by these bylaws.
The treasurer may sign, with the chief executive officer, president, or a vice
president, certificates for shares.
SECTION 12. Assistant Treasurer: In the absence of the treasurer or in
the event of his or her death, inability, or refusal to act, the assistant
treasurers, in the order of their length of service as assistant treasurer,
unless otherwise determined by the board of directors, shall perform the duties
of the treasurer, and when so acting shall have all the powers of and be subject
to all the restrictions upon the treasurer. They shall perform such other duties
as may be assigned to them by the treasurer, the chief executive officer, the
president, or the board of directors. Any assistant treasurer may sign, with the
chief executive officer, president, or a vice president, certificates for
shares.
ARTICLE VII
CONTRACTS, CHECKS, AND DEPOSITS
SECTION 1. Contracts: The board of directors may authorize any officer
or agent to enter into any contract or to execute and deliver any instrument on
behalf of the Corporation, and such authority may be general or confined to
specific instances.
SECTION 2. Loans: No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. Checks and Drafts: All checks, drafts, or other orders for
payment of money issued in the name of the Corporation shall be signed by such
officers or agents of the Corporation and in such manner as shall from time to
time be determined by resolution of the board of directors.
SECTION 4. Deposits: All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such depositories as the board of directors shall direct.
ARTICLE VIII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares: Shares may, but need not, be
represented by certificates. If certificates are issued, they shall be in such
form as the board of directors shall determine; provided that, at a minimum,
each certificate shall state on its face: (i) the name of the Corporation and
that it is organized under the laws of North Carolina; (ii) the name of the
person to whom issued; and (iii) the number and class of shares and the
designation of the series, if any, the certificate represents. If the
Corporation issues certificates for shares of preferred stock, the designations,
relative rights, preferences, and limitations applicable to that class, and the
variations in rights, preferences, and limitations for each series within that
class (and the authority of the board of directors to determine variations for
future series) must be summarized on the front or back of each certificate;
alternatively, each certificate may state conspicuously on its front or back
that the Corporation will furnish the shareholder this information in writing
and without charge. These
certificates shall be signed, either manually or in facsimile, by the chief
executive officer, president, or any vice president, and the secretary or any
assistant secretary, the treasurer or any 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.
SECTION 2. Transfer of Shares: Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the holder
of record, by his legal representative (who shall furnish proper evidence of
authority to transfer), or by his attorney (whose authority shall be evidenced
by a power of attorney duly executed and filed with the secretary), and only
upon surrender for cancellation of the certificates for such shares.
SECTION 3. Fixing Record Date: For the purpose of determining
shareholders entitled to receive notice of a meeting of shareholders, to demand
a special meeting, to vote, to take any other action, or to receive payment, or
for any other purpose, 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 seventy (70) days, and, in case of a meeting of
shareholders, not less than ten (10) days, before the date on which the
particular action requiring such determination of shareholders is to be taken.
When a determination of shareholders entitled to notice of or to vote
at any meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment of such meeting unless the board of
directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
SECTION 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 the issuance of a new
certificate, the board of directors may require the claimant to give the
Corporation a bond in such sum as it may direct to indemnify the Corporation
against loss from any claim with respect to the certificate claimed to have been
lost or destroyed; or the board of directors may, by resolution reciting that
the circumstances justify such action, authorize the issuance of the new
certificate without requiring such a bond.
SECTION 5. Reacquired Shares: The Corporation may acquire its own
shares and shares so acquired constitute authorized but unissued shares.
ARTICLE IX
GENERAL PROVISIONS
SECTION 1. Distributions: The board of directors may from time to time
declare, and the Corporation may make, distributions on its outstanding shares
in the manner and subject to the terms and conditions provided by the Act and by
the articles of incorporation.
SECTION 2. Seal: The corporate seal of the Corporation shall consist of
two concentric circles between which is the name of the Corporation and in the
center of which is inscribed "CORPORATE SEAL" or "SEAL," and which shall have
such other characteristics as the board of directors may determine.
SECTION 3. Records and Reports: All of the Corporation's records shall
be maintained in written form or in another form capable of conversion into
written form within a reasonable time.
The Corporation shall keep as permanent records minutes of all meetings
of its incorporators, shareholders, and board of directors, a record of all
actions taken by the shareholders or board of directors without a meeting, and a
record of all actions taken by a committee of the board of directors in place of
the board of directors.
The Corporation shall keep a copy of the following records at its
principal office: (i) the articles of incorporation and all amendments to them
currently in effect; (ii) these bylaws and all amendments to them currently in
effect; (iii) resolutions adopted by its board of directors creating one or more
classes or series of shares and fixing their relative rights, preferences, and
limitations (if shares issued pursuant to those resolutions are outstanding);
(iv) the minutes of all meetings of shareholders and records of all actions
taken by shareholders without a meeting during the past three (3) years; (v) all
written communications to shareholders generally within the past three (3)
years; (vi) the annual financial statements described below, prepared during the
past three (3) years; (vii) a list of the names and business addresses of its
current directors and officers; and (viii) its most recent annual report
delivered to the North Carolina Secretary of State.
The Corporation shall prepare and make available to its shareholders
annual financial statements for the Corporation and its subsidiaries that: (i)
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; and (ii) is
accompanied by either (x) a report of a public accountant on the annual
financial statements, or (y) a statement by the treasurer stating his reasonable
belief whether the annual financial statements were prepared on the basis of
generally accepted accounting principles (and, if not, describing the basis of
preparation) and describing any respects in which the statements were not
prepared on a basis of accounting consistent with the statements prepared for
the preceding year. These annual financial statements, or a written notice of
their availability, shall be mailed to each shareholder within 120 days after
the close of each fiscal year of the Corporation. On written request from a
shareholder who was not mailed the annual financial statements, the Corporation
shall mail to him the latest such statements.
The Corporation shall also prepare and file with the North Carolina
Secretary of State an annual report in such form as required by N.C. Gen.
Stat.ss.55-16-22, or its successor.
SECTION 4. Indemnification: Any person who at any time serves or has
served as a director or officer of the Corporation, or at the request of the
Corporation is or was serving as an officer, director, agent, partner, trustee,
administrator, or employee for any other foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
shall be indemnified by the Corporation to the fullest extent from time to time
permitted by law in the event he is made, or is threatened to be made, a party
to any threatened, pending or completed civil, criminal, administrative,
investigative or arbitrative action, suit or proceeding and any appeal therein
(and any inquiry or investigation that could lead to such action, suit or
proceeding), whether or not brought by or on behalf of the Corporation, seeking
to hold him liable by reason of the fact that he is or was acting in such
capacity. In addition, the board may provide such indemnification for the
employees and agents of the Corporation as it deems appropriate.
The rights of those receiving indemnification hereunder shall, to the
fullest extent from time to time permitted by law, cover (i) reasonable
expenses, including without limitation all attorneys' fees actually and
necessarily incurred by him in connection with any such action, suit or
proceeding, (ii) all reasonable payments made by him in satisfaction of any
judgment, money decree, fine (including an excise tax assessed with respect to
an employee benefit plan), penalty, or settlement for which he may have become
liable in such action, suit, or proceeding; and (iii) all reasonable expenses
incurred in enforcing the indemnification rights provided herein.
Expenses incurred by anyone entitled to receive indemnification under
this section in defending a proceeding may be paid by the Corporation in advance
of the final disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under any provisions
in the bylaws or by any applicable resolution or contract upon receipt of an
undertaking by or on behalf of the director to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation against such expenses.
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 bylaw, 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.
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 right of
indemnification provided 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 the provisions of this bylaw.
The rights granted herein shall not be limited by the provisions
contained in N.C. Gen. Stat.ss.55-8-51 (or its successor).
SECTION 5. Fiscal Year: The fiscal year of the Corporation shall be
fixed by the board of directors.
SECTION 6. Amendments: (a) The board of directors may amend or repeal
these bylaws, except to the extent otherwise provided in the articles of
incorporation, a bylaw adopted by the shareholders, or the Act, and except that
a bylaw adopted, amended, or repealed by the shareholders may not be readopted,
amended, or repealed by the board of directors if neither of the articles of
incorporation nor a bylaw adopted by the shareholders authorizes the board of
directors to adopt, amend, or repeal that particular bylaw or the bylaws
generally.
(b) The Corporation's shareholders may adopt, amend, alter, change, or
repeal any of these bylaws consistent with the provisions of Section 10 of
Article III.
(c) A bylaw that fixes a greater quorum or voting requirement for the
board of directors may be amended or repealed: (i) if originally adopted by the
shareholders, only by the shareholders, unless the bylaw permits amendment or
repeal by the board of directors; or (ii) if originally adopted by the board of
directors, either by the shareholders or by the board of directors.
(d) A bylaw referred to in Subsection (c) above: (i) may not be adopted
by the board of directors by a vote of less than a majority of the directors
then in office; and (ii) may not itself be amended by a quorum or vote of the
directors less than the quorum or vote therein prescribed or prescribed by a
bylaw adopted or amended by the shareholders.
(e) A bylaw adopted or amended by the shareholders that fixes a greater
voting or quorum requirement for the board of directors may provide that it may
be amended or repealed only by a specified vote of either the shareholders or
the board of directors.
SECTION 7. Emergencies: In anticipation of or during an emergency, the
board of directors may: (i) modify lines of succession to accommodate the
incapacity of any director, officer, employee, or agent; and (ii) relocate the
principal office or designate alternative principal or regional offices, or
authorize the officers to do so.
During an emergency: (i) notice of a meeting of the board of directors
need be given only to those directors whom it is practicable to reach and may be
given in any practicable manner, including by publication and radio; and (ii)
one or more officers present at a meeting of the board of directors may be
deemed to be directors for the meeting, in order of rank and within the same
rank in order of seniority, as necessary to achieve a quorum.
SECTION 8. Severability: Should any provision of these bylaws become
ineffective or be declared to be invalid for any reason, such provision shall be
severable from the remainder of these bylaws and all other provisions of these
bylaws shall continue to be in full force and effect.
ATTESTED:
/s/ Allen T. Nelson, Jr. Date: August 11, 1998
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Secretary
CONSENT OF SOLE SHAREHOLDER
OF
CAPITAL BANK CORPORATION
TO
ACTION WITHOUT MEETING
The undersigned, being the sole shareholder of Capital Bank
Corporation, a North Carolina corporation (the "Corporation"), does hereby adopt
the following resolutions by signing his written consent hereto, pursuant to the
provisions of Section 55-7-04 of the North Carolina Business Corporation Act.
WHEREAS, the sole shareholder of the Corporation desires to ratify and
affirm the actions taken in his capacity as the sole director of the
Corporation, pursuant to a Consent effective October 13, 1998, regarding the
appointment of directors of the Corporation; and
WHEREAS, the sole shareholder of the Corporation desires to amend the
Corporation's Bylaws as set forth herein.
NOW, THEREFORE, BE IT RESOLVED, that the appointment of directors
pursuant to the Consent of Board of Directors of the Corporation effective
October 13, 1998 is hereby ratified and affirmed by the sole shareholder of the
Corporation and the seventeen (17) individuals appointed to the board of
directors pursuant to that Consent shall be deemed to have been elected by the
sole shareholder of the Corporation as of that date for the terms of office
described therein; and it is
FURTHER RESOLVED, that the last sentence of Article IV, Section 6 of
the Corporation's Bylaws is hereby amended to read in its entirety as follows:
"The term of a director elected to fill a vacancy shall expire at the next
shareholders' meeting at which directors are elected.
" This action is effective as of the 1st day of March, 1999.
/s/ James A. Beck
-----------------
James A. Beck
CAPITAL BANK CORPORATION
Board Resolutions for Bylaws Amendment
February 21, 2002
WHEREAS, the Company has applied to the Nasdaq Stock Market to have its
shares of common stock, currently listed on the Nasdaq SmallCap Market, listed
on the Nasdaq National Market; and
WHEREAS, Nasdaq has reviewed the Company's application and believes
that the Company's Bylaws are unclear as to the requirement of a quorum for
purposes of a shareholders' meeting; and
WHEREAS, pursuant to the authority of the Board of Directors of the
Company contained in Article IX, Section of the Bylaws of the Company, the
Company has agreed to amend the Bylaws to respond to Nasdaq's request;
NOW, THEREFORE, BE IT RESOLVED, that Article III, Section 8 of the
Bylaws of the Company is hereby amended such that the first sentence of the
first paragraph of such section shall be deleted and replaced in its entirety
with the following:
"A majority of the shares entitled to be voted on a matter by any
voting group, represented in person or by proxy, shall constitute a quorum of
that voting group for action on the matter."
FURTHER RESOLVED, that except to the extent expressly set forth above,
the Board hereby ratifies, confirms and approves the terms and provisions of the
Bylaws as they existed prior to the effective date hereof;
FURTHER RESOLVED, the officers of the Company are hereby directed to
file these resolutions with the corporate records of the Company.
The foregoing resolutions were duly adopted by the Board on February
21, 2002.
/s/ Allen T. Nelson
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Secretary