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EXHIBIT 3.3
BYLAWS
OF
SALES VISION INC.
SECTION 1: OFFICES, SEAL
SECTION 1.1. PRINCIPAL OFFICE. The principal office of the Corporation shall be
located in such county and state (either within or without the State of North
Carolina) as determined from time to time by the Board of Directors and as shall
have been so designated in the most recent annual report of the Corporation or
amendment thereto, as filed with the North Carolina Secretary of State's office
pursuant to the North Carolina Business Corporation Act.
SECTION 1.2. REGISTERED OFFICE. The registered office of the Corporation
required by law to be maintained in the State of North Carolina shall initially
be located in Mecklenburg County, North Carolina, at such address as selected by
the Board of Directors.
SECTION 1.3. OTHER OFFICES. The Corporation may have offices at such other
places 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.
SECTION 1.4. SEAL. The seal of the Corporation shall such seal as adopted by the
Board of Directors.
SECTION 2: MEETINGS OF STOCKHOLDERS
SECTION 2.1. PLACE OF MEETINGS. All meetings of stockholders 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 stockholders entitled to vote at
such meeting.
SECTION 2.2. ANNUAL MEETINGS. The annual meetings of stockholders shall be held
at the principal office of the Corporation, on the fifteenth (15th) day of the
fourth (4th) month following the close of the Fiscal Year, if not a legal
holiday, but if a legal holiday as recognized by the State of North Carolina and
the United States Federal Government, then at the same hour on the next
subsequent day which is not a legal holiday, 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.
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SECTION 2.3. SUBSTITUTE ANNUAL MEETINGS. 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 provision of Sections 2.4 and 2.5. A meeting so called
shall be designated and treated for all purposes as the annual meeting.
SECTION 2.4. SPECIAL MEETINGS. Special meetings of the stockholders may be
called at any time by or at the request of the President, Secretary, or Board of
Directors of the Corporation, or, unless the Corporation is a "public
corporation" (as defined in the North Carolina Business Corporation Act), by any
stockholder pursuant to the written request of the holders of not less than
one-tenth of all the shares of stock entitled to vote at a meeting.
SECTION 2.5. NOTICE OF MEETINGS WAIVER. Written or printed notice stating the
time and place of the meeting shall be delivered to each stockholder entitled to
vote at such meeting and to each stockholder entitled to notice pursuant to the
Articles of Incorporation or applicable law not less than ten nor more than
sixty (60) days before the date of any stockholders' meeting, either personally
or by mail, by or at the direction of the President, the Secretary, or other
person(s) calling the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to each such
stockholder at his address as it appears on the record of stockholders 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; but,
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 provisions of these Bylaws or by the North Carolina
Business Corporation Act.
As provided under Section 6.7, it shall be the duty of the Secretary to
give all notices. In default by the Secretary of giving same within five (5)
days after request by the person calling the meeting, said person may give said
notice direct to the stockholders.
If a meeting is adjourned for more than one hundred and twenty (120)
days after the date fixed for the original meeting, or if a new record date,
time and place for the adjourned meeting is not announced prior to adjournment,
then notice of the adjourned meeting shall be given as in the case of an
original meeting; otherwise, 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.
Any stockholder may waive the necessity of formal notice to him by
signing a written waiver either before or after the meeting and upon execution
of said waiver, said stockholder shall not be entitled thereafter to object to
the meeting being held or matters being passed upon at said meeting because of
lack of notice thereof. A stockholder's attendance at a meeting
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constitutes a waiver by such stockholder of (a) objection to lack of notice or
defective notice of the meeting unless the stockholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting,
and (b) objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the notice of the meeting,
unless the shareholder objects to consideration of the matter before being voted
upon.
SECTION 2.6. VOTING LISTS. Before each meeting of stockholders, the Secretary of
the Corporation shall prepare an alphabetical list of the stockholders entitled
to vote at such meeting. The list must be arranged by voting group, and within
each voting group by class or series of shares, and must show the address and
number of shares of stock held by each stockholder, and 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, for a period beginning two
(2) business days after notice of the meeting is given and continuing through
the date of the meeting, and shall be subject to inspection by any stockholder
at any time during 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 stockholder during the whole time of the meeting and any
adjournment.
SECTION 2.7. QUORUM. The holders of a majority of the shares entitled to vote as
a separate voting group, represented in person or by proxy, shall constitute a
quorum at meetings of stockholders. If there is no quorum at the opening of a
meeting of stockholders, 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 stockholders at
any meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.8. VOTING OF SHARES. Unless otherwise provided by law or by the
Articles of Incorporation, each outstanding share, regardless of class, having
voting rights shall be entitled to one vote on each matter submitted to a vote
at a meeting of stockholders.
The vote of a majority of the shares voted on any matter at a meeting
of stockholders at which a quorum is present shall be the act of the
stockholders on that matter, unless the vote of a greater number is required by
law or by the Articles of Incorporation or Bylaws of the Corporation. Except in
the election of Directors (as provided in Section 3.3), if a quorum of a voting
group exists, action on a matter by such voting group is approved by such voting
group if the votes cast within such voting group favoring the action exceed the
votes cast within such voting group opposing the action, unless a greater number
of affirmative votes is required by law or the Articles of Incorporation or a
Bylaw adopted by the Stockholders. If the Articles of Incorporation, or Bylaw
adopted by the Stockholders or applicable law provides for voting on a matter by
two or more voting groups, action is taken on that matter only when approved by
each of those voting groups counted separately; provided that action may be
taken by one
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voting group on a matter even though no action is taken at the same time by
another voting group entitled to vote on the matter.
As used in these Bylaws, the term "voting group" means all shares of
one or more classes or series that, under the Articles of Incorporation or
applicable law, are entitled to vote and be counted together collectively on a
matter at a meeting of stockholders. All shares entitled by the Articles of
Incorporation or applicable law to vote generally on a matter are for that
purpose a single voting group. So long as the Corporation shall have only one
class of shares outstanding and the voting rights of all such shares of such
class are identical, then all such outstanding shares shall constitute a single
voting group and the sole voting group, except to the extent that applicable law
or the Articles of Incorporation requires that any of such shares be treated as
a separate voting group.
SECTION 2.9. 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. Unless a proxy otherwise provides, any
proxy holder may appoint in writing a substitute to act in his place.
SECTION 2.10. INFORMAL ACTION BY STOCKHOLDERS. Any action which may be taken at
a meeting of the stockholders may be taken without a meeting if one or more
consents or ratifications, in writing, setting forth the action so taken or to
be taken shall be signed by all of the persons who would be entitled to vote
upon such action at a meeting, and delivered to the Corporation for inclusion in
the minutes or filing with the corporate records. In the case of any action
proposed to be taken by written consent that, if to be taken at a meeting, would
require that notice be given to nonvoting stockholders, the Corporation shall
give such nonvoting stockholders written notice of the proposed action at least
ten (10) days before the action is taken, which notice shall contain or be
accompanied by the same material(s) that, under applicable law, would be
required to be sent to nonvoting stockholders in a notice of such a meeting.
SECTION 3: BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the Corporation shall
be managed by the Board of Directors or by such Executive Committee as the Board
may establish pursuant to these Bylaws.
SECTION 3.2. NUMBER, TERM AND QUALIFICATION. The minimum number of Directors
shall be one (1) and the maximum number of Directors shall be fifteen (15).
Thereafter, said number may be increased or decreased by resolution duly adopted
by or consented to by the stockholders. Each Director shall hold office until
his death, resignation, retirement, removal,
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disqualification, or his successor is elected and qualifies. Directors need not
be residents of the State of North Carolina nor stockholders of the Corporation.
SECTION 3.3. ELECTION OF DIRECTORS. Except as provided in Section 3.5, the
Directors shall be elected at the annual or substitute annual meeting of
stockholders; and those persons who receive the highest number of votes shall be
deemed to have been elected. If any stockholder so demands or if the presiding
officer so directs, the election of Directors shall be by ballot. Otherwise, the
election shall be by voice vote. Except as provided in the Articles of
Incorporation or required by applicable law, stockholders shall have no right to
cumulate their votes for Directors.
SECTION 3.4. REMOVAL. Directors may be removed from office at any time, with or
without cause, by a vote of the stockholders of the voting group entitled to
elect such Director, provided a quorum exists and the number of votes cast in
favor of such removal exceeds the number of votes cast against such removal. A
Director may not be removed by the stockholders at a meeting unless the notice
of the meeting states that the purpose or one of the purposes of the meeting is
removal of the Director. If any Directors are removed, new Directors may be
elected at the same meeting.
SECTION 3.5. VACANCIES; NEWLY CREATED BOARD POSITIONS. A vacancy occurring in
the Board of Directors may be filled by the stockholders or by a majority of the
remaining Directors, though less than a quorum, or by the sole remaining
Director. An opening occurring in the Board of Directors due to an addition in
the number of directors may be filled by a majority of the current Directors,
though less than a quorum, or by the sole current Director.
SECTION 3.6. 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 preside at all meetings of the Board of Directors and perform such other
duties as may be directed by the Board. In the absence of the Chairman, the
President shall preside at all meetings of the Board of Directors.
SECTION 3.7. 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 or of any
committee.
SECTION 4: MEETINGS OF DIRECTORS
SECTION 4.1. 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
stockholders. 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.
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SECTION 4.2. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by or at the request of the President or any two Directors. Such meetings
may be held either within or without the State of North Carolina.
SECTION 4.3. 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, e.g., letter, telephone call,
telegram, direct contact, etc. In the case of a letter, the same shall be deemed
received two (2) days after mailing of same and in the case of a telegram, one
(1) day after placing the same. Such notice need not specify the purpose for
which the meeting is called.
SECTION 4.4. WAIVER. Attendance by a Director at a meeting shall constitute a
waiver of notice of such meeting unless the subject 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 4.5. QUORUM. A quorum for the transaction of business at any meeting of
the Board of Directors consists of a majority of the fixed number of directors.
SECTION 4.6. MANNER OF ACTING. 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, unless otherwise provided by law.
SECTION 4.7. INFORMAL ACTION BY DIRECTORS. Action required or permitted to be
taken at a Board meeting may be taken without a meeting if one or more written
consents to the action in question are signed by all the Directors before or
after such action, describing the action taken, are included in the minutes of
the proceedings of the Board or filed with the corporate records.
SECTION 4.8. PRESUMPTION OF ASSENT. A Director of the Corporation who is present
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless (1) he
objects at the beginning of the meeting (or promptly upon his arrival) to
holding it or transacting business at the meeting; (2) his dissent or abstention
from the action taken is entered in the minutes of the meeting; or (3) 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. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
SECTION 4.9. PARTICIPATION BY CONFERENCE TELEPHONE. Any one or more Directors or
members of the Executive Committee may participate in a meeting of the Board of
Directors or committee by means of a conference telephone or similar
communications device that allows all persons participating in the meeting to
simultaneously hear one another during the entire
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course of the meeting, and such participation in a meeting shall be deemed
presence in person at such meeting.
SECTION 5: EXECUTIVE COMMITTEE
SECTION 5.1. CREATION. The Board of Directors, by resolution adopted by a
majority of the number of Directors then holding office, may designate two or
more Directors to constitute an Executive Committee, which committee, to the
extent provided in such resolution, shall have and may exercise all of the
authority of the Board of Directors in the management of the Corporation, except
as limited by law.
SECTION 5.2. VACANCY. Any vacancy occurring in an Executive Committee shall be
filled by a majority of the number of Directors then holding office at a regular
or special meeting of the Board of Directors.
SECTION 5.3. REMOVAL. Any member of an Executive Committee may be removed at any
time with or without cause by a majority of the number of Directors then holding
office.
SECTION 5.4. MINUTES. The Executive Committee shall keep regular minutes of its
proceedings and report the same to the Board when required. Such minutes shall
be incorporated into the regular Board of Directors minutes.
SECTION 5.5. RESPONSIBILITY OF DIRECTORS. The designation of an Executive
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.
If action taken by an Executive Committee is not thereafter formally
considered by the Board, a Director may dissent from such action by filing his
written objection with the Secretary with reasonable promptness after learning
of such action.
SECTION 6: OFFICERS
SECTION 6.1. NUMBER. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer, and such Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers as may be appointed by the
Board of Directors or otherwise provided in these Bylaws. 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 6.2. ELECTION AND TERM. The officers of the Corporation shall be
appointed from time to time by the Board of Directors; provided, that the Board
of Directors may authorize a duly appointed officer to appoint one or more other
officers or assistant officers, other than
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appointment of the President. Each office shall serve at the pleasure of the
Board of Directors. Except for the President, no officer need be a member of the
Board of Directors.
SECTION 6.3. REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board whenever in its judgment the best
interests of the Corporation will be served thereby; but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
SECTION 6.4. COMPENSATION. The compensation of all officers of the Corporation
shall be fixed by the Board of Directors and no officer shall serve the
Corporation in any other capacity and receive compensation therefor unless such
additional compensation be authorized by the Board of Directors.
SECTION 6.5. PRESIDENT. The President shall be the principal 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.
He shall, when present, preside at all meetings of stockholders 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 or executed and except
where the signing and execution thereof shall be delegated by the Board of
Directors to some other officer or agent; and, in general, he shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
SECTION 6.6. VICE PRESIDENTS. The 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 duties and have such
other powers as the Board of Directors shall prescribe.
SECTION 6.7. SECRETARY. The Secretary shall keep accurate records of the acts
and proceedings of all meetings of stockholders and Directors. 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 office and the principal office of the Corporation, a record of
stockholders showing the name and address of each stockholder and the number and
class of shares of stock held by each. He shall sign such instruments as may
require his signature, and in general, shall perform all duties incident to the
office of Secretary and such other duties as may be assigned him from time to
time by the President or by the Board of Directors.
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SECTION 6.8. TREASURER. The Treasurer shall have custody of all funds and
securities belonging to the Corporation and shall receive, deposit and disburse
the same under the direction of the Board of Directors. He shall keep full and
accurate accounts of the finances of the Corporation in books especially
provided for that purpose; and he shall cause a true statement of its assets and
liabilities as of the close of each fiscal year and of the results of its
operations and of changes in surplus for such fiscal year, all in reasonable
detail, including particulars as to convertible securities then outstanding, to
be made and filed at the registered office and the principal office of the
Corporation within four months after the end of such fiscal year. The statement
so filed shall be kept available for inspection by any stockholder for a period
of ten years; and the Treasurer shall mail or otherwise deliver a copy of the
latest such statement to any stockholder upon his written request therefor. The
Treasurer shall, in general, perform all duties incident to his office and such
other duties as may be assigned to him from time to time by the President or by
the Board of Directors.
SECTION 6.9. 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 6.10. 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 6.11. REPAYMENT AGREEMENT. Any payments made to an officer of the
corporation such as salary, commission, bonus, interest, rent, or entertainment
expense incurred by him, which shall be disallowed in whole or in part as a
deductible expense by the Internal Revenue Service, shall be reimbursed by such
officer to the corporation to the full extent of such disallowance. It shall be
the duty of the directors, as a board, to enforce payment of each amount
disallowed. In lieu of payment by the officer, subject to the determination of
the directors, proportionate amounts may be withheld from his future
compensation payments until the amount owed to the corporation has been
recovered.
SECTION 7: DEALINGS WITH DIRECTORS AND OFFICERS
SECTION 7.1. LOANS AND GUARANTIES. The Corporation shall not, directly or
indirectly, make any loan of money or property to, or guarantee or otherwise
secure the obligation of:
A. Any Director or officer of the Corporation; or
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B. Any Corporation of which the officers and Directors owned more than
fifty (50%) percent of the outstanding securities of any class; or
C. Any dominant stockholder or any other corporation of which said
stockholder is a dominant stockholder, unless that corporation is a subsidiary
of this Corporation (a "dominant stockholder" means a stockholder who by virtue
of his shareholdings has legal power either directly or indirectly or through
another corporation or series of corporations, to elect a majority of the
Directors); or
D. Any person upon the security of this Corporation's shares or of the
shares of any corporation mentioned in B and C above;
unless the same shall be approved by a majority of all of the outstanding shares
other than those held by the interested party, regardless of any limitation on
voting rights, or the Board of Directors determines that the loan or guarantee
benefits the Corporation and either approves in writing the specific loan or
guarantee or a general plan authorizing loans and guarantees.
The provisions of this section do not apply to loans, guarantees, or
other forms of security extended by banks, industrial banks, building or loan
associations, land and loan associations, or credit unions or insurance
companies.
SECTION 8: CONTRACTS, LOANS, DEPOSITS, EXPENDITURES
SECTION 8.1. 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 8.2. 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 8.3. 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, 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 8.4. DEPOSITS. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in all such
depositories as the Board of Directors shall direct.
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SECTION 9: CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 9.1. AMOUNT. The aggregate number of shares of capital stock is that
amount specified in the Articles of Incorporation.
SECTION 9.2. CONSIDERATION FOR SHARES. The Board of Directors may authorize
shares to be issued for consideration consisting of any tangible or intangible
property or benefit to the Corporation, including cash, promissory notes,
services performed, contracts for services to be performed, or other securities
of the Corporation. Before the Corporation issues shares, the Board of Directors
must determine that the consideration received or to be received for shares to
be issued is adequate. The determination by the Board of Directors as to
adequacy of consideration is conclusive as to whether the shares are validly
issued, fully paid, and nonassessable. When the Corporation receives the
consideration for which the Board of Directors authorizes the issuance of
shares, the shares issued therefor are fully paid and nonassessable.
SECTION 9.3. CERTIFICATES FOR SHARES. Certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors shall
determine, to every stockholder 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.
SECTION 9.4. TRANSFER OF SHARES. Transfer of shares shall be made on the stock
transfer books of the Corporation 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 the new certificates for the
transferred shares shall be issued.
SECTION 9.5. RECERTIFICATION OF SHARES. The Board of Directors may authorize the
issuance of a new share certificate in place of a certificate claimed to have
been lost, destroyed or wrongfully taken, upon receipt of an affidavit of such
fact from the person claiming the loss or destruction. When authorizing such
issuance of a new certificate, the Board of Directors may require, in its
discretion, the claimant to give the Corporation a bond in such sum and with
such sureties as it may direct to indemnify the Corporation against loss from
any claim with respect to the certificate claimed to be lost, destroyed or
wrongfully taken. Nothing herein shall require the Board of Directors to
authorize the issuance of any such replacement certificate under any
circumstances in which the Corporation is not required to issue such
certificate, this provision being permissive and not mandatory.
SECTION 9.6. CLOSING TRANSFER BOOKS AND FIXING RECORD DATE. For the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any
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adjournment thereof, or entitled to receive payment of any dividend, or in order
to make a determination of stockholders 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, seventy (70) days immediately
preceding the date of the meeting or the date on which the particular action
requiring such determination of stockholders is to be taken. If the stock
transfer books shall be closed for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such books shall
be closed for at least ten (10) 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
stockholders, such record date in any case to be not more than seventy (70) days
immediately preceding the date on which the particular action requiring such
determination of stockholders is to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice of or to vote at a
meeting of stockholders, or stockholders 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
stockholders.
A determination of stockholders entitled to notice of or to vote at a
stockholders' meeting is effective for any adjournment of the meeting unless the
Board of Directors fixes a new record date for the adjourned meeting, which it
must do if the original meeting is adjourned to a date more than one hundred and
twenty days after the date fixed for the original meeting.
SECTION 10: INDEMNIFICATION
SECTION 10.1. INDEMNIFICATION FOR EXPENSES AND LIABILITIES. Any person who at
any time serves or has served (1) as a Director, officer, employee or agent of
the Corporation, (2) at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise, or (3) at the request of
the Corporation as a trustee or administrator under an employee benefit plan, or
is called as a witness at a time when he or she has not been made a named
defendant or respondent to any Proceeding, shall have a right to be indemnified
by the Corporation to the fullest extent from time to time permitted by law
against Liability and Expense 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.
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
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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 rights 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 this provision.
The rights granted herein shall not be limited by the provisions
contained in Section 55-8-51 of the North Carolina General Statutes or any
successor to such statute.
SECTION 10.2. ADVANCE PAYMENT OF EXPENSES. The Corporation shall (upon receipt
of an undertaking by or on behalf of the Director, officer, employee or agent
involved to repay the Expenses described herein unless it shall ultimately be
determined that he or she is entitled to be indemnified by the Corporation
against such Expenses) pay Expenses incurred by such Director, officer, employee
or agent in defending a Proceeding or appearing as a witness at a time when he
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 10.3. 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 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 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 10.4. DEFINITIONS. The following terms as used in this Section 10 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" includes the estate or personal representative of a 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.
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SECTION 11: AMENDMENTS
Except as otherwise provided herein, these Bylaws, as well as all
future amendments or additions thereto, may be altered or repealed and new
Bylaws may be adopted by the Board of Directors or stockholders, except that the
Board of Directors shall have no power to amend or repeal a bylaw adopted by the
stockholders unless a bylaw adopted by the stockholders authorizes the Board of
Directors to adopt, amend or repeal that particular bylaw or the bylaws
generally.
SECTION 12: NORTH CAROLINA LAW
SECTION 12.1. INTERPRETATION. All controversies pertaining to the interpretation
and execution of the foregoing Bylaws shall be interpreted under the applicable
provisions of the Business Corporation Act of North Carolina and other
applicable law of the State of North Carolina germane thereto.
SECTION 13: EFFECTIVE DATE APPROVAL
SECTION 13.1. EFFECTIVE DATE. The effective date of the foregoing Bylaws shall
be on the date of the initial meeting of the Board of Directors of the
Corporation.
SECTION 13.2. APPROVAL. The foregoing Bylaws were unanimously approved by the
Board of Directors by resolution duly adopted.
SALES VISION INC.
By: /s/ Thomas Fedell
Thomas Fedell, President
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15
FIRST AMENDMENT TO BYLAWS
OF
YOUCENTRIC, INC.
The bylaws of YOUcentric, Inc., a North Carolina corporation (the
"Corporation"), are amended as follows:
1. Section 6.2 is deleted in its entirety and the following new
Section 6.2 is substituted in lieu thereof:
"SECTION 6.2. ELECTION AND TERM. The officers of the
Corporation shall be appointed from time to time by the Board of
Directors; provided, that the Board of Directors may authorize a duly
appointed officer to appoint one or more other officers or assistant
officers, other than appointment of the Chief Executive Officer, if
such an officer shall have been appointed, or, in the absence of such
an officer, the President. Each office shall serve at the pleasure of
the Board of Directors. Except for the Chief Executive Officer, if such
an officer shall have been appointed, or, in the absence of such an
officer, the President, no officer need be a member of the Board of
Directors."
2. Section 6.5 is deleted in its entirety and the following new
Sections 6.5.1 and 6.5.2 are substituted in lieu thereof:
"SECTION 6.5.1. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer, if such an officer shall have been appointed, shall be the
chief executive officer of the Corporation and shall, subject to the
control of the Board of Directors, have general supervision, direction
and control of the business and affairs of the Corporation. He shall,
in the absence of a Chairman of the Board of Directors, preside at all
meetings of the Board of Directors and shareholders. He shall have the
general powers and duties of management usually vested in the office
of the chief executive officer of a corporation, and shall have such
other powers and perform such other duties as from time to time may be
prescribed by the Board of Directors or these Bylaws.
"SECTION 6.5.2. PRESIDENT. In the absence or disability of
the Chief Executive Officer, the President shall perform all the
duties of the Chief Executive Officer and when so acting shall have
the power of, and be subject to all the restrictions upon, the Chief
Executive Officer. The President shall have such other powers and
perform such other duties as from time to time may be prescribed for
the president by the Board of Directors, these Bylaws or the Chief
Executive Officer."
THIS IS TO CERTIFY that the above amendments to the bylaws of the
Corporation were duly adopted by the Board of Directors of the Corporation by
action taken by unanimous written consent effective January 1, 2000.
By: /s/ THOMAS FEDELL
-----------------------------------
Tom Fedell, Chief Executive Officer
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Exhibit 3.3
SECOND AMENDMENT TO BYLAWS
OF
YOUCENTRIC, INC.
The Bylaws of YOUcentric, Inc., a North Carolina corporation (the
"Corporation"), are amended as follows:
Section 6.5 is deleted in its entirety and the following new Sections
6.5.1, 6.5.2 and 6.5.3 are substituted in lieu thereof:
"SECTION 6.5.1. CHAIRMAN OF THE BOARD. The Chairman of the
Board, if such an officer shall be appointed, shall, if present,
preside at all meetings of the Board of Directors and shareholders and
exercise and perform such other powers and duties as may from time to
time be assigned to him by the Board of Directors or as may be
prescribed by these Bylaws.
SECTION 6.5.2. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer, if such an officer shall have been appointed, shall be the
chief executive officer of the Corporation and shall, subject to the
control of the Board of Directors and the Chairman of the Board, if
such an officer shall have been appointed, have general supervision,
direction and control of the business and affairs of the Corporation.
He shall, in the absence of a Chairman of the Board, preside at all
meetings of the Board of Directors and shareholders. He shall have the
general powers and duties of management usually vested in the office of
the chief executive officer of a corporation, and shall have such other
powers and perform such other duties as from time to time may be
prescribed by the Board of Directors, the Chairman of the Board, if
such an officer shall have been appointed, or these Bylaws.
SECTION 6.5.3. PRESIDENT. In the absence or disability of the
Chief Executive Officer, the President shall perform all the duties of
the Chief Executive Officer and when so acting shall have the power of,
and be subject to all the restrictions upon, the Chief Executive
Officer. The President shall have such other powers and perform such
other duties as from time to time may be prescribed for the president
by the Board of Directors or these Bylaws."
THIS IS TO CERTIFY that the above amendments to the bylaws of the
Corporation were duly adopted by the Board of Directors of the Corporation by
action taken by unanimous written consent effective April 14, 2000.
YOUCENTRIC, INC.
By:/s/ Thomas Fedell
---------------------------
Tom Fedell, Chief Executive Officer