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EXHIBIT 3.4
YOUCENTRIC, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of YOUcentric, Inc.
(hereinafter, the "Corporation") shall be located in Mecklenburg County, North
Carolina or such other place as is designated by the Board of Directors.
ARTICLE II
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 by the
Board of Directors.
SECTION 2. ANNUAL MEETINGS OF SHAREHOLDERS. The annual meeting of
shareholders shall be held each year on a date and time designated by the Board
of Directors 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. Any previously scheduled annual meeting of the shareholders may be
postponed by resolution of the Board of Directors upon public notice given prior
to the date previously scheduled for such annual meeting of the shareholders.
SECTION 3. SUBSTITUTE ANNUAL MEETING. If the annual meeting shall not
be held as provided in these Bylaws, a substitute annual meeting may be called
in accordance with the provisions of Paragraph 4 of this Article II. A meeting
so called shall be designated and treated for all purposes as the annual
meeting.
SECTION 4. SPECIAL MEETINGS. A special meeting of the shareholders may
be called at any time by the Chairman of the Board of Directors or by a majority
of the directors, but such special meetings may not be called by any other
person or persons. Any previously scheduled special meeting of the shareholders
may be postponed by resolution of the Board of Directors upon public notice
given prior to the date previously scheduled for such special meeting of the
shareholders.
SECTION 5. NOTICE OF SHAREHOLDERS' MEETINGS. 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 thereof, either personally or
by mail, by or at the direction of the Chairman of the Board of Directors or the
President or Secretary of the Corporation to each shareholder of record entitled
to vote at such meeting.
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In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of Directors, on which the vote of
shareholders is expressly required by the provisions of the North Carolina
Business Corporation Act. In the case of a special meeting, the notice of
meeting shall specifically state the purpose or purposes for which the meeting
is called.
When a meeting is adjourned for one hundred twenty (120) days or more,
notice of the adjourned meeting shall be given as in the case of an original
meeting. When a meeting is adjourned for less than one hundred twenty (120) days
in any one adjournment, it is not necessary to give any notice of the adjourned
meeting other than by announcement at the meeting at which the adjournment is
taken.
SECTION 6. SHAREHOLDERS LIST. After fixing the record date for a
meeting, the Secretary of the Corporation shall prepare an alphabetical list of
the shareholders entitled to notice of such meeting or any adjournment thereof,
arranged by voting group, class and series, with the address of and number of
shares held by each. Such list shall be kept on file at the principal office of
the Corporation, or at a place identified in the meeting notice in the city
where the meeting will be held, beginning two (2) business days after notice of
such meeting is given and continuing through the meeting, and on written demand
shall be subject to inspection or copying by any shareholder, his agent or
attorney at any time during regular business hours. This list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to inspection by any shareholder, his agent or attorney during the entire time
of the meeting.
SECTION 7. QUORUM.
(a) Unless otherwise provided by law, a majority of the votes
entitled to be cast on a matter by a separate voting group shall constitute a
quorum of such voting group on that matter at a meeting of the shareholders. A
separate voting group may only take action on a matter at a meeting if a quorum
of those shares are present with respect to that matter. In the absence of a
quorum at the opening of any meeting of shareholders, such meeting may be
adjourned from time to time by the vote of a majority of the shares voting on
the motion to adjourn, but no other business may be transacted until and unless
a quorum is present. When a quorum is present at any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting. If a quorum is present at the original meeting, a quorum need not be
present at an adjourned meeting to transact business.
(b) At a meeting at which a quorum is present, a separate
voting group may continue to do business until adjournment, notwithstanding the
withdrawal of sufficient shareholders to leave less than a quorum of the
separate voting group.
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SECTION 8. VOTING OF SHARES AND VOTING GROUPS.
(a) Except as otherwise provided by the Articles of
Incorporation or by law, each outstanding share having voting rights shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. All shares entitled to vote and be counted together collectively
on a matter as provided by the Articles of Incorporation or by the North
Carolina Business Corporation Act shall constitute a single voting group.
Additional required voting groups shall be determined in accordance with the
Articles of Incorporation, the Bylaws and the North Carolina Business
Corporation Act.
(b) Except in the election of Directors, at a shareholder
meeting duly held and at which a quorum is present, action on a matter by a
voting group shall be approved if the votes cast within the voting group
favoring the action exceed the votes cast within the voting group opposing the
action, unless the vote by a greater number is required by law or by the
Articles of Incorporation or Bylaws. For such actions, abstentions shall not be
treated as negative votes. Corporate action on such matters shall be taken only
when approved by each and every voting group entitled to vote as a separate
voting group on such matter as provided by the Articles of Incorporation or
Bylaws or by the North Carolina Business Corporation Act.
(c) Shares of the Corporation shall not be entitled to vote if
they are owned, directly or indirectly, by another corporation in which the
Corporation owns, directly or indirectly, a majority of the shares entitled to
vote for directors of the second corporation; provided that this provision does
not limit the power of the Corporation to vote its own shares held by it in a
fiduciary capacity.
SECTION 9. INFORMAL ACTION BY SHAREHOLDERS. Any action which is
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the persons who would be entitled to vote upon such
action at a meeting and filed with the Secretary of the Corporation to be kept
in the corporate minute book, whether done before or after the action so taken.
Such consent shall have the same force and effect as a unanimous vote of
shareholders. Any shareholder may retract his consent until the last shareholder
entitled to vote has signed the appropriate written consent and all consents
have been delivered to the Secretary of the Corporation. When notice of a
proposed action is required to be given to nonvoting shareholders as provided in
Paragraph 5(a) of Article II of these Bylaws, the Corporation shall give the
nonvoting shareholders notice at least ten (10) days before action is taken in
lieu of a meeting by unanimous consent of the voting shareholders. Such notice
to nonvoting shareholders shall contain or be accompanied by any material that
would have been required to be sent to the nonvoting shareholders in a notice of
meeting at which the proposed action would have been submitted to the
shareholders for action.
SECTION 10. PROXIES. At all meetings of shareholders, shares may be
voted either in person or by one or more agents authorized by a written proxy
executed by the shareholder or his duly authorized attorney-in-fact. A telegram,
cablegram, wireless message or photogram appearing to have been transmitted by a
shareholder, or a photographic, photostatic or equivalent
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reproduction of a writing appointing one or more agents shall be deemed a
written proxy within the meaning of this section.
The Board of Directors, in its discretion, or the officer of the
corporation presiding at a meeting of shareholders, in such officer's
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
SECTION 11. INSPECTORS OF ELECTION.
(a) Appointment of Inspectors of Election. In advance of any
meeting of shareholders, the Board of Directors may appoint one or more persons,
other than nominees for office, as inspectors of election to act at such meeting
or any adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting may appoint inspectors of election at the meeting.
The number of inspectors shall be either one or three. In case any person
appointed as inspector fails to appear or fails or refuses to act, the vacancy
may be filled by appointment by the Board of Directors in advance of the meeting
or at the meeting by the person acting as chairman.
(b) Duties of Inspectors. The inspectors of election shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies, receive votes, ballots or consents, hear and
determine all challenges and questions in any way arising in connection with the
right to vote, count and tabulate all votes or consents, determine the result
and do such acts as may be proper to conduct the election or vote with fairness
to all shareholders. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously as
is practical.
(c) Report of Inspectors. On request of the chairman of the
meeting, the inspectors shall make a report in writing of any challenge or
question or matter determined by them and shall execute a certificate of any
fact found by them. Any report or certificate made by them shall be a prima
facie evidence of the facts stated therein.
SECTION 12. DIRECTOR NOMINATION AND SHAREHOLDER BUSINESS BYLAW.
(A) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of
business to be considered by the shareholders may be
made at an annual meeting of shareholders (a)
pursuant to the Corporation's notice of meeting, (b)
by or at the direction of the Board of Directors or
(c) by any shareholder of the Corporation who was a
shareholder of record at the time of giving of notice
provided for in this bylaw, who is entitled to vote
at the meeting and who complies with the notice
procedures set forth in this bylaw.
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(2) For nominations or other business to be properly
brought before an annual meeting by a shareholder
pursuant to clause (c) of paragraph (A)(1) of this
bylaw, the shareholder must have given timely notice
thereof in writing to the secretary of the
Corporation and such other business must otherwise be
a proper matter for shareholder action. To be timely,
a shareholder's notice shall be delivered to the
secretary at the principal executive offices of the
Corporation not less than the close of business on
the 120th calendar day in advance of the first
anniversary of the date the Corporation's proxy
statement was released to security holders in
connection with the preceding year's annual meeting;
provided, however, that if no annual meeting was held
in the previous year or the date of the annual
meeting has been changed by more than thirty (30)
calendar days from the date contemplated at the time
of the previous year's proxy statement, a proposal
shall be received by the Corporation no later than
the close of business on the tenth day following the
day on which notice of the date of the meeting was
mailed or public announcement of the date of the
meeting was made, whichever comes first. In no event
shall the public announcement of an adjournment of an
annual meeting commence a new time period for the
giving of a shareholder's notice as described above.
Such shareholder's notice shall set forth (a) as to
each person whom the shareholder proposes to nominate
for election or reelection as a director all
information relating to such person that is required
to be disclosed in solicitations of proxies for
election of directors in an election contest, or is
otherwise required, in each case pursuant to
applicable federal securities laws, including,
without limitation, Regulation 14A under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14a-11 thereunder
(including such person's written consent to being
named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any
other business that the shareholder proposes to bring
before the meeting, a brief description of the
business desired to be brought before the meeting,
the reasons for conducting such business at the
meeting and any material interest in such business of
such shareholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the
shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such
shareholder, as they appear on the corporation's
books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which
are owned beneficially and of record by such
shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this bylaw to the contrary, in
the event that the number of directors to be elected
to the Board of Directors of the Corporation is
increased and there is no public announcement by the
Corporation naming all of the nominees for director
or specifying the size of the increased Board of
Directors
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at least 70 days prior to the first anniversary of
the date of the preceding years annual meeting, a
shareholders notice required by this bylaw shall also
be considered timely, but only with respect to
nominees for any new positions created by such
increase, if it shall be delivered to the secretary
at the principal executive offices of the Corporation
not later than the close of business on the 10th day
following the day on which such public announcement
is first made by the Corporation.
(B) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall be brought before the
meeting pursuant to the corporation's notice of meeting. A shareholder's
nomination of one or more persons for election to the Board of Directors shall
only be permitted to be made at a special meeting of shareholders if: (i) the
Corporation's notice of such meeting specified that directors are to be elected
at such special meeting; (ii) such shareholder was a shareholder of record
entitled to vote at the meeting at the time of giving of notice provided for in
this bylaw; and (iii) if such shareholder complies with the notice procedures
set forth in this bylaw. In the event the Corporation calls a special meeting of
shareholders for the purpose of electing one or more directors to the Board of
Directors, any such shareholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the shareholder's notice required by paragraph (A)(2) of
this bylaw shall be delivered to the secretary at the principal executive
offices of the Corporation not earlier than the close of business on the 90th
day prior to such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
shareholder's notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this bylaw shall be
eligible to serve as directors. Except as otherwise
provided by law, the certificate of incorporation or
these Bylaws, the chairman of the meeting shall have
the power and authority to determine the procedures
of a meeting of shareholders, including, without
limitation, the authority to determine whether a
nomination or any other business proposed to be
brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures
set forth in this bylaw and, if any proposed
nomination or business is not in compliance with this
bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this bylaw, "public announcement"
shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or
comparable national news service or in a document
publicly filed
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by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of this
bylaw, a shareholder shall also comply with all
applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the
matters set forth in this bylaw. Nothing in this
bylaw shall be deemed to affect any rights (i) of
shareholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) of the holders of any
series of preferred stock, if any, to elect directors
under certain circumstances.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. The business and affairs of the Corporation shall be
managed by the Board of Directors.
SECTION 2. NUMBER; TERM OF OFFICE AND QUALIFICATION OF DIRECTORS. The
number of directors which shall constitute the whole Board of Directors shall
not be less than one (1) nor more than fifteen (15). The Board of Directors as
of the date of these amended and restated Bylaws shall consist of seven (7)
directors. Thereafter, within the minimum and the maximum, the number of
directors may be fixed or changed from time to time by the shareholders or the
Board of Directors. Each director shall hold office until his death,
resignation, retirement, removal, disqualification or his successor is elected
and qualifies. Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
SECTION 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Except as provided
in Section 5 of this Article III, Directors shall be elected at the annual
meeting of shareholders or a special meeting of shareholders; and those persons
who receive the highest number of votes at a meeting at which a quorum is
present shall be deemed to have been elected.
SECTION 4. REMOVAL. Directors may be removed from office only for cause
by a vote of shareholders holding a majority of the outstanding shares entitled
to vote at an election of Directors provided the notice of the shareholders'
meeting at which such action is to be taken states that a purpose of the meeting
is removal of the director and the number of votes cast to remove the director
exceeds the number of votes cast not to remove him.
SECTION 5. VACANCIES. A vacancy occurring in the Board of Directors,
including, without limitation, a vacancy created by an increase in the
authorized number of Directors or resulting from the shareholders' failure to
elect the full authorized number of Directors, may be filled by the Board of
Directors or if the Directors remaining in office constitute less than a quorum
of the Directors, they may fill the vacancy by the affirmative vote of a
majority of all remaining Directors or by the sole remaining director. If the
vacant office was held by a director elected by a voting group, only the
remaining director or directors elected by that voting group or the
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holders of shares of that voting group are entitled to fill the vacancy. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. The shareholders may elect a director at any time to
fill any vacancy not filled by the directors.
SECTION 6. FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees of the Board of Director may receive such compensation, if any, for
their services and such reimbursement of expenses, as may be fixed or determined
by resolution of the Board of Directors. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee, or otherwise, and receiving
compensation for such services.
SECTION 7. CHAIRMAN. There may be a Chairman of the Board of Directors
elected by the directors from their number at any meeting of the Board of
Directors. The Chairman shall serve as an officer of the Corporation as provided
in Article V and shall preside at all meetings of the Board of Directors and of
shareholders and perform such other duties as may be directed by the Board of
Directors. In the absence of a Chairman of the Board of Directors is elected,
the President of the Corporation shall preside at the meetings of the Board of
Directors and shareholders.
ARTICLE IV
MEETINGS OF DIRECTORS
SECTION 1. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held immediately after, and at the same place as, the annual
meeting of the shareholders. In addition, to the annual meeting of the Board of
Directors, there shall be three regular meetings of the Board of Directors to be
held at the offices of the Corporation or at such other place as may be
designated by the Chairman of the Board or the President in August and November
(on the third Tuesday thereof after the closing of the corporation's previous
fiscal month) and on the last Tuesday in January prior to close of each fiscal
year. The Chairman of the Board may designate the time of the meetings.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman, President or any two
directors. Such meetings may be held within or without the State of North
Carolina.
SECTION 3. NOTICE OF MEETINGS. Regular meetings of the Board of
Directors may be held without notice.
The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice thereof by
any usual means of communication. Such notice need not specify the purpose for
which the meeting is called.
Attendance by a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called.
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SECTION 4. QUORUM. A majority of the directors fixed by these Bylaws
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors.
SECTION 5. MANNER OF ACTING. Except as otherwise provided in this
section, the act of the majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
SECTION 6. INFORMAL ACTION BY DIRECTORS. Action taken by a majority of
the directors without a meeting is nevertheless Board action if written consent
to the action in question is signed by all the directors and filed with the
minutes of the proceedings of the Board, whether done before or after the action
so taken.
SECTION 7. MEETING BY TELEPHONE. Any one or more members of any such
committee may participate in a meeting of the committee by means of a conference
telephone or similar communications device which allows all persons
participating in the meeting to hear each other and such participation in a
meeting shall be deemed presence in person at such meeting.
ARTICLE V
COMMITTEES
SECTION 1. COMMITTEES OF DIRECTORS.
(a) The Board of Directors, by resolution adopted by a
majority of the number of directors then in office, may designate from among its
members an Executive Committee and one or more other committees, each consisting
of two or more directors and each of which, to the extent authorized by law or
provided in the resolution, shall have and may exercise all of the authority of
the Board of Directors, except no such committee shall have authority as to the
following matters: (1) the dissolution, merger or consolidation of the
Corporation; or the sale, lease or exchange of all or substantially all of the
property of the Corporation; (2) the designation of any such committee or the
filling of vacancies in the Board of Directors or in any such committee; (3)
distributions, reacquisitions of shares or issuance or sale of shares, except as
provided by the North Carolina Business Corporation Act; (4) the adoption or
repeal of the Bylaws or the amendment of the Bylaws or the Articles of
Incorporation; and (5) the amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amendable or repealable.
(b) Any resolutions adopted or other action taken by any such
committee within the scope of the authority delegated to it by the Board of
Directors shall be deemed for all purposes to be adopted or taken by the Board
of Directors. The designation of any 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.
(c) Regular meetings of any such committee may be held without
notice at such time and place as such committee may fix from time to time by
resolution. Special
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meetings of any such committee may be called by any member thereof upon not less
than one day's notice stating the place, date and hour of such meeting, which
notice may be written or oral and if mailed, shall be deemed to be delivered
when deposited in the United States mail addressed to any member of the
committee at his business address. Any member of any committee may in a signed
writing waive notice of any meeting and no notice of any meeting need be given
to any member thereof who attends in person. The notice of a meeting of any
committee need not state the business proposed to be transacted at the meeting.
(d) A majority of the members of any such committee shall
constitute a quorum for the transaction of business at any meeting thereof and
actions of such committee must be authorized by the affirmative vote of a
majority of the members present at the meeting at which a quorum is present.
(e) Any member of any such committee may be removed at any
time with or without cause by resolution adopted by a majority of the Board of
Directors.
(f) Any such committee shall elect a presiding officer from
among its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws. It shall keep regular minutes of its proceedings
and report the same to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
ARTICLE VI
OFFICERS
SECTION 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 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.
SECTION 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.
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SECTION 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 5. 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 of Directors, 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
of Directors, preside at all meetings of the Board of Directors and of the
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 of Directors, if
such an officer shall have been appointed, or these Bylaws.
SECTION 6. 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.
SECTION 7. 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 8. 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.
SECTION 9. 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
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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 10. 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 11. 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 12. 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.
ARTICLE VII
INDEMNIFICATION
SECTION 1. EXPENSES AND LIABILITIES.
(A) 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, shall have a right to be
indemnified by the Corporation to the fullest extent from time to time permitted
by law against Liability and Expenses in any Proceeding (including without
limitation a Proceeding brought by or on behalf of the Corporation itself)
arising out of his or her status as such or activities in any of the foregoing
capacities or results from him being called as a witness at a time when he has
not been made a named defendant or respondent to any Proceeding.
(B) The Board of Directors of the Corporation shall take all such
action as may be necessary and appropriate to authorize the Corporation to pay
the indemnification required by
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this provision, including without limitation, to the extent needed, making a
good faith evaluation of the manner in which the claimant for indemnity acted
and of the reasonable amount of indemnity due him.
(C) Any person who at any time serves or has served in any of the
aforesaid capacities for or on behalf of the Corporation shall be deemed to be
doing or to have done so in reliance upon, and as consideration for, the rights
provided for herein. Any repeal or modification of these indemnification
provisions shall not affect any rights or obligations existing at the time of
such repeal or modification. The rights provided for herein shall inure to the
benefit of the legal representatives of any such person and shall not be
exclusive of any other rights to which such person may be entitled apart from
this provision.
(D) The rights granted herein shall not be limited by the provisions
contained in Sections 55-8-51 through 55-8-56 of the North Carolina General
Statutes or any successor to such statute.
SECTION 2. ADVANCE PAYMENT OF EXPENSES. The Corporation shall (upon
receipt of an undertaking by or on behalf of the director, 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 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 4. DEFINITIONS. The following terms as used in this Article
shall have the following meanings. "Proceeding" means any threatened, pending or
completed action, suit, or proceeding and any appeal therein (and any inquiry or
investigation that could lead to such action, suit, or proceeding), whether
civil, criminal, administrative, investigative or arbitrative and whether formal
or informal. "Expenses" means expenses of every kind, including counsel fees.
"Liability" means the obligation to pay a judgment, settlement, penalty, fine
(including an excise tax assessed with respect to an employee benefit plan),
reasonable expenses incurred with respect to a Proceeding, and all reasonable
expenses incurred in enforcing the indemnification rights provided herein.
"Director" 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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ARTICLE VIII
CONTRACTS, LOANS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer
or officers, or agent or agents, to enter into any contract or execute and
deliver any instrument on behalf of the Corporation, and such authority may be
general or confined to specific instances.
SECTION 2. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money issued in the name of the Corporation shall be signed by
such officer or officers, or agent or agents, of the Corporation and in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
SECTION 3. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such depository or depositories as the Board of Directors shall direct.
ARTICLE IX
CERTIFICATES FOR SHARES AND OTHER TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. If shares of the Corporation are
represented by certificates, in such form as required by law and as determined
by the Board of Directors, such certificates shall be issued to every
shareholder for the fully paid shares owned by him. These certificates shall be
signed by the President or any Vice President or a person who has been
designated as the Chief Executive Officer of the Corporation and by the
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and may be
sealed with the seal of the Corporation or a facsimile thereof. The signatures
of any such officers upon a certificate may be facsimiles or may be engraved or
printed. In case any officer who has signed or whose facsimile or other
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue. The
certificates 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 shall be made on the
stock transfer books of the Corporation only upon surrender of the certificates
for the shares sought to be transferred by the record holder thereof or by his
duly authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be cancelled before new certificates for the
transferred shares shall be issued.
SECTION 3. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint one or more transfer agents and one or more registrars of transfer and
may require all stock certificates to be signed or countersigned by the transfer
agent and registered by the registrar of transfers.
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SECTION 4. RECORD DATE.
(a) For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof
or entitled to receive payment of any dividend or in order to make a
determination of shareholders for any other proper purpose, the Board of
Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case not to be more than seventy
(70) days before the meeting or action requiring a determination of
shareholders.
(b) If no record date is fixed by the Board of Directors for
the determination of shareholders entitled to notice of or to vote at a meeting
of shareholders or of shareholders entitled to receive payment of a dividend,
the date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
(c) When a determination of shareholders entitled to vote at
any meeting of shareholders has been made as provided in this paragraph, such
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it shall do if the meeting is adjourned
to a date more than one hundred twenty (120) days after the date fixed for the
original meeting.
SECTION 5. LOST CERTIFICATES. The Board of Directors may authorize the
issuance of a new share certificate in place of a certificate claimed to have
been lost or destroyed, upon receipt of an affidavit of such fact from the
person claiming the loss or destruction. When authorizing such issuance of a new
certificate, the Board 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 6. BYLAW AMENDMENTS.
(a) Except as otherwise provided herein or by law, these
Bylaws may be amended or repealed and new Bylaws may be adopted by the Board of
Directors.
(b) The Board of Directors shall have no power to adopt a
Bylaw: (i) changing the statutory requirement for a quorum of directors or
action by directors or changing the statutory requirement for a quorum of
shareholders or action by shareholders; (ii) providing for the management of the
Corporation otherwise than by the Board of Directors or the committees thereof;
(iii) except as may be otherwise provided in Article III, Section 2 of these
Bylaws, increasing or decreasing the fixed number for the size of the Board of
Directors or range of directors, or change from a fixed number to a range, or
vice versa; or (4) classifying and staggering the election of directors.
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(c) No Bylaw adopted, amended or repealed by the shareholders
may be readopted, amended or repealed by the Board of Directors, except to the
extent that the Articles of Incorporation or a Bylaw adopted by the shareholders
authorizes the Board of Directors to adopt, amend or repeal that particular
Bylaw or the Bylaws generally.
ARTICLE X
AMENDMENTS
SECTION 1. AMENDMENT. The Bylaws, or any of them, may be rescinded,
altered, amended, modified or repealed, and new Bylaws may be made or adopted by
the Board of Directors or by the shareholders at any annual or special meeting
of shareholders, provided that notice of such proposed rescission, alteration,
amendment, modification, repeal or adoption is given in the notice of the annual
or special meeting; provided, however, that the Bylaws can only be amended if
such amendment would not conflict with the certificate of incorporation. Any
bylaw made or altered by the requisite number of shareholders may be altered or
repealed by the Board of Directors or may be altered or repealed by the
requisite number of shareholders.
ARTICLE XI
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS. The Board of Directors may from time to time
declare, and the Corporation may pay, distributions and share dividends on its
outstanding shares in the manner and upon the terms and conditions provided by
law and by its Articles of Incorporation.
SECTION 2. SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form of as may be approved
from time to time by the Board of Directors. Such seal may be an impression or
stamp and may be used by the officers of the Corporation by causing it, or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
In addition to any form of seal adopted by the Board of Directors, the officers
of the Corporation may use as the corporate seal a seal in the form of a circle
containing the name of the Corporation and the state of its incorporation (or an
abbreviation thereof) on the circumference and the word "Seal" in the center.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the Board of Directors.
SECTION 4. NORTH CAROLINA SHAREHOLDER PROTECTION ACT AND CONTROL SHARE
ACQUISITION ACT. The provisions of Article 9 and Article 9A of the North
Carolina Business Corporation Act entitled "The North Carolina Shareholder
Protection Act" and the "The North Carolina Control Share Acquisition Act,"
respectively, shall not be applicable to the Corporation.
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