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EXHIBIT 3.2
BYLAWS OF
CREE, INC.
[As amended effective June 25, 2001]
ARTICLE I
DEFINITIONS
In these bylaws, unless otherwise provided, the following terms shall
have the following meanings:
(1) "Act" shall mean the North Carolina Business Corporation Act
as codified in Chapter 55 of the North Carolina General Statutes effective July
1, 1990, and as amended from time to time;
(2) "Articles of Incorporation" shall mean the Corporation's
articles of incorporation, including amended and restated articles of
incorporation and articles of merger;
(3) "Corporation" shall mean Cree, Inc.;
(4) "Distribution" shall mean a direct or indirect transfer of
money or other property (except the Corporation's own shares) or incurrence of
indebtedness by the Corporation to or for the benefit of its shareholders in
respect of any of its shares. A distribution may be in the form of a declaration
or payment of a dividend, a purchase, redemption, or other acquisition of
shares, a distribution of indebtedness, or otherwise;
(5) "Emergency" shall mean a catastrophic event which prevents a
quorum of the board of directors from being readily assembled;
(6) "Shares" shall mean the units into which the proprietary
interests in the Corporation are divided; and
(7) "Voting group" shall mean all shares of one or more classes or
series that under the Articles of Incorporation or the Act are entitled to vote
and be counted together collectively on a matter at a meeting of shareholders.
All shares entitled by the Articles of Incorporation or the Act to vote
generally on a matter are for that purpose a single voting group.
ARTICLE II
OFFICES
SECTION 1. PRINCIPAL OFFICE: The principal office of the
Corporation shall be located at 4600 Silicon Drive, Durham County, Durham, North
Carolina 27703, or at such other place as may be determined from time to time by
the directors.
SECTION 2. REGISTERED OFFICE: The registered office of the
Corporation shall be maintained in the State of North Carolina, and may be, but
not need be, identical with the principal office.
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SECTION 3. OTHER OFFICES: The Corporation may have offices at
such other places, either within or without the State of North Carolina, as the
board of directors may from time to time determine, or as the affairs of the
Corporation may require.
ARTICLE III
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS: All meetings of shareholders shall
be held at the principal office of the Corporation, or at such other place,
either within or without the State of North Carolina, as shall be designated in
the notice of the meeting or as may be agreed upon by a majority of the
shareholders entitled to vote at the meeting.
SECTION 2. ANNUAL MEETING: The annual meeting of shareholders
for the election of directors and the transaction of other business shall be
held annually in any month on any day (except Saturday, Sunday or a legal
holiday) as fixed by the board of directors.
SECTION 3. SUBSTITUTE ANNUAL MEETING: If the annual meeting
shall not be held on the day designated by these bylaws, a substitute annual
meeting may be called by the board of directors, the chairman, the chief
executive officer or the president. A meeting so called shall be designated and
treated for all purposes as the annual meeting.
SECTION 4. SPECIAL MEETINGS: Special meetings of the
shareholders may be called at any time by the board of directors of the
Corporation or by the chairman.
SECTION 5. NOTICE OF MEETING: Written or printed notice stating
the time and place of the meeting shall be delivered not less than ten (10) nor
more than sixty (60) days before the date of any shareholders' meeting, either
personally, or by telephone, telegraph, teletype, mail, private carrier,
facsimile transmission, or other form of wire or wireless communication by or at
the direction of the chairman of the board, the chief executive officer, the
president, the secretary, or other person calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the record of the
shareholders of the Corporation, with postage thereon prepaid.
In the case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the meeting is called. In
the case of an annual or substitute annual meeting, the notice of meeting need
not specifically state the business to be transacted unless such a statement is
required by the Act.
When an annual or special meeting is adjourned to a different date,
time, and place, it is not necessary to give any notice of the adjourned meeting
other than by announcement at the meeting at which the adjournment is taken;
provided, however, that if a new record date for the adjourned meeting is or
must be set, notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date.
The record date for determining the shareholders entitled to notice of
and to vote at an annual or special meeting shall be fixed as provided in
Section 3 of Article VIII.
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SECTION 6. WAIVER OF NOTICE: A shareholder may waive notice of
any meeting either before or after such meeting. Such waiver shall be in
writing, signed by the shareholder, and filed with the minutes or corporate
records. A shareholder's attendance at a meeting: (i) waives objection to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting; and (ii) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
before it is voted upon.
SECTION 7. SHAREHOLDER LIST: Commencing two (2) business days
after notice of a meeting of shareholders is given and continuing through such
meeting, the secretary of the Corporation shall maintain at the principal office
of the Corporation an alphabetical list of the shareholders entitled to vote at
such meeting, arranged by voting group, with the address of and number of shares
held by each. This list shall be subject to inspection by any shareholder or his
agent or attorney at any time during usual business hours and may be copied at
the shareholder's expense. This list shall be made available at the meeting and
any shareholder, or his representative, may inspect the list at any time during
the meeting or any adjournment thereof.
SECTION 8. QUORUM: A majority of the votes entitled to be cast
on a matter by any voting group, represented in person or by proxy, shall
constitute a quorum of that voting group for action on that matter. The
shareholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
In the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by a majority of
the votes voting on the motion to adjourn; and at any adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the original meeting.
SECTION 9. PROXIES: Shares may be voted either in person or by
one or more agents authorized by a written proxy executed by the shareholder or
by his duly authorized attorney in fact. A proxy may take the form of a
telegram, telex, facsimile or other form of wire or wireless communication which
appears to have been transmitted by a shareholder. A proxy is effective when
received by the secretary or other officer or agent authorized to tabulate
votes. A proxy is not valid after the expiration of eleven (11) months from the
date of its execution, unless the person executing it specifies therein the
length of time for which it is to continue in force or limits its use to a
particular meeting, but no proxy, whether or not designated as irrevocable,
shall be valid after ten (10) years from the date of its execution, unless
renewed or extended at any time before its expiration for not more than ten (10)
years from the date of such renewal or extension.
SECTION 10. VOTING OF SHARES: Except as otherwise provided in the
Articles of Incorporation and the Act, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
Except for the election of directors, which is governed by the
provisions of Section 3 of Article IV, if a quorum is present, action on a
matter by a voting group is approved if the votes cast within the voting group
favoring the action exceed the votes cast against the action, unless the vote of
a greater number is required by the Act, the Articles of Incorporation, or these
bylaws.
Shares of the Corporation are not entitled to vote if: (i) they are
owned, directly or indirectly, by the Corporation, unless they are held by it in
a fiduciary capacity; (ii) they are owned, directly or indirectly, by a second
corporation in which the Corporation owns a majority of the shares entitled to
vote for directors of
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the second corporation; or (iii) they are redeemable shares and (x) notice of
redemption has been given and (y) a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price upon surrender of
the shares.
SECTION 11. INFORMAL ACTION BY SHAREHOLDERS: Any action which may
be taken at a meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all of the
persons who would be entitled to vote upon such action at a meeting and is
delivered to the Corporation to be included in the minutes or to be kept as part
of the corporate records. Such consent shall have the same force and effect as a
unanimous vote of shareholders.
SECTION 12. CORPORATION'S ACCEPTANCE OF VOTES: If the name signed
on a vote, consent, waiver, or proxy appointment corresponds to the name of a
shareholder, the Corporation is entitled to accept the vote, consent, waiver, or
proxy appointment and to give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, or proxy appointment
does not correspond to the name of its shareholder, the Corporation is
nevertheless entitled to accept the vote, consent, waiver, or proxy appointment
and to give it effect as the act of the shareholder if: (i) the shareholder is
an entity and the name signed purports to be that of an officer or agent of the
entity; (ii) the name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy appointment; (iii)
the name signed purports to be that of a receiver or trustee in bankruptcy of
the shareholder and, if the Corporation requests, evidence of its status
acceptable to the Corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment; (iv) the name signed purports to be that
of a beneficial owner or attorney-in-fact of the shareholder and, if the
Corporation requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder has been presented with respect to the
vote, consent, waiver, or proxy appointment; or (v) two or more persons are the
shareholder as co-tenants or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person signing appears to be
acting on behalf of all the co-owners.
The Corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the secretary or other officer or agent authorized to tabulate
votes has a reasonable basis for doubt about the validity of the signature on it
or about the signatory's authority to sign for the shareholder.
SECTION 13. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS:
(A) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the board of
directors of the Corporation and the proposal of business to be
considered by the shareholders may be made at an annual meeting of
shareholders: (a) pursuant to the notice of meeting pursuant to Article
III, Section 5 of these bylaws; (b) by or at the direction of the board
of directors; or (c) by any shareholder of the Corporation who was a
shareholder of record at the time of giving of notice provided for in
this bylaw (Article III, Section 13), who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
bylaw.
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(ii) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause
(c) of paragraph (a)(i) of this bylaw, the shareholder must have given
timely notice thereof in writing to the secretary of the Corporation
and such other business must otherwise be a proper matter for
shareholder action. To be timely, a shareholder's notice shall be
delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th calendar
day nor earlier than the close of business on the 90th calendar day
prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual
meeting is more than thirty (30) calendar days before or more than
sixty (60) calendar days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the
close of business on the 90th calendar day prior to such annual meeting
and not later than the close of business on the later of the 60th
calendar day prior to such annual meeting or the 10th calendar day
following the calendar day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a
new time period for the giving of a shareholder's notice as described
above. Such shareholder's notice shall set forth: (a) as to each person
whom the shareholder proposes to nominate for election or reelection as
a director all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors in
an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other
business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c)
as to the shareholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made, the name and
address of such shareholder, as they appear on the Corporation's books,
and of such beneficial owner and the class and number of shares of the
Corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
(B) Special Meetings of Shareholders.
(i) Only such business shall be conducted at a special
meeting of shareholders as shall have been brought before the meeting
pursuant to the notice of meeting under Article III, Section 5 of these
bylaws. If directors are to be elected at a special meeting of
shareholders pursuant to the notice of meeting, nominations of persons
for election to the board of directors at such meeting may be made (a)
by or at the direction of the board of directors, or (b) by any
shareholder of the Corporation who is a shareholder of record at the
time of giving of notice provided for in this bylaw, who shall be
entitled to vote at the meeting and who complies with the notice
procedures set forth in this bylaw.
(ii) In the event a special meeting of shareholders is
called for the purpose of electing one or more directors to the board
of directors, any shareholder may, pursuant to clause (b)(i) above,
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the notice of meeting, if the shareholder
shall have delivered notice containing the information specified in
paragraph (a)(ii) of this bylaw to the
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secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 90th calendar day prior to
such special meeting and not later than the close of business on the
later of the 60th calendar day prior to such special meeting or the
10th calendar day following the day on which public announcement is
first made or the date of the special meeting and of the nominees
proposed by the board of directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a shareholder's
notice as described above.
(C) General.
(i) Only such persons who are nominated in accordance
with the procedures set forth in this bylaw shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this bylaw. Except as
otherwise provided by law, the Articles of Incorporation or these
bylaws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this bylaw and, if any
proposed nomination or business is not in compliance with this bylaw,
to declare that such defective proposal or nomination shall be
disregarded.
(ii) For purposes of this bylaw, "public announcement"
shall mean disclosure in a press release reported in a national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
bylaw, a shareholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this bylaw. Nothing in this bylaw
shall be deemed to affect any rights of shareholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS: All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, its board of directors.
SECTION 2. NUMBER, TERM AND QUALIFICATIONS: The number
constituting the board of directors shall be not less than three (3), the exact
number of which shall be determined from time to time by resolution of the
shareholders. Each director shall hold office until his death, resignation,
retirement, removal, disqualification, or until his successor is elected and
qualified. Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
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SECTION 3. ELECTION OF DIRECTORS: Except as provided in Section
6 of this Article, the directors shall be elected at the annual meeting of
shareholders; and those persons who receive the highest number of votes shall be
deemed to have been elected. If any shareholder so demands, the election of
directors shall be by ballot.
SECTION 4. NO CUMULATIVE VOTING: Unless otherwise required by
the Act, the shareholders of the Corporation shall have no right to cumulate
their votes for the election of directors.
SECTION 5. REMOVAL: Any director may be removed from office with
or without cause by a vote of shareholders holding a majority of the outstanding
shares entitled to vote at an election of directors. If a director is elected by
a voting group of shareholders, only members of that voting group may
participate in the vote to remove him. A director may not be removed by the
shareholders at a meeting unless the notice of the meeting specifies such
removal as one of its purposes. If any directors are removed, new directors may
be elected at the same meeting.
SECTION 6. VACANCIES: Any vacancy occurring in the board of
directors, including, without limitation, a vacancy resulting from an increase
in the authorized number of directors or from the failure by the shareholders to
elect the full authorized number of directors, may be filled by the majority of
the remaining directors. If the directors remaining in office constitute fewer
than a quorum of the board, such vacancy may be filled by the affirmative vote
of a majority of the remaining directors or by the sole remaining director. If
the vacant office was held by a director elected by a voting group of
shareholders, the remaining director or directors elected by that voting group
are entitled to fill the vacancy. The shareholders may elect a director at any
time, subject to the provisions of Section 13 of Article III, to fill a vacancy
not filled by the directors. If the vacant office was held by a director elected
by a voting group of shareholders, the holders of shares of that voting group
may fill the vacancy not filled by the directors elected by such voting group.
The term of a director elected to fill a vacancy shall expire at the next
shareholders' meeting at which directors are elected.
SECTION 7. CHAIRMAN OF THE BOARD: There may be a chairman of the
board of directors elected by the directors from their number at any meeting of
the board. The chairman of the board of directors may, but is not required to
be, an officer of the Corporation. The chairman shall preside at all meetings of
the board of directors and shareholders and perform such other board duties as
may be directed by the board.
SECTION 8. COMPENSATION: The board of directors may compensate
directors for their services as such and may provide for the payment of all
expenses incurred by directors in attending regular and special meetings of the
board.
SECTION 9. COMMITTEES: The board of directors may create an
executive committee and other committees of the board, each of which shall have
at least two (2) members, all of whom shall be directors. The creation of a
committee and the appointment of members to it must be approved by a majority of
all the directors in office when the action is taken. Each committee may, as
specified by the board of directors, exercise some or all of the authority of
the board except that a committee may not: (i) authorize distributions; (ii)
approve or propose to shareholders action that the Act requires be approved by
shareholders; (iii) fill vacancies on the board of directors or on any of its
committees; (iv) amend the Articles of Incorporation pursuant to Section
55-10-02 of the Act or its successor; (v) adopt, amend, or repeal bylaws; (vi)
approve a plan of merger not requiring shareholder approval; (vii) authorize or
approve a reacquisition of shares, except according to a formula or method
prescribed by the board of directors; or (viii) authorize or approve the
issuance or sale or contract for sale of shares, or determine the designation
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and relative rights, preferences, and limitations of a class or series of
shares, except that the board of directors may authorize a committee to do so
within limits specifically prescribed by the board of directors. Any such
committee, or any member thereof, may be discharged or removed by action of the
majority of the board of directors. Any resolutions adopted or other action
taken by any such committee within the scope of the authority delegated to it by
the board of directors shall be deemed for all purposes to be adopted or taken
by the board of directors. The provisions of Article V, which govern meetings of
the board of directors, shall likewise apply to meetings of any committee of the
board.
ARTICLE V
MEETINGS OF DIRECTORS
SECTION 1. REGULAR MEETINGS: Regular meetings of the board of
directors shall be held at such time and place, within or without the State of
North Carolina, as the board of directors shall fix by resolution.
SECTION 2. SPECIAL MEETINGS: Special meetings of the board of
directors may be called by or at the request of the chairman of the board, chief
executive officer, president or any two directors. Such meetings may be held
either within or without the State of North Carolina, as fixed by the person or
persons calling the meeting.
SECTION 3. NOTICE OF MEETINGS: Regular meetings of the board of
directors may be held without notice. The person or persons calling a special
meeting of the board of directors shall, at least two (2) days before the
meeting, give notice of the meeting by any usual means of communication,
including by telephone, telegraph, teletype, mail, private carrier, facsimile
transmission, or other form of wire or wireless communication. Such notice shall
specify the purpose for which the meeting is called and may be oral.
SECTION 4. WAIVER OF NOTICE: Any director may waive notice of
any meeting either before or after such meeting. Such waiver shall be in
writing, signed by the director, and filed with the minutes or corporate
records; provided, however, that a director's attendance at or participation in
a meeting waives any required notice to him unless the director at the beginning
of the meeting (or promptly upon his arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
SECTION 5. QUORUM: A majority of the directors in office shall
constitute a quorum for the transaction of business at any meeting of the board
of directors.
SECTION 6. MANNER OF ACTING: The act of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors, unless a greater number is required by law, the Articles
of Incorporation or these bylaws.
SECTION 7. PRESUMPTION OF ASSENT: A director of the Corporation
who is present at a meeting of the board of directors or a committee of the
board of directors when corporate action is taken is deemed to have assented to
the action taken unless: (i) he objects at the beginning of the meeting (or
promptly upon his arrival) to holding it or transacting business at the meeting;
(ii) his dissent or abstention from the action taken is entered in the minutes
of the meeting; or (iii) he files written notice of his dissent or abstention
with the presiding officer of the meeting before its adjournment or with the
Corporation immediately after adjournment of the meeting. This right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
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SECTION 8. PARTICIPATION IN MEETINGS: Any or all of the
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting.
SECTION 9. ACTION WITHOUT MEETING: Action which may be taken at
a board of directors meeting or at a committee of the board of directors meeting
may be taken without a meeting if the action is taken by all members of the
board or committee and is evidenced by one or more written consents signed by
each director or committee member before or after such action, which describes
the action taken and is included in the minutes or filed with the corporate
records. Such action is effective when the last director or committee member
signs the consent, unless the consent specifies a different effective date.
ARTICLE VI
OFFICERS
SECTION 1. OFFICERS OF THE CORPORATION: The officers of the
Corporation shall consist of a chief executive officer, president, secretary,
treasurer, and such vice presidents, assistant secretaries, assistant
treasurers, and other officers as may be appointed from time to time in
accordance with these bylaws. The board of directors may appoint the chairman of
the board, chosen from among the directors, as an officer of the Corporation
serving as executive chairman. Any two or more offices may be held by the same
person, but no officer may act in more than one capacity where action of two or
more officers is required.
SECTION 2. APPOINTMENT AND TERM: The executive chairman, the
chief executive officer, the president and any executive vice presidents shall
be appointed by the board of directors. The other officers of the Corporation
may be appointed by the board of directors or, upon notice to the board of
directors, by the executive chairman or chief executive officer. A duly
appointed officer may appoint one or more officers or assistant officers if
authorized by the board of directors. The board of directors may appoint
officers at any regular meeting or at any special meeting called for such
purpose. Each officer shall hold office until his death, resignation,
retirement, removal, disqualification or until his successor is appointed and
qualifies. The appointment of an officer does not itself create contract rights
for either the officer or the Corporation.
SECTION 3. COMPENSATION OF OFFICERS: The compensation of
officers of the Corporation shall be fixed by the board of directors. No officer
shall receive compensation for serving the Corporation in any other capacity
unless such additional compensation is authorized by the board of directors.
SECTION 4. RESIGNATION AND REMOVAL: An officer may resign at any
time by communicating his resignation to the Corporation. A resignation is
effective when it is communicated unless it specifies in writing a later date.
If a resignation is made effective as of a later date and the Corporation
accepts the future effective date, the board of directors may fill the pending
vacancy before the effective date if the board provides that the successor does
not take office until the effective date. An officer's resignation does not
affect the Corporation's contract rights, if any, with the officer. Any officer
or agent appointed by the board of directors may be removed by the board at any
time, with or without cause, and any other officer or agent appointed pursuant
to authority granted by the board or these bylaws may be removed either by the
board or by the executive chairman or chief executive officer at any time, with
or without cause. Such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
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SECTION 5. BONDS: The board of directors may by resolution
require any officer, agent, or employee of the Corporation to give bond to the
Corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of his respective office or position, and to comply with such
other conditions as may from time to time be required by the board of directors.
SECTION 6. EXECUTIVE CHAIRMAN: Subject to the direction of the
board of directors, the executive chairman of the Corporation shall have general
charge over corporate strategy and planning and general oversight of the chief
executive officer and shall perform such other duties as may be prescribed from
time to time by the board of directors. He may sign certificates for shares of
capital stock of the Corporation and may agree upon and execute leases,
contracts, evidences of indebtedness and other obligations in the name of the
Corporation, and any deeds, mortgages, bonds or other instruments which may be
lawfully executed on behalf of the Corporation, except where required by law to
be otherwise signed or executed and except where the signing and execution
thereof shall be delegated by the board of directors exclusively to some other
officer or agent.
SECTION 7. CHIEF EXECUTIVE OFFICER: Subject to the direction of
the board of directors, the chief executive officer shall have general executive
charge, management and control of the properties, businesses and operations of
the Corporation with all such powers as may be reasonable incident to such
responsibilities. The chief executive officer shall also serve as president if
no other person is then serving as president. The chief executive officer may
sign certificates for shares of capital stock of the Corporation and may agree
upon and execute leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation, and any deeds, mortgages, bonds or
other instruments which may be lawfully executed on behalf of the Corporation,
except where required by law to be otherwise signed or executed and except where
the signing and execution thereof shall be delegated by the board of directors
exclusively to some other officer or agent. Unless the board of directors
otherwise determines, the chief executive officer shall, in the absence of or
because of the inability to act of the chairman, perform all duties of the
chairman and preside at all meetings of shareholders and (should he be a
director) of the board of directors. He shall have such other powers and duties
as from time to time may be assigned to him by the board of directors.
SECTION 8. PRESIDENT: Subject to the direction of the chief
executive officer, the president shall act in a general executive capacity and
shall assist the chief executive officer in the administration and operation of
the Corporation's business and general supervision of its policies and affairs.
Unless the board of directors otherwise determines, the president shall have the
authority to sign certificates for shares of capital stock of the Corporation
and may agree upon and execute leases, contracts, evidences of indebtedness and
other obligations in the name of the Corporation, and any deeds, mortgages,
bonds or other instruments which may be lawfully executed on behalf of the
Corporation, except where required by law to be otherwise signed or executed and
except where the signing and execution thereof shall be delegated by the board
of directors exclusively to some other officer or agent. Unless the board of
directors otherwise determines, the president shall, in the absence of or
because of the inability to act of the chairman and the chief executive officer,
perform all duties of the chairman and chief executive offier and preside at all
meetings of shareholders and (should he be a director) of the board of
directors. He shall have such other powers and duties as from time to time may
be assigned to him by the board of directors or the chief executive officer.
SECTION 9. EXECUTIVE VICE PRESIDENTS: The executive vice
presidents, in the order of their appointment unless otherwise determined by the
board of directors, shall, in the absence or disability of the president,
perform the duties and exercise the powers of that office. In addition, they
shall perform
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such other duties and have such other powers as the board of directors or the
chief executive officer or president shall prescribe.
SECTION 10. VICE PRESIDENTS: The vice presidents shall perform
such duties and have such powers as the board of directors or the chief
executive officer shall prescribe.
SECTION 11. SECRETARY: The secretary shall keep accurate records
of the acts and proceedings of all meetings of shareholders, directors and
committees. He shall give all notices required by law and by these bylaws. He
shall have general charge of the corporate books and records and of the
corporate seal, and he shall affix the corporate seal to any lawfully executed
instrument requiring it. He shall have general charge of the stock transfer
books of the Corporation and shall keep, at the registered or principal office
of the Corporation or at the offices of any transfer agent designated by the
Corporation, a record of shareholders showing the name and address of each
shareholder and the number and class of the shares held by each. He shall sign
such instruments as may require his signature, and, in general, attest the
signature or certify the incumbency or signature of any other officer of the
Corporation and shall perform all duties incident to the office of secretary and
such other duties as may be assigned from time to time by the board of
directors, the chairman or the chief executive officer.
SECTION 12. TREASURER: The treasurer shall serve as the chief
financial officer of the corporation, shall have custody of all funds and
securities belonging to the Corporation and shall receive, deposit or disburse
the same under the direction of the chief executive officer. The treasurer shall
keep full and accurate accounts of the finances of the Corporation in books
especially provided for that purpose, which may be consolidated or combined
statements of the Corporation and one or more of its subsidiaries as
appropriate, that include a balance sheet as of the end of the fiscal year, an
income statement for that year, and a statement of cash flows for the year
unless that information appears elsewhere in the financial statements. If
financial statements are prepared for the Corporation on the basis of generally
accepted accounting principles, the annual financial statements must also be
prepared on that basis. The treasurer shall, in general, perform all duties
incident to such office and such other duties as may be assigned from time to
time by the board of directors or the chief executive officer.
SECTION 13. ASSISTANT SECRETARIES AND TREASURERS: The assistant
secretaries and assistant treasurers shall, in the absence or disability of the
secretary or the treasurer, perform the respective duties and exercise the
respective powers of those offices, and they shall, in general, perform such
other duties as shall be assigned to them by the board of directors or chairman,
or by the secretary or the treasurer, respectively.
SECTION 14. ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS: Unless otherwise directed by the board of directors, the chief
executive officer shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of security holders of or
with respect to any action of security holders of any other corporation or
entity in which this Corporation may hold securities and otherwise to exercise
any and all rights and powers which this Corporation may possess by reason of
its ownership of securities in such other corporation or entity.
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ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS: The board of directors may authorize any
officer or agent to enter into any contract or to execute and deliver any
instrument on behalf of the Corporation, and such authority may be general or
confined to specific instances.
SECTION 2. LOANS: No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS AND DRAFTS: All checks, drafts or other orders
for payment of money issued in the name of the Corporation shall be signed by
such officers or agents of the Corporation and in such manner as shall from time
to time be determined by resolution of the board of directors.
SECTION 4. DEPOSITS: All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such depositories as the board of directors shall direct.
ARTICLE VIII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES: Shares may, but need not, be
represented by certificates. If certificates are issued, they shall be in such
form as the board of directors shall determine; provided that, at a minimum,
each certificate shall state on its face: (i) the name of the Corporation and
that it is organized under the laws of North Carolina; (ii) the name of the
person to whom issued; and (iii) the number and class of shares and the
designation of the series, if any, the certificate represents. If the
Corporation issues certificates for shares of preferred stock, the designations,
relative rights, preferences, and limitations applicable to that class, and the
variations in rights, preferences, and limitations for each series within that
class (and the authority of the board of directors to determine variations for
future series) must be summarized on the front or back of each certificate;
alternatively, each certificate may state conspicuously on its front or back
that the Corporation will furnish the shareholder this information in writing
and without charge. These certificates shall be signed, either manually or in
facsimile, by the president, any vice president or any person who has been
designated the chairman or chief executive officer of the Corporation, and the
secretary or any assistant secretary, the treasurer or any assistant treasurer.
In case any officer who has signed or whose facsimile or other signature has
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer at the date of its issue. They shall be
consecutively numbered or otherwise identified and the name and address of the
persons to whom they are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation.
SECTION 2. TRANSFER OF SHARES: Transfer of shares of the
Corporation shall be made only on the stock transfer books of the Corporation by
the holder of record, by his legal representative (who shall furnish proper
evidence of authority to transfer) or by his attorney (whose authority shall be
evidenced by a power of attorney duly executed and filed with the secretary),
and only upon surrender for cancellation of the certificates for such shares.
All certificates surrendered for transfer shall be cancelled before new
certificates for the transferred shares shall be issued.
SECTION 3. FIXING RECORD DATE: For the purpose of determining
shareholders entitled to receive notice of a meeting of shareholders, to demand
a special meeting, to vote, to take any other action, or to receive payment, or
for any other purpose, the board of directors may fix in advance a date as the
record date for any such determination of shareholders, such record date in any
case to be not more than sixty
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(60) days, and, in case of a meeting of shareholders, not less than ten (10)
days, before the date on which the particular action requiring such
determination of shareholders is to be taken.
When a determination of shareholders entitled to notice of or to vote
at any meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment of such meeting unless the board of
directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
SECTION 4. LOST CERTIFICATES: The board of directors may
authorize the issuance of a new share certificate in place of a certificate
claimed to have been lost or destroyed, upon receipt of an affidavit of such
fact from the person claiming the loss or destruction. When authorizing the
issuance of a new certificate, the board of directors may require the claimant
to give the Corporation a bond in such sum as it may direct to indemnify the
Corporation against loss from any claim with respect to the certificate claimed
to have been lost or destroyed; or the board of directors may, by resolution
reciting that the circumstances justify such action, authorize the issuance of
the new certificate without requiring such a bond.
SECTION 5. REACQUIRED SHARES: The Corporation may acquire its
own shares and shares so acquired constitute authorized but unissued shares.
ARTICLE IX
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS: The board of directors may from time
to time declare, and the Corporation may make, distributions on its outstanding
shares in the manner and subject to the terms and conditions provided by the Act
and by the Articles of Incorporation.
SECTION 2. SEAL: The corporate seal of the Corporation shall
consist of two concentric circles between which is the name of the Corporation
and in the center of which is inscribed "1987" and which shall have such other
characteristics as the board of directors may determine.
SECTION 3. RECORDS AND REPORTS: All of the Corporation's records
shall be maintained in written form or in another form capable of conversion
into written form within a reasonable time.
The Corporation shall keep as permanent records minutes of all meetings
of its incorporators, shareholders, and board of directors, a record of all
actions taken by the shareholders or board of directors without a meeting, and a
record of all actions taken by a committee of the board of directors in place of
the board of directors.
The Corporation shall keep a copy of the following records at its
principal office: (i) the Articles of Incorporation and all amendments to them
currently in effect; (ii) these bylaws and all amendments to them currently in
effect; (iii) resolutions adopted by its board of directors creating one or more
classes or series of shares and fixing their relative rights, preferences, and
limitations (if shares issued pursuant to those resolutions are outstanding);
(iv) the minutes of all meetings of shareholders and records of all actions
taken by shareholders without a meeting during the past three years; (v) all
written communications to shareholders generally within the past three years;
(vi) the annual financial statements described below, prepared during the past
three years; (vii) a list of the names and business addresses of its current
directors and officers; and (viii) its most recent annual report delivered to
the North Carolina Secretary of Revenue (or Secretary of State, if applicable).
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The Corporation shall prepare and make available to its shareholders
annual financial statements for the Corporation and its subsidiaries that: (i)
includes a balance sheet as of the end of the fiscal year, an income statement
for that year, and a statement of cash flows for the year; and (ii) is
accompanied by either (x) a report of a public accountant on the annual
financial statements, or (y) a statement by the treasurer stating his reasonable
belief whether the annual financial statements were prepared on the basis of
generally accepted accounting principles (and, if not, describing the basis of
preparation) and describing any respects in which the statements were not
prepared on a basis of accounting consistent with the statements prepared for
the preceding year. These annual financial statements, or a written notice of
their availability, shall be mailed to each shareholder within 120 days after
the close of each fiscal year of the Corporation. On written request from a
shareholder who was not mailed the annual financial statements, the Corporation
shall mail to him the latest such statements.
The Corporation shall also prepare and file with the North Carolina
Secretary of Revenue (or North Carolina Secretary of State, if applicable) an
annual report in such form as required by Section 55-16-22 of the Act, or its
successor.
SECTION 4. INDEMNIFICATION: Any person who at any time serves or
has served as a director or officer of the Corporation, or at the request of the
Corporation is or was serving as an officer, director, agent, partner, trustee,
administrator, or employee for any other foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
shall be indemnified by the Corporation to the fullest extent from time to time
permitted by law in the event he is made, or is threatened to be made, a party
to any threatened, pending or completed civil, criminal, administrative,
investigative or arbitrative action, suit or proceeding and any appeal therein
(and any inquiry or investigation that could lead to such action, suit or
proceeding), whether or not brought by or on behalf of the Corporation, seeking
to hold him liable by reason of the fact that he is or was acting in such
capacity; provided, however, that the Corporation shall not indemnify any such
person against liability or expenses he may incur on account of his activities
which were, at the time taken, known or believed by him to be clearly in
conflict with the best interests of the Corporation. In addition, the board may
provide such indemnification for the employees and agents of the Corporation as
it deems appropriate.
The rights of those receiving indemnification hereunder shall, to the
fullest extent from time to time permitted by law, cover (i) reasonable
expenses, including without limitation all attorneys' fees actually and
necessarily incurred by him in connection with any such action, suit or
proceeding, (ii) all reasonable payments made by him in satisfaction of any
judgment, money decree, fine (including an excise tax assessed with respect to
an employee benefit plan), penalty, or settlement for which he may have become
liable in such action, suit or proceeding; and (iii) all reasonable expenses
incurred in enforcing the indemnification rights provided herein.
Expenses incurred by anyone entitled to receive indemnification under
this section in defending a proceeding may be paid by the Corporation in advance
of the final disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under any provisions
in the bylaws or by any applicable resolution or contract upon receipt of an
undertaking by or on behalf of the director to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation against such expenses.
The board of directors of the Corporation shall take all such action as
may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this bylaw, including without
15
limitation, to the extent needed, making a good faith evaluation of the manner
in which the claimant for indemnity acted and of the reasonable amount of
indemnity due him.
Any person who at any time serves or has served in any of the aforesaid
capacities for or on behalf of the Corporation shall be deemed to be doing or to
have done so in reliance upon, and as consideration for, the right of
indemnification provided herein. Any repeal or modification of these
indemnification provisions shall not affect any rights or obligations existing
at the time of such repeal or modification. The rights provided for herein shall
inure to the benefit of the legal representatives of any such person and shall
not be exclusive of any other rights to which such person may be entitled apart
from the provisions of this bylaw.
The Corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise or as a trustee or administrator under an
employee benefit plan against any liability asserted against him and incurred by
him in such capacity, or arising out of his status as such, whether or not the
Corporation or other such enterprise would have the power to indemnify him
against such liability.
The rights granted herein shall not be limited by the provisions
contained in Section 55-8-51 of the Act (or its successor).
SECTION 5. FISCAL YEAR: The fiscal year of the Corporation shall
be fixed by the board of directors.
SECTION 6. AMENDMENTS:
(A) The board of directors may amend or repeal these bylaws,
except to the extent otherwise provided in the Articles of Incorporation, a
bylaw adopted by the shareholders, or the Act, and except that a bylaw adopted,
amended or repealed by the shareholders may be readopted, amended or repealed by
the board of directors if the Articles of Incorporation, the Act or a bylaw
adopted by the shareholders authorizes the board of directors to adopt, amend,
or repeal that particular bylaw or the bylaws generally.
(B) The board of directors shall have no power to adopt a bylaw:
(1) Changing the statutory requirement for a quorum of
directors or action by directors or changing the statutory requirement
for a quorum of shareholders or action by shareholders;
(2) Providing for the management of the Corporation
otherwise than by the board of directors or the committees thereof;
(3) Increasing or decreasing the number of directors; or
(4) Classifying and staggering the election of directors.
(C) The Corporation's shareholders may adopt, amend, alter,
change, or repeal any of these bylaws consistent with the provisions of Section
10 of Article III.
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SECTION 7. EMERGENCIES: In anticipation of or during an
emergency, the board of directors may: (i) modify lines of succession to
accommodate the incapacity of any director, officer, employee, or agent; and
(ii) relocate the principal office or designate alternative principal or
regional offices, or authorize the officers to do so.
During an emergency: (i) notice of a meeting of the board of directors
need be given only to those directors whom it is practicable to reach and may be
given in any practicable manner, including by publication and radio; and (ii)
one or more officers present at a meeting of the board of directors may be
deemed to be directors for the meeting, in order of rank and within the same
rank in order of seniority, as necessary to achieve a quorum.
SECTION 8. SEVERABILITY: Should any provision of these bylaws
become ineffective or be declared to be invalid for any reason, such provision
shall be severable from the remainder of these bylaws and all other provisions
of these bylaws shall continue to be in full force and effect.
SECTION 9. WAIVER OF NOTICE: Whenever any notice is required to
be given to any shareholder or director under the provisions of the Act or under
the provisions of the Articles of Incorporation or bylaws of the Corporation, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
SECTION 10. TIME PERIODS: In applying any provision of these
bylaws which requires an act to be done or not done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded and the day of the event shall be included.
ATTESTED:
/s/ Adam H. Broome Date: June 25, 2001
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Adam H. Broome, Secretary