EXHIBIT 3
BYLAWS
OF
OAKWOOD HOMES CORPORATION
ARTICLE I - OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the
Corporation shall be located at such place, within or without the State of
North Carolina, as shall be determined from time to time by the Board of
Directors and as shall have been so designated most recently in the annual
report of the Corporation or amendment thereto, filed with the North Carolina
Secretary of State pursuant to the North Carolina Business Corporation Act (the
Act).
Section 1.2 REGISTERED OFFICE. The Corporation shall maintain a
registered office in the State of North Carolina as required by law, which may
be, but need not be, identical with the principal office.
Section 1.3 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 business of the
Corporation may require.
ARTICLE II - MEETINGS OF SHAREHOLDERS
Section 2.1 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 or the Chief Executive Officer of the
Corporation.
Section 2.2 ANNUAL MEETINGS. The annual meeting of the
shareholders shall be held at 2:00 p.m. on the fifth Wednesday in each calendar
year, if not a legal holiday, and, if a legal holiday, then at the same time on
the next day following which is not a legal holiday, for the purpose of
electing directors of the Corporation and for the transaction of such other
business as may be properly brought before the meeting.
Section 2.3 SUBSTITUTE ANNUAL MEETINGS. If the annual meeting
shall not be held on the day provided for by these Bylaws, a substitute annual
meeting may be called in accordance with the provisions of Section 2.4. A
meeting so called shall be designated and treated for all purposes as the
annual meeting.
Section 2.4 SPECIAL MEETINGS. Special meetings of the
shareholders may be called at any time by or at the request of the Chief
Executive Officer or the Board of Directors.
Section 2.5 NOTICE OF MEETINGS. Written or printed notice
stating the date, time and place of the meeting shall be given not less than 10
nor more than 60 days before the date thereof, either personally or by mail, at
the direction of the person or persons calling the meeting, to each shareholder
entitled to vote at such meeting and each other shareholder entitled to notice
pursuant to the Articles of Incorporation or applicable law.
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 meeting, the notice of meeting
need not specifically state the purpose or purposes thereof or the business to
be transacted thereat unless such statement is expressly required by the
provisions of these Bylaws or by applicable law.
If a meeting is adjourned for more than 120 days after the date fixed
for the original meeting, or if a new record date is fixed for the adjourned
meeting, or if the date, time and place for the adjourned meeting is not
announced prior to adjournment, then notice of the adjourned meeting shall be
given as in the case of an original meeting; otherwise, it is not necessary to
give any notice of the adjourned meeting other than by announcement at the
meeting at which the adjournment is taken.
A shareholder's attendance at a meeting constitutes a waiver by such
shareholder of (a) 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 (b) objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the notice of the meeting, unless the
shareholder objects to considering the matter before it is voted upon.
Section 2.6 RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, 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 record date
in any case to be not more than 70 days immediately preceding the date of the
meeting or the date on which the particular action requiring such determination
of shareholders is to be taken, or such earlier date as may be required by the
rules of any exchange upon which the Corporation's securities may be listed.
If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, the close of
business on the day before the date on which notice of the meeting is first
mailed to shareholders shall be the record date for such determination of
shareholders.
A determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless
the Board of Directors fixes a new record date for the adjourned meeting, which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
Section 2.7 SHAREHOLDERS' LIST. Not later than two business days
after the date notice of a meeting of shareholders is first given, the
Secretary or other officer or person having charge of the stock transfer books
of the Corporation shall prepare an alphabetical list of the shareholders
entitled to notice of such meeting, with the address of and number of shares
held by each shareholder, which list shall be kept on file at the principal
office of the Corporation (or such other place in the city where the meeting is
to be held as may be identified in the notice of the meeting) for the period
commencing two business days after notice of the meeting is first given and
continuing through such meeting, and which list shall be available for
inspection by any shareholder, or his or her agent or attorney, upon his or her
demand, 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, or his or her agent or attorney,
during the whole time of the meeting and any adjournment thereof.
Section 2.8 QUORUM. The holders of shares entitled to a majority
of votes entitled to be cast (as described in Section 2.10), present in person
or represented by proxy, shall constitute a quorum at all meetings of
shareholders for purposes of acting on any matter for which action by the
shareholders is required. If there is no quorum at the opening of a 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; 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.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment thereof unless a new record date is or must be set for that
adjourned meeting.
Section 2.9 ORGANIZATION. Each meeting of shareholders shall be
presided over by the Chief Executive Officer, or, in the absence or at the
request of the Chief Executive Officer, by such other officer as the Chief
Executive Officer or the Board of Directors may designate, or in their absence
and in the absence of such designation, by any person selected to preside by
plurality vote of the shares represented and entitled to vote at the meeting,
with each share having the same number of votes to which it would be entitled
on any other matter on which all shares represented and entitled to vote at the
meeting would be entitled to vote. The Secretary, or in the absence or at the
request of the Secretary, any person designated by the person presiding at the
meeting, shall act as secretary of the meeting.
Section 2.10 VOTING OF SHARES. Except as otherwise provided in
the Articles of Incorporation, each outstanding share having the right to vote
on a matter or matters submitted to a vote at a meeting of shareholders shall
be entitled to one vote on each such matter. A shareholder may vote in person
or by proxy.
Except in the election of directors (as provided in Section 3.4), if a
quorum exists, action on a matter by the shareholders entitled to vote on the
matter is approved by such shareholders if the votes cast favoring the action
exceed the votes cast opposing the action, unless a greater number of
affirmative votes is required by law or the Articles of Incorporation or a
Bylaw adopted by the shareholders.
Voting on all matters including the election of directors shall be by
voice vote or by a show of hands unless, as to any matter, the holders of
shares entitled to at least 25% of the votes of shares represented at the
meeting and entitled to vote on that matter shall demand, prior to the voting
on such matter, a ballot vote on such matter.
Section 2.11 ACTION WITHOUT MEETING. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if one or more written consents, 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, whether before or after the action so taken, and delivered
to the Corporation to be included in the corporate minute book or filed with
the corporate records. Such consent has the same effect as a meeting vote and
may be described as such in any document.
ARTICLE III - DIRECTORS
Section 3.1 GENERAL POWERS. All corporate powers of the
Corporation shall be exercised by or under the authority of, and the business
and affairs of the Corporation shall be managed under the direction of, the
Board of Directors.
Section 3.2 NUMBER, TERM AND QUALIFICATION. The Number of
Directors of the Corporation shall be a maximum of fifteen (15) and a minimum
of seven (7) and the exact number of directors within these limits shall be
fixed from time to time by resolution of the Board of Directors. Any
directorships not filled by the shareholders shall be treated as vacancies to
be filled by and in the discretion of the Board of Directors. The directors
shall be divided into three classes, each class to be as nearly equal in number
as possible. Each class of directors shall be elected to serve for terms of
three (3) years and until their successors shall be elected and qualified. In
the event of any increase in the authorized number of directors, the additional
directors shall be classified so that all classes of directors shall be
increased equally, as nearly as possible, and, in the event of any decrease in
the authorized number of directors, all classes of directors shall be decreased
equally, as nearly as possible. In the event of the death, resignation,
retirement, removal or disqualification of a director during his elected term
of office, his successor shall be elected to serve only until the expiration of
the term of his predecessor. Directors need not be residents of the State of
North Carolina or shareholders of the Corporation.
Section 3.3 ELECTION OF DIRECTORS. Except as provided in Section
3.6, directors shall be elected at the annual meeting of shareholders.
Section 3.4 VOTING FOR DIRECTORS. Directors shall be elected by
a plurality of the votes cast by the shares entitled to vote in the election of
directors at a meeting at which a quorum is present. Shareholders shall have
the right to cumulate their votes for directors except (a) if on the record
date for a meeting of shareholders, shares of any class or series are listed on
a national securities exchange or held of record by more than 2,000
shareholders or (b) as provided in the Articles of Incorporation or required by
applicable law. If the shareholders have the right to cumulate their votes,
then this right of cumulative voting shall not be exercised unless some
shareholder or proxy holder announces in open meeting, before the voting for
the directors starts, his intention so to vote cumulatively; and if such
announcement is made, the chair shall declare that all shares entitled to vote
have the right to vote cumulatively and shall thereupon grant a recess of not
less than one nor more than four hours, as he shall determine, or of such other
period of time as is unanimously then agreed upon.
Section 3.5 REMOVAL. Directors may be removed from office with
or without cause by a vote of shareholders holding at least seventy-five
percent (75%) of the shares entitled to vote at an election of directors.
However, unless the entire Board is removed, an individual director may not be
removed if the number of shares voting against the removal would be sufficient
to elect a director if such shares were voted cumulatively at an annual
election. If any directors are so removed, new directors may be elected at the
same meeting.
Section 3.6 VACANCIES. A vacancy occurring in the Board of
Directors, including positions not filled by the shareholders or those
resulting from an increase in the number of directors, may be filled by a
majority of the remaining directors, though less than a quorum, or by the sole
remaining director. The shareholders may elect a director at any time to fill
any vacancy not filled by the directors.
Section 3.7 COMPENSATION. The Board of Directors, in its
discretion, may compensate directors for their services as such and may provide
for the payment of all expenses reasonably incurred by directors in attending
meetings of the Board or of any Committee or in the performance
of their other duties as directors. Nothing herein contained, however, shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 3.8 COMMITTEES. The Board of Directors, by resolution
adopted by a majority of the number of directors then in office, may designate
and appoint from among its members one or more Committees, including an
Executive Committee, each consisting of two or more directors, who shall serve
as members of such Committee at the pleasure of the Board of Directors. Each
such Committee, to the extent provided in such resolution, shall have and may
exercise all of the authority of the Board of Directors in the management of
the Corporation, including such powers as may be given to the Board of
Directors by these Bylaws, except that no such Committee shall have authority
to: (a) authorize dividends or other distributions not permitted by applicable
law to be authorized by a Committee; (b) approve or propose to shareholders
action that applicable law requires to be approved by shareholders; (c) fill
vacancies on the Board of Directors or on any Committee; (d) amend the Articles
of Incorporation; (e) adopt, amend or repeal bylaws; (f) approve a plan of
merger not requiring shareholder approval; (g) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the Board of Directors; (h) authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares (except that the
Board of Directors may authorize a Committee or a senior executive officer to
do so within limits specifically prescribed by the Board of Directors); or (i)
amend or repeal any resolution of the Board of Directors that by its terms
provides that it is not so amendable or repealable. Nothing herein shall
preclude the Board of Directors from establishing and appointing any committee,
whether of directors or otherwise, not having or exercising the authority of
the Board of Directors.
Section 3.9 CHAIRMAN. The Board of Directors may elect a
Chairman of the Board who shall serve at the pleasure of the Board.
ARTICLE IV - MEETINGS OF DIRECTORS
Section 4.1 REGULAR MEETINGS. A regular annual meeting of the
Board of Directors shall be held immediately after, and at the same place as,
the annual meeting or substitute annual meeting of shareholders. In addition,
the Board of Directors may provide the time and place, either within or without
the State of North Carolina, for the holding of additional regular meetings.
Section 4.2 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board (if
there shall be a person holding such office), the Chief Executive Officer or
any two directors. Such meetings may be held either within or without the State
of North Carolina.
Section 4.3 NOTICE OF MEETINGS. Regular meetings of the Board of
Directors may be held without notice.
The person or persons calling a special meeting of the Board of
Directors shall give notice of the meeting to the directors by any usual means
of communication. If such notice is given to a director in writing by mail, it
shall be mailed, correctly addressed to such director with postage prepaid, no
later than six days prior to the date of the meeting. If such notice is given
to a director in writing otherwise than by mail, it shall be given so that it
is received by such director no later than two days prior to the meeting. If
such notice is given orally to a director, it shall be communicated orally to
such director no later than two days prior to the meeting. Delivery or
completion of transmission of written notice to the address of a director shall
be deemed receipt by such director, and any such written notice given to a
director by mail that is not timely mailed shall nevertheless be valid and
effective if so received by such director no later than two days prior to the
date of the meeting. The person or persons giving such notice may conclusively
presume that the address of a director to which such notice is to be directed
is the business address of such director appearing in the
Corporation's most current annual report to the North Carolina Secretary of
State, unless prior to the sending of such notice, the Corporation shall have
received from such director notice of a different address to which notices to
such director should be directed.
A director's attendance at or participation in a meeting shall
constitute a waiver by such director of notice of such meeting, unless the
director at the beginning of the meeting (or promptly upon his or her arrival)
objects to holding the meeting or to the transaction of business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
Section 4.4 QUORUM. A majority of the number of directors fixed
or prescribed by these Bylaws shall be required for, and shall constitute, a
quorum for the transaction of business at any meeting of the Board of
Directors.
Section 4.5 MANNER OF ACTING. Except as otherwise provided in
these Bylaws or required by applicable law, the affirmative vote of a majority
of the directors present at a meeting of the Board of Directors shall be the
act of the Board of Directors, if a quorum is present when the vote is taken.
Section 4.6 ORGANIZATION. Each meeting of the Board of Directors
shall be presided over by the Chief Executive Officer (if there shall be a
person holding such office), or, in the absence or at the request of the Chief
Executive Officer, by the Chairman of the Board, and in their absence or at
their request, by any person selected to preside by vote of a majority of the
directors present. The Secretary, or in the absence or at the request of the
Secretary, any person designated by the person presiding at the meeting, shall
act as secretary of the meeting.
Section 4.7 ACTION WITHOUT MEETING. Action required or permitted
to be taken by the Board of Directors or a Committee at a meeting may be taken
without a meeting if one or more written consents describing the action taken
are signed by each of the directors or members of the Committee, as the case
may be, whether before or after the action so taken, and filed with the
corporate records or the minutes of the proceedings of the Board or Committee.
Action so taken is effective when the last director or Committee member signs
such consent, unless the consent specifies a different effective date. Such
consent has the effect of a meeting vote and may be described as such in any
document.
Section 4.8 PARTICIPATION BY CONFERENCE TELEPHONE. Any one or
more directors or members of a Committee may participate in a meeting of the
Board of Directors or Committee by means of a conference telephone or similar
communications device that allows all persons participating in the meeting to
simultaneously hear each other during the meeting, and such participation in a
meeting shall be deemed presence in person at such meeting.
ARTICLE V - OFFICERS
Section 5.1 GENERAL. The officers of the Corporation shall
consist of a Chief Executive Officer (who shall be either the Chairman of the
Board or the President, as provided in these Bylaws), a President, a Secretary
and a Treasurer, and may also include a Chief Operating Officer 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. The Chairman of the Board shall be an officer of the Corporation if so
designated by the Board of Directors and shall be an officer of the Corporation
if the Chairman is appointed as the Chief Executive Officer pursuant to Section
5.5. In all other circumstances, the Chairman of the Board shall not be an
officer of the Corporation. Any two or more offices may be simultaneously held
by the same person, but no person may act in more than one capacity where
action of two or more officers is required. The title of any officer may
include any additional designation descriptive of such officer's duties as the
Board of Directors may prescribe.
Section 5.2 APPOINTMENT 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, the Chairman of the Board, the
President or the Chief Operating Officer. Each officer shall serve as such at
the pleasure of the Board of Directors.
Section 5.3 REMOVAL. Any officer may be removed by the Board of
Directors at any time with or without cause; but such removal shall not itself
affect the contract rights, if any, of the person so removed.
Section 5.4 COMPENSATION. The compensation of all officers of
the Corporation shall be fixed by, or in the manner prescribed by, the Board of
Directors.
Section 5.5 CHIEF EXECUTIVE OFFICER. If there is a Chairman of
the Board and the Board of Directors designates the Chairman of the Board as
the Chief Executive Officer, then the Chairman of the Board shall be the Chief
Executive Officer of the Corporation. Otherwise, the President shall be the
Chief Executive Officer of the Corporation. Subject to the direction and
control of the Board of Directors, the Chief Executive Officer shall supervise
and control the management of the Corporation and shall have such duties and
authority as are normally incident to the position of chief executive officer
of a corporation and such other duties and authority as may be prescribed from
time to time by the Board of Directors or as are provided for elsewhere in
these Bylaws. The title of the Chairman of the Board or President, as the case
may be, serving as the Chief Executive Officer may, but need not, also refer to
his or her position as Chief Executive Officer.
Section 5.6 CHAIRMAN OF THE BOARD. The Board of Directors may,
but need not, appoint from among its members an officer designated as the
Chairman of the Board. If there is appointed a Chairman of the Board and such
Chairman of the Board is also designated by the Board of Directors to be the
Chief Executive Officer, then the Chairman of the Board shall have all of the
duties and authority of the Chief Executive Officer and shall also, when
present, preside over meetings of the Board of Directors. If there is a
Chairman of the Board but such Chairman of the Board is not also designated as
the Chief Executive Officer, then the Chairman of the Board shall, in the
absence of the Chief Executive Officer, preside over meetings of the Board of
Directors and shall have such other duties and authority as may be prescribed
from time to time by the Board of Directors or as are provided for elsewhere in
these Bylaws.
Section 5.7 CHIEF OPERATING OFFICER. If there is appointed a
Chairman of the Board who is also the Chief Executive Officer, then the
President shall be the Chief Operating Officer. If the President is the Chief
Executive Officer, then the President shall also serve as the Chief Operating
Officer unless the Board of Directors shall designate some other officer of the
Corporation as the Chief Operating Officer. Subject to the direction and
control of the Chief Executive Officer and the Board of Directors, the Chief
Operating Officer shall supervise and control the operations of the
Corporation, shall have such duties and authority as are normally incident to
the position of chief operating officer of a corporation and such other duties
as may be prescribed from time to time by the Chief Executive Officer or the
Board of Directors, and, in the absence or disability of the Chief Executive
Officer, shall have the authority and perform the duties of the Chief Executive
Officer. The title of the President or other officer serving as the Chief
Operating Officer may, but need not, also refer to his or her position as Chief
Operating Officer.
Section 5.8 PRESIDENT. Unless there is appointed a Chairman of
the Board who is also designated the Chief Executive Officer, the President
shall be the Chief Executive Officer of the Corporation and shall have all of
the duties and authority of that office. If the President is not the Chief
Executive Officer, then the President shall be the Chief Operating Officer and
shall have all of the duties and authority of that office. If the President
shall be the Chief Executive Officer and no other officer shall have been
designated by the Board of Directors as the Chief Operating Officer,
then the President shall also have all of the duties and authority of the Chief
Operating Officer. The President shall also have such other duties and
authority as may be prescribed from time to time by the Board of Directors.
Section 5.9 VICE PRESIDENT. The Vice President, and if there be
more than one, the Executive Vice President or other Vice President designated
by the Board of Directors, shall, in the absence or disability of the
President, have the authority and perform the duties of said office (including
the duties and authority of the President as either Chief Executive Officer or
Chief Operating Officer or both, if the President serves as such). In addition,
each Vice President shall perform such other duties and have such other powers
as are normally incident to the office of Vice President or as shall be
prescribed by the Chief Executive Officer, the Chief Operating Officer or the
Board of Directors.
Section 5.10 SECRETARY. The Secretary shall have the
responsibility and authority to maintain and authenticate the records of the
Corporation; shall keep, or cause to be kept, accurate records of the acts and
proceedings of all meetings of shareholders, directors and Committees; shall
give, or cause to be given, all notices required by law and by these Bylaws;
shall have general charge of the corporate books and records and of the
corporate seal, and shall affix the corporate seal to any lawfully executed
instrument requiring it; shall have general charge of the stock transfer books
of the Corporation and shall keep, or cause to be kept, all records of
shareholders as are required by applicable law or these Bylaws; shall sign such
instruments as may require the signature of the Secretary; and, in general,
shall perform all duties incident to the office of Secretary and such other
duties as may be assigned to him or her from time to time by the Chief
Executive Officer, the Chief Operating Officer or the Board of Directors.
Section 5.11 TREASURER. The Treasurer shall have custody of all
funds and securities belonging to the Corporation and shall receive, deposit or
disburse the same under the direction of the Board of Directors; shall keep, or
cause to be kept, full and accurate accounts of the finances of the Corporation
in books especially provided for that purpose, and shall generally have charge
over the Corporation's accounting and financial records; 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 cash flows for such fiscal year,
all in reasonable detail, including particulars as to convertible securities
then outstanding, to be made as soon as practicable after the end of such
fiscal year. The Treasurer shall also prepare and file, or cause to be prepared
and filed, all reports and returns required by Federal, State or local law and
shall generally perform all other duties incident to the office of Treasurer
and such other duties as may be assigned to him or her from time to time by the
Chief Executive Officer, the Chief Operating Officer or the Board of Directors.
Section 5.12 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries and Assistant Treasurers, if any, shall, in the absence
or disability of the Secretary or the Treasurer, respectively, have all the
powers and perform all of the duties 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 Chief Executive Officer, the Chief
Operating Officer or the Board of Directors.
Section 5.13 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.
ARTICLE VI - CONTRACTS, LOANS AND DEPOSITS
Section 6.1 CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any document or instrument on behalf of the Corporation, and such
authority may be general or confined to specific instances. Any resolution
of the Board of Directors authorizing the execution of documents by the proper
officers of the Corporation or by the officers generally and not specifying
particular officers shall be deemed to authorize such execution by the Chief
Executive Officer, the Chief Operating Officer, the Chairman of the Board, the
President, or any Vice President, or by any other officer if such execution is
within the scope of the duties and of such other office. The Board of Directors
may by resolution authorize such execution by means of one or more facsimile
signatures.
Section 6.2 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 the Board of Directors. Such authority may be general or confined
to specific instances.
Section 6.3 CHECKS AND DRAFTS. All checks, drafts or other
orders for the payment of money issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation, and in
such manner, as shall from time to time be determined by resolution of the
Board of Directors.
Section 6.4 DEPOSITS. All funds of the Corporation not otherwise
employed or invested shall be deposited from time to time to the credit of the
Corporation in such depositories as the Board of Directors direct.
ARTICLE VII - SHARE CERTIFICATES
Section 7.1 CERTIFICATES FOR SHARES. Unless the Board of
Directors authorizes the issue of some or all of the shares of any or all
classes or series without certificates, certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors shall
determine, to every shareholder for the fully paid shares owned by him. These
certificates shall be signed by the Chief Executive Officer, the Chief
Operating Officer, the Chairman of the Board, the President or a Vice President
and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer, either manually or in facsimile (provided that certificates bearing
facsimile signatures of both officers shall be manually countersigned by a
registrar, transfer agent or other authenticating agent) and shall be sealed
with the seal of the Corporation or a facsimile thereof. Such 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
the date of issue, shall be entered on the stock transfer books of the
Corporation.
Section 7.2 TRANSFER OF SHARES. Transfer of shares represented
by certificates shall be made on the stock transfer books of the Corporation
only upon the surrender of the certificates for the shares sought to be
transferred by the record holder thereof or by his or her duly authorized
agent, transferee or legal representative, or as otherwise provided by
applicable law. All certificates surrendered for transfer shall be cancelled
before new certificates for the transferred shares shall be issued.
Section 7.3 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, destroyed or wrongfully taken, upon receipt of an
affidavit of such fact from the person claiming the loss or destruction. When
authorizing such issuance of a new certificate, the Board may require the
claimant to give the Corporation a bond in such sum and with such sureties as
it may direct to indemnify the Corporation against loss from any claim with
respect to the certificate claimed to have been lost, destroyed or wrongfully
taken; or the Board may, by resolution reciting that the circumstances justify
such action, authorize the issuance of the new certificate without requiring
such a bond with respect to a certificate claimed to have been lost or
destroyed. Any such authorization by the Board of Directors may be general or
confined to specific instances. Nothing herein shall require the Board of
Directors to authorize the issuance of any such replacement certificate under
any circumstances in which the
Corporation is not required to issue such certificate, this provision being
permissive and not mandatory.
ARTICLE VIII - RECORDS AND REPORTS
Section 8.1 GENERAL. The Corporation shall keep all records and
submit and file all reports and filings as are required by applicable law.
Unless the Board of Directors otherwise directs, the Treasurer shall be
responsible for keeping, or causing to be kept, all financial and accounting
records of the Corporation and for submitting or filing, or causing to be
submitted or filed, all reports and filings of a financial or accounting
nature, and the Secretary shall be responsible for keeping, or causing to be
kept, all other records and for submitting or filing, or causing to be
submitted or filed, all other reports and filings.
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 Committees of the Board of Directors. The
Corporation shall maintain appropriate accounting records. The Corporation or
its agent shall maintain a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders, in
alphabetical order by class of shares showing the number and class of shares
held by each. The Corporation shall maintain its records in written form or in
another form capable of conversion into written form within a reasonable time.
Section 8.2 RECORDS AT PRINCIPAL OFFICE. The Corporation shall
keep a copy of the following records at the Corporation's principal office: (a)
its Articles or restated Articles of Incorporation and all amendments to them
currently in effect; (b) its Bylaws or restated Bylaws and all amendments to
them currently in effect; (c) resolutions adopted by the 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; (d) the minutes of all shareholders' meetings, and
records of all action taken by shareholders without a meeting, for the past
three years; (e) all written communications to shareholders generally within
the past three years and the financial statements required by law to be made
available to the shareholders for the past three years; (f) a list of the names
and business addresses of its current directors and officers; and (g) its most
recent annual report delivered to the North Carolina Secretary of State
pursuant to the Act.
Section 8.3 FINANCIAL STATEMENTS. The Corporation shall make
available to its shareholders annual financial statements, 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 shall also be prepared on that basis.
If the annual financial statements are reported upon by a public
accountant, such accountant's report shall accompany them. If not, the
statements shall be accompanied by a statement of the President or the
Treasurer or other person responsible for the Corporation's accounting records
(a) stating his or her reasonable belief whether the statements were prepared
on the basis of generally accepted accounting principles and, if not,
describing the basis of preparation and (b) describing any respects in which
the statements were not prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
The Corporation shall mail the annual financial statements, or a
written notice of their availability, to each shareholder within 120 days after
the close of each fiscal year; provided that the
failure of the Corporation to comply with this requirement shall not constitute
the basis for any claim of damages by any shareholder unless such failure was
in bad faith. Thereafter, on written request from a shareholder who was not
mailed the statements, the Corporation shall mail such shareholder the latest
financial statements.
Section 8.4 ANNUAL REPORT. The Corporation shall prepare and
deliver to the North Carolina Secretary of State for filing each year the
annual report required by the Act. Such annual report shall be filed each year
within 60 days after the end of the month of March, or at such other time as is
then required by applicable law. The Corporation may, and when required by law
shall, file all necessary or appropriate corrections and amendments to such
annual report, and shall promptly file an amendment to its annual report to
reflect any change in the location of the principal office of the Corporation.
ARTICLE IX - GENERAL PROVISIONS
Section 9.1 DIVIDENDS. The Board of Directors may from time to
time declare, and the Corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law and the
Articles of Incorporation of the Corporation. The Board of Directors may fix in
advance a record date for determining the shareholders entitled to a dividend.
If such record date is not fixed by the Board of Directors, the date the Board
of Directors authorizes such dividend shall be the record date.
Section 9.2 SEAL. The corporate seal of the Corporation shall
consist of two concentric circles between or within which are the name of the
Corporation, the state of incorporation, the year of incorporation and the word
"SEAL." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed, stamped or reproduced by any means. Any officer of the
Corporation authorized to execute or attest a document on behalf of the
Corporation may affix or reproduce on such document, as and for the corporate
seal of the Corporation, a seal in any other form sufficient to evidence that
it is intended by such officer to represent the corporate seal of the
Corporation, in which case such seal shall be as effective as the corporate
seal in the form herein prescribed.
Section 9.3 NOTICE AND WAIVER OF NOTICE. Except as otherwise
provided in the Articles of Incorporation or these Bylaws, any notice permitted
or required to be given pursuant to these Bylaws may be given in any manner
permitted by applicable law and with the effect therein provided. Without
limiting the generality of the forgoing, written notice by the Corporation to a
shareholder is effective when deposited in the United States mail with postage
thereon prepaid and correctly addressed to the shareholder's address shown in
the Corporation's current record of shareholders.
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, a waiver thereof in writing signed by the
person or persons entitled to such notice and included in the minutes or filed
with the corporate records, whether done before or after the time stated in the
notice, shall be equivalent to the giving of such notice.
Section 9.4 FISCAL YEAR. The fiscal year of the Corporation
shall be from October 1 through September 30.
Section 9.5 INDEMNIFICATION. Any person who at any time serves
or has served as a director of the Corporation shall have a right to be
indemnified by the Corporation to the fullest extent permitted by law against
(a) expenses, including reasonable attorneys' fees, actually and necessarily
incurred by him or her in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether or not brought by or on
behalf of the Corporation, arising out of his or her status as such director,
or his or her status as an officer, employee or agent of the Corporation, or
his or her service,
at the request of the Corporation, as a director, officer, partner, trustee,
employee or agent of any other corporation, partnership, joint venture, trust
or other enterprise or as a trustee or administrator under an employee benefit
plan, or his or her activities in any of the foregoing capacities, and (b) any
liability incurred by him or her, including without limitation, satisfaction of
any judgment, money decree, fine (including any excise tax assessed with
respect to an employee benefit plan), penalty or settlement, for which he or
she may have become liable in connection with any such action, suit or
proceeding.
The Board of Directors of the Corporation shall take all such action
as may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this Bylaw, including without limitation, to the
extent necessary, (a) making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
or her and (b) giving notice to and obtaining approval by the shareholders of
the Corporation.
Expenses incurred by a director in defending an action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director to pay such amount unless it shall ultimately be
determined that he or she is entitled to be indemnified by the Corporation
against such expenses.
Any person who at any time after the adoption of this Bylaw serves or
has served as a director 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, and any modification or repeal of these
provisions for indemnification shall be prospective only and shall not affect
any rights or obligations existing at the time of such modification or repeal.
Such right shall inure to the benefit of the legal representatives of any such
person, shall not be exclusive of any other rights to which such person may be
entitled apart from the provisions of this Bylaw, and shall not be limited by
the provisions for indemnification in Sections 55-8-51 through 55-8-56 of the
Act or any successor statutory provisions.
Any person who is entitled to indemnification by the Corporation
hereunder shall also be entitled to reimbursement of reasonable costs, expenses
and attorneys' fees incurred in obtaining such indemnification.
Section 9.6 CONSTRUCTION. All references in these Bylaws to
"shareholder" or "shareholders" refer to the person or persons in whose names
shares are registered in the records of the Corporation, except to the extent
that a beneficial owner of shares that are registered in the name of a nominee
is recognized by the Corporation as a "shareholder" in accordance with a
procedure therefor that the Corporation may, but need not, establish pursuant
to applicable law. All personal pronouns used in these Bylaws shall include
persons of any gender. All terms used herein and not specifically defined
herein but defined in the Act shall have the same meanings herein as given
under the Act, unless the context otherwise requires.
Section 9.7 AMENDMENTS. Except as otherwise provided herein or
in the Articles of Incorporation or by applicable law, these Bylaws may be
amended or repealed and new bylaws may be adopted by action of the Board of
Directors or the shareholders.
Sections 3.2 and 3.5 of these Bylaws have been adopted by the
shareholders of this Corporation and may not be amended, repealed or annulled
except by a vote of the shareholders holding at least seventy-five percent
(75%) of the shares of the Corporation entitled to vote.