EXHIBIT 3.5
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 following September 30 of each
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 July 1 through June 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.