1
EXHIBIT 3.2
BYLAWS
OF
WACHOVIA CORPORATION
Effective October 23, 1992
Amended through July 23, 1993
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TABLE OF CONTENTS TO BYLAWS
OF
WACHOVIA CORPORATION
Page
ARTICLE 1 ----
MEETINGS OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Place of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3. Substitute Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.4. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.5. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.6. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.7. Shareholders' List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.8. Voting of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.9. Conduct of Meeting and Order of Business . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.1. General Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.2. Number, Term, Qualification and Nomination . . . . . . . . . . . . . . . . . . 3
Section 2.3. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.6. Directors Emeritus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3
MEETINGS OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.3. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.4. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.5. Manner of Acting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.6. Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.7. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.8. Meeting by Communications Device . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 4
COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.1. Election and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.2. Removal; Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.3. Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.4. Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Section 4.5. Executive Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.6. Audit Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.7. Compensation, Nominating and Organization Committee . . . . . . . . . . . . 8
ARTICLE 5
OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1. Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Election; Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.3. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.5. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.6. Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.7. Chairman of the Board of Directors . . . . . . . . . . . . . . . . . . . . . 10
Section 5.8. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.9. Vice Chairmen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.10. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.11. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.12. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.13. Voting Upon Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 6
CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.1. Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.2. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.3. Transfer Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.4. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.5. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6.6. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 7
INDEMNIFICATION OF DIRECTORS AND OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.1. Indemnification Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.3. Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.4. Litigation Expense Advances . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.5. Approval of Indemnification Payments . . . . . . . . . . . . . . . . . . . . 14
Section 7.6. Suits by Claimant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.7. Consideration; Personal Representatives and Other Remedies . . . . . . . . . 15
Section 7.8. Scope of Indemnification Rights . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 8
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.1. Dividends and other Distributions . . . . . . . . . . . . . . . . . . . . . 16
Section 8.2. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.3. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.4. Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.5. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Section 8.6. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.7. Applicability of Antitakeover Statutes . . . . . . . . . . . . . . . . . . . 17
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BYLAWS
OF
WACHOVIA CORPORATION
ARTICLE 1
MEETINGS OF SHAREHOLDERS
Section 1.1. Place of Meeting. Meetings of shareholders
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shall be held at the principal office of the corporation in Winston-Salem,
North Carolina or Atlanta, Georgia, or at such other place, either within or
without the States of Georgia, North Carolina and South Carolina, as shall be
fixed by the board of directors or the chief executive officer and designated
in the notice of the meeting.
Section 1.2. Annual Meeting. The annual meeting of
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shareholders shall be held at 10:30 a.m. on the fourth Friday in April of each
year, if not a legal holiday, but if a legal holiday, then on the preceding
business day which is not a legal holiday, or at such other hour and date as
the board of directors, the chief executive officer or secretary may designate,
for the purpose of electing directors of the corporation and the transaction of
such other business as may be properly brought before the meeting.
Section 1.3. Substitute Annual Meeting. If the annual
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meeting is not held on the day designated or provided for in these bylaws, a
substitute annual meeting may be called in accordance with Section 1.4. A
meeting so called shall be designated and treated for all purposes as the
annual meeting.
Section 1.4. Special Meetings. Special meetings of the
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shareholders may be called at any time by the chief executive officer or the
board of directors.
Section 1.5. Notice of Meetings. At least 10 and no more
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than 60 days prior to any annual or special meeting of shareholders, the
corporation shall notify shareholders of the date, time and place of the
meeting and, in the case of a special or substitute annual meeting or where
otherwise required by law, shall briefly describe the purpose or purposes of
the meeting. Only business within the purpose or purposes described in the
notice may be conducted at a special meeting. Unless otherwise required by law
or by the articles of incorporation (including, but not limited to, in the
event of a meeting to consider the adoption of a plan of merger or share
exchange, a sale of assets other than in the ordinary course of business or a
voluntary dissolution), the corporation shall be required to give notice only
to shareholders entitled to vote at the meeting. If an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
thereof need not be given if the new date, time or place is announced at the
meeting before adjournment. If a new record date for the adjourned meeting is
fixed pursuant to Section 6.5 hereof, notice of the adjourned meeting shall be
given to persons who are shareholders as of the new record date. It shall be
the primary responsibility of the secretary to give the notice, but notice may
be given by or at the direction of the chief executive officer or other person
or persons calling the meeting. If mailed, such notice shall be deemed to be
effective when deposited in the United States mail with postage thereon
prepaid, correctly addressed to the shareholder's address shown in the
corporation's current record of shareholders.
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Section 1.6. Quorum. A majority of the votes entitled to be
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cast by a voting group on a matter, represented in person or by proxy at a
meeting of shareholders, shall constitute a quorum for that voting group for
any action on that matter, unless the articles of incorporation provide
otherwise or other quorum requirements are fixed by law, including by a court
of competent jurisdiction acting pursuant to Section 55-7-03 of the General
Statutes of North Carolina. 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 any adjournment thereof, unless a new record date is or must be set
for the adjournment. Action may be taken by a voting group at any meeting at
which a quorum of that voting group is represented, regardless of whether
action is taken at that meeting by any other voting group. In the absence of a
quorum at the opening of any meeting of shareholders, such meeting may be
adjourned from time to time, subject to Section 6.5, by a vote of the majority
of the shares voting on the motion to adjourn.
Section 1.7. Shareholders' List. After a record date is
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fixed for a meeting, the secretary of the corporation shall prepare an
alphabetical list of the names of all its shareholders who are entitled to
notice of the shareholders' meeting. Such list shall be arranged by voting
group (and within each voting group by class or series of shares) and shall
show the address of and number of shares held by each shareholder. The
shareholders' list shall be made available for inspection by any shareholder
beginning two business days after notice of the meeting is given for which the
list was prepared and continuing through the meeting, at the corporation's
principal office or at such other place identified in the meeting notice in the
city where the meeting will be held. The corporation shall make the
shareholders' list available at the meeting, and any shareholder or his agent
or attorney is entitled to inspect the list at any time during the meeting or
any adjournment.
Section 1.8. Voting of Shares. Except as otherwise provided
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by the articles of incorporation or by law, each outstanding share of voting
capital stock of the corporation shall be entitled to one vote on each matter
submitted to a vote at a meeting of the shareholders. Unless otherwise
provided in the articles of incorporation, cumulative voting for directors
shall not be allowed. Action on a matter by a voting group for which a quorum
is present is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless the vote of a greater
number is required by law or by the articles of incorporation. Absent special
circumstances, the shares of the corporation are not entitled to vote if they
are owned, directly or indirectly, by a second corporation, domestic or
foreign, and the corporation owns, directly or indirectly, a majority of the
shares entitled to vote for directors of the second corporation, except that
this provision shall not limit the power of the corporation to vote shares held
by it in a fiduciary capacity.
Section 1.9. Conduct of Meeting and Order of Business. The
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chairman of the board of directors shall act as chairman at all meetings of
shareholders and the secretary of the corporation or, in his absence, an
assistant secretary, shall act as secretary at all meetings of shareholders.
The chairman shall have the right and authority to determine and maintain the
rules, regulations and procedures for the proper conduct of the meeting,
including but not limited to restricting entry to the meeting after it has
commenced, maintaining order and the safety of those in attendance, opening and
closing the polls for voting, dismissing business not properly submitted, and
limiting time allowed for discussion of the business of the meeting.
Business to be conducted at meetings of shareholders shall be
limited to that properly submitted to the meeting either by or at the direction
of the board of directors or by any holder of voting securities of the
corporation who shall be entitled to vote at such meeting and who complies with
the
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notice requirements of applicable law or as otherwise set forth in the articles
of incorporation or the bylaws of the corporation. If the chairman of the
meeting shall determine that any business was not properly submitted, he shall
declare to the meeting that such business was not properly submitted and would
not be transacted at that meeting.
ARTICLE 2
BOARD OF DIRECTORS
Section 2.1. General Powers. All corporate powers shall be
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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 2.2. Number, Term, Qualification and Nomination. The
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number of directors constituting the board of directors shall be not less than
nine nor more than 25 as may be fixed by resolution duly adopted by the board
of directors prior to the annual meeting at which such directors are to be
elected or by the shareholders, but in the absence of such resolution, the
number of directors elected at the meeting shall constitute the number of
directors of the corporation until the next annual meeting of shareholders.
The board of directors shall be divided into three classes as
equal in number as may be feasible, with the term of office of one class
expiring each year. The members of the initial board of directors shall be
divided into three classes as hereinafter provided, with directors of the first
class to hold office for a term expiring at the first annual meeting of
shareholders, directors of the second class to hold office for a term expiring
at the second annual meeting of shareholders and directors of the third class
to hold office for a term expiring at the third annual meeting of shareholders.
At each annual meeting of shareholders, successors to the directors whose terms
shall then expire shall be elected to hold office for terms expiring at the
third succeeding annual meeting. In case of any vacancies, by reason of an
increase in the number of directors or otherwise, each additional director may
be elected by the board of directors to hold office until the end of the term
he is elected to fill and until his successor shall have been elected and
qualified in the class to which such director is assigned and for the term or
remainder of the term of such class. Directors shall continue in office until
others are chosen and qualified in their stead. When the number of directors
is changed, any newly created directorships or any decrease in directorships
shall be so assigned among the classes by a majority of the directors then in
office, though less than a quorum, as to make all classes as equal in number as
may be feasible. No decrease in the number of directors shall shorten the term
of any incumbent director.
No person shall be elected nor shall continue to serve as a
director past the annual meeting if such person has, as of the date of the
annual meeting, reached the age of 70 years or has retired from active
participation in his principal business or from the active practice of his
principal profession; provided, however, that a person who has served for five
or more years as Chief Executive Officer of the corporation may complete an
unexpired term and may be re-elected a director for up to three years after
retirement from active service with the corporation. Each director nominee
must be the owner in his or her own right of shares of stock of the corporation
having a par value of not less
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than $1,000. Other qualifications which shall be considered in the selection
of director nominees are the extent of experience in business, finance or
management; the extent of knowledge in regional, national or international
business and finance; and the overall capacity to advise and direct the
corporation in meeting its responsibilities to shareholders, customers,
employees and the public.
Nominations for election as a director by the board of
directors in connection with any annual meeting or substitute annual meeting of
shareholders shall include the chairman and the president if such person is not
then a director or if his term as a director will expire at such meeting.
Nominations for election as a director by a holder of any outstanding class of
shares of the corporation entitled to vote for the election of directors shall
specify the class of directors to which each person is nominated, be made in
writing and be delivered or mailed to the chief executive officer of the
corporation not less than 14 days or more than 50 days prior to any meeting of
shareholders called for the election of directors; provided, if less than 21
days' notice of the meeting is given to shareholders, such notification of
nomination shall be mailed or delivered to the chief executive officer of the
corporation not later than the close of business on the seventh day following
the day on which the notice of meeting was mailed. Such notification shall
contain the following information to the extent known by the notifying
shareholder: (a) the name, age and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total number of shares
that will be voted for each proposed nominee; (d) the name and residence
address of the notifying shareholder; (e) the number of shares owned by the
notifying shareholder; and (f) a biographical profile of the individual with a
statement of his or her qualifications. Nominations not made in accordance
herewith may be disregarded by the chairman of the meeting in his discretion,
and upon his instructions the voting inspectors or tabulators may disregard all
votes cast for each such nominee.
Section 2.3. Removal. Any director may be removed from
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office as a director, but only for cause, by the affirmative vote at a meeting
called as provided herein for that purpose, of at least 66-2/3% in interest of
the holders of voting stock of the corporation issued and outstanding,
including a majority in interest of the holders of issued and outstanding
voting stock of the corporation held by persons other than any person who is an
"Interested Shareholder" as defined in paragraph (3) of Article X.D of the
corporation's articles of incorporation; provided, the notice of the
shareholders' meeting at which such action is to be taken states that a purpose
of the meeting is removal of the director and the number of votes cast to
remove the director exceeds the number of votes cast not to remove him.
Section 2.4. Vacancies. Except as otherwise provided in the
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articles of incorporation or these bylaws, a vacancy occurring in the board of
directors, including, without limitation, a vacancy resulting from an increase
in the number of directors or from the failure by the shareholders to elect the
full authorized number of directors, may be filled by a majority of the
remaining directors or by the sole director remaining in office. The
shareholders may elect a director at any time to fill a vacancy not filled by
the directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office.
Section 2.5. Compensation. The directors shall have
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authority to vote themselves reasonable compensation for their services as
directors. The directors may provide for their own indemnification and for the
indemnification of others, in accordance with these bylaws or as otherwise
authorized by law, and the directors may authorize the purchase of insurance in
connection therewith. Any director may serve the corporation in any other
capacity and receive compensation therefor.
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Section 2.6. Directors Emeritus. Upon retiring from the
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board of directors, a director may be elected a director emeritus by the board
of directors. A director emeritus shall not have the right to vote and shall
not be charged with the responsibilities or be subject to the liabilities of
directors. A director emeritus may attend meetings of the board only upon
invitation of the directors.
ARTICLE 3
MEETINGS OF DIRECTORS
Section 3.1. Regular Meetings. Regular meetings of the board
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of directors shall be held on the fourth Friday of January, April, July and
October of each year at the principal offices of the Company in Winston-Salem,
North Carolina or Atlanta, Georgia, unless the board of directors fixes some
other place or time for the holding of such meetings. If any date for which a
regular meeting is scheduled shall be a legal holiday, the meeting shall be
held on such other date as is designated in a notice of the meeting.
If possible, the directors, including directors-elect, shall
meet following each annual meeting of shareholders for the purpose of
organizing the board and electing officers for the succeeding year; provided,
in any event the new board shall be organized and officers elected no later
than at the next regular meeting of the directors.
Section 3.2. Special Meetings. Special meetings of the board
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of directors may be called by or at the request of the chief executive officer
or any three directors. Such meetings may be held at the time and place
designated in the notice of the meeting.
Section 3.3. Notice of Meetings. Unless the articles of
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incorporation provide otherwise, regular meetings of the board of directors
held on a date specified in or pursuant to the first sentence of Section 3.1
may be held without notice of the date, time, place or purpose of the meeting.
The secretary giving notice of a regular meeting to be held on a date other
than a date specified in or pursuant to the first sentence of Section 3.1, and
the secretary or other person calling a special meeting, shall give notice by
any usual means of communication to be sent at least 24 hours before the
meeting if notice is sent by means of telephone, telecopy or personal delivery
and at least five days before the meeting if notice is sent by mail.
Section 3.4. Quorum. Except as otherwise provided in the
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articles of incorporation, a majority of the directors in office shall
constitute a quorum for the transaction of business at a meeting of the board
of directors, provided a majority of the directors present are not also
officers of the corporation. Less than a quorum may adjourn any meeting from
time to time, and the meeting as adjourned may be held without further notice.
In the event of the death, disability or other absence of directors due to war
or other catastrophe, reducing the number of directors able to attend a meeting
to less than that required for a quorum, a majority of the remaining directors
shall constitute a quorum.
Section 3.5. Manner of Acting. Except as otherwise provided
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in the articles of incorporation, the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors.
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Section 3.6. Presumption of Assent. A director of the
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corporation who is present at a meeting of the board of directors at which
action on any corporate matter is taken is deemed to have assented to the
action taken unless he objects at the beginning of the meeting (or promptly
upon arrival) to holding, or transacting business at, the meeting, or unless
his dissent or abstention is entered in the minutes of the meeting or unless he
shall file written notice of his dissent or abstention to such action with the
presiding officer of the meeting before its adjournment or with the corporation
immediately after adjournment of the meeting. The right of dissent or
abstention shall not apply to a director who voted in favor of such action.
Section 3.7. Action Without Meeting. Unless otherwise
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provided in the articles of incorporation, action required or permitted to be
taken at a meeting of the board of directors may be taken without a meeting if
the action is taken by all members of the board. The action must be evidenced
by one or more written consents signed by each director before or after such
action, describing the action taken, and included in the minutes or filed with
the corporate records. Action taken without a meeting is effective when the
last director signs the consent, unless the consent specifies a different
effective date.
Section 3.8. Meeting by Communications Device. Unless
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otherwise provided in the articles of incorporation, the board of directors may
permit any or all directors to participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of communication by which
all directors participating may simultaneously hear each other during the
meeting. A director participating in a meeting by this means is deemed to be
present in person at the meeting.
ARTICLE 4
COMMITTEES
Section 4.1. Election and Powers. Unless otherwise provided
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by the articles of incorporation, a majority of the board of directors may
create one or more committees and appoint two or more directors to serve at the
pleasure of the board on each such committee. To the extent specified by the
board of directors or in the articles of incorporation or the bylaws, each
committee shall have and may exercise the powers of the board in the management
of the business and affairs of the corporation, except that no committee shall
have authority to do the following:
(a) Authorize distributions.
(b) Approve or propose to shareholders action required to be
approved by shareholders.
(c) Fill vacancies on the board of directors or on any of its
committees.
(d) Amend the articles of incorporation.
(e) Adopt, amend or repeal the bylaws.
(f) Approve a plan of merger not requiring shareholder approval.
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(g) Authorize or approve the reacquisition of shares, except
according to a formula or method prescribed by the board of
directors.
(h) Authorize or approve the issuance, 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 the executive
committee (or a senior executive officer of the corporation)
to do so within limits specifically prescribed by the board of
directors.
The board of directors or the chief executive officer may establish nonboard
committees composed of directors, employees or others to deal with corporate
powers not required to be exercised by the board of directors.
Section 4.2. Removal; Vacancies. Any member of a committee
----------- ------------------
may be removed at any time with or without cause, and vacancies in the
membership of a committee by means of death, resignation, disqualification or
removal shall be filled by a majority of the whole board of directors.
Section 4.3. Meetings. The provisions of Article 3 governing
----------- --------
meetings of the board of directors, action without meeting, notice, waiver of
notice and quorum and voting requirements shall apply to the committees of the
board and its members.
Section 4.4. Minutes. Each committee shall keep minutes of
----------- -------
its proceedings and shall report thereon to the board of directors at or before
the next meeting of the board.
Section 4.5. Executive Committee. The directors shall
----------- -------------------
annually appoint an Executive Committee which shall consist entirely of
directors. A chairman of the Executive Committee shall be designated by the
directors. Except as specifically provided by statute, the Executive Committee
may exercise all of the powers of directors during intervals between meetings
thereof, including the power to authorize the execution of contracts, deeds,
leases, and other agreements respecting real or personal property. It may fill
vacancies occurring in any offices between meetings of directors and, when
deemed necessary, may create new offices and elect persons to fill such
offices. It shall have general supervision over all expenditures of the
corporation and shall consider and act upon any matter submitted to it by the
directors or by the chief executive officer and shall advise the directors in
regard to the policies of the corporation and the conduct of its affairs. The
Executive Committee shall meet upon the call of the chairman of the Executive
Committee, the chief executive officer or any two of its members.
Section 4.6. Audit Committee. The directors shall annually
----------- ---------------
appoint an Audit Committee which shall consist entirely of directors who are
not active officers or employees of the corporation. A chairman of the Audit
Committee shall be designated by the directors. The Audit Committee shall
assure that there exist viable auditing processes, both internal and
independent, for the corporation and its subsidiary or affiliated companies.
In discharging its duties, the Audit Committee shall: (a) recommend to the
board of directors the appointment of independent auditors; and (b) maintain
open lines of communication with internal auditors, external auditors and
regulatory examiners, for the purpose of satisfying the Audit Committee that
audit scope and programs are not restricted short of need, that management
takes appropriate and timely action on recommendations made by the auditors
and/or examiners and that corporation personnel cooperate with auditors and
examiners. The Audit Committee
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shall meet on call of the chairman of the Audit Committee as the nature of
business warrants and shall review and consider reports of examination of the
regulatory authorities, management letters or other comments of the external
auditors, reports of the internal auditor and any other audit-related business
it considers appropriate. The chairman of the Audit Committee shall report to
the board of directors on any recommendations made by the Audit Committee and
on action taken by management on such recommendations.
Section 4.7. Compensation, Nominating and Organization
----------- -----------------------------------------
Committee. The directors shall annually appoint a Compensation, Nominating and
- ---------
Organization Committee which shall consist entirely of directors who are not
active officers or employees of the corporation and who otherwise satisfy the
disinterested administration requirements of Rule 16b-3(c)(2)(i) under the
Securities Exchange Act of 1934 or any successor rule. A chairman of the
committee shall be designated by the directors. The Compensation, Nominating
and Organization Committee shall have authority for establishing and
administering salary, incentive, benefit and stock option plans, including
setting the compensation of any category of officers as such Committee deems
appropriate (herein, "senior officers"), considering and recommending nominees
for the board of directors of the corporation and reviewing and recommending
assignment and succession of top executive management.
ARTICLE 5
OFFICERS
Section 5.1. Titles. The officers of the corporation shall
----------- ------
be a chief executive officer, a chairman of the board of directors, a
president, one or more vice presidents and a secretary and may include one or
more vice chairmen of the board of directors, one or more executive vice
presidents, a treasurer, a controller, a general auditor, one or more assistant
secretaries, one or more assistant treasurers, one or more assistant
controllers, and such other officers as shall be deemed necessary. The
officers shall have the authority and perform the duties as set forth herein or
as from time to time may be prescribed by the board of directors or by the
chief executive officer (to the extent that the chief executive officer is
authorized by the board of directors to prescribe the authority and duties of
officers). Any two or more offices may be held by the same individual, but no
officer may act in more than one capacity where action of two or more officers
is required.
Section 5.2. Election; Appointment. The officers of the
----------- ---------------------
corporation shall be elected from time to time by the board of directors or
appointed from time to time by the chief executive officer to the extent that
the chief executive officer is authorized by the board to appoint officers;
provided, the chief executive officer may from time to time elect one or more
assistant secretaries notwithstanding the absence of such authorization.
Section 5.3. Removal. Any officer may be removed by the
----------- -------
board at any time with or without cause whenever in its judgment the best
interests of the corporation will be served, but removal shall not itself
affect the officer's contract rights, if any, with the corporation.
Section 5.4. Vacancies. Vacancies among the officers may be
----------- ---------
filled and new offices may be created and filled by the board of directors, or
by the chief executive officer to the extent authorized by the board.
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Section 5.5. Compensation. Except as provided by Section
----------- ------------
5.6, the compensation of the officers shall be fixed by, or under the direction
of, the Compensation, Nominating and Organization Committee or by such person
or persons to whom authority to fix compensation has been delegated by the
board or such Committee.
Section 5.6. Chief Executive Officer. The chief executive
----------- -----------------------
officer of the corporation shall be elected annually by the directors and may
hold either or both of the titles of chairman and president. The chief
executive officer shall have overall responsibility and authority for
administering the affairs of the corporation and of all its subsidiary banks
and companies. He shall exercise all of the powers customarily exercised by a
chief executive officer of any corporation by whatever name called unless
expressly limited by the directors. All officers of the corporation shall
report to him to the extent he may require.
In the interim between meetings of the directors or meetings
of the Executive Committee, the chief executive officer may make appointments
pro tem to any office below the level of executive vice president, either for
the purpose of filling a vacancy or increasing the number of officers, such
appointees pro tem to hold office until the next succeeding regular or special
meeting of the directors, who may in their discretion approve, confirm or
revoke any such appointments. The compensation of all agents and employees of
the corporation other than senior officers shall be fixed by the chief
executive officer or by senior officers or committees appointed by the chief
executive officer. The compensation of all committee members shall also be
fixed by the chief executive officer. He shall have the power to execute in
the name and on behalf of the corporation, or to delegate such power to others,
all contracts or instruments of every character relating to real or personal
property without express authority of the directors unless such authority is
expressly limited by the directors.
It shall be the duty of the chief executive officer or his
designee to make a report of the corporation's performance and condition to the
shareholders at their annual meeting and to the directors at their regular
meetings including therein such recommendations as to the policy and conduct of
the business of the corporation as he may deem advisable. He shall be ex
officio a member of all committees of the board and shall preside at meetings
of shareholders; provided, that if the chief executive officer also has the
title of president, he may designate the chairman of the board to preside at
meetings of shareholders.
Section 5.7. Chairman of the Board of Directors. The
----------- ----------------------------------
chairman of the board of directors shall preside at all meetings of the board
of directors. The chairman of the board may but need not be an employee of the
corporation. If not elected chief executive officer, the chairman shall have
such other authority and shall perform such other duties as may from time to
time be conferred upon him herein or by the directors or by the chief executive
officer, and in the event of the disability or death of the chief executive
officer or president, he shall perform the duties of the chief executive
officer or president unless and until a new chief executive officer or
president is elected by the directors.
Section 5.8. President. If not elected chief executive
----------- ---------
officer, the president shall have such authority and shall perform such duties
as may from time to time be conferred upon him by the directors or by the chief
executive officer, and in the event of disability of the chief executive
officer or chairman, he shall perform the duties of the chief executive officer
or chairman unless and until the Compensation, Nominating and Organization
Committee shall appoint an acting chief executive officer or chairman or until
a new chief executive officer or chairman is elected by the directors.
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Section 5.9. Vice Chairmen. Vice chairmen shall have such
----------- -------------
authority and shall perform such duties as may from time to time be conferred
upon them by the directors or by the chief executive officer.
Section 5.10. Vice Presidents. Vice presidents may be
------------ ---------------
designated as senior executive vice presidents, executive vice presidents,
regional vice presidents, group vice presidents, senior vice presidents, first
vice presidents, vice presidents and assistant vice presidents. The board of
directors shall annually elect such number of each designation as it may deem
proper. Each category of vice presidents shall have such responsibilities and
duties as shall be specifically assigned to them by the directors or by the
chief executive officer.
Section 5.11. Secretary. The secretary shall act as secretary
------------ ---------
at all meetings of the shareholders and at all meetings of the directors. He
shall issue notices for such meetings in accordance with the requirements of
the bylaws. He shall have custody of the corporate seal and, upon request of
an officer authorized by the board of directors to execute on behalf of the
corporation an instrument relating to real or personal property, shall attest
any such instrument and shall perform such other duties as from time to time
shall be assigned to him by the directors or by the chief executive officer.
Section 5.12. Assistant Secretaries. Each assistant
------------ ---------------------
secretary, if such officer is elected, shall have such powers and perform such
duties as may be assigned by the board of directors or the chief executive
officer (notwithstanding the absence of any authorization by the board of
directors to prescribe the authority and duties of officers), and the assistant
secretaries shall exercise the powers of the secretary during that officer's
absence or inability to act.
Section 5.13. Voting Upon Stocks. Unless otherwise ordered by
------------ ------------------
the board of directors, the chief executive officer (or such officer as the
chief executive officer shall designate) shall have full power and authority on
behalf of the corporation to attend, act and vote at meetings of the
shareholders of any corporation in which this corporation may hold stock, and
at such meetings shall possess and may exercise any and all rights and powers
incident to the ownership of such stock and which, as the owner, the
corporation might have possessed and exercised if present. The board of
directors may by resolution from time to time confer such power and authority
upon any other person or persons.
ARTICLE 6
CAPITAL STOCK
Section 6.1. Certificates. Shares of the capital stock of
----------- ------------
the corporation shall be represented by certificates. The name and address of
the persons to whom shares of capital stock of the corporation are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
records of the corporation. Certificates for shares of the capital stock of
the corporation shall be in such form not inconsistent with the articles of
incorporation of the corporation as shall be approved by the board of
directors. Each certificate shall be signed (either manually or by facsimile)
by the chief executive officer, the chairman or the president and by the
secretary or an assistant secretary. Each certificate may be sealed with the
seal of the corporation or a facsimile thereof.
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Section 6.2. Transfer of Shares. Transfer of shares shall be
----------- ------------------
made on the stock transfer records of the corporation, and transfers shall be
made only upon surrender of the certificate for the shares sought to be
transferred by the recordholder or by a duly authorized agent, transferee or
legal representative. All certificates surrendered for transfer or reissue
shall be cancelled before new certificates for the shares shall be issued.
Section 6.3. Transfer Agent and Registrar. The board of
----------- ----------------------------
directors may appoint one or more transfer agents and one or more registrars of
transfers and may require all stock certificates to be signed or countersigned
by the transfer agent and registered by the registrar of transfers.
Section 6.4. Regulations. The board of directors may make
----------- -----------
rules and regulations as it deems expedient concerning the issue, transfer and
registration of shares of capital stock of the corporation.
Section 6.5. Fixing Record Date. For the purpose of
----------- ------------------
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or entitled to receive payment of any dividend, or in order to
make a determination of shareholders for any other purpose, the board of
directors or the chief executive officer may fix in advance a date as the
record date for the determination of shareholders. The record date shall be
not more than 70 days before the meeting or action requiring a determination of
shareholders. A determination of shareholders entitled to notice of or to vote
at a shareholders' meeting shall be effective for any adjournment of the
meeting unless the board of directors fixes a new record date, which it shall
do if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting. If no record date is fixed for the
determination of shareholders, the record date shall be the day the notice of
the meeting is mailed or the day the action requiring a determination of
shareholders is taken.
Section 6.6. Lost Certificates. The corporation must
----------- -----------------
authorize the issuance of a new certificate in place of a certificate claimed
to have been lost, destroyed or wrongfully taken, upon receipt of (a) an
affidavit from the person explaining the loss, destruction or wrongful taking,
and (b) a bond from the claimant in such sum and with such surety or other
security and in such form acceptable to the corporation as the corporation may
reasonably direct to indemnify the corporation against loss from any claim with
respect to the certificate claimed to have been lost, destroyed or wrongfully
taken. The corporation may, in its discretion, waive the affidavit and bond
and authorize the issuance of a new certificate in place of a certificate
claimed to have been lost, destroyed or wrongfully taken.
ARTICLE 7
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 7.1. Indemnification Provisions. Any person who at
----------- --------------------------
any time serves or has served as a director, officer or employee of the
corporation or of any wholly owned subsidiary or affiliate of the corporation,
or in such capacity at the request of the corporation for any other foreign or
domestic corporation, partnership, joint venture, trust or other enterprise, or
as a trustee or administrator under any employee benefit plan of the
corporation or of any wholly owned subsidiary thereof (a "Claimant"), shall
have the right to be indemnified and held harmless by the corporation to the
fullest extent from time to time permitted by law against all liabilities and
litigation expenses (as
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hereinafter defined) in the event a claim shall be made or threatened against
that person in, or that person is made or threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether or not brought by or on
behalf of the corporation, including all appeals therefrom (a "proceeding"),
seeking to hold the Claimant liable by reason of the fact that he or she is or
was serving in such capacity (whether the basis of such proceeding is alleged
action in such official capacity or in any other capacity while serving in such
official capacity); provided, such indemnification shall not be effective with
respect to (a) that portion of any liabilities or litigation expenses with
respect to which the Claimant is entitled to receive payment under any
insurance policy other than a directors' and officers' insurance policy
maintained by the Company or (b) any liabilities or litigation expenses
incurred on account of any of the Claimant's activities which were at the time
taken known or believed by the Claimant to be clearly in conflict with the best
interests of the corporation.
Section 7.2. Definitions. As used in this Article, (a)
----------- -----------
"liabilities" shall include, without limitation, (1) payments in satisfaction
of any judgment, money decree, excise tax, fine or penalty for which the
Claimant had become liable in any proceeding and (2) payments in settlement of
any such proceeding subject, however, to Section 7.3; (b) "litigation expenses"
shall include, without limitation, (1) reasonable costs and expenses and
attorneys' fees and expenses actually and necessarily incurred by the Claimant
in connection with any proceeding and (2) reasonable costs and expenses and
attorneys' fees and expenses in connection with the enforcement of rights to
the indemnification granted hereby or by applicable law, if such enforcement is
successful in whole or in part; and (c) "disinterested directors" shall mean
directors who are not party to the proceeding in question.
Section 7.3. Settlements. The corporation shall not be
----------- -----------
liable to indemnify the Claimant for any amounts paid in settlement of any
proceeding effected without the corporation's written consent. The corporation
will not unreasonably withhold its consent to any proposed settlement.
Section 7.4. Litigation Expense Advances.
----------- ---------------------------
(a) Subject to the provisions of subsections (b) and (c)
below, any litigation expenses shall be advanced to any Claimant within 60 days
of receipt by the General Counsel or secretary of the corporation of a demand
therefor, together with an undertaking (in such form as the corporation may
prescribe from time to time) by or on behalf of the Claimant to repay to the
corporation such amount unless it is ultimately determined that the Claimant is
entitled to be indemnified by the corporation against such expenses. The
Claimant shall also forward to the General Counsel or secretary a statement as
to any insurance in effect of the type described in Section 7.1, together with
any information which the Claimant wishes to have considered in determining
whether the standards set forth below have been met. The General Counsel or
secretary shall promptly forward notice of the demand and undertaking
immediately to all directors of the corporation.
(b) In the event a demand for an advance of litigation
expenses is received from a Claimant who is or was a director or the chief
executive of the corporation, the General Counsel or secretary shall call a
meeting of a special committee (the "Special Committee"), the membership of
which shall include only disinterested directors, and such Special Committee
shall determine within 30 days thereafter, based upon the facts and information
then available to them, whether the Claimant's activities were at the time
taken known or believed by the Claimant to be clearly in conflict with the best
interests of the corporation. In making such determination, the Special
Committee shall consult with
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representatives of any insurance carrier having a directors' and officers'
liability policy in effect which covers the Claimant, where such insurance has
been purchased by the corporation. No such advance shall be made if a majority
of the Special Committee determines that the litigation expenses have been
incurred on account of activities which at the time taken by such Claimant were
known or believed by him to be clearly in conflict with the best interests of
the corporation. To the extent that any Claimant shall be entitled to an
advance under this Section, it shall be a further condition to such advance
that counsel selected by a Claimant be approved by the corporation and to the
extent deemed necessary by the corporation the selection of such counsel shall
also be approved by the carrier of any directors' and officer's liability
insurance then in effect. The corporation also reserves the right, in the
instance of multiple Claimants, to require, if appropriate, the consolidation
of the defense of Claimants with counsel chosen by the corporation. No such
advance of any particular items of litigation expenses shall be made if a
majority of the Special Committee affirmatively determines that such particular
items are unreasonable and/or excessive. In any such case, the Special
Committee must determine the unreasonable or excessive amount, and the Company
shall withhold advances of expenses only in the dollar amount so determined as
excessive and/or unreasonable.
(c) In the discretion of the chief executive officer or
his designee, the Special Committee procedures set forth in Section 7.4(b) may
be deemed to apply to a demand for an advance of litigation expenses received
from a Claimant not referred to in the first sentence of Section 7.4(b)
(including but not limited to a Claimant who is or was an officer (other than
the chief executive officer) or employee of the corporation or a director,
officer or employee of a subsidiary of the corporation). Alternatively, the
chief executive officer or his designee may cause the Special Committee
procedures set forth in subsection (b) to be waived and, in lieu thereof, the
chief executive officer or his designee may determine whether the applicable
standard of conduct required by Section 7.4(b) has been met, whether the amount
of such expenses is reasonable and the amount of such expenses, if any, that
are unreasonable or excessive and consequently are to be withheld.
Section 7.5. Approval of Indemnification Payments. Except as
----------- ------------------------------------
may be determined in an action brought pursuant to Section 7.6 below,
indemnification payments by the corporation for liabilities and litigation
expenses (or a termination of the undertaking required under Section 7.4 above
with respect to advanced expenses) may be made only following a determination
that the activities of the Claimant (if the Claimant is or was a director of
the corporation) were not of the kind described in Section 7.4(b), which
determination shall be made (a) by a majority of the disinterested directors
(if there are at least two such directors), or (b) if there are not two such
directors, or if a majority of the disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by a majority of the
shareholders or (d) in accordance with any other reasonable procedures
prescribed by the board of directors prior to the assertion of the claim for
which indemnification is sought. The reasonableness of amounts of settlements
and litigation expenses may be approved by a majority of the disinterested
members of the board of directors. If the Claimant is an officer or employee
of the corporation, the determination required by this paragraph may be made by
the chief executive officer of the corporation or his designee.
Section 7.6. Suits by Claimant. If a claim under Section 7.1
----------- -----------------
is not paid in full by the corporation within 60 days after a written claim has
been received by the corporation, or a demand for advances is not paid within
60 days of receipt by the corporation of such demand accompanied by an
undertaking as described in Section 7.4, the Claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim or demand. It shall be a defense to any such
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action that the Claimant's liabilities or litigation expenses were incurred on
account of activities which were at the time taken known or believed by the
Claimant to be clearly in conflict with the best interests of the corporation,
or were unreasonable, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its
disinterested directors, independent legal counsel, shareholders or the chief
executive officer or his designee, if applicable) to have made a determination
prior to the commencement of such action that indemnification of the Claimant
is proper in the circumstances, nor an actual determination by the corporation
(including its disinterested directors, independent legal counsel, shareholders
or the chief executive officer or his designee, if applicable) that the
Claimant had not met such applicable standard of conduct shall be a defense to
the action or create a presumption that Claimant has not met the applicable
standard of conduct.
Section 7.7. Consideration; Personal Representatives and
----------- -------------------------------------------
Other Remedies. Any Claimant who during such time as this Article or
- --------------
corresponding provisions of predecessor bylaws is or has been in effect serves
or has served in any of the capacities described in Section 7.1 shall be deemed
to be doing so or to have done so in reliance upon, and as consideration for,
the right of indemnification provided herein or therein. The right of
indemnification provided herein or therein shall inure to the benefit of the
legal representatives of any Claimant hereunder, and the right shall not be
exclusive of any other rights to which the Claimant or legal representative may
be entitled apart from this Article.
Section 7.8. Scope of Indemnification Rights. The rights
----------- -------------------------------
granted herein shall not be limited by the provisions of Section 55-8-51 of the
General Statutes of North Carolina or any successor statute.
ARTICLE 8
GENERAL PROVISIONS
Section 8.1. Dividends and other Distributions. The board of
----------- ---------------------------------
directors may from time to time declare and the corporation may pay dividends
or make other distributions with respect to its outstanding shares in the
manner and upon the terms and conditions provided by law. If the board of
directors does not fix the record date for determining shareholders entitled to
a distribution, the record date shall be the date the board of directors
authorizes the distribution (other than a distribution involving a purchase,
redemption or other acquisition of the corporation's shares, for which no
record date is required to be fixed).
Section 8.2. Seal. The seal of the corporation shall be any
----------- ----
form approved from time to time or at any time by the board of directors.
Section 8.3. Waiver of Notice. Whenever notice is required
----------- ----------------
to be given to a shareholder, director or other person under the provisions of
these bylaws, the articles of incorporation or applicable law, a waiver in
writing signed by the person or persons entitled to the notice, whether before
or after the date and time stated in the notice, and delivered to the
corporation shall be equivalent to giving the notice.
Section 8.4. Checks. All checks, drafts or orders for the
----------- ------
payment of money shall be signed by the officer or officers or other
individuals that the board of directors or chief executive officer may from
time to time authorize.
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Section 8.5. Fiscal Year. The fiscal year of the corporation
----------- -----------
shall be the calendar year or such other period fixed by the board of
directors.
Section 8.6. Amendments. Unless otherwise provided in the
----------- ----------
articles of incorporation or a bylaw adopted by the shareholders or by law,
these bylaws may be amended or repealed by the board of directors, except that
a bylaw adopted, amended or repealed by the shareholders may not be readopted,
amended or repealed by the board of directors if neither the articles of
incorporation nor a bylaw adopted by the shareholders authorizes the board of
directors to adopt, amend or repeal that particular bylaw or the bylaws
generally. These bylaws may be amended or repealed by the shareholders even
though the bylaws may also be amended or repealed by the board of directors. A
bylaw that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders, unless such bylaw as originally adopted
by the shareholders provides that such bylaw may be amended or repealed by the
board of directors or (b) if originally adopted by the board of directors,
either by the shareholders or by the board of directors. A bylaw that fixes a
greater quorum or voting requirement may not be adopted by the board of
directors by a vote less than a majority of the directors then in office and
may not itself be amended by a quorum or vote of the directors less than the
quorum or vote prescribed in such bylaw or prescribed by the shareholders.
Section 8.7. Applicability of Antitakeover Statutes. The
----------- --------------------------------------
provisions of Article 9 of the North Carolina Business Corporation Act,
entitled "Shareholder Protection Act," shall not be applicable to the
corporation.
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* * * * *
THIS IS TO CERTIFY that the above bylaws of Wachovia
Corporation were adopted by the board of directors of the corporation by action
taken at a meeting held on October 23, 1992.
This 23rd day of October, 1992.
----------------------------------------
Secretary
(Corporate Seal)
16