EXHIBIT 3.2.2
BYLAWS
OF
UNITIVE ELECTRONICS, INC.
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 affairs 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 Chairman of the Board of the Corporation.
Section 2.2 Annual Meetings. The annual meeting of the shareholders shall
be held each year at such date and time as shall be designated by the Board of
Directors or the Chairman of the Board of the Corporation, 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 Chairman of the Board or the
Board of Directors. Unless the Corporation is a "public corporation" (as defined
in the Act), a special meeting of the shareholders shall also be called upon the
written demand or demands of the holders of at least 10% of all votes
entitled to be cast on any issue proposed to be considered at such meeting
pursuant to such demand or demands, provided such demand or demands describe the
purpose or purposes for which said special meeting is to be held and are signed,
dated and delivered to the Secretary of the Corporation. A special meeting
called at the demand of shareholders shall be held within 30 days after the date
of receipt by the Secretary of the demand or demands requiring the call of such
special meeting.
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.
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.
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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 maybe 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 a majority of shares entitled to vote
at a shareholders meeting, present in person or represented by proxy, shall
constitute a quorum at such all meeting 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 votes cast 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 Chairman of the Board, or, in the absence or at the request of the
Chairman of the Board, by such other officer as the Chairman of the Board 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.
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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 not less than one (1) nor more than seven (7). The number
of directors may be increased or decreased only by the shareholders. An election
of all Directors by the shareholders shall be held at each annual meeting of the
Corporation's shareholders. The Director shall hold office until his successor
shall have been duly elected and qualified, or until his earlier removal,
resignation, death, or incapacity.
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 3.5,
directors shall be elected at the annual meeting of shareholders. Directors
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election of directors. Except as provided in the Articles of
Incorporation or required by applicable law, shareholders have no right to
cumulate their votes for directors.
Section 3.4 Removal. Except as otherwise provided in the Articles of
Incorporation or by applicable law, a director may be removed from office at any
time with or without cause by a vote of the holders of a majority of the shares
of the Corporation's voting stock. Any Director may be removed from office with
cause by a majority vote of the Board of Directors at a meeting at which only
the removal and replacement of the Director or Directors in question shall be
considered.
Section 3.5 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.
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Section 3.6 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 3.7 Committees. The Board of Directors may by resolution designate
and delegate authority to an Executive Committee and other committees with such
authority as may be permitted by the Act. Special meetings of any committee may
be called at any time by any Director who is a member of the committee or by any
person entitled to call a special meeting of the full Board of Directors. Except
as otherwise provided in the section, the conduct of all meetings of any
committee, including notice thereof, shall be governed by Sections 4.1 through
4.8 of this Article.
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 seven 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 such director has given such person or persons notice of a different
address to which notices to such director should be directed.
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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 in favor of 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 Chairman of the Board (if there shall be a person holding
such office), or, in the absence or at the request of the Chairman of the Board,
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 directors 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 may also be the President, as provided in these
Bylaws), a President, a Secretary and a Treasurer, and may also include a
Chairman of the Board, 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. 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 and the Chief Executive Officer, may not also serve as
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Chairman of the Board. 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. 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 Chief Executive Officer may also, but need not, be the President of
the Corporation, but may not also be the Chairman of the Board.
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. The Chairman of the Board may not also be the Chief Executive Officer or
the President of the Corporation. If there is a Chairman of the Board, then the
Chairman of the Board shall, when present, 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 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.
Section 5.8 President. The President may also, but need not, be the Chief
Executive Officer or the Chief Operating Officer of the Corporation and shall
have all of the duties and authority of any such office if so appointed. 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.
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Subject to the above provisions in this Section 5.8, 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 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.
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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. 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). 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 canceled before new certificates
for the transferred shares shall be issued.
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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.
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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 Other Reports to Shareholders. If the Corporation is not a
"public corporation" and it indemnifies or advances expenses to a director in
connection with a proceeding by or in the right of the Corporation, the
Corporation shall report the indemnification or advance in writing to the
shareholders with or before notice of the next shareholders' meeting.
If the Corporation is not a "public corporation" and it issues or
authorizes the issuance of shares for promissory notes or for promises to render
services in the future, other than in a transaction or pursuant to a plan
previously approved by a majority of the shares entitled to vote thereon, the
Corporation shall report in writing to the shareholders the number of shares
authorized or issued, and the consideration received by the Corporation, with or
before the notice of the next shareholders' meeting.
Section 8.5 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 in which the Corporation was incorporated, 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.
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ARTICLE IX
INDEMNIFICATION
Section 9.1 Right to Indemnification. Each person who was or is a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (hereinafter, a "proceeding" and including without
limitation, a proceeding brought by or on behalf of the Corporation itself), by
reason that he is or was a Director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or as a trustee or
administrator under an employee benefit plan, whether the basis of such
proceeding is alleged action in an official capacity as a Director or officer or
in any other capacity while serving as a director, officer, partner, trustee,
employee, agent, trustee or administrator, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Act as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than the Act permitted the Corporation to provide
prior to such amendment) against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith, and such indemnification shall continue as to a person who
has ceased to serve in the capacity that initially entitled such person to
indemnification hereunder and shall inure to the benefit of his heirs, executors
and administrators; provided, however, that the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article IX shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Act so requires, the payment of expenses incurred by a
Director or officer in his capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
Director or officer, to repay all amounts so advanced if it shall ultimately be
determined that the Director or officer is not entitled to be indemnified under
this Section or otherwise.
Section 9.2 Right of Claimant to Bring Suit. If a claim under Section 9.1
hereof is not paid in full by the Corporation within ninety (90) days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Act for the Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its shareholders) to have made a
determination
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prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the Act, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 9.3 Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article IX shall not be
exclusive of any other right which any person may have or hereafter acquire
under any law (common or statutory), the Corporation's Articles of
Incorporation, these Bylaws, any agreement, the vote of shareholders or
disinterested Directors or otherwise.
Section 9.4 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any person who is or was serving as a Director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise or trustee or administrator under an employee benefit
plan against any liability asserted against and incurred by that person in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify that person against such liability
under the Act.
Section 9.5 Savings Clause. If this Article IX or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each Director and
officer of the Corporation, as to costs, charges and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article IX that shall not have been invalidated and to the full extent permitted
by applicable law.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 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 10.2 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
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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 10.3 Notice and Waiver of Notice. Whenever any notice is required
to be given under the Act, the Corporation's Articles of Incorporation, or these
Bylaws, it shall be in writing and may be communicated in person; by telephone,
telegraph, teletype or other form of wire or wireless communication, or by
facsimile transmission; or by mail or private carrier. If mailed, notice 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. All other notice is effective
at the earliest of the following: (a) when received; (b) five (5) days after its
deposit in the United States mail, as evidenced by the postmark, if mailed with
postage thereon prepaid and correctly addressed; (c) on the date shown on the
return receipt, if sent by certified mail, return receipt requested, and the
receipt is signed by or on behalf of the addressee. A shareholder or Director,
as the case maybe, may waive notice otherwise required by these Bylaws, before
or after the date stated in such notice, by delivery of a written waiver of such
notice signed by such shareholder or Director to the Corporation for filing or
inclusion with the minutes or corporate records, or, to the extent provided by
the Act, by attendance at the meeting to which such notice relates.
Section 10.4 Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 10.5 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.
Section 10.6 Conflict with the Act or the Articles of Incorporation;
Severability. In the event of a conflict between the Act or the Corporation's
Articles of Incorporation and these Bylaws, the Act or Articles of
Incorporation, as the case may be, shall prevail to the extent of such conflict.
Any provision of these Bylaws, or any amendment hereto, which is determined to
be in violation of the Act shall not in any way render the remaining provisions
invalid.
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