Exhibit 3.2
Bylaws
of
MountainBank Financial Corporation
ARTICLE I
Offices
Section 1. Principal Office: The principal office of the Corporation shall
be located in Hendersonville, North Carolina, or at such other place as the
Board of Director may fix from time to time.
Section 2. Registered Office: The registered office of the Corporation
required by law to be maintained in the State of North Carolina may be, but need
not be, identical with the principal office.
Section 3. Other Offices: The Corporation may have offices at such other
places, either within or without the State of North Carolina, as the Board of
Directors from time to time may determine, or as the affairs of the Corporation
from time to time may require.
ARTICLE II
Meetings of Shareholders
Section 1. Place of Meetings: All meetings of shareholders shall be held
at the principal office of the Corporation or at such other place, either within
or without the State of North Carolina, as shall, in each case, be (i) fixed by
the President or the Board of Directors and designated in the notice of the
meeting, or (ii) agreed upon by a majority of the shareholders entitled to vote
at the meeting.
Section 2. Annual Meetings: The annual meeting of shareholders shall be
held during the first six months following the Corporation's immediately
preceding fiscal year end and on a date and at a time determined by the
Corporation's Board of Directors for the purpose of electing directors of the
Corporation and for the transaction of such other business as properly may be
brought before the meeting.
Section 3. Substitute Annual Meeting: If the annual meeting shall not be
held as provided in Section 2 of this Article, a substitute annual meeting may
be called in accordance with the provisions of Section 4 of this Article. A
meeting so called shall be designated and treated for all purposes as the annual
meeting.
Section 4. Special Meetings: Special meetings of the shareholders may be
called at any time (i) by or at the direction of the Chairman of the Board or
the President, or (ii) by the Secretary pursuant to resolution duly adopted by
the Board of Directors of the Corporation.
Section 5. Notice of Meetings: Written or printed notice stating the time,
place and date of the meeting shall be delivered not less than ten (10) nor more
than sixty (60) days before the date
of any shareholders' meeting, either by personal delivery, by mail or private
carrier, by facsimile transmission or by telegraph, teletype or other form or
wire or wireless communication, by or at the direction of the Chairman,
President, Secretary or other person calling the meeting, to each shareholder
entitled to vote at such meeting; provided, that such notice shall be given to
all shareholders where required by applicable law. If mailed, such notice shall
be deemed to be effective when deposited in the United States mail, correctly
addressed to the shareholder at the shareholder's address as it appears on the
current record of shareholders of the Corporation, with postage thereon prepaid.
In the case of a special meeting, the notice of meeting shall include a
description of the purpose or purposes for which the meeting is called. In the
case of an annual or substitute annual meeting, the notice of meeting need not
include a description of the purpose or purposes for which the meeting is called
or the business to be transacted at such meeting unless such a description
expressly is required by the provisions of applicable law.
If any meeting of shareholders is adjourned to a different date, time, or
place, notice need not be given of the new date, time, or place if the new date,
time, or place is announced at the meeting before adjournment and if a new
record date is not fixed for the adjourned meeting. If a new record date for the
adjourned meeting is fixed for the adjourned meeting (which must be done if the
new date is more than 120 days after the date of the original meeting), notice
of the adjourned meeting must be given as provided in this Section 5 to persons
who are shareholders as of the new record date.
Section 6. Waiver of Notice: Any shareholder may waive notice of any
meeting before or after the meeting. The waiver must be in writing, signed by
the shareholder, and delivered to the Corporation for inclusion in the minutes
or filing with the corporate records. A shareholder's attendance, in person or
by proxy, at a meeting (i) waives objection to lack of notice or defective
notice of the meeting, unless the shareholder or the shareholder's proxy at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (ii) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder or the shareholder's proxy objects to
considering the matter before it is voted upon.
Section 7. Voting Lists: Before each meeting of shareholders, the
Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to notice of such meeting. The list shall be arranged by
voting group (and within each voting group by class or series of shares) and
show the address of and the number of shares held by each shareholder. The list
shall be kept on file at the principal office of the Corporation for the period
beginning two business days after notice of the meeting is given and continuing
through the meeting, and shall be available for inspection by any shareholder or
shareholder's agent or attorney at any time prior to the meeting during regular
business hours and at any time during the meeting or any adjournment thereof.
The list shall be prima facie evidence as to who are the shareholders entitled
to examine the list and the shareholders of record entitled to vote at any
meeting of the shareholders.
Section 8. Voting Groups: All shares of one or more classes or series that
under the Corporation's Articles of Incorporation or North Carolina law are
entitled to vote and be counted together collectively on a matter at a meeting
of shareholders constitute a voting group. All shares entitled by the
corporation's Articles of Incorporation or North Carolina law to vote generally
on a matter are for that purpose a single voting group. Classes or series of
shares shall not be entitled to vote separately by voting group unless expressly
authorized by the Corporation's Articles of Incorporation or specifically
required by law.
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Section 9. Quorum: Shares entitled to vote as a separate voting group may
take action on a matter at a meeting of shareholders only if a quorum of those
shares is present at the meeting. A majority of the votes entitled to be cast on
the matter by the voting group shall constitute a quorum of that voting group
for action on that matter.
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 of that meeting unless a new record date is or must be set for that
adjourned meeting.
In the absence of a quorum at the opening of any meeting of shareholders,
such meeting may be adjourned from time to time by a vote of the majority of the
votes cast on the motion to adjourn; and, subject to the provisions of Section 5
of this Article, at any adjourned meeting any business may be transacted which
might have been transacted at the original meeting if a quorum exists with
respect to the matter proposed.
Section 10. Proxies: Shares may be voted either in person or by one or
more proxies authorized by a written appointment of proxy executed by the
shareholder or by the shareholder's duly authorized attorney-in-fact. An
appointment of proxy is valid for eleven months after the date of its execution
unless a different period is expressly specified in the appointment form by the
person executing it or such person specifically limits the use of the
appointment to a particular meeting.
Section 11. Voting of Shares: Subject to the provisions of the
Corporation's Articles of Incorporation, each outstanding share shall be
entitled to one vote on each matter voted on at a meeting of shareholders.
Except in the election of directors as provided in Section 4 of Article
III, if a quorum exists, action on a matter by a voting group at a meeting of
shareholders is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless a greater vote is
required by law or by the Corporation's Articles of Incorporation or these
Bylaws.
Absent special circumstances, shares of the Corporation are not entitled
to vote if they are owned, directly or indirectly, by another corporation in
which the Corporation owns, directly or indirectly, a majority of the shares
entitled to vote for directors of the second corporation; provided that this
provision does not limit the power of the Corporation to vote its own shares
held by it in a fiduciary capacity.
ARTICLE III
Directors
Section 1. General Powers: The business and affairs of the Corporation
shall be directed by the Board of Directors or, to the extent provided herein
and permitted by applicable law, by such Executive Committee or other committees
as the Board of Directors may establish pursuant to these Bylaws.
Section 2. Number and Qualifications: The number of directors constituting
the Board of Directors of the Corporation shall be not less than eight (8) nor
more than twenty (20) as may be fixed or changed from time to time, within the
above minimum and maximum numbers, by the Board of Directors.
Directors need not be residents of the State of North Carolina, but must
satisfy all qualifications required by applicable law for directors of North
Carolina banks.
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Section 3. Classification of Directors: So long as the Corporation's Board
of Directors consists of at least nine (9) directors, the directors shall be
divided into three (3) classes as nearly equal in number as may be. At the first
election of directors following the adoption of this Section 3 by the
Corporation's shareholders, directors in all three classes shall be elected,
with the members of such classes to serve for terms of not more than one, two,
and three years, respectively. Thereafter, as the terms of directors in each
class expire, their successors shall be elected for terms of three years. In the
event of any increase or decrease in the number of directors, the additional or
eliminated directorships shall be so classified or chosen that all classes of
directors shall remain or become as nearly equal in number as may be. In the
event of the death, resignation, retirement, removal or disqualification of a
director, a successor shall be elected to serve only until the next meeting of
shareholders at which directors are elected.
Section 4. Election of Directors: Except as provided herein or in Section
8 of this Article, the directors shall be elected at the annual meeting of
shareholders. Those persons who receive the highest number of votes at a meeting
at which a quorum is present shall be deemed to have been elected. At any
shareholders' meeting, whether annual or special, the Corporation's shareholders
may authorize not more than two additional directorships which may be left
unfilled and authorize the Board of Directors to fill the resulting vacancies by
appointment during the period prior to the next shareholders' meeting.
Section 5. Nominations: Only persons who are nominated in accordance with
the provisions of these Bylaws shall be eligible to be elected as directors at
an annual or special meeting of shareholders.
Nominations for election to the Board of Directors shall be made by the
Board of Directors, or by a committee duly appointed by the Board of Directors,
at any meeting of shareholders at which directors are to be elected. Nomination
for election of any person to the Board of Directors also may be made at any
meeting of shareholders at which directors are to be elected by a shareholder of
record entitled to vote at that meeting if written notice of such person's
nomination shall have been delivered to the Secretary of the Corporation at its
principal office not later than the close of business on the fifth business day
following the date on which notice is first given to shareholders of the meeting
at which such election is to be held. Each such notice shall set forth: (i) the
name and address of the shareholder who intends to make the nomination and of
the person or persons to be nominated; (ii) a representation that the
shareholder is a holder of record of shares of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (iii) a description of
all arrangements or understandings between the shareholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the shareholder; (iv) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Federal Deposit Insurance Corporation if the nominee had been nominated
by the Board of Directors; and (v) the written consent of each nominee to serve
as a director of the Corporation if so elected. The chairman of the meeting may
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
Section 6. Terms of Directors: The term of each director shall be for the
number of years for which he is elected as set forth in Section 3 of this
Article, or until such director's death, resignation, retirement, removal or
disqualification. The term of a director appointed by the Board of Directors to
fill a vacancy expires at the next shareholders' meeting at which directors are
elected, at which time such director or any other person may be nominated for
election for a term (a "Special Term") equal to the remainder, if any, of the
unexpired term which such director was initially appointed to fill. A decrease
in the number of directors does not shorten an incumbent director's
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term. Despite the expiration of a director's term, such director shall continue
to serve until a successor shall be elected and qualifies or until there is a
decrease in the number of directors.
Section 7. Removal: Any director may be removed from office at any time
with or without cause by a vote of shareholders whenever the number of votes
cast in favor of removal of the director exceeds the number of votes cast
against such removal. If a director is elected by a voting group of
shareholders, only the shareholders of that voting group may participate in the
vote to remove such director. A director may not be removed by the shareholders
at a meeting unless the notice of the meeting states that the purpose, or one of
the purposes, of the meeting is removal of the director. If any directors are so
removed, new directors may be elected at the same meeting.
Section 8. Vacancies: Any 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 the shareholders or by the
Board of Directors, whichever group shall act first. If the directors remaining
in office do not constitute a quorum of the Board of Directors, the directors
may fill the vacancy by the affirmative vote of a majority of the remaining
directors, or by the sole remaining director, as the case may be. If the vacant
directorship was held by a director elected by a voting group, only the
remaining directors or director elected by that voting group or the holders of
shares of that voting group are entitled to fill the vacancy. The term of a
director elected to fill a vacancy expires at the next meeting of shareholders
at which directors are elected.
Section 9. Chairman of the Board: There may be a Chairman of the Board of
Directors elected by the directors from their number at any meeting of the
Board. The Chairman shall serve in such position at the pleasure of the Board of
Directors and shall preside at all meetings of the Board of Directors and
perform such other duties as may be specified in these Bylaws or directed by the
Board.
In like fashion, the directors may elect from their number a Vice Chairman
of the Board of Directors who shall preside at meetings of the directors in the
absence of the Chairman and shall perform such other duties as may from time to
time be directed by the Board.
In the absence of the Chairman and any Vice Chairman, the President shall
preside at meetings of directors.
Section 10. Compensation: The Corporation may compensate directors for
their services (in amounts to be approved by the Board of Directors) and may
reimburse them for any and all expenses incurred by directors in attending
meetings of the Board or otherwise in connection with their services.
ARTICLE IV
Meetings of Directors
Section 1. Regular Meetings: A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the annual meeting of
shareholders. In addition, the Board of Directors may provide, by resolution,
the time and place, either within or without the State of North Carolina, for
the holding of additional regular meetings (provided that at least one meeting
shall be held each calendar quarter).
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Section 2. Special Meetings: Special meetings of the Board of Directors
may be called by or at the direction of the Chairman of the Board, the
President, or a majority of the directors then in office. Such meetings may be
held either within or without the State of North Carolina.
Section 3. Notice of Meetings: Regular meetings of the Board of Directors
may be held without notice. The person or persons calling a special meeting of
the Board of Directors, at least one day before the meeting, shall give verbal
or written notice thereof by any usual means of communication. Such notice need
not specify the purpose for which the meeting is called. Any duly convened
regular or special meeting may be adjourned by the directors to a later time
without further notice.
Section 4. Waiver of Notice: Any director may waive notice of any meeting
before or after the meeting. The waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minutes or filing with the corporate records. The attendance by a
director at, or the participation of a director in, a meeting shall constitute a
waiver of any required notice of such meeting, unless the director, at the
beginning of the meeting (or promptly upon the director's arrival thereat),
objects to holding the meeting or to transacting any business at the meeting and
does not thereafter vote for or assent to action taken at the meeting.
Section 5. Quorum: Unless the Corporation's Articles of Incorporation
provide otherwise, a majority of the number of directors fixed by or pursuant to
these Bylaws shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 6. Manner of Acting: Except as otherwise provided in the
Corporation's Articles of Incorporation or these Bylaws or by applicable law,
the act of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors. A director may not vote
or otherwise act by proxy at a meeting of the Board of Directors.
Section 7. Presumption of Assent: A director of the Corporation who is
present at a meeting of the Board of Directors or at a meeting of any committee
of the Board of Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action taken unless (i) such director
objects at the beginning of the meeting (or promptly upon the director's arrival
thereat) to holding the meeting or to transacting any business at the meeting,
or (ii) such director's contrary vote is recorded or such director's dissent or
abstention from the action taken otherwise is entered in the minutes of the
meeting, or (iii) such director files written notice of dissent or abstention to
such action with the person presiding at the meeting before the adjournment
thereof or forwards such notice by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right of
dissent or abstention is not available to a director who voted in favor of the
action taken.
Section 8. Informal Action by Directors: 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 and evidenced by one or more
written consents signed by each director before or after such action, describing
the action taken, and delivered to the Secretary of the Corporation for
inclusion in the minutes or filing with the corporate records.
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ARTICLE V
Committees of the Board
Section 1. General: The Board of Directors may create such committees of
the Board, including without limitation those described in this Article V, and
appoint members to serve on such committees, as from time to time it shall
consider appropriate. The creation of a committee of the Board and appointment
of its members must be approved by the greater of (i) a majority of the number
of directors in office when the action is taken or (ii) the number of directors
required to take action pursuant to Section 6 of Article IV. Each committee of
the Board must have two or more members and, to the extent authorized by law,
shall have such duties and authority as may be described in these Bylaws or
otherwise specified by the Board of Directors. Each committee member shall serve
at the pleasure of the Board of Directors. The provisions in these Bylaws
governing meetings, actions without meetings, notice and waiver of notice, and
quorum and voting requirements of the Board of Directors shall also apply to any
committees of the Board established pursuant to these Bylaws.
Section 2. Executive Committee: There may be a standing committee of the
Board of Directors to be known as the Executive Committee and consisting of the
Chairman of the Board, the President, and not fewer than two other directors.
Except as limited by this Article V or otherwise limited by law, the Executive
Committee is empowered to act for and on behalf of the Board of Directors in any
and all matters in the interim between meetings of the Board. Without limiting
its powers herein conferred, the Executive Committee may act as a nominating
committee by recommending to the Board of Directors nominees for election as
directors by shareholders at meetings of shareholders or for election as
directors by the Board of Directors to fill vacancies on the Board. Within the
powers conferred upon it, action by the Executive Committee shall be as binding
upon the Corporation as if performed by the full Board. Such actions shall be
reported to the Board for review at its next meeting following such action. The
Executive Committee shall meet as often as it considers necessary or advisable.
Section 3. Audit Committee: There may be a standing committee of the Board
of Directors to be known as the Audit Committee and consisting of not fewer than
three directors, none of whom may be officers or employees of the Corporation.
The Audit Committee shall provide for and superintend examinations of the assets
and liabilities and the internal audit program of the Corporation and its
subsidiaries, cause outside audits to be performed on the financial statements
of the Corporation, and shall make periodic reports to the Board.
ARTICLE VI
Officers
Section 1. Number: The officers of the Corporation shall consist of a
President, one or more Vice Presidents (any of whom may be designated by the
Board of Directors as a Vice President, Senior Vice President or Executive Vice
President), a Secretary, and such Assistant Secretaries, Treasurers and other
officers as the Board of Directors from time to time may elect. Any two (2) or
more offices may be held by the same person, except that no officer may act in
more than one capacity where action of two (2) or more officers is required.
Section 2. Election and Term: The officers of the Corporation shall be
elected by the Board of Directors. Such elections may be held at any regular or
special meeting of the Board. Each officer shall hold office until such
officer's death, resignation, retirement, removal or disqualification, or until
the election and qualification of such officer's successor.
Section 3. Removal and Resignation: Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board with or without
cause; but such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
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An officer may resign at any time by notifying the Corporation, orally or
in writing, of such resignation. A resignation shall be effective upon receipt
by the Corporation unless it specifies in writing a later effective date. In the
event a resignation so specifies a later effective date, the Board of Directors
may fill the pending vacancy prior to such date; however, the successor to the
resigning officer may not take office until the effective date. An officer's
resignation does not affect the Corporation's contract rights, if any, with such
officer.
Section 4. Compensation: The compensation of all officers of the
Corporation shall be fixed by the Board of Directors. The election of an officer
does not of itself create any contract rights.
Section 5. President: The President shall be and may be designated as the
Chief Executive Officer of the Corporation and, subject to the control of the
Board of Directors, shall supervise and control the management of the
Corporation in accordance with these Bylaws.
The President, when present, shall preside at all meetings of
shareholders. The President, with any other proper officer, may sign
certificates for shares of the Corporation and any deeds, leases, mortgages,
bonds, contracts or other instruments which lawfully may be executed on behalf
of the Corporation, except where required or permitted by law otherwise to be
signed and executed and except where the signing and execution thereof shall be
delegated by the Board of Directors to some other officer or agent. In general,
the President shall perform all duties incident to the office of President and
such other duties as from time to time may be assigned by the Board of
Directors.
Section 6. Vice Presidents: In the absence of the President or in the
event of the President's death, inability or refusal to act, the Vice Presidents
in the order of their length of service as Vice Presidents, unless otherwise
determined by the Board of Directors, shall perform the duties of the President,
and when so acting they shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President, with any other proper
officer, may sign certificates for shares of the Corporation and shall perform
such other duties as from time to time may be assigned by the President or by
the Board of Directors.
Section 7. Assistant Vice President: Assistant Vice Presidents, in case of
the absence, disability or inability to act of their superior officers, shall
perform the duties and exercise the powers of those offices, and they shall, in
general, perform such other duties as shall be assigned to them by the President
or their superior officers.
Section 8. Secretary: The Secretary shall keep accurate records of the
acts and proceedings of all meetings of shareholders and directors. The
Secretary shall give all notices required by law and by these Bylaws. The
Secretary 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. The Secretary shall keep all records required by law at
the principal office of the Corporation. The Secretary shall have general charge
of the stock transfer books of the Corporation and shall keep, at the registered
or principal office of the Corporation, a record of shareholders showing the
name and address of each shareholder and the number and class of the shares held
by each. The Secretary, with any other proper officer, may sign certificates for
shares of the Corporation and such other instruments as may require the
Secretary's signature. In general, the Secretary shall perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned by the President or by the Board of Directors.
Section 9. Assistant Secretaries: Assistant Secretaries, in case of the
absence, disability or inability to act of the Secretary, shall perform the
duties of the Secretary, and when so acting shall have all the powers of and be
subject to all the restrictions upon the Secretary. They shall perform
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such other duties as from time to time may be assigned by the Secretary, by the
President, or by the Board of Directors. Any Assistant Secretary, with any other
proper officer, may sign certificates for shares of the Corporation and such
other instruments as may require the signature of the Secretary, and may affix
the corporate seal to any lawfully executed instrument requiring it.
Section 10. Treasurer: The Treasurer, if one shall be named, shall be and
may be designated as the Chief Financial Officer of the Corporation, shall have
custody of all funds and securities belonging to the Corporation and shall
receive, deposit or disburse the same under the direction of the Board of
Directors. The Treasurer shall maintain appropriate accounting records as
required by law and shall prepare, or cause to be prepared, annual financial
statements of the Corporation that include a balance sheet as of the end of the
fiscal year and an income and cash flow statement for that year, which
statements, or a written notice of their availability, shall be mailed to each
shareholder within one hundred twenty (120) days after the end of such fiscal
year. The Treasurer, with any other proper officer, may sign certificates for
shares of the Corporation. In general, the Treasurer shall perform all duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned by the President or by the Board of Directors.
Section 11. Assistant Treasurers: Assistant Treasurers, in case of the
absence, disability or inability to act of the Treasurer, shall perform the
duties of the Treasurer and when so acting shall have all the powers of and be
subject to all the restrictions upon the Treasurer. Assistant Treasurers shall
perform such other duties as from time to time may be assigned by the Treasurer,
by the President, or by the Board of Directors.
ARTICLE VII
Contracts, Loans, Checks and Deposits
Section 1. Contracts: The Board of Directors may authorize any officer or
officers or any agent or agents, to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances. The Board of
Directors may enter into, or may authorize the Corporation to enter into,
employment contracts with officers or employees of the Corporation for any
length of time an on such other terms and conditions as it deems wise.
Section 2. Loans: No loans shall be contracted on behalf of the
Corporation (as borrower) and no evidences of indebtedness shall be issued in
its name unless authorized by a resolution of the Board of Directors. Such
authority may be general or specific in nature and scope.
Section 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, or such agent or agents, of the Corporation and in such
manner as from time to time shall be determined by the Board of Directors.
Section 4. Deposits: All funds of the Corporation not otherwise employed
from time to time shall be deposited to the credit of the Corporation in such
depositories as may be selected by or under the authority of the Board of
Directors.
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ARTICLE VIII
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares: The Board of Directors may authorize
the issuance of some or all of the shares of the Corporation's classes or series
without issuing certificates to represent such shares.
If shares are represented by certificates, the Corporation shall issue and
deliver to each shareholder to whom such shares have been issued or transferred
certificates representing the shares owned by him. The certificates shall be in
such form as required by law and as determined by the Board of Directors.
Certificates shall be signed, either manually or by facsimile, by the President
or a Vice President and by the Secretary, the Treasurer or an Assistant
Secretary or Assistant Treasurer. All certificates for shares shall be numbered
consecutively or otherwise identified and shall be entered on the stock transfer
books of the Corporation with the name and address of the persons to whom they
are issued, the number of shares and the date of issue.
If shares are not represented by certificates, then within a reasonable
time after issuance or transfer of such shares, the Corporation shall send to
the shareholder to whom such shares have been issued or transferred a written
statement of the information required by law to be on certificates.
Section 2. Transfer of Shares: The Corporation shall keep a book or set of
books, to be known as the stock transfer books of the Corporation, containing
the name of each shareholder of record, together with such shareholder's address
and the number and class or series of shares held by him. Transfers of shares of
the Corporation shall be made only on the stock transfer books of the
Corporation by the holder of record thereof or by his legal representative (who
shall furnish proper evidence of authority to transfer) or by his attorney
authorized to effect such transfer by power of attorney duly executed and filed
with the Secretary, and, if the shares are represented by certificates, only
upon surrender for cancellation of the certificates for the shares sought to be
transferred. Certificates surrendered for transfer shall be cancelled before new
certificates for the transferred shares shall be issued.
Section 3. Fixing Record Date: The Board of Directors of the Corporation
may fix a future date as the record date for one or more voting groups in order
to determine the shareholders entitled (i) to notice of a shareholders' meeting,
(ii) to demand a special meeting, (iii) to vote, or (iv) to take any other
action. A record date fixed under this Section 3 may not be more than seventy
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 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.
If no record date is fixed by the Board of Directors for the determination
of shareholders entitled to notice of or to vote at a shareholders' meeting, the
close of business on the day before the first notice of the meeting is delivered
to shareholders shall be the record date for such determination of shareholders.
The Board of Directors may fix a date as the record date for determining
shareholders entitled to a distribution or share dividend. If no record date is
fixed by the Board of Directors for such determination, it is the date the Board
of Directors authorized the distribution or share dividend.
Section 4. Lost Certificates: The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation claimed to have been lost or destroyed, upon receipt of an affidavit
of such fact from the person claiming the certificate to have been lost or
destroyed. When authorizing such issuance of a new certificate, the Board shall
require
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the owner of such lost or destroyed certificate, or his legal representative, to
give the Corporation a bond in such sum and with such surety or other security
as the Board may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate claimed to have been lost or
destroyed, except where the Board by resolution finds that in the judgment of
the directors the circumstances justify omission of a bond.
Section 5. Holders of Record: Except as otherwise required by law, the
Corporation may treat the person in whose name shares stand of record on its
books as the absolute owner of those shares and the person exclusively entitled
to receive notification and distributions, to vote, and otherwise to exercise
the rights, powers and privileges of ownership of such shares.
Section 6. Reacquired Shares: Shares of the Corporation that have been
issued and thereafter are reacquired by the Corporation shall constitute
authorized but unissued shares.
Section 7. Shares Held by Nominees: The Corporation shall recognize the
beneficial owner of shares registered in the name of a nominee as the owner and
shareholder of such shares for certain purposes if the nominee in whose name
such shares are registered files with the Secretary a written certificate in a
form prescribed by the Corporation, signed by the nominee, indicating the
following: (i) the name, address, and taxpayer identification number of the
nominee; (ii) the name, address and taxpayer identification number of the
beneficial owner; (iii) the number and class or series of shares registered in
the name of the nominee as to which the beneficial owner shall be recognized as
the shareholder; and (iv) the purposes for which the beneficial owner shall be
recognized as the shareholder.
The purposes for which the Corporation shall recognize the beneficial
owner as the shareholder may include the following: (i) receiving notice of,
voting at, and otherwise participating in shareholders' meetings; (ii) executing
consents with respect to the shares; (iii) exercising dissenters' rights under
Article 13 of the North Carolina Business Corporation Act; (iv) receiving
distributions and share dividends with respect to the shares; (v) exercising
inspection rights; (vi) receiving reports, financial statements, proxy
statements, and other communications from the Corporation; and (vii) exercising
any other rights or receiving any other benefits of a shareholder with respect
to the shares.
The certificate shall be effective ten business days after its receipt by
the Corporation and until it is changed by the nominee, unless the certificate
specifies a later effective time or an earlier termination date.
If the certificate affects less than all of the shares registered in the
name of the nominee, the Corporation may require the shares affected by the
certificate to be registered separately on the books of the Corporation and be
represented by a share certificate that bears a conspicuous legend stating that
there is a nominee certificate in effect with respect to the shares represented
by that share certificate.
ARTICLE IX
General Provisions
Section 1. Distributions: The Board of Directors from time to time may
authorize, and the Corporation may grant, distributions and share dividends to
the Corporation's shareholders subject to and upon the terms and conditions
provided by applicable law and the Corporation's Articles of Incorporation.
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Section 2. Seal: The corporate seal of the Corporation shall consist of
two concentric circles between which is the name of the Corporation and in the
center of which is inscribed SEAL; and such seal, in the form approved and
adopted by the Board of Directors, shall be the corporate seal of the
Corporation.
Section 3. Fiscal Year: The fiscal year of the Corporation shall be the
calendar year ending December 31 of each year.
Section 4. Amendments: Except to the extent otherwise provided in the
Corporation's Articles of Incorporation or by law, these Bylaws may be amended
or repealed and new Bylaws may be adopted by the Board of Directors. No bylaw
adopted, amended or repealed by the shareholders shall be readopted, amended or
repealed by the Board of Directors unless the Corporation's Articles of
Incorporation or a bylaw adopted by the shareholders authorizes the Board of
Directors to adopt, amend or repeal that particular bylaw or the Bylaws
generally.
The shareholders may amend or repeal these Bylaws even though these Bylaws
also may be amended or repealed by the Board of Directors.
Section 5. Definitions: Unless the context otherwise requires, terms used
in these Bylaws shall have the meanings assigned to them in the North Carolina
Business Corporation Act to the extent defined therein.
Section 6. Indemnification: The Corporation shall indemnify any person who
is or was a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (and any appeal therein), whether civil,
criminal, administrative, arbitrative or investigative and whether or not
brought by or on behalf of the Corporation, by reason of the fact that such
party is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise or as a trustee or administrator under an
employee benefit plan, or arising out of such party's activities in any of the
foregoing capacities, against all liability and litigation expense, including
reasonable attorneys' fees; provided, however, that the Corporation shall not
indemnify any such person against liability or expense incurred on account of
such person's activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the Corporation. The
Corporation likewise shall indemnify any such person for all reasonable costs
and expenses (including attorneys' fees) incurred by such person in connection
with the enforcement of such person's right to indemnification granted herein.
The Corporation shall pay all expenses incurred by any director, officer,
employee or agent in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, officer, employee or agent
to repay such amount unless it ultimately shall be determined that such party is
entitled to be indemnified by the Corporation against such expenses.
The Board of Directors of the Corporation shall take all such action as
may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this bylaw, including without limitation a
determination by a majority vote of disinterested directors that the activities
giving rise to the liability or expense for which indemnification is requested
were not, at the time taken, known or believed by the person requesting
indemnification to be clearly in conflict with the best interests of the
Corporation.
Any person who at any time after the adoption of this bylaw serves or has
served in any of the aforesaid capacities for or on behalf of the Corporation
shall be deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein.
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Such right shall inure to the benefit of the legal representatives of any such
person and shall not be exclusive of, but shall be in addition to, any rights to
which such person may be entitled apart from the provision of this bylaw.
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