BYLAWS
OF
WACHOVIA CORPORATION
Effective October 23, 1992
Amended through January 24, 1997
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....................................................................... 4
Section 2.5. Compensation.................................................................... 4
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.......................................................................... 5
Section 3.5. Manner of Acting................................................................ 5
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...................................................................................................... 6
Section 4.1. Election and Powers............................................................. 6
Section 4.2. Removal; Vacancies.............................................................. 7
Section 4.3. Meetings........................................................................ 7
Section 4.4. Minutes......................................................................... 7
Section 4.5. Standing Committees............................................................. 7
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ARTICLE 5
OFFICERS........................................................................................................ 7
Section 5.1. Titles.......................................................................... 7
Section 5.2. Election; Appointment........................................................... 8
Section 5.3. Removal......................................................................... 8
Section 5.4. Vacancies....................................................................... 8
Section 5.5. Compensation.................................................................... 8
Section 5.6. Chief Executive Officer......................................................... 8
Section 5.7. Chairman of the Board of Directors.............................................. 9
Section 5.8. President....................................................................... 9
Section 5.9. Vice Chairmen.................................................................... 9
Section 5.10. Vice Presidents.................................................................. 9
Section 5.11. Secretary........................................................................ 9
Section 5.12. Assistant Secretaries............................................................ 9
Section 5.13. Voting Upon Stocks............................................................... 9
ARTICLE 6
CAPITAL STOCK................................................................................................... 10
Section 6.1. Certificates.................................................................... 10
Section 6.2. Transfer of Shares.............................................................. 10
Section 6.3. Transfer Agent and Registrar.................................................... 10
Section 6.4. Regulations..................................................................... 10
Section 6.5. Fixing Record Date.............................................................. 10
Section 6.6. Lost Certificates............................................................... 10
ARTICLE 7
INDEMNIFICATION OF DIRECTORS AND OFFICERS....................................................................... 11
Section 7.1. Indemnification Provisions...................................................... 11
Section 7.2. Definitions..................................................................... 11
Section 7.3. Settlements..................................................................... 11
Section 7.4. Litigation Expense Advances..................................................... 11
Section 7.5. Approval of Indemnification Payments............................................ 12
Section 7.6. Suits by Claimant............................................................... 13
Section 7.7. Consideration; Personal Representatives and Other Remedies...................... 13
Section 7.8. Scope of Indemnification Rights................................................. 13
ARTICLE 8
GENERAL PROVISIONS.............................................................................................. 13
Section 8.1. Dividends and other Distributions............................................... 14
Section 8.2. Seal............................................................................ 14
Section 8.3. Waiver of Notice................................................................ 14
Section 8.4. Checks.......................................................................... 14
Section 8.5. Fiscal Year..................................................................... 14
Section 8.6. Amendments...................................................................... 14
Section 8.7. Applicability of Antitakeover Statutes.......................................... 14
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BYLAWS
OF
WACHOVIA CORPORATION
ARTICLE 1
MEETINGS OF SHAREHOLDERS
Section 1.1. Place of Meeting. Meetings of shareholders 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
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 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
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 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.
Section 1.6. Quorum. A majority of the votes entitled to be
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 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 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
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
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
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 a director nor shall continue to
serve an unexpired term as a director past the annual meeting of the corporation
if such person has, as of the date of the annual meeting, reached the age of 67
years. No person shall be elected as a director who has retired from active
participation in the person's principal business or from the active practice of
the person's principal profession; however, a director who retires from active
participation in his or her principal business or profession during the course
of an unexpired term as director may complete such unexpired term subject to the
above age 67 limitation. Notwithstanding the foregoing, a person who has served
for five or more years as Chief Executive Officer of the corporation may
complete, after retirement as an employee
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of the corporation, an unexpired term and may be elected and serve thereafter as
a director, provided, however, that such person's service as a director shall
not extend beyond the annual meeting of the corporation immediately following
the date on which he or she reaches 66 years of age. 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 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
govern the corporation in fulfilling its mission and 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 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
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.
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Section 2.5. Compensation. The directors shall have 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.
Section 2.6. Directors Emeritus. Upon retiring from the 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
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
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
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
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
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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 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.
Section 3.6. Presumption of Assent. A director of the
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 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
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 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.
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(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.
(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. Standing Committees. The directors annually shall
appoint the chairman and members of and establish the charter, responsibilities
and authority of the following standing committees: Audit, Compliance, Corporate
Governance and Nominating, Credit, Executive, Finance, and Management Resources
and Compensation. Each committee shall consist entirely of directors. No active
or former officer or employee of the corporation shall serve on the Audit,
Compliance, Corporate Governance and Nominating, or Management Resources and
Compensation Committee.
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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.
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
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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.
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.
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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.
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
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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 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
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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 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
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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 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.
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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.
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.
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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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