BYLAWS
OF
NATIONSBANK CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1. Definitions 1
Section 2. Cross-Reference to the Act 2
ARTICLE II
OFFICES
Section 1. Principal Office 2
Section 2. Other Offices 2
Section 3. Registered Office 2
ARTICLE III
SHAREHOLDERS
Section 1. Annual Meeting 2
Section 2. Substitute Annual Meeting 2
Section 3. Special Meetings 2
Section 4. Place of Meeting 3
Section 5. Notice of Meeting 3
Section 6. Fixing of Record Date 3
Section 7. Shareholders List 4
Section 8. Quorum 4
Section 9. Proxies 4
Section 10. Voting of Shares 5
Section 11. Voting for Directors 5
Section 12. Conduct of Meetings 5
Section 13. Inapplicability of the North Carolina 5
Shareholder Protection Act and the North
Carolina Control Share Acquisition Act
ARTICLE IV
BOARD OF DIRECTORS
Section 1. General Powers 6
Section 2. Number and Qualifications 6
Section 3. Terms of Directors 6
Section 4. Removal 6
Section 5. Vacancies 6
Section 6. Compensation 7
Section 7. Executive Committee 7
Section 8. Compensation Committee 7
Section 9. Management Compensation Committee 8
Section 10. Audit Committee 9
Section 11. Other Committees 10
ARTICLE V
MEETINGS OF DIRECTORS
Section 1. Regular Meetings 10
Section 2. Special Meetings 10
Section 3. Notice 10
Section 4. Waiver of Notice 11
Section 5. Quorum 11
Section 6. Manner of Acting 11
Section 7. Presumption of Assent 11
Section 8. Conduct of Meetings 12
Section 9. Action Without a Meeting 12
Section 10. Participation Other Than in Person 12
ARTICLE VI
OFFICERS
Section 1. Officer of the Corporation 12
Section 2. Appointment and Term 13
Section 3. Compensation 13
Section 4. Resignation and Removal of Officers 13
Section 5. Contract Rights of Officers 13
Section 6. Bonds 13
Section 7. Chief Executive Officer 13
Section 8. Chairman of the Board 14
Section 9. President 14
Section 10. Vice Chairman 14
Section 11. Executive Vice Presidents 14
Section 12. Senior Vice President 14
Section 13. Vice Presidents 14
Section 14. Secretary 15
Section 15. Treasurer 15
Section 16. Assistant Vice Presidents, Secretaries
and Assistant Treasurers 15
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. Shares 15
Section 2. Stock Transfer Books and Transfer of Shares 16
Section 3. Lost Certificates 17
Section 4. Holder of Record 17
Section 5. Transfer Agent and Registrar; Regulations 17
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions 17
Section 2. Indemnification 18
Section 3. Determination 19
Section 4. Advance for Expenses 19
Section 5. Reliance and Consideration 19
Section 6. Insurance 20
ARTICLE IX
GENERAL PROVISIONS
Section 1. Execution of Instruments 20
Section2. Voting of Shares 20
Section3. Distributions 21
Section4. Seal 21
Section5. Amendments 21
ARTICLE I
DEFINITIONS
Section 1. Definitions. In these Bylaws, unless otherwise specifically
provided:
(a) "Act" means the North Carolina Business Corporation
Act, as contained in Chapter 55 of the North Carolina
General Statutes, as the same now exists or may
hereafter be amended.
(b) "Articles of Incorporation" means the Articles of
Incorporation of the Corporation, as amended and
restated from time to time, including any amendments
or statements of classification adopted in connection
with the Corporation's outstanding shares of
preferred stock.
(c) "Common Stock" means the common stock of the
Corporation.
(d) "Corporation" means NationsBank Corporation, a North
Carolina corporation, and any successor thereto.
(e) "Principal office" means the office (in or out of the
State of North Carolina) so designated in the
Corporation's annual report filed pursuant to the Act
where the principal executive offices of the
Corporation are located.
(f) "Public corporation" means any corporation that has a
class of shares registered under Section 12 of the
Securities Exchange Act of 1934, as amended (15
U.S.C. ss.781).
(g) "Shares" means the Common Stock and other units into
which the proprietary interests in the Corporation
are divided.
(h) "Shareholder" means the person in whose name shares
are registered in the records of the Corporation or
the beneficial owner of shares to the extent of the
rights granted by a nominee certificate on file with
the Corporation.
(i) "Voting group" means all shares of one or more
classes or series that under the Articles of
Incorporation or the Act are entitled to vote and be
counted together collectively on a
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matter at a meeting of shareholders. All shares
entitled by the Articles of Incorporation or the Act
to vote generally on a matter are for that purpose a
single voting group.
Section 2. Cross-Reference to the Act. If any term used in these Bylaws
and not otherwise defined herein is defined for purposes of the Act, such
definition shall apply for purposes of these Bylaws, unless the context shall
otherwise clearly require.
ARTICLE II
OFFICES
Section 1. Principal Office. The principal office of the Corporation
shall be located in the City of Charlotte, County of Mecklenburg, State of North
Carolina.
Section 2. Other Offices. The Corporation may have offices at such
other places, either within or without the State of North Carolina, as the Board
of Directors may from time to time determine or as the affairs of the
Corporation may require from time to time.
Section 3. Registered Office. The registered office of the Corporation
required by the Act to be maintained in the State of North Carolina may be, but
need not be, identical with the principal office of the Corporation, and the
address of the registered office may be changed from time to time as provided in
the Act.
ARTICLE III
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall
be held during the month of April of each year at a date and an hour fixed by
the Board of Directors for the purpose of electing directors and for the
transaction of such other business as may come before the meeting.
Section 2. Substitute Annual Meeting. If the annual meeting shall not
be held within the period designated by these Bylaws, a substitute annual
meeting may be called in accordance with the provisions of Section 3 of this
Article III. A meeting so called shall be designated and treated for all
purposes as the annual meeting.
Section 3. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by the Act, may be called
by the Chairman of the Board, the Chief Executive Officer, the President or by
the Secretary
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acting under instructions of the Chairman of the Board or the Chief Executive
Officer, or by the Board of Directors.
Section 4. Place of Meeting. The Board of Directors or the Chairman of
the Board, the Chief Executive Officer or the President of the Corporation, or
the Secretary acting under instructions of the Chairman of the Board, the Chief
Executive Officer or President may designate any place, either within or without
the State of North Carolina, as the place of meeting for any annual meeting of
shareholders or for any special meeting of shareholders called by the Board of
Directors or the Chairman of the Board, the Chief Executive Officer or President
or Secretary. If no designation is made, or if a special meeting of shareholders
is otherwise called, the place of meeting shall be the principal office of the
Corporation in the State of North Carolina.
Section 5. Notice of Meeting. Written or printed notice stating the
date, time and place of the meeting shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, either personally or by mail, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be effective when deposited in the United States mail
with postage thereon prepaid and correctly addressed to the shareholder at such
shareholder's address as shown in the Corporation's current record of
shareholders.
In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of directors, on which the vote of
shareholders is expressly required by the provisions of the Act. In the case of
a special meeting, the notice of meeting shall state the purpose or purposes for
which the meeting is called.
If a meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting, or if a new record date is fixed for the
adjourned meeting, or if the new date, time or place for an adjourned meeting is
not announced at the meeting before adjournment, notice of the adjourned meeting
shall be given as in the case of an original meeting. Otherwise, it is not
necessary to give any notice of the adjourned meeting other than by announcement
at the meeting at which the adjournment is taken.
Section 6. Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of any
dividend or other distribution, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date for any such determination of shareholders, such date in any case
to be not more than 60 days and, in case of a meeting of shareholders, not less
than 10 days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a meeting
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of shareholders, or for determination of the shareholders entitled to receive
payment of a dividend or other distribution, the close of business on the day
before the first notice is delivered to shareholders or the date on which the
resolution of the Board of Directors declaring or authorizing such dividend or
distribution is adopted, as the case may be, shall be the record date for such
determination. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
Section 7. Shareholders List. After the record date for a meeting of
shareholders is fixed or determined, the officer or agent having charge of the
stock transfer books for shares of the Corporation shall prepare an alphabetical
list of the names of all shareholders of the Corporation who are entitled to
notice of such shareholders meeting. The list will be arranged by voting group
(and within each voting group by class or series of shares) and show the address
of and number of shares held by each shareholder. Such shareholders list will be
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 a place
identified in the meeting notice in the city where the meeting will be held. A
shareholder, or a shareholder's agent or attorney, is entitled on written demand
to inspect and, subject to compliance with the applicable provisions of the Act,
to copy the list, during regular business hours and at the shareholder's
expense, during the period it is available for inspection. Such list shall also
be available at the meeting of shareholders, and any shareholder, or such
shareholder's agent or attorney, is entitled to inspect the list at any time
during the meeting or any adjournment thereof.
Section 8. Quorum. A majority of the votes entitled to be cast on a
particular matter by a voting group constitutes a quorum of that voting group
for action on that matter unless the Act provides otherwise. 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 exists with respect to that
matter, except that, in the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn. 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.
Section 9. Proxies. A shareholder may vote his or her shares in person
or by proxy. A shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by such
shareholder's attorney-in-fact. A telegram, telex, facsimile or other form of
wire or wireless communication appearing to have been transmitted by a
shareholder, or a photocopy or equivalent
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reproduction of a writing appointing one or more proxies, shall be deemed a
valid appointment form within the meaning of these Bylaws.
An appointment of a proxy is effective when received by the Secretary
or other officer or agent authorized to tabulate votes. An appointment is valid
for 11 months unless a different period is expressly provided in the appointment
form. An appointment of a proxy is revocable by the shareholder unless the
appointment from conspicuously states that it is irrevocable and the appointment
is coupled with an interest, which may include any such interest specified in
the Act.
Section 10. Voting of Shares. Each outstanding share of Common Stock is
entitled to one vote on each matter voted on at a shareholders meeting. Other
shares are entitled to vote only as provided in the Articles of Incorporation or
the Act. If a quorum exists, action on a matter (other than election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
Articles of Incorporation or the Act requires a greater number of affirmative
votes. Classes or series of shares shall not be entitled to vote separately by
voting group unless expressly required by the Articles of Incorporation or as
otherwise provided in the Act.
Section 11. Voting for Directors. The directors of the Corporation
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election at the meeting at which a quorum is present unless otherwise
provided in the Articles of Incorporation. The shareholders do not have a right
to cumulate their votes for directors.
Section 12. Conduct of Meetings. The Chairman of the Board shall
preside at each meeting of shareholders or, in the Chairman's absence, the Chief
Executive Officer shall preside. At the request of the Chairman of the Board or
the Chief Executive Officer, in both their absences, such other officer as the
Board of Directors shall designate shall preside at any such meeting. In the
absence of a presiding officer determined in accordance with the preceding
sentence, any person may be designated to preside at a shareholders meeting by a
plurality vote of the shares represented and entitled to vote at the meeting.
The Secretary or, in the absence or at the request of the Secretary, any person
designated by the person presiding at a shareholders meeting shall act as
secretary of such meeting.
Section 13. Inapplicability of the North Carolina Shareholder
Protection Act and the North Carolina Control Share Acquisition Act. The
provisions of Article 9 of Chapter 55 of the General Statutes of North Carolina,
or such other successor statute, entitled "The North Carolina Shareholder
Protection Act," shall not apply to the Corporation. The provisions of Article
9A of Chapter 55 of the General Statutes of North Carolina, or such other
successor statute, entitled "The North Carolina Control Share Acquisition Act,"
shall not apply to the Corporation.
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ARTICLE IV
BOARD OF DIRECTORS
Section 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, its Board of Directors, except as otherwise
provided in the Articles of Incorporation or permitted under the Act.
Section 2. Number and Qualifications. The number of directors of the
Corporation shall be not less than 5 nor more than 30, which number may be fixed
or changed from time to time, within the minimum and maximum, by the Board of
Directors. Directors need not be residents of the State of North Carolina or
shareholders of the Corporation. A director of the Corporation shall at all
times meet all statutory and regulatory qualifications for a director of a
publicly held bank holding company.
Section 3. Terms of Directors. The terms of all directors shall expire
at the next annual shareholders meeting following their election. A decrease in
the number of directors does not shorten an incumbent director's term. The term
of a director elected to fill a vacancy shall expire at the next shareholders
meeting at which directors are elected. Despite the expiration of a director's
term, however, such director shall continue to serve until the director's
successor is elected and qualified.
Section 4. Removal. Any director may be removed at any time with or
without cause by a vote of the shareholders if the number of votes cast to
remove such director exceeds the number of votes cast not to remove him or her
unless otherwise provided in the Articles of Incorporation. 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.
Any director may be removed by the Board of Directors if a director no
longer meets the qualification requirements of Section 2 of this Article IV or
as otherwise prescribed by law.
Section 5. Vacancies. Except in those instances where the Articles of
Incorporation provide otherwise, the Board of Directors may fill a vacancy on
the Board of Directors. A vacancy that will occur at a specific later date (by
reason of a resignation effective at a later date or otherwise) may be filled
before the vacancy occurs, but the new director may not take office until the
vacancy occurs.
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Section 6. Compensation. The Board of Directors may provide for the
compensation of directors for their services as such and may provide for the
payment or reimbursement of any or all expenses reasonably incurred by them in
attending meetings of the Board or of any committee of the Board or in the
performance of their other duties as directors. Nothing herein contained,
however, shall prevent any director from serving the Corporation in any other
capacity or receiving compensation therefor.
Section 7. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors fixed in the manner provided in
Section 2 of this Article IV, may designate five or more directors who shall
constitute the Executive Committee of the Corporation. The Executive Committee,
between meetings of the Board of Directors and subject to such limitations as
may be required by law or imposed by resolution of the Board of Directors, shall
have and may exercise all of the authority of the Board of Directors in the
management of the Corporation. The designation of the Executive Committee and
the delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or such director by law.
Meetings of the Executive Committee may be held at any time on call of
its Chairman or any two members of the Committee. A majority of the members
shall constitute a quorum at all meetings. The Executive Committee shall keep
minutes of its proceedings and shall report its actions to the next succeeding
meeting of the Board of Directors.
Section 8. Compensation Committee. The Board of Directors, by
resolution adopted by a majority of the number of Directors fixed in the manner
provided in Section 2 of this Article IV, may designate three or more directors
who shall not be otherwise employed by the Corporation or its subsidiaries who
shall constitute the Compensation Committee of the Corporation.
The Compensation Committee shall provide overall guidance with respect
to the establishment, maintenance and administration of the Corporation's
compensation programs and employee benefit plans.
The Compensation Committee shall review and approve the annual
compensation, including salary, incentive compensation and other benefits,
direct and indirect, for officers who serve as executive officers of the
Corporation. The Compensation Committee shall also approve and adopt proposals
related to any employee benefit plan of the Corporation or its subsidiaries in
which any officer participates who also serves as an executive officer of the
Corporation, including proposals for the adoption, amendment, modification or
termination of such plans. As to the salary, incentive compensation and other
benefits, direct and indirect, for the Chief Executive Officer of the
Corporation and of all other officers of the Corporation
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who are also Directors of the Corporation, the Compensation Committee shall
submit recommendations to the Executive Committee for review and concurrence
prior to their submission to the Board of Directors for approval.
The Compensation Committee shall have such other purposes and such
other powers as the Board of Directors may from time to time determine.
Meetings of the Compensation Committee shall be held quarterly or at
any time on call of the Chairman of the Compensation Committee. A majority of
the members shall constitute a quorum at all meetings. The Compensation
Committee shall keep minutes of its proceedings and shall report its actions in
writing to the next succeeding meeting of the Board of Directors.
As used herein, the term "executive officer" means those officers of
the Corporation who are designated as such from time to time.
The Compensation Committee may in its discretion delegate to the
Management Compensation Committee any of its powers and authority set forth in
this Section 8 with respect to any executive officer of the Corporation who is
not a "named executive officer" of the Corporation within the meaning of Item
402 of Regulation S-K promulgated under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
Section 9. Management Compensation Committee. The Board of Directors,
by resolution adopted by a majority of the Directors fixed in the manner
provided in Section 2 of this Article IV, may designate the Chief Executive
Officer and such other officers as it deems appropriate to constitute the
members of a Management Compensation Committee. The Chief Executive Officer
shall be the Chairman of the Management Compensation Committee.
The Management Compensation Committee shall have the authority to
establish the titles and the compensation, including salaries, incentive
compensation and other benefits, direct and indirect, for all employees of the
Corporation and its subsidiaries who are not officers and for all officers of
the Corporation and its subsidiaries who do not serve as executive officers of
the Corporation. In connection with its duties, the Management Compensation
Committee shall approve all annual compensation budgets, all employee benefits
plans, the salary guidelines for positions and all incentive compensation plans
for such employees and officers of the Corporation and its subsidiaries.
The Management Compensation Committee may allocate to a member of the
Management Compensation Committee the authority to establish titles and the
compensation, including salaries, incentive compensation awards pursuant to
incentive compensation plans previously approved by the Management Compensation
Committee, and other benefits for all personnel within such member's area of
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functional responsibility except with respect to promotions to the title of
Executive Vice President or its equivalent and except with respect to actions
related to officers in Job Band I. A member of the Management Compensation
Committee may delegate such member's authority with respect to such matters to
one or more officers within such member's area of functional responsibility
pursuant to procedures established by such member from time to time; provided,
however, any such action taken pursuant to any such delegation of authority
shall be subject to ratification by such member of the Management Compensation
Committee.
The Management Compensation Committee shall make recommendations from
time to time to the Compensation Committee regarding the establishment,
amendment, modification and termination of any employee benefit plans sponsored
by the Corporation and its subsidiaries in which any officer of the Corporation
or its subsidiaries participates who also serves as an executive officer of the
Corporation.
The Management Compensation Committee shall have such other purposes
and such other powers as the Board of Directors may from time to time determine.
Meetings of the Management Compensation Committee shall be held
quarterly or any time on call of the Chairman of the Management Compensation
Committee. A majority of the members shall constitute a quorum at all meetings.
The Management Compensation Committee shall keep minutes of its proceedings and
shall report its actions to the Compensation Committee.
As used herein, the term "executive officer" means those officers of
the Corporation who are designated as such from time to time.
In accordance with Section 8, the Management Compensation Committee may
be delegated by the Compensation Committee certain of the powers and authority
of the Compensation Committee set forth in Section 8 with respect to any
executive officer of the Corporation who is not a "named executive officer" of
the Corporation within the meaning of Item 402 of Regulation S-K promulgated
under the Securities Act of 1933 and the Securities Exchange Act of 1934.
Section 10. Audit Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors fixed in the manner provided in
Section 2 of this Article IV, shall designate three or more directors who shall
not be otherwise employed by the Corporation or its subsidiaries to constitute
the Audit Committee of the Board.
The Audit Committee shall have such powers and duties as described from
time to time by resolutions of the Board of Directors. The Audit Committee shall
keep minutes of its proceedings and shall report its actions to the next
succeeding meeting of the Board of Directors.
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Section 11. Other Committees. The Board of Directors may create one or
more other committees and appoint members of the Board of Directors to serve on
them. Each committee must have two or more members, who serve at the pleasure of
the Board of Directors. The creation of a committee and appointment of members
of the Board of Directors to it must be approved by the greater of a majority of
all of the directors in office when the action is taken or the number of
directors required by the Articles of Incorporation for the taking of action by
the Board of Directors. The provisions of the Act and these Bylaws that govern
meetings, action without meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors, shall apply to committees and
their members as well. To the extent specified by the Board of Directors, each
committee may exercise the authority of the Board of Directors, except as to the
matters which the Act specifically excepts from the authority of such
committees. Nothing contained in this Section shall preclude the Board o
Directors from establishing and appointing any committee, whether of directors
or otherwise, not having or exercising the authority of the Board of Directors.
ARTICLE V
MEETINGS OF DIRECTORS
Section 1. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw provision
immediately after, and at the same place as, the annual meeting of the
shareholders. In addition, the Board of Directors may provide, by resolution,
the date, time and place, either within or without the State of North Carolina,
for the holding of additional regular meetings.
Section 2. Special Meetings. Special meetings of the Board of Directors
may be held at any date, time and place upon the call of the Chairman of the
Board, the Chief Executive Officer or the President or of the Secretary acting
under instructions from the Chairman of the Board or the Chief Executive Officer
or the President, or upon the call of any three directors. Special meetings may
be held at any date, time and place and without special notice by unanimous
consent of the directors.
Section 3. Notice. The person or persons calling a special meeting of
the Board of Directors shall, at least two days before the meeting, give notice
thereof by any usual means of communication. Such notice may be communicated,
without limitation, in person; by telephone, telegraph, teletype or other form
of wire or wireless communication, or by facsimile transmission; or by mail or
private carrier. Written notice of a directors meeting is effective at the
earliest of the following:
(a) When received;
(b) Upon its deposit in the United States mail, as evidenced by
the postmark, if mailed with postage thereon prepaid and
correctly addressed;
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(c) If by facsimile, by acknowledgment of the facsimile; or
(d) On the date shown on the confirmation of delivery issued by a
private carrier, if sent by private carrier to the address of
the director last known to the Corporation.
Oral notice is effective when actually communicated to the director. Notice of
an adjourned meeting of directors need not be given if the time and place are
fixed at the meeting adjourning and if the period of adjournment does not exceed
ten days in any one adjournment. The notice of any meeting of directors need not
describe the purpose of the meeting unless otherwise required by the Act.
Section 4. Waiver of Notice. A director may waive any notice required
by the Act, the Articles of Incorporation or these Bylaws before or after the
date and time stated in the notice. The waiver must be in writing, signed by the
director entitled to the notice, and filed with the minutes or corporate
records, except that, notwithstanding the foregoing requirement of written
notice, a director's attendance at or participation in a meeting waives any
required notice to the director of the meeting unless the director at the
beginning of the meeting (or promptly upon the director's arrival) expressly
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 5. Quorum. A majority of the number of directors in office
immediately before the meeting begins, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of directors present may
adjourn the meeting from time to time without further notice.
Section 6. Manner of Acting. 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, except as otherwise provided by the Act. The vote of a majority of
all of the directors in office when the action is taken shall be required for
the creation of a committee and the appointment of members of the Board of
Directors to it.
Section 7. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken shall be deemed to have assented to the
action taken unless the director expressly objects at the beginning of the
meeting (or promptly upon the director's arrival) to holding it or transacting
business at the meeting, unless the director's contrary vote is recorded or such
director's dissent or abstention from the action shall be entered in the minutes
of the meeting or unless the director shall file written notice of dissent or
abstention to such action with the person acting as secretary of the meeting
before the adjournment thereof or shall forward such dissent by
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registered mail to the Secretary of the Corporation immediately after
adjournment of the meeting. Such right of dissent or abstention shall not apply
to a director who voted in favor of the action taken.
Section 8. Conduct of Meetings. The Chairman or the Chief Executive
Officer shall preside at all meetings of the Board of Directors; provided,
however, that in the absence or at the request of the Chairman of the Board, or
if there shall not be a person holding such offices, the person selected to
preside at a meeting of directors by a vote of a majority of the directors
present shall preside at such meeting. The Secretary, or in the absence or at
the request of the Secretary, any person designated by the person presiding at a
meeting of the Board of Directors, shall act as secretary of such meeting.
Section 9. Action Without a Meeting. Any action required or permitted
to be taken at a Board of Directors meeting 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, which consent or consents shall be included
in the minutes or filed with the corporate records. Action taken as provided in
this Section is effective when the last director signs the consent, unless the
consent specifies a different effective date. A consent signed pursuant to this
Section has the effect of a meeting vote and may be described as such in any
document.
Section 10. Participation Other Than in Person. 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 such meeting.
ARTICLE VI
OFFICERS
Section 1. Officers of the Corporation. The officers of the Corporation
may include a Chairman of the Board, a Chief Executive Officer, one or more Vice
Chairmen, a President, one or more Executive Vice Presidents, one or more Senior
Vice Presidents, one or more Vice Presidents, a Secretary, a Treasurer, and such
other officers, assistant officers and agents, as may be appointed from time to
time by or under the authority of the Board of Directors including that
authority vested under Sections 8 or 9 of Article IV hereof. The same individual
may simultaneously hold more than one office in the Corporation, but no
individual may act in more than one capacity where action of two or more
officers is required. The title of any officer may include any additional
designation descriptive of such officer's duties as the Board of Directors may
prescribe.
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Section 2. Appointment and Term. The officers of the Corporation shall
be appointed by the Board of Directors or by a committee or an officer
authorized by the Board of Directors to appoint one or more officers or
assistant officers; provided, however, that no officer may be authorized to
appoint the Chairman of the Board, the Chief Executive Officer or the President.
Each officer shall hold office until his or her death, resignation, retirement,
removal or disqualification or until such officer's successor is elected and
qualified.
Section 3. Compensation. The compensation of all officers of the
Corporation shall be fixed by or under the authority of the Board of Directors
or in accordance with Sections 8 and 9 of Article IV hereof. No officer shall be
prevented from receiving such salary by reason of the fact that such officer is
also a director.
Section 4. Resignation and Removal of Officers. An officer may resign
at any time by communicating such officer's resignation to the Corporation. A
resignation is effective when it is communicated unless it specifies in writing
a later effective date. If a resignation is made effective at a later date and
the Corporation accepts the future effective date, the Board of Directors may
fill the pending vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the effective date. The
Board of Directors, by the affirmative vote of a majority of its members, may
remove the Chairman of the Board, the Chief Executive Officer or the President
whenever in its judgment the best interest of the Corporation would be served
thereby. In addition, the Board of Directors or a committee or an officer
authorized by the Board of Directors may remove any other officer at any time
with or without cause. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the directors or in
accordance with Sections 8 or 9 of Article IV hereof for the unexpired portion
of the term.
Section 5. Contract Rights of Officers. The appointment of an officer
does not itself create contract rights. An officer's removal does not itself
affect the officer's contract rights, if any, with the Corporation, and an
officer's resignation does not itself affect the Corporation's contract rights,
if any, with the officer.
Section 6. Bonds. The Board of Directors may by resolution require any
officer, agent or employee of the Corporation to give bond to the Corporation,
with sufficient sureties, conditioned on the faithful performance of the duties
of the applicable office or position, and to comply with such other conditions
as may from time to time be required by the Board of Directors. Such bonds may
be scheduled or blanket form and the premiums shall be paid by the Corporation.
Section 7. Chief Executive Officer. The Board of Directors may appoint
a Chief Executive Officer. The Chief Executive Officer shall, subject to the
direction and control of the Board of Directors, supervise and control the
business and affairs of the
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Corporation. In general the Chief Executive Officer shall perform all duties
incident to the position of chief executive officer or as may be prescribed by
the Board of Directors or these Bylaws from time to time.
Section 8. Chairman of the Board. The Board of Directors may appoint
from among its members an officer designated as the Chairman of the Board, but
the appointment of a Chairman of the Board shall not be required. If a Chairman
of the Board shall be appointed, then the Chairman of the Board shall have such
other duties and authority as may be prescribed by the Board of Directors from
time to time. In general the Chairman of the Board shall perform all duties
incident to the position of chairman of the board or as may be prescribed by the
Board of Directors or these Bylaws from time to time.
Section 9. President. The Board of Directors may appoint a President.
The President shall perform the duties and exercise the powers of that office
and, in addition, the President shall perform such other duties and shall have
such other authority as the Board of Directors shall prescribe. In general the
President shall perform all duties incident to the position of president and or
as may be prescribed by the Board of Directors or these Bylaws from time to
time. The Board of Directors shall, if it deems such action necessary or
desirable, designate the officer of the Corporation who is to perform the duties
of the President in the event of such officer's absence or inability to act.
Section 10. Vice Chairman. The Board of Directors may appoint one or
more officers designated as the Vice Chairman, but the appointment of one or
more Vice Chairmen shall not be required. If one or more Vice Chairmen shall be
appointed, then one or more Vice Chairmen shall have such duties and authority
as may be prescribed by the Board of Directors from time to time.
Section 11. Executive Vice Presidents. Each Executive Vice President
shall perform duties and shall have such powers as are normally incident to such
office or as shall otherwise be prescribed by the Chief Executive Officer, the
Board of Directors or a committee established under these Bylaws.
Section 12. Senior Vice President. Each Senior Vice President shall
perform duties and shall have such powers as are normally incident to such
office or as shall otherwise be prescribed by the Chief Executive Officer, the
Board of Directors or a committee under these Bylaws.
Section 13. Vice Presidents. Each Vice President shall perform duties
and shall have such powers as are normally incident to such office or as shall
otherwise be prescribed by the Chief Executive Officer, the Board of Directors
or a committee under these Bylaws.
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Section 14. Secretary. The Secretary shall: (a) keep the minutes of
meetings of the shareholders and of the Board of Directors in one or more books
provided for that purpose; (b) have the responsibility and authority to maintain
and authenticate the records of the Corporation; (c) see that all notices are
duly given in accordance with the provisions of these Bylaws or as required by
law; (d) be custodian of the corporate records and of the seal of the
Corporation and see that the seal of the Corporation is affixed to all documents
the execution of which on behalf of the Corporation under its seal is duly
authorized; (e) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder; (f) sign with the
Chairman of the Board, Chief Executive Officer or President, certificates for
shares of the Corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (g) have general charge of the stock
transfer books of the Corporation; and (h) in general perform all duties
incident to the office of the Secretary and such other duties as from time to
time may be assigned to the Secretary by the Chief Executive Officer of the
Corporation, the Board of Directors or a committee under these Bylaws.
Section 15. Treasurer. The Treasurer shall: (a) have charge and custody
of all funds and securities of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any source whatsoever, and
deposit all such moneys in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of Section 4 of Article VII; and (b) in general perform all of the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to the Treasurer by the Chief Executive Officer of the
Corporation, the Board of Directors or a committee under these Bylaws.
Section 16. Assistant Vice Presidents, Secretaries and Assistant
Treasurers. The Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers, if any, shall, in the event of the death or inability or refusal to
act of the Secretary or the Treasurer, respectively, have all the powers and
perform all of the duties of those offices, and they shall, in general, perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chief Executive Officer of the Corporation or the Board
of Directors.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. Shares. Shares of the Corporation may but need not be
represented by certificates.
When shares are represented by certificates, the Corporation shall
issue such certificates in such form as shall be required by the Act and as
determined by the Board of Directors, to every shareholder for the fully paid
shares owned by such shareholder.
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Each certificate shall be signed by, or shall bear the facsimile signature of,
the Chairman of the Board, the Chief Executive Officer or the President and the
Secretary or an Assistant Secretary of the Corporation and may bear the
corporate seal of the Corporation or its facsimile. All certificates for the
Corporation's shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented by a
certificate are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the Corporation. Such information may be
stored or retained on discs, tapes, cards or any other approved storage device
relating to data processing equipment; provided that such device is capable of
reproducing all information contained therein in legible and understandable
form, for inspection by shareholders or for any other corporate purpose.
When shares are not represented by certificates, then within a
reasonable time after the issuance or transfer of such shares, the Corporation
shall send the shareholder to whom such shares have been issued or transferred a
written statement of the information required by the Act to be on certificates.
Section 2. Stock Transfer Books and Transfer of Shares. The
Corporation, or its agent, 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 such shareholder. Transfer of shares of the Corporation
represented by certificates shall be made on the stock transfer books of the
Corporation only upon surrender of the certificates for the shares sought to be
transferred by the holder of record thereof or by such holder's duly authorized
agent, transferee or legal representative, who shall furnish proper evidence of
authority to transfer with the Secretary. All certificates surrendered for
transfer shall be canceled before new certificates for the transferred shares
shall be issued.
If shares of the Corporation
(1) are in custody of a clearing corporation or of a custodian
bank or a nominee of either subject to the instructions of the
clearing corporation; and
(2) are in bearer form or endorsed in blank by an appropriate
person or registered in the name of the clearing corporation
or custodian bank or a nominee of either; and
(3) are shown on the account of a transferor or pledgor on the
books of the clearing corporation;
then in addition to other methods, a transfer or pledge of the shares or any
interest therein may be effected by the making of appropriate entries on the
books of the
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clearing corporation reducing the account of the transferor or pledgor and
increasing the account of the transferee or pledgee by the number of shares
transferred or pledged.
Section 3. Lost Certificates. The Board of Directors or an officer so
authorized by the Board may authorize the issuance of a new certificate in place
of a certificate claimed to have been lost, destroyed or mutilated, upon receipt
of an affidavit of such fact from the persons claiming the loss or destruction
and any other documentation satisfactory to the Board of Directors or such
officer. At the discretion of the party reviewing such claim, any such claimant
may be required to give the Corporation a bond in such sum as it may direct to
indemnify the against loss from any claim with respect to the certificate
claimed to have been lost or destroyed.
Section 4. Holder of Record. Except as otherwise required by the Act,
the Corporation may treat the person in whose name the shares stand of record on
its books as the absolute owner of the shares and the person exclusively
entitled to receive notification and distributions, to vote, and to otherwise
exercise the rights, powers and privileges of ownership of such shares.
Section 5. Transfer Agent and Registrar; Regulations. The Corporation
may, if and whenever the Board of Directors so determines, maintain in the State
of North Carolina or any other state of the United States, one or more transfer
offices or agencies and also one or more registry offices which officers and
agencies may establish rules and regulations for the issue, transfer and
registration of certificates. No certificates for shares of stock of the
Corporation in respect of which a Transfer Agent and Registrar shall have been
designated shall be valid unless countersigned by such Transfer Agent and
registered by such Registrar. The Board may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates.
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions. For purposes of this Article VIII, the
following definitions shall apply:
(a) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as
a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan
at the Corporation's request if such director's duties to the
Corporation also impose duties on, or otherwise involve
services by, the director to the plan or to participants
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in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal
representative of a director.
(b) "Expenses" means expenses of every kind incurred in defending
a proceeding, including counsel fees.
(c) "Indemnified Officer" shall mean each officer of the
Corporation who is also a director of the Corporation and each
other officer of the Corporation who is designated by the
Board of Directors from time to time as an Indemnified
Officer. An Indemnified Officer shall be entitled to
indemnification hereunder to the same extent as a director,
including, without limitation, indemnification with respect to
service by the Indemnified Officer at the Corporation's
request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other
enterprise.
(d) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan) or reasonable
expenses incurred with respect to a proceeding.
(e) "Proceeding" means any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether formal or informal,
and any appeal therein (and any inquiry or investigation that
could lead to such a proceeding).
Section 2. Indemnification. In addition to the indemnification
otherwise provided by law, the Corporation shall indemnify and hold harmless its
directors and Indemnified Officers (as defined herein) against all liability and
expenses, including reasonable attorney's fees, in any proceeding (including
without limitation a proceeding brought by or on behalf of the Corporation
itself) arising out of their status as directors or officers, or their service
at the Corporation's request as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or their activities in any
such capacity; provided; however, that the Corporation shall not indemnify a
director or Indemnified Officer against liability or litigation expense that
such person may incur on account of activities of such person which at the time
taken were known or believed by him or her to be clearly in conflict with the
best interests of the Corporation. The Corporation shall also indemnify each
director and Indemnified Officer for reasonable costs, expenses and attorneys'
fees incurred in connection with the enforcement of the rights to
indemnification granted herein, if it is determined in accordance with Section 3
of this Article VIII that the director or Indemnified Officer is entitled to
indemnification hereunder.
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Section 3. Determination. Any indemnification under Section 2 of this
Article IX shall be paid by the Corporation in a specific case only after a
determination that the director or Indemnified Officer has met the standard of
conduct set forth in such Section 2. Such determination shall be made:
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(b) if a quorum cannot be obtained under subparagraph (a), by a
majority vote of a committee duly designated by the Board of
Directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not
at the time parties to the proceeding;
(c) by special legal counsel (i) selected by the Board of
Directors or its committee in the manner prescribed in
subparagraphs (a) or (b); or (ii) if a quorum of the Board of
Directors cannot be obtained under subparagraph (a) and a
committee cannot be designated under subparagraph (b),
selected by a majority vote of the full Board of Directors (in
which selection directors who are parties may participate); or
(d) by the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
The Board of Directors shall take all such action as may be necessary
and appropriate to enable the Corporation to pay the indemnification required by
this Article VIII.
Section 4. Advance for Expenses. The expenses incurred by a director or
Indemnified Officer in defending a proceeding may be paid by the Corporation in
advance of the final disposition of such proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on behalf
of the director or Indemnified Officer to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
Corporation against such expenses. Subject to receipt of such undertaking, the
Corporation shall make reasonable periodic advances for expenses pursuant to
this Section, unless the Board of Directors shall determine, in the manner
provided in Section 3 of this Article VIII and based on the facts then known,
that indemnification under this Article is or will be precluded.
Section 5. Reliance and Consideration. Any director or Indemnified
Officer who at any time after the adoption of this Article VIII 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
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provided herein. Such right, however, shall not be exclusive of any other rights
to which such person may be entitled apart from the provisions of this Article
VIII. No amendment, modification or repeal of this Article VIII shall adversely
affect the right of any director or Indemnified Officer to indemnification
hereunder with respect to any activities occurring prior to the time of such
amendment, modification or repeal.
Section 6. Insurance. The Corporation may purchase and maintain
insurance on behalf of its directors, officers, employees and agents and those
persons who were serving at the request of the Corporation in any capacity in
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against or incurred by such
person in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article VIII or otherwise.
Any full or partial payment made by an insurance company under any insurance
policy covering any director, officer, employee or agent made to or on behalf of
a person entitled to indemnification under this Article VIII shall relieve the
Corporation of its liability for indemnification provided for in this Article or
otherwise to the extent of such payment, and no insurer shall have a right of
subrogation against the Corporation with respect to such payment.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances transfers, contracts, checks, notes, drafts, loan
documents, letters of credit, master agreements, swap agreements, guarantees,
certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings,
proxies and other instruments or documents may be signed, executed,
acknowledged, verified, attested, delivered or accepted on behalf of the
Corporation by the Chairman of the Board, the Chief Executive Officer, any Vice
Chairman of the Board, the President, any Vice President, any Assistant Vice
President, or any individual who is listed on the Corporation's Officer's
payroll file in a position equal to any of the aforementioned officer positions,
or such other officers, employees or agents as the Board of Directors or any of
such designated officers or individuals may direct. The provisions of this
Section 1 are supplementary to any other provision of these Bylaws and shall not
be construed to authorize execution of instruments otherwise dictated by law.
Section 2. Voting of Shares. The Chairman of the Board, the Chief
Executive Officer, any Vice Chairman of the Board, President, any Executive Vice
President, the Secretary, the Treasurer, or such other officers, employees or
agents as the Board of Directors or such designated officers may direct are
authorized to vote, represent and
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exercise on behalf of the Corporation all rights incident to any and all shares
of any other corporations or associations standing in the name of the
Corporation. The authority herein granted to said individual to vote or
represent on behalf of the Corporation any and all shares held by the
Corporation in any other corporations or associations may be exercised either by
the individual in person or by any duly executed proxy or power of attorney.
Section 3. Distributions. The Board of Directors may from time to time
authorize, and the Corporation may pay or distribute, dividends or other
distributions on its outstanding shares in such manner and upon such terms and
conditions as are permitted by the Articles of Incorporation or the Act.
Section 4. Seal. The Board of Directors shall provide a corporate seal
which shall be circular in form and shall have inscribed thereon the name of the
Corporation and the words "corporate seal".
Section 5. Amendments. The Board of Directors may amend or repeal these
Bylaws and may adopt new Bylaws by the affirmative vote of a majority of the
directors then holding office at any regular or special meeting of the Board of
Directors. The shareholders of the Corporation may also amend or repeal these
Bylaws and may adopt new Bylaws.
Adopted 4/23/97
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