AMENDED AND RESTATED
BYLAWS
OF
TRIANGLE BANCORP, INC.
As amended January 27, 1998 (Board of Directors) Article III, Section 2(a)
As amended September 17, 1997 (Shareholders) Article III, Section 2 (a)
As amended April 28, 1997 (Shareholders) Article III, Section 2(a)
As amended February 23, 1995 (Shareholders) Article III, Section 2(a)
As amended May 17, 1994 (Shareholders)
As amended May 11, 1993 (Shareholders)
As amended August 18, 1992 (Board of Directors)
TABLE OF CONTENTS
ARTICLE I
OFFICES
1. Principal Office. . . . . . . . . . . . . . . . . . . 1
2. Registered Office . . . . . . . . . . . . . . . . . . 1
3. Other Offices . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. Place of Meetings . . . . . . . . . . . . . . . . . . 1
2. Annual Meeting. . . . . . . . . . . . . . . . . . . . 2
3. Substitute Annual Meeting . . . . . . . . . . . . . . 2
4. Special Meetings. . . . . . . . . . . . . . . . . . . 2
5. Notice of Meetings. . . . . . . . . . . . . . . . . . 3
6. Shareholders List . . . . . . . . . . . . . . . . . . 5
7. Quorum. . . . . . . . . . . . . . . . . . . . . . . . 5
8. Voting of Shares and Voting Groups. . . . . . . . . . 6
9. Proxies . . . . . . . . . . . . . . . . . . . . . . . 7
10. Inspectors of Election. . . . . . . . . . . . . . . . 8
11. Shareholder Proposals . . . . . . . . . . . . . . . . 9
ARTICLE III
DIRECTORS
1. General Powers. . . . . . . . . . . . . . . . . . . . 10
2. Number, Term, and Qualification . . . . . . . . . . . 10
3. Election of Directors . . . . . . . . . . . . . . . . 11
4. Removal . . . . . . . . . . . . . . . . . . . . . . . 12
5. Vacancies . . . . . . . . . . . . . . . . . . . . . . 13
6. Chairman. . . . . . . . . . . . . . . . . . . . . . . 13
7. Compensation. . . . . . . . . . . . . . . . . . . . . 14
8. Executive and Other Committees. . . . . . . . . . . . 14
9. Directors Emeritus. . . . . . . . . . . . . . . . . . 16
ARTICLE IV
MEETINGS OF DIRECTORS
1. Regular Meetings. . . . . . . . . . . . . . . . . . . 17
2. Special Meetings. . . . . . . . . . . . . . . . . . . 17
3. Notice of Meetings. . . . . . . . . . . . . . . . . . 17
4. Quorum. . . . . . . . . . . . . . . . . . . . . . . . 18
5. Manner of Acting. . . . . . . . . . . . . . . . . . . 18
6. Informal Action by Directors. . . . . . . . . . . . . 19
7. Attendance by Telephone . . . . . . . . . . . . . . . 20
ARTICLE V
OFFICERS
1. Number. . . . . . . . . . . . . . . . . . . . . . . . 20
2. Appointment and Term. . . . . . . . . . . . . . . . . 20
3. Removal . . . . . . . . . . . . . . . . . . . . . . . 21
4. Compensation. . . . . . . . . . . . . . . . . . . . . 21
5. President . . . . . . . . . . . . . . . . . . . . . . 21
6. Executive Vice Presidents, Senior Vice Presidents,
and Vice-Presidents . . . . . . . . . . . . . . . . 22
7. Secretary . . . . . . . . . . . . . . . . . . . . . . 23
8. Vice President, Finance . . . . . . . . . . . . . . . 24
9. Assistant Secretaries and Treasurers. . . . . . . . . 24
10. Controller and Assistant Controllers. . . . . . . . . 25
11. Executive Officers. . . . . . . . . . . . . . . . . . 25
12. Bonds . . . . . . . . . . . . . . . . . . . . . . . . 25
13. Voting Upon Stocks. . . . . . . . . . . . . . . . . . 26
ARTICLE VI
CERTIFICATES FOR AND TRANSFER OF SHARES
1. Certificates for Shares . . . . . . . . . . . . . . . 26
2. Transfer of Shares. . . . . . . . . . . . . . . . . . 27
3. Transfer Agent and Registrar. . . . . . . . . . . . . 27
4. Record Date . . . . . . . . . . . . . . . . . . . . . 28
5. Lost Certificates . . . . . . . . . . . . . . . . . . 29
6. Holder of Record. . . . . . . . . . . . . . . . . . . 29
7. Shares held by Nominees . . . . . . . . . . . . . . . 29
8. Acquisition by Corporation of its Own Shares. . . . . 31
9. Shareholder Protection Act. . . . . . . . . . . . . . 31
10. Control Share Acquisition Act . . . . . . . . . . . . 31
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Indemnification for Expenses and Liabilities. . . . . 32
2. Advance Payment of Expenses . . . . . . . . . . . . . 33
3. Insurance . . . . . . . . . . . . . . . . . . . . . . 34
4. Definitions . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
GENERAL PROVISIONS
1. Distributions . . . . . . . . . . . . . . . . . . . . 35
2. Seal. . . . . . . . . . . . . . . . . . . . . . . . . 35
3. Fiscal Year . . . . . . . . . . . . . . . . . . . . . 36
4. Effective Date of Notice. . . . . . . . . . . . . . . 36
5. Corporate Records . . . . . . . . . . . . . . . . . . 36
6. Bylaw Amendments. . . . . . . . . . . . . . . . . . . 37
7. Amendments to Articles of Incorporation . . . . . . . 38
BYLAWS
OF
TRIANGLE BANCORP, INC.
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be
located in Wake County, North Carolina or such other place as is designated by
the Board of Directors.
2. Registered Office. The registered office of the Corporation required by
law to be maintained in the State of North Carolina may be, but need not be,
identical with the principal office.
3. Other Offices. The Corporation may have offices at such other places,
either within or without the State of North Carolina, as the Board of Directors
may from time to time determine or as the affairs of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
1. Place of Meetings. All meetings of shareholders shall be held at the
principal office of the Corporation or at such other
place, either within or without the State of North Carolina, as shall be
designated in the notice of the meeting or agreed upon by the Board of
Directors.
2. Annual Meeting. The annual meeting of the shareholders shall be held at
the principal office of the Corporation or at such other place, either within or
without the State of North Carolina, on such day and at such time during the
second quarter of the Corporation's fiscal year as the Board of Directors shall
from time to time determine, for the purpose of electing Directors of the
Corporation and for the transaction of such other business as may be properly
brought before the meeting.
3. Substitute Annual Meeting. If the annual meeting shall not be held
within the time period designated by these Bylaws, a substitute annual meeting
may be called in accordance with the provisions of Paragraph 4 of this Article
II. A meeting so called shall be designated and treated for all purposes as the
annual meeting.
4. Special Meetings. Special meetings of the shareholders may be called at
any time by the Chairman of the Board of Directors, the President, the
Secretary, or the Board of Directors of the Corporation.
5. Notice of Meetings.
(a) Written or printed notice stating the time and place of the meeting
shall be delivered not less than ten nor more than sixty days before the date
thereof, either personally or by telegraph, teletype or other form of wire or
wireless communication, or by facsimile transmission, mail, or by private
carrier, or by any other means permitted by law, by or at the direction of the
Board of Directors, Chairman of the Board, President, Secretary, or other person
calling the meeting, to each shareholder of record entitled to vote at such
meeting, provided that such notice must be given to all shareholders, including
nonvoting shareholders, with respect to any meeting at which a merger, share
exchange, sale of assets other than in the regular course of business, or
voluntary dissolution is to be considered and in such other instances as
required by law. If a new record date for the adjourned meeting is fixed
pursuant to Paragraph 4 of Article VI, notice of the adjourned meeting shall be
given to persons who are shareholders as of the new record date. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
addressed to the shareholder at his address as it appears on the record of
shareholders of the Corporation, with postage thereon prepaid.
(b) 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 the shareholders is expressly
required by the provisions of the North Carolina Business Corporation Act or
notice of such purpose is otherwise required by law to be provided. In the case
of a special meeting, the notice of meeting shall specifically state the purpose
or purposes for which the meeting is called.
(c) When a meeting is adjourned for more than one hundred twenty days or a
new record date is or must be fixed as required by law, notice of the adjourned
meeting shall be given as in the case of an original meeting. When a meeting is
adjourned for one hundred twenty days or less in any one adjournment, it shall
not be necessary to give any notice of the new date, time and place of the
adjourned meeting or of the business to be transacted thereat other than by
announcement at the meeting at which the adjournment is taken.
(d) A shareholder in a signed writing may waive notice of any meeting
before or after the date and time stated in the notice by delivering such waiver
to the Corporation for inclusion in the minutes. Attendance by a shareholder at
a meeting constitutes a waiver of notice of such meeting, unless at the
beginning of the meeting the shareholder objects to holding the meeting or
transacting business at the meeting, or objects to considering a matter not
within the purpose or purposes described in the meeting notice before it is
voted on.
6. Shareholders List. After fixing the record date for a meeting, the
Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to notice of such meeting or any adjournment thereof,
arranged by voting group, class and series, with the address of and number of
shares held by each. Such list shall be kept on file at the principal office of
the Corporation, or at a place identified in the meeting notice in the city
where the meeting will be held, beginning two business days after notice of such
meeting is given and continuing through the meeting, and on written demand shall
be subject to inspection or copying by any shareholder, his agent or attorney at
any time during regular business hours. This list shall also be produced and
kept open at the time and place of the meeting and shall be subject to
inspection by any shareholder, his agent or attorney during the entire time of
the meeting or any adjournment.
7. Quorum.
(a) Unless otherwise provided by law, a majority of the votes entitled to
be cast on a matter by a separate voting group shall constitute a quorum of such
voting group on that matter at a meeting of shareholders. A separate voting
group may only take action on a matter at a meeting if a quorum of those shares
are present with respect to that matter. 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,
but no other business may be transacted until and unless a quorum is present.
When a quorum is
present at any adjourned meeting, any business may be transacted which might
have been transacted at the original meeting. If a quorum is present at the
original meeting, a quorum need not be present at an adjourned meeting to
transact business.
(b) At a meeting at which a quorum is present, a separate voting group may
continue to do business until adjournment, notwithstanding the withdrawal of
sufficient shareholders to leave less than a quorum of the separate voting
group.
8. Voting of Shares and Voting Groups.
(a) Except as otherwise provided by the Articles of Incorporation or by
law, each outstanding share having voting rights shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders. All shares
entitled to vote and be counted together collectively on a matter as provided by
the Articles of Incorporation or by the North Carolina Business Corporation Act
shall constitute a single voting group. Additional required voting groups shall
be determined in accordance with the Articles of Incorporation, the Bylaws, and
the North Carolina Business Corporation Act.
(b) Except in the election of Directors, at a shareholder meeting duly held
and at which a quorum is present, action on a matter by a voting group shall be
approved if the votes cast within the voting group favoring the action exceed
the votes cast
opposing the action, unless the vote by a greater number is required by law or
by the Articles of Incorporation or Bylaws of the Corporation. For such actions,
abstentions shall not be treated as negative votes. Corporate action on such
matters shall be taken only when approved by each and every voting group
entitled to vote as a separate voting group on such matter as provided by the
Articles of Incorporation or Bylaws or by the North Carolina Business
Corporation Act.
(c) Voting on all matters except the election of Directors shall be by
voice vote or by a show of hands unless the chairman of the meeting directs that
voting on such matter shall be by ballot.
(d) Absent special circumstances, shares of the Corporation shall not be
entitled to vote if they are owned, directly or indirectly, by another
corporation in which the Corporation owns, directly or indirectly, a majority of
the shares entitled to vote for directors of the second corporation; provided
that this provision does not limit the power of the Corporation to vote its own
shares held by it in a fiduciary capacity.
9. Proxies. Shares may be voted either in person or by one or more agents
authorized by a written proxy executed by the shareholder or by his duly
authorized attorney-in-fact. A proxy shall not be valid after the expiration of
eleven months from the date of its execution, unless the person executing it
specifies
therein the length of time for which it is to continue in force, or limits its
use to a particular meeting. Any proxy shall be revocable by the shareholder
unless the written appointment expressly and conspicuously provides that it is
irrevocable and the appointment is coupled with an interest as required by law.
The shareholder may revoke the proxy by filing with the Secretary of the
Corporation either a written instrument of revocation or a duly executed proxy
bearing a later date or by attending the meeting and voting his shares in
person.
10. Inspectors of Election.
(a) Appointment of Inspectors of Election. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting may appoint inspectors of election at the meeting.
The number of inspectors shall be either one or three. In case any person
appointed as inspector fails to appear or fails or refuses to act, the vacancy
may be filled by appointment by the Board of Directors in advance of the meeting
or at the meeting by the person acting as chairman.
(b) Duties of Inspectors. The inspectors of election shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine the result and do such acts as may be
proper to conduct the election or vote with fairness to all shareholders. The
inspectors of election shall perform their duties impartially, in good faith, to
the best of their ability and as expeditiously as is practical.
(c) Vote of Inspectors. If there are three inspectors of election, the
decision, act, or certificate of a majority shall be effective in all respects
as the decision, act, or certificate of all.
(d) Report of Inspectors. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge or question or matter
determined by them and shall execute a certificate of any fact found by them.
Any report or certificate made by them shall be prima facie evidence of the
facts stated therein.
11. Shareholder Proposals. Any shareholder wishing to nominate one or more
Directors or bring any other business before a meeting of shareholders must
provide notice to the Corporation at least 50 days before the meeting in writing
by registered mail, return receipt requested, of the business or nomination to
be presented by him or her at the shareholders' meeting. In the absence of such
notice to the Corporation, a shareholder shall not
be entitled to present any business or nominate at any meeting of shareholders.
ARTICLE III
DIRECTORS
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
by, the Board of Directors or by such committees as the Board of Directors may
establish pursuant to these Bylaws.
2. Number, Term, and Qualification.
(a) The number of Directors of the Corporation shall be not less than ten
nor more than twenty-eight as from time to time may be fixed or changed within
said minimum or maximum by the affirmative vote of a majority of Directors
present at any regular or special meeting of the Board of Directors at which a
quorum is present. Such minimum and maximum may not be changed by the Board of
Directors, but only by the affirmative vote of 75% of all eligible votes
present, in person or by proxy, at a meeting of shareholders at which a quorum
is present. Such meeting of shareholders unless the notice of a meeting states
that the purpose, or one of the purposes, of the meeting is to change the number
of Directors of the Corporation.
Note: The provisions of this Article III, Section 2.(a) have been adopted by the
shareholders of the Corporation and may not be amended except by the
shareholders in accordance with the provisions of Article VIII, Section 6.(a)
hereof.
(b) At the first annual meeting of shareholders, the Directors shall be
divided into three classes, as nearly equal in number as possible, with the term
of office of the first class to expire at the first annual meeting of
shareholders after their election, the term of office of the second class to
expire at the second annual meeting of shareholders after their election, and
the term of office of the third class to expire at the third annual meeting of
shareholders after their election. At each annual meeting of shareholders
following such initial classification and election, Directors elected to succeed
those Directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders after their
election. A Director shall hold office until the annual meeting for the year in
which his term expires and until his successor is elected and qualified, or
until his earlier death, resignation, retirement, removal, or disqualification.
In the event of any increase or decrease in the number of Directors, the
additional or eliminated directorships shall be so classified or chosen so that
all classes of Directors shall remain and become equal in number as nearly as
possible. Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
(c) Any director who reaches the age of 70 years may serve only until the
next annual meeting of shareholders, except that directors who are 68 years of
age or older on January 27, 1998 may serve until either the next annual meeting
of sharehlders after reaching age 72 or the annual meeting of shareholders held
in the year 2000, whichever occurs first."
3. Election of Directors. Except as provided in Paragraph 5 of this Article
III, Directors shall be elected at the annual meeting of shareholders; and those
persons who receive the highest number of votes at a meeting at which a quorum
is present shall be deemed to have been elected. If any shareholder so demands,
election of Directors shall be by ballot.
4. Removal.
(a) A Director may be removed from office with cause by the affirmative
vote of 75 percent of all eligible votes present at a meeting of shareholders at
which a quorum is present. A Director may be removed from office without cause
by the affirmative vote of 75 percent of all eligible votes present at a meeting
of shareholders at which a quorum is present, provided that removal without
cause is recommended to the shareholders by the Board of Directors pursuant to a
vote of not less than 75 percent of the Directors then in office. If a Director
is elected by a separate voting group, only the members of that voting group may
participate in the vote to remove him. For purposes of this Section, "cause" is
defined as personal dishonesty, incompetence, mental or physical incapacity,
breach of fiduciary duty involving personal profit, a failure to perform stated
duties, or a violation of any law, rule or regulation (other than a traffic
violation or similar routine offense) (based on a conviction for such offense or
an opinion of counsel to the Corporation to such effect). The entire Board of
Directors may not be removed except pursuant to the removal of individual
Directors in accordance with the foregoing provisions.
(b) No Director may be removed at a meeting of shareholders unless the
notice of the meeting states that the purpose, or one of the purposes, of the
meeting is to remove that Director.
Note: The provisions of Section 4.(a) are contained in the Articles of
Incorporation of the Corporation and are included in the Bylaws only for ease of
reference. These Bylaw provisions have not been adopted by the shareholders.
5. Vacancies. A vacancy occurring in the Board of Directors, including,
without limitation, a vacancy created by an increase in the authorized number of
Directors or resulting from the shareholders' failure to elect the full
authorized number of Directors, may only be filled by the Directors remaining in
office, or if the Directors remaining in office constitute less than a quorum of
the Directors, by the affirmative vote of a majority of all remaining Directors
or by the sole remaining Director; provided that if any Director was elected by
a voting group, a vacancy in that position may be filled only by any remaining
Director or Directors elected by that voting group, if any, and if there are
none, by members of the related voting group. A Director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
6. Chairman. There may be a Chairman of the Board of
Directors elected by the Directors from their number at any meeting of the
Board. The Chairman of the Board shall preside at all meetings of the Board of
Directors and perform such other duties as may be directed by the Board. In the
absence of the Chairman, the President shall preside at meetings of the Board.
The Chairman will not be considered an officer of the Corporation. The Chairman
will not participate in the operating management of the Corporation other than
in the capacity of a director. Further, the Chairman will have no authority to
sign and execute any documents or instruments on behalf of the Corporation.
7. Compensation. The Board of Directors may provide for the compensation of
Directors for their services as such and may provide for the payment of any and
all expenses incurred by the Directors in connection with such services.
8. Executive and Other Committees.
(a) The Board of Directors, by resolution adopted by 80 percent of the
Directors then in office, may designate from among its members an Executive
Committee and one or more other committees.
(b) Each committee shall consist of two or more Directors, and each, to the
extent authorized by law or provided in the resolution, shall have and may
exercise all of the authority of the Board of Directors, except no such
committee may: (1) authorize distributions; (2) approve or propose to
shareholders
action that is required to be approved by shareholders under the North Carolina
Business Corporation Act or any successor to such statutes; (3) fill vacancies
on the Board of Directors or on any of its committees; (4) amend the Articles of
Incorporation; (5) adopt, amend, or repeal these Bylaws; (6) approve a plan of
merger not requiring shareholder approval; (7) authorize or approve
reacquisition of shares, except according to a formula or method prescribed by
the Board of Directors; or (8) authorize or approve the issuance or 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 a committee (or a senior executive officer of
the Corporation) to do so within limits specifically prescribed by the Board of
Directors.
(c) Any resolutions adopted or other action taken by any such committee
within the scope of the authority delegated to it by the Board of Directors
shall be deemed for all purposes to be adopted or taken by the Board of
Directors. The designation of any 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 him by law.
(d) Regular meetings of any such committee may be held without notice at
such time and place as such committee may fix from time to time by resolution.
Special meetings of any such committee may be called by any member thereof upon
not less than one day's notice stating the place, date and hour of such meeting,
which notice may be written or oral and if mailed, shall be deemed to be
delivered when deposited in the United States mail addressed to any member of
the committee at his business address. Any member of any committee may in a
signed writing waive notice of any meeting, and no notice of any meeting need be
given to any member thereof who attends in person. The notice of a meeting of
any committee need not state the business proposed to be transacted at the
meeting.
(e) A majority of the members of any such committee shall constitute a
quorum for the transaction of business at any meeting thereof, and actions of
such committee must be authorized by the affirmative vote of a majority of the
members of such committee.
(f) Any member of any such committee may be removed at any time with or
without cause by resolution adopted by the affirmative vote of at least 80
percent of the Directors then in office, and vacancies in the membership of a
committee resulting from death, resignation, disqualification, or removal shall
be filled by the Board of Directors pursuant to the affirmative vote of 80
percent of the Directors then in office.
(g) Any such committee shall elect a presiding officer from among its
members and may fix its own rules of procedure which shall not be inconsistent
with these Bylaws. It shall keep regular minutes of its proceedings and report
the same to the Board of Directors for its information at the meeting thereof
held next
after the proceedings shall have been taken.
9. Directors Emeritus. The Board of Directors may, by resolution duly
adopted, appoint Directors Emeritus of the Corporation for outstanding
contributions to the Corporation. Such Directors Emeritus shall have no right to
vote on matters before the Board of Directors or to attend meetings of the Board
of Directors.
ARTICLE IV
MEETINGS OF DIRECTORS
1. Regular Meetings. A regular meeting of the Board of Directors shall be
held immediately after, and at the same place as, the annual meeting of
shareholders. In addition, the Board of Directors may provide, by resolution,
the time and place, either within or without the State of North Carolina, for
the holding of additional regular meetings.
2. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board (if one has been duly
elected), the President or any two Directors. Such meetings may be held either
within or without the State of North Carolina.
3. Notice of Meetings.
(a) Regular meetings of the Board of Directors may be held without notice.
(b) The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice thereof
either personally or by telephone, telegraph, teletype or other form of wire or
wireless communication or by facsimile transmission, mail or private carrier or
by any other means permitted by law. Such notice need not specify the business
to be transacted at, or the purpose of, the meeting that is called. Notice of an
adjourned meeting 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.
(c) A Director, in a signed writing, may waive notice of any meeting before
or after the date and time stated in the notice. Attendance by a Director at a
meeting shall constitute a waiver of notice of such meeting, except where a
Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened and does not vote for or assent to action taken at the meeting.
4. Quorum. A majority of the Directors in office immediately before the
meeting shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
5. Manner of Acting.
(a) Except as otherwise provided in this paragraph, the act 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,
unless a greater number is required by law, the Articles of Incorporation, or a
Bylaw adopted by the shareholders.
(b) A Director who is present at a meeting of the Board of Directors at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless his contrary vote is recorded or his dissent is
otherwise entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right of dissent shall not apply to a Director
who voted in favor of such action.
(c) The vote of a majority of the number of Directors then in office shall
be required to adopt a resolution constituting an Executive Committee or other
committee of the Board of Directors. The vote of a majority of the Directors
then holding office shall be required to adopt a resolution dissolving the
Corporation without action by the shareholders in circumstances authorized by
law. Vacancies in the Board of Directors may be filled as provided in Paragraph
5 of Article III of these Bylaws.
6. Informal Action by Directors. Action taken by the Directors or members
of a committee of the Board of Directors without a meeting is nevertheless Board
or committee action if written consent to the action in question is signed by
all of the
Directors or members of the committee, as the case may be, and filed with the
minutes of the proceedings of the Board of Directors or committee, whether done
before or after the action so taken. Such action will become effective when the
last Director or committee member signs the consent, unless the consent
specifies a different date. Such consent will have the same force and effect as
a unanimous vote of the Board of Directors or the committee, as the case may be.
7. Attendance by Telephone. Any one or more Directors or members of a
committee may participate in a meeting of the Board of Directors or committee by
means of a conference telephone or similar communications device which allows
all persons participating in the meeting to hear each other simultaneously, and
such participation in the meeting shall be deemed presence in person at such
meeting.
ARTICLE V
OFFICERS
1. Number. The officers of the Corporation shall consist of a President, a
Secretary, a Vice President of Finance, and such Executive Vice Presidents,
Senior Vice Presidents, other Vice Presidents, Assistant Secretaries, and other
officers as the Board of Directors may from time to time appoint. Any two or
more offices, other than that of President and Secretary, may be held by the
same
person. In no event, however, may an officer act in more than one capacity where
action of two or more officers is required.
2. Appointment and Term. The officers of the Corporation shall be appointed
by the Board of Directors pursuant to the affirmative vote of at least 80
percent of the Directors then in office. Such appointment may be made at any
regular or special meeting of the Board of Directors. Each officer shall hold
office until his death, resignation, retirement, removal, disqualification, or
his successor is appointed and qualifies.
3. Removal. Any officer or agent appointed by the Board of Directors may be
removed by the Board with or without cause pursuant to the affirmative vote of
at least 80 percent of the Directors then in office; but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
4. Compensation. The compensation of all officers of the Corporation shall
be fixed by the Board of Directors.
5. President. The President shall be the chief executive officer of the
Corporation and, subject to the control of the Board of Directors, shall
supervise and control the management of the Corporation in accordance with these
Bylaws. He shall preside at all meetings of shareholders and, in the absence of
the Chairman of the Board of Directors, at all meetings of the Board of
Directors. He shall sign, with any other proper officer, certificates for
shares of the Corporation and any deeds, mortgages, bonds, contracts, or other
instruments which may be lawfully executed on behalf of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be delegated by the Board
of Directors to some other officer or agent; and, in general, he shall perform
all duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
6. Executive Vice Presidents, Senior Vice Presidents, and Vice-Presidents.
The Executive Vice Presidents and Senior Vice Presidents shall be superior in
authority to all other Vice Presidents. The Executive Vice Presidents and Senior
Vice Presidents, in order of their appointment, unless otherwise determined by
the Board of Directors, shall, in the absence or disability of the President,
perform the duties and exercise the powers of that office and shall have
authority to sign, with any other proper officer, certificates for shares of the
Corporation and any deeds, mortgages, bonds, contracts, or other instruments
which may be lawfully executed on behalf of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be delegated by the Board of
Directors to some other officer or agent. In addition, they shall perform such
other duties and have such other powers as the President or the Board of
Directors shall prescribe. Vice Presidents shall perform only such duties and
have
only such powers as the Board of Directors shall specifically prescribe. In the
absence or disability of the President and all Executive Vice Presidents and
Senior Vice Presidents, Vice Presidents, in the order of their appointment,
unless otherwise determined by the Board of Directors, shall perform the duties
and exercise the powers of that office. In addition, they shall perform such
other duties and have such other powers as the President or the Board of
Directors shall prescribe. The Board of Directors shall designate one or more
Vice Presidents to be responsible for Finance and may designate one or more Vice
Presidents to be responsible for certain other functions, including, without
limitation, Operations and Personnel.
7. Secretary. The Secretary shall keep accurate records of the acts and
proceedings of all meetings of shareholders, Directors and committees. He shall
give all notices required by law and by these Bylaws. He shall have general
charge of the corporate books and records and of the corporate seal, and he
shall affix the corporate seal to any lawfully executed instrument requiring it.
He shall have general charge of the stock transfer books of the Corporation and
shall keep, at the registered or principal office of the Corporation, a record
of shareholders showing the name and address of each shareholder and the number
and class of the shares held by each. He shall deliver to the Secretary of State
of North Carolina for filing annual reports as required under the provisions
contained in Section 55-16-22 of the North Carolina Business Corporation Act or
any successor to such statute. He shall sign
such instruments as may require his signature, and, in general, attest the
signature or certify the incumbency or signature of any other officer of the
Corporation and shall perform all duties incident to the office of Secretary and
such other duties as may be assigned him from time to time by the President or
by the Board of Directors.
8. Vice President, Finance. The Vice President, Finance shall have custody
of all funds and securities belonging to the Corporation and shall receive,
deposit or disburse the same under the direction of the Board of Directors. He
shall supervise the accounting affairs of the Corporation and keep full and
accurate accounts of the finances of the Corporation in books especially
provided for that purpose, which may be consolidated or combined statements of
the Corporation and one or more of its subsidiaries as appropriate, that include
a balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of cash flows for the year unless that information appears
elsewhere in the financial statements. If financial statements are prepared for
the Corporation on the basis of generally accepted accounting principles, the
annual financial statements must also be prepared on that basis. The Corporation
shall mail the annual financial statements, or a written notice of their
availability, to each shareholder within one hundred twenty days of the close of
each fiscal year. The Vice President, Finance shall, in general, perform all
duties incident to his office and such other duties as may be assigned to him
from time to time by the President or by the
Board of Directors.
9. Assistant Secretaries and Treasurers. The Assistant Secretaries and
Assistant Treasurers shall, in the absence or disability of the Secretary or the
Treasurer, perform the respective duties and exercise the respective powers of
those offices, and they shall, in general, perform such other duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or by the Board of Directors.
10. Controller and Assistant Controllers. The Controller shall, under the
supervision of the Vice President, Finance, have charge of the accounting
affairs of the Corporation and shall have such other powers and perform such
other duties as the Board of Directors shall designate. Each Assistant
Controller shall have such powers and perform such duties as may be assigned by
the Board of Directors, and the Assistant Controllers shall exercise the powers
of the Controller during that officer's absence or inability to act.
11. Executive Officers. Except as otherwise designated by the Board of
Directors, the Corporation's executive officers shall consist of the President,
the Senior and Executive Vice Presidents, and such of the other Vice Presidents
as the Board of Directors may from time to time specifically designate as
executive officers, being those persons in policy-making functions of the
Corporation.
12. Bonds. The Board of Directors, by resolution, may require any or all
officers, agents and employees of the Corporation to give bond to the
Corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of their respective offices or positions, and to comply with such
other conditions as may from time to time be required by the Board of Directors.
13. Voting Upon Stocks. Unless otherwise ordered by the Board of Directors,
the Chairman of the Board or the President shall have full power and authority
on behalf of the Corporation to attend, act, and vote at meetings on 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 VI
CERTIFICATES FOR AND TRANSFER OF SHARES
1. Certificates for Shares. Shares of the capital stock of the Corporation
shall be represented by certificates. Such
certificates shall be in such form as required by law and as determined by the
Board of Directors, and such certificates shall be issued to every shareholder
for the fully paid shares owned by him. Each certificate shall be signed by the
Chairman of the Board, the President or any Vice President or a person who has
been designated as the chief executive officer of the Corporation and by the
Secretary, Assistant Secretary, Treasurer, or Assistant Treasurer and may be
sealed with the seal of the Corporation or a facsimile thereof. The signatures
of any such officers upon a certificate may be facsimiles or may be engraved or
printed. In case any officer who has signed or whose facsimile or other
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue. The
certificates shall be consecutively numbered or otherwise identified; and the
name and address of the persons to whom they are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
Corporation.
2. Transfer of Shares. Transfer of shares 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 record holder thereof or by his duly
authorized agent, transferee, or legal representative. All certificates
surrendered for transfer shall be canceled before new certificates for the
transferred shares shall be issued.
3. Transfer Agent and Registrar. The Board of Directors may appoint one or
more transfer agents and one or more registrars of transfer and may require all
stock certificates to be signed or countersigned by the transfer agent and
registered by the registrar of transfers.
4. Record Date.
(a) For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof or entitled to
receive payment of any dividend or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case not to be more than seventy days before the meeting or
action requiring a determination of shareholders.
(b) If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders or of shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
(c) When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this paragraph, such determination
shall apply to any adjournment thereof unless the Board of Directors fixes a new
record date, which it shall do if the meeting is adjourned to a date more than
one hundred twenty days after the date fixed for the original meeting.
5. Lost Certificates. The Board of Directors may authorize the issuance of
a new share certificate in place of a certificate claimed to have been lost or
destroyed, upon receipt of an affidavit of such fact from the person claiming
the loss or destruction. When authorizing such issuance of a new certificate,
the Board of Directors may require the claimant to give the Corporation a bond
in such sum as it may direct to indemnify the Corporation against loss from any
claim with respect to the certificate claimed to have been lost or destroyed; or
the Board of Directors may, by resolution reciting that the circumstances
justify such action, authorize the issuance of the new certificate without
requiring such a bond.
6. Holder of Record. Except as otherwise required by law, 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 otherwise to exercise the rights,
powers, and privileges of ownership of such shares.
7. Shares held by Nominees.
(a) The Corporation shall recognize the beneficial owner of shares
registered in the name of a nominee as the owner and shareholder of such shares
for certain purposes if the nominee in whose name such shares are registered
files with the Secretary of the Corporation a written certificate in a form
prescribed by the Corporation, signed by the nominee and indicating the
following: (1) the name, address, and taxpayer identification number of the
nominee; (2) the name, address, and taxpayer identification number of the
beneficial owner; (3) the number and class or series of shares registered in the
name of the nominee as to which the beneficial owner shall be recognized as the
shareholder; and (4) the purposes for which the beneficial owner shall be
recognized as the shareholder.
(b) The purposes for which the Corporation shall recognize a beneficial
owner as the shareholder may include the following: (1) receiving notice of,
voting at and otherwise participating in shareholders' meetings; (2) executing
consents with respect to the shares; (3) exercising dissenters' rights under
Article 13 of the North Carolina Business Corporation Act; (4) receiving
distributions and share dividends with respect to the shares; (5) exercising
inspection rights; (6) receiving reports, financial statements, proxy
statements, and other communications from the Corporation; (7) making any demand
upon the Corporation required or permitted by law; and (8) exercising any other
rights or receiving any other benefits of a shareholder with respect to
the shares.
(c) The certificate shall be effective ten business days after its receipt
by the Corporation and until it is changed by the nominee, unless the
certificate specifies a later effective time or an earlier termination date.
(d) If the certificate affects less than all of the shares registered in
the name of the nominee, the Corporation may require the shares affected by the
certificate to be registered separately on the books of the Corporation and be
represented by a share certificate that bears a conspicuous legend stating that
there is a nominee certificate in effect with respect to the shares represented
by that share certificate.
8. Acquisition by Corporation of its Own Shares. The Corporation may
acquire its own shares and shares so acquired shall constitute authorized but
unissued shares. Unless otherwise prohibited by the Articles of Incorporation,
the Corporation may reissue such shares. If reissue is prohibited, the Articles
of Incorporation shall be amended to reduce the number of authorized shares by
the number of shares so acquired. Such required amendment may be adopted by the
Board of Directors without shareholder action.
9. Shareholder Protection Act. The provisions of Article 9 of Chapter 55 of
the General Statutes of North Carolina, as such Article may be amended from time
to time, shall not apply to the
Corporation.
10. Control Share Acquisition Act. The provisions of Article 9A of Chapter
55 of the General Statutes of North Carolina, as such Article may be amended
from time to time, shall not apply to the Corporation.
ARTICLE VII
INDEMNIFICATION AND REIMBURSEMENT
OF DIRECTORS AND OFFICERS
1. Indemnification for Expenses and Liabilities.
(a) Any person who at any time serves or has served: (1) as a director,
officer, employee or agent of the Corporation, (2) at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, or (3) at the request of the Corporation as a trustee or
administrator under an employee benefit plan, shall have a right to be
indemnified by the Corporation to the fullest extent from time to time permitted
by law against Liability and Expenses in any Proceeding (including without
limitation a Proceeding brought by or on behalf of the Corporation itself)
arising out of his status as such or activities in any of the foregoing
capacities or results from him being called as a witness at a time when he was
not a named defendant or respondent to any Proceeding.
(b) The Board of Directors of the Corporation shall take all such action as
may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this provision, including, without limitation, to
the extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him.
(c) Any person who at any time 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 rights provided for
herein. Any repeal or modification of these indemnification provisions shall not
affect any rights or obligations existing at the time of such repeal or
modification. The rights provided for herein shall inure to the benefit of the
legal representatives of any such person and shall not be exclusive of any other
rights to which such person may be entitled apart from this provision.
(d) The rights granted herein shall not be limited by the provisions
contained in Sections 55-8-51 through 55-8-56 of the North Carolina Business
Corporation Act or any successor to such statutes.
2. Advance Payment of Expenses. The Corporation shall (upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent involved
to repay the Expenses described herein unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation against such Expenses)
pay Expenses incurred by such Director, officer, employee or agent in defending
a Proceeding or appearing as a witness at a time when he has not been named as a
defendant or a respondent with respect thereto in advance of the final
disposition of such Proceeding.
3. Insurance. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, or agent of another domestic
or foreign corporation, partnership, joint venture, trust, or other enterprise
or as a trustee or administrator under an employee benefit plan against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability.
4. Definitions. The following terms as used in this Article shall have the
following meanings. "Proceeding" means any threatened, pending or completed
action, suit, or proceeding and any appeal therein (and any inquiry or
investigation that could
lead to such action, suit, or proceeding), whether civil, criminal,
administrative, investigative or arbitrative and whether formal or informal.
"Expenses" means expenses of every kind, including counsel fees. "Liability"
means the obligation to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to an employee benefit plan), reasonable
expenses incurred with respect to a Proceeding and all reasonable expenses
incurred in enforcing the indemnification rights provided herein. "Director,"
"officer," "employee," and "agent" include the estate or personal representative
of a Director, officer, employee, or agent. "Corporation" shall include any
domestic or foreign predecessor of this Corporation in a merger or other
transaction in which the predecessor's existence ceased upon consummation of the
transaction.
ARTICLE VIII
GENERAL PROVISIONS
1. Distributions. The Board of Directors may from time to time declare, and
the Corporation may pay, distributions and share dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and by
its Articles of Incorporation.
2. Seal. The corporate seal shall have the name of the Corporation
inscribed thereon and shall be in such form as may be
approved from time to time by the Board of Directors. Such seal may be an
impression or stamp and may be used by the officers of the Corporation by
causing it, or a facsimile thereof, to be impressed or affixed or in any other
manner reproduced. In addition to any form of seal adopted by the Board of
Directors, the officers of the Corporation may use as the corporate seal a seal
in the form of a circle containing the name of the Corporation and the state of
its incorporation (or an abbreviation thereof) on the circumference and the word
"Seal" in the center.
3. Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors.
4. Effective Date of Notice. Except as provided in Paragraph 5.(a) of
Article II, written notice shall be effective at the earliest of the following:
(1) when received; (2) five days after its deposit in the United States mail, as
evidenced by the postmark, if mailed with postage thereon prepaid and correctly
addressed; (3) upon confirmation of receipt by answerback code, if sent by
facsimile transmission; (4) upon transmission, if sent by telegraph or teletype;
or (5) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested and the receipt is signed by or on
behalf of the addressee.
5. Corporate Records. Any records maintained by the Corporation in the
regular course of its business, including its
stock ledger, books of account and minute books, may be kept on or be in the
form of punch cards, magnetic tape, photographs, microphotographs or any other
information storage device; provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
the same. The Corporation shall maintain at its principal office the following
records: (1) Articles of Incorporation or Restated Articles of Incorporation and
all amendments thereto; (2) Bylaws or Restated Bylaws and all amendments
thereto; (3) resolutions by the Board of Directors creating classes or series of
shares and affixing rights, preferences or limitations to shares; (4) minutes of
all shareholder meetings or action taken without a meeting for the past three
years; (5) all written communications to shareholders for the past three years,
including financial statements; and (6) the Corporation's most recent annual
report filed with the North Carolina Secretary of State.
6. Bylaw Amendments.
(a) Except as otherwise provided herein, these Bylaws may be amended or
repealed and new Bylaws may be adopted by the affirmative vote of a majority of
the Directors present at any regular or special meeting of the Board of
Directors at which a quorum is present or by the shareholders at any regular or
special meeting of shareholders at which a quorum is present if the votes cast
favoring such action exceed the votes cast opposing such action.
(b) The Board of Directors shall have no power to adopt a Bylaw: (1)
changing the statutory requirement for a quorum of Directors or action by
Directors or changing the statutory requirement for a quorum of shareholders or
action by shareholders; (2) providing for the management of the Corporation
otherwise than by the Board of Directors or the committees thereof; (3)
increasing or decreasing the fixed number for the size of the Board of Directors
or range of Directors, or changing from a fixed number to a range, or vice
versa; or (4) classifying and staggering the election of Directors.
(c) No Bylaw adopted, amended or repealed by the shareholders may be
readopted, amended or repealed by the Board of Directors, except to the extent
that the Articles of Incorporation or a Bylaw adopted by the shareholders
authorizes the Board of Directors to adopt, amend or repeal that particular
Bylaw or the Bylaws generally.
7. Amendments to Articles of Incorporation. To the extent permitted by law,
the Board of Directors may amend the Articles of Incorporation without
shareholder approval to (1) delete the initial directors' names and addresses;
(2) change the initial registered agent or office in any state in which it is
qualified to do business, provided such change is on file with the respective
Secretary of State; (3) change each issued and unissued share of an outstanding
class into a greater number of whole shares, provided
that class is the Corporation's only outstanding share class; (4) change the
corporate name by substituting "corporation," "incorporated," "company,"
"limited," or the abbreviations therefor for a similar word or abbreviation or
by adding, deleting or changing a geographic designation in the name; (5) make
any other change expressly permitted by the North Carolina Business Corporation
Act to be made without shareholder action. All other amendments to the Articles
of Incorporation must be approved by the affirmative vote of 75 percent of the
votes present at a meeting of shareholders at which a quorum is present, in
accordance with Article X of the Corporation's Articles of Incorporation. The
notice of any such meeting must state that the purpose, or one of the purposes,
of the meeting is to consider the proposed amendment, and the notice must be
accompanied by a copy or summary of the amendment or amendments. The Board of
Directors must recommend any amendment to the Articles to be considered by
shareholders as set forth in, and subject to the terms of, North Carolina
General Statutes ss.55-10-03(a).
Note: This Bylaw provision has not been adopted by the share- holders of the
Corporation, but reflects the provisions of the Articles of Incorporation for
ease of reference.