Exhibit 3.2
BYLAWS
OF
BTI TELECOM CORP.
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the
corporation shall be located at such place as the
Board of Directors may fix from time to time.
Section 2. Registered Office. The registered office of the
corporation required by law to be maintained in the
State of North Carolina may be, but need not be,
identical with the principal office.
Section 3. Other Offices. The corporation may have offices at
such other places, either within or without the State
of North Carolina, as the Board of Directors may
designate or as the affairs of the corporation may
require from time to time.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of shareholders shall
be held at the principal office of the corporation,
or at such other place, whether 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.
Section 2. Annual Meeting. The annual meeting of shareholders
shall be held during the fourth full month following
the end of the corporation's fiscal year at a time
and on any day (except Saturday, Sunday or a legal
holiday) in that month as determined by the Board of
Directors for the purpose of electing directors of
the corporation and for the transaction of such other
business as may be properly brought before the
meeting.
Section 3. Substitute Annual Meetings. If the annual meeting
shall not be held on the day designated by these
Bylaws, a substitute annual meeting may be called
in accordance with the provisions of Section 4 of
this Article II. A meeting so called shall be
designated and treated for all purposes as the annual
meeting.
Section 4. Special Meetings. Special meetings of the
shareholders may be called at any time by the
Chairman of the Board, President, Secretary or Board
of Directors of the corporation, or by any
shareholder pursuant to the written request of the
holders of not less than one-tenth (1/10th) of all
shares entitled to vote at the meeting.
Section 5. Notice of Meetings. Written or printed notice stating
the time and place of the meeting shall be delivered
not less than ten (10) nor more than sixty (60) days
before the date of any shareholders' meeting, either
personally or by telegraph, teletype or other form of
wire or wireless communication, or by facsimile, by
or at the direction of the Chairman of the Board, the
President, the 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 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 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.
In the case of a special meeting, the notice of
meeting shall specifically state the purpose or
purposes for which the meeting is called; but, 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 such a
statement is required by the provisions of the North
Carolina Business Corporation Act.
When a meeting is adjourned to a different date, time
or place, notice need not be given of the new date,
time or place if the new date, time or place is
announced at the meeting before adjournment. If,
however, a new record date for the adjourned meeting
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is fixed, notice of the adjourned meeting will be
given to all persons who are shareholders as of the
new record date in accordance with this Section 5.
Section 6. Waiver of Notice. Any shareholder may waive notice of
any meeting. The waiver must be in writing, signed by
the shareholder and delivered to the corporation for
inclusion in the minutes or filing with the corporate
records. A shareholder's attendance at a meeting (a)
waives objection to lack of notice or defective
notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the
meeting or transacting business at the meeting; and
(b) waives objection to consideration of a particular
matter at the meeting that is not within the purpose
or purposes described in the meeting notice, unless
the shareholder objects to considering the matter
before it is voted upon.
Section 7. Shareholder Lists. Before each meeting of
shareholders, the Secretary of the corporation shall
prepare an alphabetical list of the shareholders
entitled to notice of such meeting. The list shall be
arranged by voting group (and within each voting
group by class or series of shares) and show the
address and number of shares held by each
shareholder. The 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, for the period beginning
two business days after notice of the meeting is
given and continuing through the meeting, and shall
be subject to inspection by any shareholder 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 during the meeting or any adjournment
thereof.
Section 8. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person
or by proxy, shall be required for, and shall
constitute a quorum at all meetings of shareholders.
Shares entitled to vote as a separate voting group
may take action on a matter only if a quorum of those
shares exists; a majority of the votes entitled to be
cast on the matter by the voting group constitutes a
quorum of that voting group. The shareholders present
at a duly
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organized meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
In the absence of a quorum at the opening of any
meeting of shareholders, such meeting may be
adjourned from time to time by a vote of a majority
of the shares voting on the motion to adjourn; and at
any adjourned meeting at which a quorum is present,
any business may be transacted that might have been
transacted at the original meeting.
Section 9. Organization. Each meeting of shareholders shall be
presided over by the Chairman of the Board, and in
his absence or at his request by the President, and
in their absence or at their request by any person
selected to preside by vote of the holders of a
majority of the shares present and entitled to vote
at the meeting. The Secretary, or in his absence or
at his request, any person designated by the person
presiding at the meeting, shall act as secretary of
the meeting.
Section 10. 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 is not 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.
Section 11. Voting of Shares. Subject to the provisions of
Section 4 of Article III and the corporation's
Articles of Incorporation, each outstanding share
entitled to vote shall be entitled to one vote on
each matter submitted to a vote at a meeting of
shareholders. All shares entitled to vote shall 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 and
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these Bylaws of this corporation and the North
Carolina Business Corporation Act.
Except in the election of directors as governed by
the provisions of Section 3 of Article III, the vote
of a majority of the shares voted on any matter at a
meeting of shareholders at which a quorum is present
shall be the act of the shareholders on that matter,
unless the vote of a greater number is required by
law or by the Articles of Incorporation or Bylaws of
this corporation. Further, except in the election of
directors, 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 this corporation. 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 matters as provided by
the Articles of Incorporation or Bylaws of this
corporation or by the North Carolina Business
Corporation Act.
Voting on all matters except the election of
directors shall be by voice vote or by a show of
hands unless the holders of one-tenth (1/10th) of the
shares represented at the meeting shall, prior to the
voting on any matter, demand a ballot vote on that
particular matter. Abstentions shall not be treated
as negative votes.
Shares of the corporation's stock are not entitled to
vote if they are owned, directly or indirectly, by a
second corporation and the corporation owns, directly
or indirectly, a majority of the shares entitled to
vote for directors of the second corporation, except
that shares held in a fiduciary capacity, including
the corporation's own shares, may be voted.
Section 12. Informal Action by Shareholders. Any action that is
required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if one or
more written consents, describing the action so
taken, shall be signed by all of the persons who
would be entitled to vote upon such action at a
meeting, and delivered to the corporation for
inclusion in the minutes or filing
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with the corporate records. Such consent shall have
the same force and effect as a unanimous vote of
shareholders. Any shareholder may retract his consent
until the last shareholder entitled to vote has
signed the appropriate written consent and all
consents have been delivered to the Secretary of the
corporation. When notice of a proposed action is
required to be given to nonvoting shareholders as
provided in Section 5 of Article II of these Bylaws,
the corporation shall give the nonvoting shareholders
notice at least ten (10) days before action is taken
in lieu of a meeting by unanimous consent of the
voting shareholders. Such notice to nonvoting
shareholders shall contain or be accompanied by any
material that would have been required to be sent to
the nonvoting shareholders in a notice of meeting at
which the proposed action would have been submitted
to the shareholders for action.
Section 13. 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
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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 a 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 a prima facie
evidence of the facts stated therein.
ARTICLE III
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 managed under
the direction of, its Board of Directors or by such
executive or other committees as the Board may
establish pursuant to these Bylaws.
Section 2. Number and Qualifications. The number of directors
constituting the initial Board of Directors shall be
not less than five (5) nor more than ten (10) as may
be fixed or changed from time to time, within the
minimum and maximum, by the shareholders or by the
Board of Directors. Directors need not be residents
of the State of North Carolina or shareholders of the
corporation.
Section 3. Election of Directors. Except as provided in Section
6 of this Article III, the directors shall be elected
at the annual meeting of shareholders; and those
persons who receive the highest number of votes shall
be deemed to have been elected. Every shareholder
entitled to vote at an election of directors shall
have the right to vote the number of shares standing
of record in his name for as many persons as there
are directors to be elected and for whose election he
has a right to vote, or, if cumulative voting rights
have been provided for in the corporation's Articles
of Incorporation, to cumulate his vote by giving one
candidate as many
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votes as the number of such directors multiplied by
the number of his shares shall equal, or by
distributing such votes on the same principle among
any number of such candidates. This right of
cumulative voting, if available to the shareholders,
shall not be exercised unless (a) the meeting notice
or proxy statement accompanying the notice states
conspicuously that shareholders are entitled to
cumulate their votes, or (b) a shareholder or proxy
holder who has the right to cumulate his votes
announces in open meeting, before the voting for the
directors starts, his intention so to vote
cumulatively; and if such announcement is made, the
chair shall declare that all shares entitled to vote
have the right to vote cumulatively and shall
announce the number of shares present in person and
by proxy and shall thereupon grant a recess of not
less than one nor more than four hours, as he shall
determine, or of such other period of time as is
unanimously then agreed upon.
Section 4. Term of Directors. Each initial director shall hold
office until the first shareholders' meeting at which
directors are elected, or until such director's
death, resignation or removal. The terms of every
other director shall expire at the next annual
shareholders' meeting following a director's election
or upon such director's death, resignation or
removal. The term of a director elected to fill a
vacancy expires at the next shareholders' meeting at
which directors are elected. Despite the expiration
of a director's term, such director shall continue to
serve until a qualified successor shall be elected. A
decrease in the number of directors does not shorten
an incumbent director's term.
Section 5. Removal. Any director may be removed at any time with
or without cause by a vote of the shareholders if the
number or votes cast to remove such director exceeds
the number of votes cast not to remove him. However,
if cumulative voting is authorized, a director shall
not be removed when the number of shares voting
against the proposal for removal would be sufficient
to elect a director if such shares were voted
cumulatively at an annual election. If a director is
elected by a voting group of shareholders, only the
shareholders of that voting group may participate in
the vote to
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remove him. If any directors are so removed, new
directors may be elected at the same meeting. 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.
Section 6. Vacancies. Any vacancy occurring in the Board of
Directors, including, without limitation, a vacancy
resulting from an increase in the number of directors
or from the failure by the shareholders to elect the
full authorized number of directors, may be filled by
the shareholders or the Board of Directors, whichever
group shall act first. If the directors remaining in
office do not constitute a quorum of the Board, the
directors may fill the vacancy by the affirmative
vote of a majority of the remaining directors.
Section 7. Chairman of the Board. There may be a Chairman of the
Board of Directors elected by the directors from
their number at any meeting of the Board. The
Chairman shall preside at all meetings of the Board
of Directors and perform such other duties as may be
directed by the Board. He shall be an ex officio
member of all committees. He shall make a report in
writing at the annual meeting of the Board of
Directors stating the condition of the corporation
and shall make such suggestions and recommendations
as he shall deem proper for the best interests of the
corporation. He shall appoint delegates and
representatives to the organizations with which the
corporation is affiliated. He shall have the power to
call the regular and any special meetings of the
Board of Directors. Until a Chairman is elected, the
President of the corporation shall preside at the
meetings of the Board of Directors and shareholders.
Section 8. Compensation. The Board of Directors, in its
discretion, may compensate directors for their
services as such and may provide for the payment of
all expenses incurred by directors in attending
regular and special meetings of the Board or of the
Executive Committee. Nothing herein contained,
however, shall be construed to preclude any director
from serving the corporation in any other capacity
and receiving compensation therefor.
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Section 9. Executive Committees. The Board of Directors, by
resolution adopted by a majority of the number of
directors in office when the action is taken or, if
greater, the number of directors required to take
action pursuant to Section 6 of Article IV, may
designate two or more directors to constitute an
Executive Committee and other committees, each of
which, to the extent authorized by law and provided
in such resolution, shall have and may exercise all
of the authority of the Board of Directors in the
management of the corporation. Each committee member
serves at the pleasure of the Board of Directors. The
provisions in these Bylaws that govern meetings,
action without meetings, notice and waiver of notice,
and quorum and voting requirements of the Board of
Directors apply to committees established by the
Board.
ARTICLE IV
MEETINGS OF DIRECTORS
Section 1. Regular Meetings. A regular meeting of the Board
of Directors shall be held immediately after, and at
the same place as, the annual meeting of
shareholders. In addition, the Board of Directors may
provide, by resolution, the time and place, either
within or without the State of North Carolina, for
the holding of additional regular meetings.
Section 2. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the
Chairman of the Board of Directors, if any, by the
President or any two directors. Such meetings may be
held either within or without the State of North
Carolina, as fixed by the person or persons calling
the meeting.
Section 3. Notice of Meetings. Regular meetings of the Board of
Directors may be held without notice.
The person or persons calling a special meeting of
the Board of Directors shall, at least two days
before the meeting, give notice thereof by any usual
means of communication. Such notice need not specify
the purpose for which the meeting is called.
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Section 4. Waiver of Notice. Any director may waive notice of
any meeting. The waiver must be in writing, signed by
the director entitled to the notice and delivered to
the corporation for inclusion in the minutes or
filing with the corporate records. A director's
attendance at or participation in a meeting shall
constitute a waiver of notice of such meeting, unless
the director at the beginning of the meeting (or
promptly on arrival) 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 directors fixed by these
Bylaws shall be required for, and shall constitute, a
quorum for the transaction of business at any meeting
of the Board of Directors unless the Articles of
Incorporation or these Bylaws provide otherwise.
Section 6. Manner of Acting. Except as otherwise provided in the
Articles of Incorporation or these Bylaws, 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.
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 is deemed to have assented
to the action taken unless (a) he objects at the
beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the
meeting, or (b) his dissent or abstention from the
action taken is entered in the minutes of the
meeting, or (c) he files written notice of his
dissent or abstention with the presiding officer of
the meeting before its adjournment or with the
corporation immediately after the adjournment. Such
right to dissent shall not apply to a director who
voted in favor of such action.
Section 8. Action Without Meeting. Action required or permitted
to be taken at a meeting of the Board of Directors
may be taken without a meeting if the action is taken
by all members of the Board. The action must be
evidenced by one or more written consents signed by
each director before or after such action, describing
the action taken, and
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included in the minutes or filed with the corporate
records. Such action will become effective when the
last director signs the consent, unless the consent
specifies a different date.
Section 9. Conference Telephone Meetings. Any one or more
directors or members of a committee may participate
in a meeting of the Board of Directors or committee
by means of a conference telephone or similar
communications device that allows all persons
participating in the meeting to hear each other, and
such participation in a meeting shall be deemed
presence in person at such meeting.
ARTICLE V
OFFICERS
Section 1. Officers of the Corporation. The officers of the
corporation shall consist of a Chairman of the Board,
President, a Secretary, a Treasurer and such
Vice-Presidents, Assistant Secretaries, Assistant
Treasurers, and other officers (including Controllers
and Assistant Controllers) as the Board of Directors
may from time to time elect. Any two or more offices
may be held by the same person, but no officer may
act in more than one capacity where action of two or
more officers is required.
Section 2. Appointment and Term. The officers of the corporation
shall be appointed by the Board of Directors and each
officer shall hold office until his death,
resignation, retirement, removal, disqualification,
or his successor shall have been appointed and
qualified.
Section 3. Removal. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board
at any time with or without cause; but such removal
shall be without prejudice to the contract rights, if
any, of the person so removed.
Section 4. Resignation. An officer may resign at any time by
communicating his resignation to the corporation,
orally or in writing. A resignation is effective when
communicated unless it specifies in writing a later
effective date. If a resignation is made effective at
a later date that is accepted by the corporation, the
Board of Directors may fill the pending vacancy
before the effective date if the
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Board provides that the successor does not take
office until the effective date. An officer's
resignation does not affect the corporation's
contract rights, if any, with the officer.
Section 5. Compensation of Officers. The compensation of all
officers of the corporation shall be fixed by the
Board of Directors and no officer shall serve the
corporation in any other capacity and receive
compensation therefor unless such additional
compensation be authorized by the Board of Directors.
Section 6. Chairman of the Board. Unless otherwise specified by
resolution of the Board, the Chairman of the Board
shall be the Chief Executive Officer of the
corporation (and may be identified as such in his
title) and, subject to the direction and control of
the Board of Directors, shall supervise and control
the management of the corporation. The Chairman of
the Board shall, when present, preside at all
meetings of the directors and shareholders and, in
general, shall perform all duties incident to the
office of Chairman of the Board and such other duties
as may be prescribed from time to time by the Board
of Directors.
Section 7. President. Unless otherwise specified by resolution
of the Board, the President shall be the Chief
Operating Officer of the corporation and, subject to
the control of the Board of Directors, shall in
general supervise and control all of the business and
affairs of the corporation. He shall, in the absence
of the Chairman of the Board, preside at all meetings
of the shareholders. He shall sign, with the
Secretary, an Assistant Secretary, or any other
proper officer of the corporation thereunto
authorized by the Board of Directors, certificates
for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments that the Board
of Directors has authorized to be executed, except in
cases where the signing and execution thereof shall
be expressly delegated by the Board of Directors or
by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be,
otherwise signed or executed; and, in general, he
shall perform all duties incident to the office of
President and such other duties as may be
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prescribed by the Board of Directors from time to
time.
Section 8. Vice-Presidents. In the absence of the President or
in the event of his death, inability or refusal to
act, the Vice-Presidents in the order of their length
of service as such, unless otherwise determined by
the Board of Directors, shall perform the duties of
the President, and when so acting shall have all the
powers of and be subject to all the restrictions upon
the President. Any Vice-President may sign, with the
Secretary or an Assistant Secretary, certificates of
shares of the corporation; and shall perform such
other duties as from time to time may be assigned to
him by the President or Board of Directors. The Board
of Directors may designate one or more
Vice-Presidents to be responsible for certain
functions, including, without limitation, Marketing,
Finance, Manufacturing and Personnel.
Section 9. Secretary. The Secretary shall: (a) keep the minutes
of the meetings of shareholders, of the Board of
Directors and of all Executive Committees in one or
more books provided for that purpose; (b) see that
all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c)
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; (d) keep a register of the post
office address of each shareholder which shall be
furnished to the Secretary by such shareholder; (e)
sign with the President, or a Vice-President,
certificates for shares of the corporation, the
issuance of which shall have been authorized by
resolution of the Board of Directors; (f) maintain
and have general charge of the stock transfer books
of the corporation; (g) prepare or cause to be
prepared shareholder lists prior to each meeting of
shareholders as required by law; (h) attest the
signature or certify the incumbency or signature of
any officer of the corporation; and (i) in general
perform all duties incident to the office of
Secretary and such other duties as from time to time
may be assigned to him by the President or by the
Board of Directors.
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Section 10. Assistant Secretaries. In the absence of the
Secretary or in the event of his death, inability or
refusal to act, the Assistant Secretaries in the
order of their lengths of service as Assistant
Secretaries, unless otherwise determined by the Board
of Directors, shall perform the duties of the
Secretary, and when so acting shall have all the
powers of and be subject to all the restrictions upon
the Secretary. They shall perform such other duties
as may be assigned to them by the Secretary, by the
President, or by the Board of Directors. Any
Assistant Secretary may sign, with the President or a
Vice-President, certificates for shares of the
corporation.
Section 11. Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and
securities of the corporation; receive and give
receipts for monies due and payable to the
corporation from any source whatsoever, and deposit
all such monies in the name of the corporation in
such depositories as shall be selected in accordance
with the provisions of Section 4 of Article VI of
these Bylaws; (b) maintain appropriate accounting
records as required by law; (c) prepare, or cause to
be prepared, annual financial statements of the
corporation that include a balance sheet as of the
end of the fiscal year and an income and cash flow
statement for that year, which statements, or a
written notice of their availability, shall be mailed
to each shareholder within One Hundred Twenty (120)
days after the end of such fiscal year; and (d) 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 him by the President
or by the Board of Directors, or by these Bylaws.
Section 12. Assistant Treasurers. In the absence of the
Treasurer or in the event of his death, inability or
refusal to act, the Assistant Treasurers in the order
of their length of service as such, unless otherwise
determined by the Board of Directors, shall perform
the duties of the Treasurer, and when so acting shall
have all the powers of and be subject to all the
restrictions upon the Treasurer. They shall perform
such other duties as may be
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assigned to them by the Treasurer, by the President,
or by the Board of Directors.
Section 13. Controller and Assistant Controllers. The Controller,
if one has been appointed, shall 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 Controller shall
exercise the powers of the Controller during that
officer's absence or inability to act.
Section 14. Delegation of Duties of Officers. In case of the
absence of any officer of the corporation or for any
other reason that the Board may deem sufficient, the
Board may delegate the powers or duties of such
officer to any other officer or to any director for
the time being provided a majority of the entire
Board of Directors concurs herein.
Section 15. Bonds. The Board of Directors may by resolution,
require any or all officers, agents or 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.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into
any contract or execute and deliver any instrument in
the name of and on behalf of the corporation, and
such authority may be general or confined to specific
instances. Any resolution of the Board of Directors
authorizing the execution of documents by the proper
officers of the corporation or by the officers
generally shall be deemed to authorize such execution
by the Chairman of the Board, the President, any
Vice-President, or the Treasurer, or any other
officer if such execution is generally within the
scope of the duties of his
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office. The Board of Directors may by resolution
authorize such execution by means of one or more
facsimile signatures.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be
issued in its name unless authorized by a resolution
of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks and Drafts. All checks, drafts or other
orders for the payment of money issued in the name of
the corporation shall be signed by such officer or
officers, agent or agents of the corporation and in
such manner as shall from time to time be determined
by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the
credit of the corporation in such depositories as the
Board of Directors may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. The Board of Directors may
authorize the issuance of some or all of the shares
of the corporation's classes or series without
issuing certificates to represent such shares. If
shares are represented by certificates, the
certificates shall be in such form as required by law
and shall be determined by the Board of Directors.
Certificates shall be signed (either manually or in
facsimile) by the Chairman of the Board, President or
a Vice-President and by the Secretary or Treasurer or
an Assistant Secretary or an Assistant Treasurer. 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. All certificates
for shares shall be consecutively numbered or
otherwise identified and entered into the stock
transfer books of the corporation. When shares are
represented by certificates, the corporation shall
issue and deliver to each shareholder to whom such
shares have been issued or transferred, certificates
representing the shares owned by him. When shares are
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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 law to be on certificates.
Section 2. Stock Transfer Books. The corporation shall keep a
book or set of books, to be known as the stock
transfer books of the corporation, containing the
name of each shareholder of record, together with
such shareholder's address and the number and class
or series of shares held by him. Transfer of shares
shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his
legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney
thereunto authorized by power of attorney duly
executed and filed with the Secretary, and on
surrender for cancellation of the certificate for
such shares (if the shares are represented by
certificates). All certificates surrendered for
transfer (if the shares are represented by
certificates) shall be cancelled before new
certificates (or written statements in lieu thereof)
for the transferred shares shall be issued or
delivered to the shareholder.
Section 3. Restrictions on Transfer.
(a) If the corporation has elected Subchapter S
status under Section 1362 of the Internal Revenue
Code of 1986, as amended, no shareholder or
involuntary transferee shall dispose of or transfer
any shares of the corporation that he now owns or may
hereafter acquire if such disposition or transfer
would result in the termination of such Subchapter S
status, unless such disposition or transfer is
consented to by all shareholders of the corporation.
Any such disposition or transfer that does not comply
with the terms of this section shall be void and have
no legal force or effect and shall not be recognized
on the share transfer books of the corporation as
effective.
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(b) If the corporation has elected Subchapter S
status under Section 1362 of the Code, every
certificate representing shares of the corporation
shall bear a legend prominently displayed that notes
the restrictions on transfer contained in these
Bylaws.
(c) The restrictions contained in this Section 3
shall automatically terminate on the effectiveness of
the corporation's initial registration statement for
a public offering of its securities.
Section 4. Fixing Record Date. The Board of Directors may fix a
future date as the record date for one or more voting
groups in order to determine the shareholders
entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled
to receive payment of any distribution, or in order
to make a determination of shareholders for any other
proper purpose. Such record date may not be more than
seventy (70) days before the meeting or date on which
the particular action requiring such determination of
shareholders is to be taken. A determination of
shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any
adjournment of the meeting unless the Board of
Directors fixes a new record date for the adjourned
meeting, which it must do if the meeting is adjourned
to a date more than One Hundred Twenty (120) days
after the date fixed for the original meeting.
If no record date is fixed for the determination of
shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to
receive payment of a distribution, the close of
business on the day before the first notice of the
meeting is delivered to shareholders or the date on
which the resolution of the Board of Directors
declaring such distribution is adopted, as the case
may be, shall be the record date for such
determination of shareholders.
Section 5. Lost or Destroyed Certificate. The Board of Directors
may direct a new certificate to be issued in place of
any certificate theretofore issued by the corporation
claimed to have been lost, destroyed or wrongfully
taken, upon receipt of an affidavit of such fact from
the person claiming the certificate of stock to have
been lost or
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destroyed. When authorizing such issue of a new
certificate, the Board of Directors shall require
that the owner of such lost or destroyed certificate,
or his legal representative, give the corporation a
bond in such sum as the Board may direct as indemnity
against any claim that may be made against the
corporation with respect to the certificate claimed
to have been lost or destroyed, except where the
Board of Directors by resolution finds that in the
judgment of the directors the circumstances justify
omission of a bond.
Section 6. Holder of Record. Except as otherwise required by
law, the corporation may treat as absolute owner of
shares the person in whose name the shares stand of
record on its books just as if that person had full
competency, capacity and authority to exercise all
rights of ownership irrespective of any knowledge or
notice to the contrary or any description indicating
a representative, pledge or other fiduciary relation
or any reference to any other instrument or to the
rights of any other person appearing upon its record
or upon the share certificate except that any person
furnishing to the corporation proof of his
appointment as a fiduciary shall be treated as if he
were a holder of record of its shares.
Section 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
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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 (10)
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.
Section 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.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distributions. The Board of Directors may from time
to time authorize, and the corporation may
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make distributions to its shareholders pursuant to
law and subject to the provisions of its Articles of
Incorporation.
Section 2. Seal. The corporate seal of the corporation shall
consist of two concentric circles between which is
the name of the corporation and in the center of
which is inscribed CORPORATE SEAL; and such seal, as
impressed on the margin hereof, is hereby adopted as
the corporate seal of the corporation.
Section 3. Fiscal Year. The fiscal year of the corporation shall
be fixed by the Board of Directors.
Section 4. Amendments. Except as otherwise provided herein and
by law, these Bylaws may be amended or repealed and
new bylaws may be adopted by the affirmative vote of
a majority of the directors then holding office at
any regular or special meeting of the Board of
Directors.
No bylaw adopted or amended or repealed by the
shareholders shall be readopted, amended or repealed
by the Board of Directors, unless 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.
Section 5. Salary and Other Compensation. Any payments made to
an officer of the corporation such as salary,
commission, bonus, interest, rent or entertainment
expense incurred by him, that shall be disallowed in
whole or in part as a deductible expense by the
Internal Revenue Service, shall be reimbursed by such
officer of the corporation to the full extent of such
disallowance.
Section 6. Indemnification. Any person who at any time serves or
has served as a director or officer of the
corporation or in such capacity at the request of the
corporation or officer of the corporation,
partnership, joint venture, trust or other
enterprise, shall have a right to be indemnified by
the corporation to the fullest extent permitted by
law against (a) reasonable expenses, including
attorneys' fees, actually and necessarily incurred by
him in connection with any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative
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(and any appeal therein), and whether or not brought
by or on behalf of the corporation, seeking to hold
him liable by reason of the fact that he is or was
acting in such capacity, and (b) reasonable payments
made by him in satisfaction of any judgment, money
decree, fine, penalty or settlement for which he may
have become liable in any such action, suit or
proceeding.
The Board of Directors of the corporation shall take
all such action as may be necessary and appropriate
to authorize the corporation to pay the
indemnification required by this bylaw, including
without limitation, 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 and giving notice to, and
obtaining approval by, the shareholders of the
corporation.
Any person who at any time after the adoption of this
bylaw serves or has served in any of the aforesaid
capacities for or on behalf of the corporation shall
be deemed to be doing or to have done so in reliance
upon, and as consideration for, the right of
indemnification provided herein. Such right 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 the provision of this bylaw.
Section 7. Advance Payment of Expenses. The corporation shall
(upon receipt of an undertaking by or on behalf of
the director or officer 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 (including attorneys' fees) incurred by such
director, officer, employee or agent in defending any
threatened, pending or completed action, suit or
proceeding and any appeal therein whether civil,
criminal, administrative, investigative or
arbitrative and whether formal or informal 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.
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Section 8. Directors and Officers Liability Insurance. The Board
of Directors may cause the corporation to purchase
and maintain "Directors and Officers Liability
Insurance" for the benefit of any person who is or
was serving as a director, officer, employee or agent
of this corporation or for the benefit of any person
who is or was serving at the request of this
corporation as a director, officer, employee, or
agent of another corporation, partnership, joint
venture, trust or other enterprise. This insurance
may cover any liability incurred by such person in
any capacity arising out of this status as such even
if the corporation would not otherwise have the power
to indemnify him against that liability.
Section 9. Effective Date of Notice. Except as provided in
Section 5 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; or (3) 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.
Section 10. 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
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corporation's most recent annual report filed with
the North Carolina Secretary of State.
Section 11. 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 applicable 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 appropriate voting group or groups as required by
law.
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