BYLAWS
OF
FIDELITY BANCSHARES (N.C.), INC.
Index
ARTICLE I
Offices
-------
Section 1. Principal Office
Section 2. Registered Offices
Section 3. Other Offices
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings
Section 2. Annual Meetings
Section 3. Special Meetings
Section 4. Notice of Meetings
Section 5. Voting Lists
Section 6. Quorum
Section 7. Proxies
Section 8. Voting of Shares
Section 9. Informal Action By Shareholders
Section 10. Presiding Officer
ARTICLE III
Directors
---------
Section 1. General Powers
Section 2. Number, Term and Qualifications
Section 3. Election of Directors
Section 4. Removal
Section 5. Vacancies
Section 6. Chairman of the Board
Section 7. Compensation
Section 8. Committees of the Board
ARTICLE IV
Meetings of Directors
---------------------
Section 1. Regular Meetings
Section 2. Special Meetings
Section 3. Notice of Meetings
Section 4. Quorum
Section 5. Manner of Acting
Section 6. Informal Action by Directors
ARTICLE V
Executive Committee
-------------------
Section 1. Membership and General Powers
Section 2. Vacancies
Section 3. Removal
Section 4. Minutes
Section 5. Responsibility of Directors
ARTICLE VI
Officers
--------
Section 1. Number
Section 2. Election and Term
Section 3. Removal
Section 4. Compensation
Section 5. Chairman of the Board and President
Section 6. Additional Duties of President
Section 7. Vice Presidents
Section 8. Secretaries
Section 9. Assistant Secretaries
Section 10. Treasurer
Section 11. Assistant Treasurers
Section 12. Other Officers
Section 13. Bonds
ARTICLE VII
Contracts, Loans, Checks and Deposits
-------------------------------------
Section 1. Contracts
Section 2. Loans
Section 3. Checks and Drafts
Section 4. Deposits
ARTICLE VIII
Certificates of Stock and Their Transfer
----------------------------------------
Section 1. Certificates of Stock
Section 2. Transfer of Stock
Section 3. Fixing Record Date
Section 4. Lost Certificates
Section 5. Registered Shareholders
Section 6. Treasury Shares
ARTICLE IX
General Provisions
------------------
Section 1. Dividends
Section 2. Seal
Section 3. Annual Statement
Section 4. Notice and Waiver of Notice
Section 5. Amendments
Section 6. Fiscal Year
Section 7. Indemnification
Section 8. Disallowance of Deductions
BYLAWS
OF
FIDELITY BANCSHARES (N.C.), INC.
ARTICLE I
Offices
--------
Section 1. Principal Office: The principal office of the corporation shall
be located in Fuquay-Varina, Wake County, North Carolina.
Section 2. Registered Offices: The registered office of the corporation
required by law to be maintained in the State of Delaware shall be located in
Wilmington, New Castle County, Delaware. 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 Delaware, as the Board of
Directors from time to time may determine, or as the affairs of the corporation
may require.
ARTICLE II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings: All meetings of shareholders shall be
held at the principal office of the corporation or at such other place, either
within or without the State of Delaware, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or agreed
upon by a majority of the shareholders entitled to vote thereat.
Section 2. Annual Meetings: The annual meeting of shareholders shall be
held at the designated location on such date during the first six months of each
year as shall be determined by the Chairman of the Board, the President or the
Board of Directors. The purpose of such annual meeting shall be to elect
directors of the corporation and for the transaction of such other business as
may properly be brought before the meeting.
Section 3. Special Meetings: Special meetings of the shareholders may
be called at any time by the Chairman of the Board, President or Secretary, and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors. Such written request shall state the purpose
or purposes of the proposed meeting.
Business transacted at any special meeting of shareholders shall be
limited to the purpose stated in the notice.
Section 4. Notice of Meetings: Written or printed notice stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than sixty days before the date thereof, either personally or by mail, by or at
the direction of the Chairman of the Board, President, Secretary, or other
person calling the meeting, to each shareholder of record entitled to vote at
such meeting.
In the case of an annual meeting, the notice of meeting need not
specifically state the business to be transacted thereat unless such a statement
is expressly required by the provisions of the General Corporation Law of the
State of Delaware.
In the case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the meeting is called. In
the case of a special meeting called by the written request of a majority of the
members of the Board of Directors or the written request of the holders of a
majority in amount of the entire capital stock of the corporation issued,
outstanding and entitled to vote, the notice also shall state that the meeting
is being called upon such written request.
When a meeting is adjourned for thirty (30) days or more, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each shareholder of record entitled
to vote at the meeting. When a meeting is adjourned for less than thirty (30)
days in any one adjournment, it is not necessary to give any notice of the
adjourned meeting other than by announcement of the time and place thereof at
the meeting at which the adjournment is taken.
Section 5. Voting Lists: The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of shareholders, a complete list of the shareholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be opened to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any shareholder who is
present.
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Section 6. Quorum: The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders for the
transaction of business except as otherwise provided by the General Corporation
Law of the State of Delaware or by the Certificate of Incorporation of the
corporation. If, however, such quorum shall not be present or represented at any
meeting of the shareholders, the shareholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting, at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
The shareholders present at a duly organized meeting may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
Section 7. Proxies: Each shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in writing
without a meeting may vote in person or may authorize another person or persons
to act for him by proxy, but no such proxies shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period.
Section 8. Voting of Shares: Unless otherwise provided in the
Certificate of Incorporation and subject to the provisions of the General
Corporation Law of the State of Delaware, each shareholder shall at every
meeting of shareholders be entitled to one vote for each share of issued and
outstanding capital stock held by such shareholder. If the Certificate of
Incorporation provides for more or less than one vote for any share on any
matter, any reference in these Bylaws to a majority or other proportion of stock
shall refer to such majority or other proportion of the votes of such stock.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one which by express provision of the statutes or of the Certificate of
Incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
Voting on all matters except the election of directors shall be by
voice vote or by a show of hands unless the holders of a majority of the shares
represented at the meeting shall,
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prior to the voting on any matter, demand a ballot vote on that particular
matter.
Section 9. Informal Action by Shareholders: Unless otherwise provided
in the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of shareholders of the corporation, or any action
which may be taken at any annual or special meeting of such shareholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those shareholders who have not consented in writing.
Section 10. Presiding Officer: The succession order for purposes of
these Bylaws shall be: the Chairman of the Board, President, Executive Vice
President in order of seniority, Senior Vice President in order of seniority,
and Secretary. In the event neither the Chairman of the Board, nor the President
is present, the shareholders may elect a Chairman of the meeting.
ARTICLE III
Directors
---------
Section 1. General Powers: The business and affairs of the corporation
shall be managed by the Board of Directors or by such Committees of the Board as
the Board may establish pursuant to these Bylaws. The directors shall have and
exercise full power in the management and conduct of the business and affairs of
the corporation and do all such lawful acts and things as are not by statute, or
by Certificate of Incorporation, or by these Bylaws directed or required to be
exercised or done by the shareholders.
Section 2. Number, Term and Qualifications: The number of directors of
the corporation shall be not less than five nor more than twelve. The directors,
by a majority vote of the remaining directors, though less than a quorum, or by
the sole remaining director, shall determine the exact number of directors,
which shall be not less than five nor more than twelve without a Bylaw
modification. Each director shall hold office until his death, resignation,
retirement, removal, disqualification, or until his successor is elected and
qualified. Directors need not be residents of the State of Delaware nor
shareholders of the corporation; provided, however, that not less than
three-fourths (3/4) of the
4
directors shall be residents of the State of North Carolina and stock
ownership for qualification shall be subject to North Carolina law.
Section 3. Election of Directors: Except as provided in Section 5 of
this Article, the directors shall be elected by written ballot at the annual
meeting of the shareholders and those persons who receive the highest number of
votes shall be deemed to have been elected.
Section 4. Removal: Any director may be removed from office, with or
without cause, by a vote of shareholders holding a majority of the shares
entitled to vote at an election of directors. If any directors are so removed,
new directors may be elected at the same meeting.
Section 5. Vacancies: Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority vote of the directors then in office, though less than a quorum,
or by a sole remaining director, and the directors so chosen shall hold office
until the next annual election and until their successors are duly elected and
shall qualify, unless sooner displaced. If there are no directors in office,
then an election of directors may be held in the manner provided by statute. If,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any shareholder or shareholders owning at
least ten percent of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office.
Section 6. 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.
Section 7. Compensation: The Board of Directors 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. Members of special or standing committees of the Board of Directors may
be allowed like compensation for attending such committee meetings.
Section 8. Committees of the Board: The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate one or more
committees of the Board, each
5
committee to consist of two or more directors of the corporation. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution and these Bylaws,
shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may require it, except
as limited by the provisions of the General Corporation Law of the State of
Delaware; provided, however, that in the absence or disqualification of any
member of such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors or
as set forth in these Bylaws. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
ARTICLE IV
Meetings of Directors
---------------------
Section 1. Regular Meetings: A regular meeting of the Board of
Directors will 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 Delaware,
for the holding of additional regular meetings, one of which will be held in
each calendar quarter.
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, President or any
two directors. Such meetings may be held either within or without the State of
Delaware.
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 one day 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.
Section 4. Quorum: A majority of the Board of Directors as established by
the Bylaws and fixed by the Board of
6
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 5. Manner of Acting: Except as otherwise provided in these
Bylaws, or as specifically provided by statute or by the Certificate of
Incorporation, 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. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 6. Informal Action by Directors: Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
of a committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or the
committee, whether done before or after the action so taken.
ARTICLE V
Executive Committee
-------------------
Section 1. Members and General Powers: A majority of the qualified
members of the Board of Directors then in office may, by proper resolution,
appoint an Executive Committee which shall be composed of not less than three
nor more than five directors who shall have and exercise the powers of the Board
of Directors in the management of the business affairs of the corporation,
except at such time as the Board of Directors is in session. However, the Board
of Directors shall have the power to direct, limit or control said Executive
Committee by resolution at any special or regular meeting or by general rules
adopted for its guidance. The Executive Committee shall not have any authority
to take any action prohibited by the General Corporation Law of the State of
Delaware; provided, however, that such Executive Committee shall have the power
to declare dividends and to authorize the issuance of stock.
A majority of the members of the Executive Committee shall constitute a
quorum. Further, the Executive Committee shall have authority to take informal
action by written consent as provided in Article IV, Section 6 for the Board of
Directors.
Section 2. Vacancies: Any vacancy occurring on the Executive Committee
shall be filled by the vote of a majority of the number of qualified directors
at a regular or special meeting of the Board of Directors.
7
Section 3. Removal: Any member of the Executive Committee may be removed at
any time with or without cause by a majority of the number of qualified
directors then in office.
Section 4. Minutes: The Executive Committee shall keep regular minutes of
its proceedings and report the same to the Board when required.
Section 5. Responsibility of Directors: The designation of an Executive
Committee and the delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any responsibility or
liability imposed upon it or him by law.
If such action taken by the Executive Committee is not thereafter
formally considered by the full Board, a director may dissent from such action
by filing his written objection with the Secretary with reasonable promptness
after learning of such action.
ARTICLE VI
Officers
--------
Section 1. Number: The officers of the corporation shall consist of a
Chairman of the Board, President and Secretary and may also consist of one or
more Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Vice Presidents, a Treasurer, and other specially designated Vice Presidents or
Assistant Vice Presidents as may be determined by the Board of Directors, and
such Assistant Secretaries and other officers as may be deemed necessary or
advisable by the Board of Directors, each of which officers or assistant
officers thereto shall have such powers as may be delegated to them by the Board
of Directors and these Bylaws. Any two or more offices may be held by the same
person, except that no officer may act in more than one capacity where action of
two or more officers is required.
Section 2. Election and Term: The officers of the corporation shall be
elected by the Board of Directors. Such elections may be held at any regular or
special meeting of the Board. Each officer shall hold office until his death,
resignation, retirement, removal, disqualification, or until his successor is
duly elected and qualified.
Section 3. Removal: Any officer or agent elected or appointed by the
Board of Directors may be removed by the affirmative vote of a majority of the
Board with or without cause; but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
8
Section 4. Compensation: The compensation of all officers of the
corporation shall be fixed by the Board of Directors or as delegated by the
Board of Directors.
Section 5. Chairman of the Board and President: The Chairman of the
Board shall preside at all meetings of the Board of Directors, the Executive
Committee and the meetings of shareholders. In his absence or disability, the
President shall perform the duties of the Chairman of the Board at all such
meetings. In the absence or disability of both the Chairman of the Board and the
President the other provisions of these bylaws concerning succession shall
apply.
Section 6. Additional Duties of President: The President shall be the
principal 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 sign, with any other
proper officer, certificates for shares of the corporation and any deeds,
leases, 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.
Section 7. 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 succession herein specified and in the order of their length of service
within the category or class of Vice President, 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, with the Secretary and/or Assistant
Secretary, may sign certificates for shares of the corporation; and shall
perform such other duties as from time to time may be assigned to him by the
President or the Board of Directors.
Section 8. Secretary: The Secretary shall attend and keep accurate
records of the acts and proceedings of all meetings of shareholders and
directors. He shall give or cause to be given 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
9
of the shares held by each. He shall sign such instruments as may require his
signature, and, in general, 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.
Section 9. 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 length 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, or other authorized officer, certificates for shares of the
corporation.
Section 10. Treasurer: The Treasurer 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 keep
full and accurate accounts of the finances of the corporation and shall render
to the President and Board of Directors, at its regular meetings or when the
Board of Directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the corporation. The Treasurer, in general,
shall 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.
Section 11. 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 Assistant Treasurers, 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 assigned to them by the Treasurer, by the President or by the Board of
Directors.
Section 12. Other Officers: The duties of all officers and employees
not defined and enumerated in the Bylaws shall be prescribed and fixed by the
President and in carrying out the authority to do all other acts necessary to be
done to carry out the prescribed duties unless otherwise ordered by the Board of
Directors, including but not limited to the power to sign, certify or endorse
notes, certificates of indebtedness, deeds, checks, drafts or other contracts
for and on behalf of the corporation and/or to affix the seal of the corporation
to such documents as may require it.
10
Section 13. Bonds: The Board of Directors may by resolution 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.
ARTICLE VII
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, lease, or to execute
and deliver any instrument on behalf of the corporation, and such authority may
be general or confined to specific instances. The Board of Directors may enter
into employment contracts for any length of time it deems wise.
Section 2. Loans: No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or specific in nature and scope.
Section 3. Checks and Drafts: All checks, drafts or other orders for
the payment of money issued in the name of the corporation shall be signed by
such officer or officers, agent or agents of the corporation and in such manner
as from time to time shall be determined by resolution of the Board of
Directors.
Section 4. Deposits: All funds of the corporation not otherwise
employed from time to time shall be deposited to the credit of the corporation
in such depositories as the Board of Directors shall direct.
ARTICLE VIII
Certificates of Stock and Their Transfer
----------------------------------------
Section 1. Certificates of Stock: Certificates representing stock in
the corporation shall be issued in such form as the Board of Directors shall
determine to every shareholder for the fully paid shares owned by him; such
stock certificates shall indicate thereon a reference to any and all restrictive
conditions of said stock. These certificates shall be signed by the Chairman of
the Board of Directors, or the President or any Vice President and the
Secretary, an Assistant Secretary, Treasurer or an Assistant Treasurer or may
have facsimile signatures of such officers placed thereon and such officers
shall have the power to make or order to be made by an
11
authorized officer or transfer agent any and all transfers of the securities of
the corporation. They 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 the date of issue, shall be entered on the stock transfer books of
the corporation. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if he
were such an officer, transfer agent or registrar at the date of issue.
Section 2. Transfer of Stock: Transfer of stock 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 registered holder thereof or by
his duly authorized agent, transferee or legal representative. All certificates
surrendered for transfer shall be cancelled before new certificates for the
transferred shares shall be issued.
Upon surrender to the corporation or its transfer agent of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation or its transfer agent to issue a new certificate to the person
entitled thereto, to cancel the old certificate and to record the transaction
upon its books.
Section 3. Fixing Record Date: In order that the corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 4. Lost Certificates: The Board of Directors may authorize and direct
the issuance of a new share certificate or certificates in place of a
certificate or certificates claimed to have been lost, stolen or destroyed, upon
receipt of an affidavit to such fact from the person claiming the loss, theft or
destruction. When authorizing such issuance of a new certificate or
certificates, the Board may, in its discretion
12
and as a condition precedent to the issuance thereof, require the claimant, or
his legal representative, to advertise the same in such manner as it may require
and/or to give the corporation a bond in such sum as the Board may direct to
indemnify the corporation against loss from any claim with respect to the
certificate claimed to have been lost, stolen or destroyed; or the Board may, by
resolution reciting the circumstances justifying such action, authorize the
issuance of the new certificate or certificates without requiring such a bond.
Section 5. Registered Shareholders: The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice hereof, except as otherwise provided by
the laws of Delaware.
Section 6. Treasury Shares: Treasury shares of the corporation shall
consist of such shares as have been issued and thereafter acquired but not
cancelled by the corporation. Treasury shares shall not carry voting or dividend
rights.
ARTICLE IX
General Provisions
------------------
Section 1. Dividends: Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors or the Executive Committee at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds
of the corporation available for dividends, such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 2. Seal: The corporate seal of the corporation shall have
inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal,
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Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 3. Annual Statement: The Board of Directors shall present at
each annual meeting, and at any special meeting of the shareholders when called
for by majority vote of the shareholders, a full and clear statement of the
business and condition of the corporation.
Section 4. Notice and Waiver of Notice: Whenever any notice is required
to be given to any shareholder or director under the provisions of the General
Corporation Law of the State of Delaware or under the provisions of the
Certificate of Incorporation or Bylaws of this corporation, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or shareholder, at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram,
telephone, telecopier or other electronic communication media.
Whenever notice is required to be given under the provisions of the
General Corporation Law of the State of Delaware or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
The attendance by a director at a meeting of the Board or a committee
of the Board 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.
Section 5. Amendments: Except as otherwise provided herein, these
Bylaws may be altered, amended or repealed and new bylaws may be adopted at any
regular meeting of the Board of Directors or the shareholders, or at any special
meeting of the Board of Directors or shareholders if notice of such alteration,
amendment, repeal or adoption, be contained in the notice of said special
meeting.
Section 6. Fiscal Year: The fiscal year of the corporation shall be
fixed by the Board of Directors.
Section 7. Indemnification: The corporation shall indemnify its
officers, directors, employees and agents to the maximum extent permitted by the
General Corporation Law of the State of Delaware.
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Section 8. Disallowance of Deductions: Any payments made to or on
behalf of an officer or director of the corporation, including salary,
commission, bonus, interest, rent or entertainment expense incurred by him,
which shall be disallowed in whole or in part as a deductible expense of the
corporation by the Internal Revenue Service (and such determination shall be
acceded to by the corporation, or such determination shall be rendered final by
the appropriate taxing authority, or a judgment of a court of competent
jurisdiction and no appeal shall be taken therefrom, or the applicable period
for filing notice of appeal shall have expired), then such sum shall be
reimbursed by such officer or director to the corporation to the full extent of
such disallowance. It shall be the duty of the Board of Directors to enforce the
payment of any such sum disallowed and such repayment may not be waived.
However, in lieu of such direct payment by the officer or director involved to
the corporation, and subject to the determination of the Board of Directors in
its sole discretion, proportionate amounts may be withheld from future
compensation payments of such officer or director until the amount owed to the
corporation as a result of such disallowance has been fully recovered.
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