AMENDED AND RESTATED BYLAWS OF
THE SOUTH FINANCIAL GROUP, INC.
AMENDED AND RESTATED AS OF AUGUST 17, 2005
Page
ARTICLE I.OFFICES.................................................................................................3
Section 1.1 Business Office..........................................................................3
Section 1.2 Registered Office........................................................................3
ARTICLE II. SHAREHOLDERS..............................................................................3
Section 2.1 Annual Meeting...........................................................................3
Section 2.2 Special Meetings.........................................................................3
Section 2.3 Place of Meeting; Conduct of Meeting.....................................................4
Section 2.4 Notice of Meeting........................................................................5
Section 2.5 Fixing of Record Date....................................................................6
Section 2.6 Shareholder List.........................................................................6
Section 2.7 Quorum and Voting Requirements...........................................................7
Section 2.8 Increasing Either Quorum or Voting Requirements..........................................7
Section 2.9 Proxies..................................................................................8
Section 2.10 Voting of Shares; Polls..................................................................8
Section 2.11 Corporation's Acceptance of Votes........................................................8
Section 2.12 Informal Action by Shareholders..........................................................9
Section 2.13 Notice of Shareholder Nominations........................................................9
Section 2.14 Procedures for Submission of Shareholder Proposals at Annual Meeting....................10
Section 2.15 Shareholder's Rights to Inspect Corporate Records.......................................11
Section 2.16 Financial Statements Shall Be Furnished to the Shareholders.............................12
Section 2.17 Dissenter's Rights......................................................................13
ARTICLE III. BOARD OF DIRECTORS.......................................................................13
Section 3.1 General Powers..........................................................................13
Section 3.2 Number, Tenure and Qualifications of Directors..........................................13
Section 3.3 Regular Meetings........................................................................13
Section 3.4 Special Meetings........................................................................13
Section 3.5 Notice of Special Meeting...............................................................14
Section 3.6 Director Quorum.........................................................................14
Section 3.7 Manner of Acting........................................................................14
Section 3.8 Establishing a Supermajority" Quorum or Voting Requirement..............................14
Section 3.9 Action Without a Meeting................................................................15
Section 3.10 Removal of a Director...................................................................15
Section 3.11 Vacancies...............................................................................15
Section 3.12 Compensation............................................................................16
Section 3.13 Committees..............................................................................16
Section 3.14 Board Leadership........................................................................17
ARTICLE IV. OFFICERS.................................................................................18
Section 4.1 Number..................................................................................18
Section 4.2 Appointment and Term of Office..........................................................18
Section 4.3 Removal.................................................................................18
Section 4.4 The President...........................................................................18
Section 4.5 The Vice-Presidents.....................................................................18
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Section 4.6 The Secretary...........................................................................18
Section 4.7 The Treasurer...........................................................................19
Section 4.8 Assistant Secretaries and Assistant Treasurers..........................................19
Section 4.9 Salaries................................................................................19
ARTICLE V. INDEMNIFICATION OF DIRECTORS,OFFICERS, AGENTS, AND EMPLOYEES.............................19
Section 5.1 Indemnification of Directors............................................................19
Section 5.2 Advance Expenses for Directors..........................................................19
Section 5.3 Other Employees and Agents..............................................................19
Section 5.4 Nature of Right to Indemnification......................................................20
Section 5.5 Request for Indemnification; Determination of Entitlement Thereto; When Paid............20
Section 5.6 Right of Action; No Presumption.........................................................20
Section 5.7 Binding Effect on the Corporation.......................................................20
Section 5.8 No Challenge to Validity................................................................20
Section 5.9 Nonexclusivity..........................................................................20
Section 5.10 Severability............................................................................21
Section 5.11 Notices.................................................................................21
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER...............................................21
Section 6.1 Certificates for Shares.................................................................21
Section 6.2 Registration of the Transfer of Shares..................................................22
Section 6.3 Restrictions on Transfer of Shares Permitted............................................22
Section 6.4 Acquisition of Shares...................................................................23
ARTICLE VII. DISTRIBUTIONS............................................................................23
Section 7.1 Distributions...........................................................................23
ARTICLE VIII. CORPORATE SEAL...........................................................................23
Section 8.1 Corporate Seal..........................................................................23
ARTICLE IX. EMERGENCY BYLAWS.........................................................................23
Section 9.1 Emergency Bylaws........................................................................23
ARTICLE X. AMENDMENTS...............................................................................24
Section 10.1 Amendments..............................................................................24
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ARTICLE I.
OFFICES
Section 1.1 Business Office.
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The original principal office of the corporation shall be
within the State of South Carolina and shall be located in Greenville, County of
Greenville. The board of directors may change the location of the principal
office. The corporation shall maintain at its principal office a copy of certain
records, as specified in Section 2.15 of Article II. The corporation may have
such other offices, either within or without the State of South Carolina, as the
board of directors may designate or as the business of the corporation may
require.
Section 1.2 Registered Office.
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The registered office of the corporation, required by Section
33-5-101, of the South Carolina Business Corporation Act of 1988 (hereinafter
"the Act") may be, but need not be, identical with the principal office in the
state of South Carolina, and the address of the registered office may be changed
from time to time.
ARTICLE II.
SHAREHOLDERS
Section 2.1 Annual Meeting.
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The annual meeting of the shareholders shall be held on such
date as may be designated by the board of directors for the purpose of electing
directors and for the transaction of such other business as may come before the
meeting. No other matters may be brought before the meeting by any shareholder
unless written notice of such matters, together with an adequate description
thereof, shall have been provided to the corporation in compliance with Section
2.13 or Section 2.14.
Section 2.2 Special Meetings.
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(a) Special meetings of the shareholders, for any purpose or
purposes, described in the meeting notice (which may be limited to one or more
specific purpose), may be called by the president, or by the board of directors,
and shall be called by the president at the request of the holders of not less
than one-tenth of all outstanding votes of the corporation entitled to be cast
on any issue at the meeting. Only such business shall be conducted at a special
shareholder meeting as shall have been brought before such meeting pursuant to
the corporation's notice of meeting given in accordance with Section 2.4.
(b) In order that any demand or request of a shareholder or
shareholders for a special meeting of shareholders contemplated by Section
2.2(a) be validly and effectively made, such shareholder or shareholders and
such demand or request must comply with the following procedures:
(1) Any shareholder seeking to request or demand, or to have
the shareholders request or demand, a special meeting shall first, by written
notice to the Secretary of the corporation, request the board of directors to
fix a record date, pursuant to Section 2.5 hereof, for the purpose of
determining the shareholders entitled to request the special meeting. The board
of directors shall promptly, but in all events within 10 days after the date
upon which such a request is received, fix such a record date. Every request to
fix a record date for determining the stockholders entitled to request a special
meeting shall be in writing and shall set forth the purpose or purposes for
which the special meeting is requested, the name and address, as they appear in
the corporation's books, of each shareholder making the request and the class
and number of shares of the corporation which are owned of record by each such
shareholder, and shall bear the signature and date of signature of each such
shareholder.
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In the event of the delivery to the corporation of any
request(s) or demand(s) by shareholders with respect to a special meeting,
and/or any related revocation or revocations, the corporation shall engage
nationally recognized independent inspectors of elections for the purpose of
performing a prompt ministerial review of the validity of the request(s),
demand(s) and/or revocation(s).
(2) No request or demand with respect to calling a special
meeting of shareholders shall constitute a valid and effective shareholder
request or demand for a special meeting (i) unless (A) within 60 days of the
record date established in accordance with Section 2.2(b)(1), written requests
or demands signed by stockholders of record representing a sufficient number of
shares as of such record date to request or demand a special meeting pursuant to
Section 2(a) are delivered to the Secretary of the corporation and (B) each
request or demand is made in accordance with and contains the information
required by Section 2.14(b)(2) as if such request or demand were a proposal to
conduct business at an annual meeting of the corporation as provided for therein
and (ii) until such date as the independent inspectors engaged in accordance
with this Section 2.2(b)(2) certify to the corporation that the requests or
demands delivered to the corporation in accordance with clause (i) of this
Section 2.2 (b)(2) represent at least the minimum number of shares that would be
necessary to request such a meeting pursuant to Section 2.2(a).
(c) If the corporation determines that a shareholder or
shareholders have satisfied the notice, information and other requirements
specified in Section 2.2(b)(2)(i), then the board of directors shall adopt a
resolution calling a special meeting of the shareholders and fixing the record
date therefor for the purpose of determining the shareholders entitled to notice
of and to vote at such special meeting. Notice of such special meeting shall be
provided in accordance with Section 2.4(a), provided that such notice shall be
given within 30 days (or such longer period as from time to time may be
permitted by law) after the date valid and effective request(s) or demand(s) for
such special meeting is (or are) delivered to the corporation in accordance with
Section 2.2(b)(2)(i).
(d) In fixing a meeting date for the special meeting of
shareholders, the board of directors may consider such factors as it deems
relevant within the good faith exercise of its business judgment, including,
without limitation, the nature of the action proposed to be taken, the facts and
circumstances surrounding the request, and any plan of the board of directors to
call a special or annual meeting of shareholders for the conduct of related
business, provided that such date shall be determined in accordance with Section
2.4(a) hereof.
(e) Nothing contained in this Section 2.2(b) shall in any way
be construed to suggest or imply that the board of directors or any shareholder
shall not be entitled to contest the validity of any request or demand or
revocation thereof, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect
thereto).
Section 2.3 Place of Meeting; Conduct of Meeting.
------------------------------------
The board of directors may designate any place as the place of
meeting for any annual or special meeting of the shareholders, which may be
either within or without the State of South Carolina. If no designation is made,
the place of meeting shall be the principal office of the corporation. Every
meeting of shareholders shall be chaired by the Chairman of the board of
directors, the Deputy Chairman, or, in the absence thereof, such person as the
Chairman of the board of directors shall appoint, or, in the absence thereof or
in the event that the Chairman of the board of directors shall fail to make such
appointment, such person as shall be appointed by vote of the Nominating
Committee of the board of directors, or, in the absence thereof or in the event
that such Committee fails to make such appointment, any officer of the
corporation elected by the board of directors.
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Section 2.4 Notice of Meeting.
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(a) Required Notice.
Written notice stating the place, day and hour of any annual
or special shareholder meeting shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, by
or at the direction of the president or the board of directors. Only the
president or the board of directors shall have the authority to set the place,
day and hour of any special meeting. Such notice shall be given to each
shareholder of record entitled to vote at such meeting and to any other
shareholder entitled by the Act or the articles of incorporation to receive
notice of the meeting.
Notice shall be deemed to be effective at the earlier of: (1)
when deposited in the United States mail, addressed to the shareholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid, (2) 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, (3) when received, or (4) 5 days after
deposit in the United States mail, if mailed postpaid and correctly addressed,
to an address other than that shown in the corporation's current record of
shareholders.
Any previously scheduled meeting of the shareholders may be
postponed, and any special meeting of the shareholders may be canceled, by
resolution of the board of directors upon public notice given prior to the date
previously scheduled for such meeting of shareholders.
(b) Adjourned Meeting.
If any shareholder 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 and place are announced at the meeting before adjournment. If a
new record date for the adjourned meeting is, or must be, fixed (see Section 2.5
of this Article II) then notice must be given pursuant to the requirements of
paragraph (a) of this Section 2.4, to those persons who are shareholders as of
the new record date.
(c) Waiver of Notice.
The shareholder may waive notice of the meeting (or any notice
required by the Act, articles of incorporation, or bylaws), by a writing signed
by the shareholder entitled to the notice, which is delivered to the corporation
(either before or after the date and time stated in the notice) for inclusion in
the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(1) 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;
(2) 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
when it is presented.
(d) Contents of Notice.
The notice of each special shareholder meeting shall include a
description of the purpose or purposes for which the meeting is called. Except
as provided in this Section 2.4(d), or as provided in the corporation's
articles, or otherwise in the Act, the notice of an annual shareholder meeting
need not include a description of the purpose or purposes for which the meeting
is called.
If a purpose of any shareholder meeting is to consider either:
(1) a proposed amendment to the articles of incorporation (including any
restated articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange or other disposition of all or
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substantially all of the corporation's property; (4) the adoption, amendment or
repeal of a bylaw; (5) dissolution of the corporation; or, (6) removal of a
director, the notice must so state and be accompanied by respectively a copy or
summary of the: (1) articles of amendment; (2) plan of merger or share exchange;
(3) transaction for disposition of all the corporation's property; or (4) bylaw
proposal. If the proposed corporation action creates dissenter's rights, the
notice must state that shareholders are, or may be entitled to assert
dissenter's rights, and must be accompanied by a copy of Chapter 13 of the Act.
If the corporation issues, or authorizes the issuance of shares for promissory
notes or for promises to render services in the future, the corporation shall
report in writing to all the shareholders the number of shares authorized or
issued, and the consideration received with or before the notice of the next
shareholder meeting. Likewise, if the corporation indemnifies or advances
expenses to a director (pursuant to Section 33-16-210 of the Act) this shall be
reported to all the shareholders with or before notice of the next shareholder's
meeting.
Section 2.5 Fixing of Record Date.
---------------------
For the purpose of determining shareholders of any voting
group entitled to notice of or to vote at any meeting of shareholders, or
shareholders entitled to receive payment of any distribution or dividend, or in
order to make a determination of shareholders for any other proper purpose, the
board of directors may fix in advance a date as the record date. Such record
date shall not be more than seventy days prior to the date on which the
particular action, requiring such determination of shareholders, is to be taken.
If no record date is so fixed by the board for the determination of shareholders
entitled to notice of, or to vote at a meeting of shareholders, or shareholders
entitled to receive a share dividend or distribution, the record date for
determination of such shareholders shall be at the close of business on:
(a) With respect to an annual shareholder meeting or any
special shareholder meeting called by the board or any person
specifically authorized by the board or these bylaws to call a meeting,
the day before the first notice is delivered to shareholders;
(b) With respect to a special shareholder's meeting demanded
by the shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date
the board authorizes the share dividend;
(d) With respect to actions taken in writing without a
meeting, the date the first shareholder signs a consent;
(e) And with respect to a distribution to shareholders (other
than one involving purchase or reacquisition of shares), the date the
board authorizes the distribution. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record
date which it must do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting.
Section 2.6 Shareholder List.
----------------
The officer or agent having charge of the stock transfer books
for shares of the corporation shall make a complete record of the shareholders
entitled to vote at each meeting of shareholders thereof, arranged in
alphabetical order, with the address of and the number of shares held by each.
The list must be arranged by voting group, if such exists, and within each
voting group by class or series of shares. The shareholder's list must be
available for inspection by any shareholder, beginning on the date on which
notice of the meeting is given for which the list was prepared and continuing
through the meeting. The list shall be available at the corporation's principal
office or at a place identified in the meeting notice in the city where the
meeting is to be held. A shareholder, his agent or attorney is entitled on
written demand to inspect, and subject to the requirements of Section 2.15 of
this Article II, to copy the list at his expense during regular business hours,
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and during the period it is available for inspection. The corporation shall
maintain the shareholder list in written form or in another form capable of
conversion into written form within a reasonable time.
Section 2.7 Quorum and Voting Requirements.
-------------------------------
(a) General. Unless the articles of incorporation, a bylaw
adopted pursuant to Section 2.8 of this Article II, or the Act provide
otherwise, the presence at any meeting, in person or by proxy, of the holders of
record of a majority of the shares then issued and outstanding and entitled to
vote shall be necessary and sufficient to constitute a quorum for the
transaction of business.
(b) Voting Groups. If the articles of incorporation or the Act
provides for voting by a single voting group on a matter, action on that matter
is taken when voted upon by that voting group. Shares entitled to vote as a
separate voting group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Unless the articles of
incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II, or
the Act provide otherwise, the presence at any meeting, in person or by proxy,
of the holders of record of a majority of the shares of such separate voting
group then issued and outstanding and entitled to vote shall be necessary and
sufficient to constitute a quorum for the transaction of business.
If the articles of incorporation or the Act provide for voting
by two or more voting groups on a matter, action on that matter is taken only
when voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by another
voting group entitled to vote on the matter.
(c) Once a share is represented for any purpose at a meeting,
it is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment of the meeting unless a new record date is or must be set
under the Act for the adjourned meeting. If a quorum exists, action on a matter
(other than the election of directors) is approved if the votes cast within the
voting group favoring the action exceed the votes cast opposing the action,
unless the articles of incorporation, a bylaw adopted pursuant to Section 2.8 of
this Article II, or the Act require a greater number of affirmative votes.
(d) Adjournment. The Chairman of the meeting or a majority of
the shares represented at the meeting in person or by proxy and entitled to vote
thereat may adjourn the meeting from time to time, whether or not there is a
quorum, unless otherwise proscribed by law. The shareholders present at a duly
called meeting at which a quorum is present, and at any adjournment thereof, may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 2.8 Increasing Either Quorum or Voting Requirements.
-----------------------------------------------
For purposes of this Section 2.8 a "supermajority" quorum is a
requirement that more than a majority of the votes of the voting group be
present to constitute a quorum; and a "supermajority" voting requirement is any
requirement that requires the vote of more than a majority of the affirmative
votes of a voting group at a meeting.
The shareholders, but only if specifically authorized to do so
by the articles of incorporation, may adopt, amend or delete a bylaw which fixes
a "supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or
deletes a "supermajority" quorum or voting requirement for shareholders must
meet the same quorum requirement and be adopted by the same vote and voting
groups required to take action under the quorum and voting requirement then in
effect or proposed to be adopted, whichever is greater.
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A bylaw that fixes a "supermajority" quorum or voting
requirement for shareholders may not be adopted, amended, or repealed by the
board of directors.
Section 2.9 Proxies.
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At all meetings of shareholders, a shareholder may vote in
person, or vote by proxy which is executed in writing by the shareholder or
which is executed by his duly authorized attorney-in-fact. Such proxy shall be
dated and filed with the secretary of the corporation or other person authorized
to tabulate votes before or at the time of the meeting. Unless a time of
expiration is otherwise specified, a proxy is valid for eleven months. A proxy
is revocable unless executed in compliance with Section 33-7-220(d) of the Act,
or any succeeding statute of like tenor and effect.
Section 2.10 Voting of Shares; Polls.
-----------------------
Unless otherwise provided in the articles of incorporation,
each outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Absent special circumstances, outstanding shares of the
corporation are not entitled to vote if they are owned directly or indirectly by
another corporation in which this corporation owns a majority of the shares
entitled to vote for the election of directors of the other corporation;
provided, however, this provision shall not limit the power of this corporation
to vote its own shares held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of
redemption is mailed to the holders and a sum sufficient to redeem the shares
has been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares.
At any meeting of shareholders, the Chairman of the meeting
shall fix and announce at the meeting the date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting.
Section 2.11 Corporation's Acceptance of Votes.
---------------------------------
(a) If the name signed on a vote, consent, waiver, or
proxy appointment corresponds to the name of a shareholder, the corporation if
acting in good faith is entitled to accept the vote, consent, waiver, or
proxy appointment and give it effect as the act of the shareholders.
(b) If the name signed on a vote, consent, waiver, or
proxy appointment does not correspond to the name of its shareholder, the
corporation if acting in good faith is nevertheless entitled to accept the vote,
consent, waiver, or proxy appointment and give it effect as the act of the
shareholder if:
(1) the shareholder is an entity as defined in the Act
and the name signed purports to be that of an officer
or agent of the entity;
(2) the name signed purports to be that of an
administrator, executor, guardian, or conservator
representing the shareholder and, if the corporation
requests, evidence of fiduciary status acceptable to
the corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment;
(3) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the
corporation requests, evidence of this status
acceptable to the corporation has been presented with
respect to the vote, consent, waiver, or proxy
appointment;
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(4) the name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the
shareholder and, if the corporation requests,
evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder has
been presented with respect to the vote, consent,
waiver, or proxy appointment;
(5) two or more persons are the shareholder as co-tenants
or fiduciaries and the name signed purports to be the
name of at least one of the co-owners and the person
signing appears to be acting on behalf of all the
co-owners.
(c) The corporation is entitled to reject a vote,
consent, waiver, or proxy appointment if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
(d) The corporation and its officer or agent who accepts
or rejects a vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this section are not liable in damages to the
shareholder for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection
of a vote, consent, waiver, or proxy appointment under this section is valid
unless a court of competent jurisdiction determines otherwise.
Section 2.12 Informal Action by Shareholders. Any action
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting if one or more consents in writing, setting forth the action
so taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof and are delivered to the corporation for
inclusion in the minute book. If the act to be taken requires that notice be
given to non-voting shareholders, the corporation shall give the non-voting
shareholders written notice of the proposed action at least 10 days before the
action is taken, which notice shall contain or be accompanied by the same
material that would have been required if a formal meeting had been called to
consider the action. A consent signed under this section has the effect of a
meeting vote and may be described as such in any document. Every written consent
shall bear the date of signature of each shareholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the earliest dated written consent
received by the corporation, a written consent or consents signed by all the
shareholders entitled to vote on such corporate action are delivered to the
corporation.
Section 2.13 Notice of Shareholder Nominations. (a) Only
persons who are nominated in accordance with the procedures set forth in this
Section 2.13 shall be eligible for election as directors of the corporation.
Nomination of persons for election to the board of directors of the corporation
may be made at a meeting of shareholders (i) by or at the direction of the board
of directors or (ii) by any shareholder of the corporation entitled to vote for
the election of directors at such meeting who complies with the procedures set
forth in this Section 2.13.
(b) All nominations by shareholders shall be made pursuant to
timely notice in proper written form to the Secretary of the corporation.
(1) To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not later than the close of business on the 30th day nor earlier
than the close of business on the 60th day prior to the annual meeting of
shareholders at which directors are to be elected, unless such requirement is
expressly waived in advance of the meeting by formal action of the board of
directors. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above. For purposes of this Section 2.13, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
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News Service, Associated Press or comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(2) To be in proper written form, such
shareholder's notice shall set forth in writing (a) as to each person whom the
shareholder proposes to nominate for election or re-election as a director, all
information relating to such Person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Exchange Act, including, without
limitation, such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected; and (b) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination is made (i) the name and address, as they appear on the
corporation's books, of such shareholder and such beneficial owner and (ii) the
class and number of shares of the corporation which are owned beneficially and
of record by such shareholder and such beneficial owner.
(c) At the request of the board of directors, any person
nominated by the board of directors for election as a director shall furnish to
the Secretary of the corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee.
(d) In the event that a shareholder seeks to nominate one or
more directors, the Secretary shall appoint two inspectors, who shall not be
affiliated with the corporation, to determine whether a shareholder has complied
with this Section 2.13. If the inspectors shall determine that a shareholder has
not complied with this Section 2.13, the inspectors shall direct the chairman of
the meeting to declare to the meeting that the nomination was not made in
accordance with the procedures prescribed by the By-Laws of the corporation, and
the chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
(e) Notwithstanding the foregoing provisions of this Section
2.13, a shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this 2.13.
(f) Nothing in this Section 2.13 shall be deemed to affect any
rights of holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 2.14 Procedures for Submission of Shareholder
Proposals at Annual Meeting.
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(a) At any annual meeting of the shareholders of the
corporation, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the board of directors or (ii)
by any shareholder of the corporation entitled to vote for the election of
directors at such meeting who complies with the procedures set forth in this
Section 2.14.
(b) For business properly to be brought before an annual
meeting by a shareholder, the shareholder must have given timely notice thereof
in proper written form to the Secretary of the corporation and such other
business must otherwise be a proper matter for shareholder action.
(1) To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareholder's
notice as described above. For purposes of this Section 2.14, "Public
announcement" shall have the same meaning as set forth in Section 2.13.
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(2) To be in proper written form, a shareholder's
notice to the Secretary shall set forth in writing as to each matter the
shareholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address,
as they appear on the corporation's books, of the shareholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made,
(iii) the class and number of shares of the corporation which are owned
beneficially and of record by the shareholder and such beneficial owner and (iv)
any material interest of the shareholder and such beneficial owner in such
business.
(c) Notwithstanding anything in these By-Laws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Section 2.14. The chairman of an annual meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions of
this Section 2.14, and, if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
(d) Notwithstanding the foregoing provisions of this Section
2.14, a shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.14. Nothing in this Section 2.14 shall be
deemed to affect any rights of shareholders to request inclusion of proposals in
the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.15 Shareholder's Rights to Inspect Corporate
Records.
-----------------------------------------
(a) Minutes and Accounting Records.
The corporation shall keep as permanent records minutes of all
meetings of its shareholders and board of directors, a record of all actions
taken by the shareholders or board of directors without a meeting, and a record
of all actions taken by a committee of the board of directors in place of the
board of directors on behalf of the corporation. The corporation shall maintain
appropriate accounting records.
(b) Absolute Inspection Rights of Records Required at
Principal Office.
If he gives the corporation written notice of his demand at
least five business days before the date on which he wishes to inspect and copy,
a shareholder (or his agent or attorney) has the right to inspect and copy,
during regular business hours any of the following records, all of which the
corporation is required to keep at its principal office:
(1) its articles or restated articles of incorporation
and all amendments to them currently in effect;
(2) its bylaws or restated bylaws and all amendments to
them currently in effect;
(3) resolutions adopted by its board of directors
creating one or more classes or series of shares, and
fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those
resolutions are outstanding;
(4) the minutes of all shareholders' meetings, and
records of all action taken by shareholders without a
meeting, for the past 10 years;
(5) all written communications to shareholders generally
within the past three years, including the financial
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statement furnished for the past three years to the
shareholders;
(6) a list of the names and business addresses of its
current directors and officers;
(7) its most recent annual report delivered to the South
Carolina Tax Commission; and
(8) if the shareholder owns at least one percent of any
class of shares, he may inspect and copy its federal
and state income tax returns for the last 10 years.
(c) Conditional Inspection Right.
In addition, if he gives the corporation a written
demand made in good faith and for a proper purpose at least five business days
before the date on which he wishes to inspect and copy, he describes with
reasonable particularity his purpose and the records he desires to inspect, and
the records are directly connected with his purpose, a shareholder of a
corporation (or his agent or attorney) is entitled to inspect and copy, during
regular business hours at a reasonable location specified by the corporation,
any of the following records of the corporation:
(1) excerpts from minutes of any meeting of the board of
directors, records of any action of a committee of
the board of directors on behalf of the corporation,
minutes of any meeting of the shareholders, and
records of action taken by the shareholders or board
of directors without a meeting, to the extent not
subject to inspection under paragraph (a) of this
Section 2.14;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than
the date of the shareholder's demand).
(d) Copy Costs.
The right to copy records includes, if reasonable, the right
to receive copies made by photographic, xerographic, or other means. The
corporation may impose a reasonable charge, covering the costs of labor and
material, for copies of any documents provided to the shareholder. The charge
may not exceed the estimated cost of production or reproduction of the records.
Section 2.16 Financial Statements Shall Be Furnished to the
Shareholders.
----------------------------------------------
(a) The corporation shall furnish its shareholders annual
financial statements, which may be consolidated or combined statements of the
corporation and one or more of its subsidiaries, as appropriate, that include a
balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of changes in shareholders' equity for the year unless
that information appears elsewhere in the financial statements. If financial
statements are prepared for the corporation on the basis of generally accepted
accounting principles, the annual financial statements for the shareholders also
must be prepared on that basis.
(b) If the annual financial statements are reported upon
by a public accountant, his report must accompany them. If not, the statements
must be accompanied by a statement of the president or the person responsible
for the corporation's accounting records:
(1) stating his reasonable belief whether the statements
were prepared on the basis of generally accepted
accounting principles and, if not, describing the
basis of preparation; and
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(2) describing any respects in which the statements were
not prepared on a basis of accounting consistent with
the statements prepared for the preceding year.
(c) A corporation shall mail the annual financial
statements to each shareholder within 120 days after the close of each fiscal
year. Thereafter, on written request from a shareholder who was not mailed the
statements, the corporation shall mail him the latest financial statements.
Section 2.17 Dissenter's Rights.
------------------
Each shareholder shall have the right to dissent from, and
obtain payment for his shares when so authorized by the Act, articles of
incorporation, these bylaws, or in a resolution of the board of directors.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1 General Powers.
--------------
Unless the articles of incorporation have dispensed with or
limited the authority of the board of directors by describing who will perform
some or all of the duties of a board of directors, all corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of the board of directors.
Section 3.2 Number, Tenure and Qualifications of Directors.
----------------------------------------------
The number of directors of the corporation shall be the number
designated by the directors at their initial or organizational meeting.
Thereafter, the number of directors may be increased or decreased by action of
the board or shareholders at any board meeting or annual meeting of
shareholders. Each director shall hold office until the next annual meeting of
shareholders or until removed. However, if his term expires, he shall continue
to serve until his successor shall have been elected and qualified or until
there is a decrease in the number of directors. Directors need not be residents
of the State of South Carolina or shareholders of the corporation unless so
required by the articles of incorporation. Notwithstanding the foregoing, a
director who is first elected to the board after January 1, 1994 may serve on
the board until the corporation's annual meeting immediately following his 72nd
birthday, at which time he must retire from the board. A director who was first
elected to the board prior to January 1, 1994 shall not be subject to the
limitation set forth in the preceding sentence.
Section 3.3 Regular Meetings.
----------------
A regular meeting of the board of directors shall be held
without other notice than this bylaw immediately after, and at the same place
as, the annual meeting of shareholders. The board of directors may provide, by
resolution, the time and place for the holding of additional regular meetings
without other notice than such resolution.
Section 3.4 Special Meetings.
----------------
Unless otherwise provided in the articles, special meetings of
the board of directors may be called by or at the request of the chairman of the
board, the president or a majority of the board of directors. The person
authorized to call special meetings of the board of directors may fix any place
as the place for holding any special meeting of the board of directors.
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Section 3.5 Notice of Special Meeting.
-------------------------
Notice of any special meeting of directors shall be given to
each director at his business or residence in writing by hand delivery,
first-class or overnight mail or courier service, telegram or facsimile or
similar transmission, or orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least 72 hours
before such meeting. If by telegram, overnight mail or courier service, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company or the notice is delivered to the overnight mail or
courier service company at least twenty-four (24) hours before such meeting. If
by facsimile or similar transmission, such notice shall be deemed adequately
delivered when the notice is transmitted at least twenty-four (24) hours before
such meeting. If by telephone or by hand delivery, the notice shall be given at
least twenty-four (24) hours prior to the time set for the meeting. Any director
may waive notice of any meeting. Except as provided in the next sentence, the
waiver must be in writing, signed by the director entitled to the notice, and
filed with the minutes or corporate records. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business and at the beginning of the meeting (or promptly
upon his 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 3.6 Director Quorum.
---------------
A majority of the number of directors in office immediately
before the meeting begins shall constitute a quorum for the transaction of
business at any meeting of the board of directors. Any amendment to this quorum
requirement is subject to the provisions of Section 3.8 of this Article III.
Section 3.7 Manner of Acting.
----------------
(a) Required Vote.
The act of the majority of the directors present at a meeting
at which a quorum is present when the vote is taken shall be the act of the
board of directors unless the articles of incorporation require a greater
percentage. Any amendment which changes the number of directors needed to take
action, is subject to the provisions of Section 3.8 of this Article III.
(b) Telephone Meeting.
Any or all directors may participate in a regular or special
meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
(c) Failure to Object to Action.
A director 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: (1) he objects at
the beginning of the meeting (or promptly upon his arrival) to holding it or
transacting business at the meeting; or (2) his dissent or abstention from the
action taken is entered in the minutes of the meeting; or (3) he delivers
written notice of his dissent or abstention to the presiding officer of the
meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. The right of dissent or abstention is not available
to a director who votes in favor of the action taken.
Section 3.8 Establishing a "Supermajority" Quorum or Voting
Requirement.
-----------------------------------------------
For purposes of this Section 3.8, a "supermajority" quorum is
a requirement that more than a majority of the directors in office constitute a
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quorum; and a "supermajority" voting requirement is any requirement that
requires the vote of more than a majority of those directors present at a
meeting at which a quorum is present to be the act of the directors.
A bylaw that fixes a supermajority quorum or supermajority
voting requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by
the shareholders (unless otherwise provided by the
shareholders);
(2) if originally adopted by the board of directors,
either by the shareholders or by the board of
directors.
A bylaw adopted or amended by the shareholders that forms a
supermajority quorum or supermajority voting requirement for the board of
directors may provide that it may be amended or repealed only by a specified
vote of either the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action
by the board of directors to adopt, amend, or repeal a bylaw that changes the
quorum or voting requirement for the board of directors must meet the same
quorum requirement and be adopted by the same vote required to take action under
the quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 Action Without a Meeting.
------------------------
Action required or permitted by the Act to be taken at a board
of directors' meeting may be taken without a meeting if the action is assented
to by all members of the board.
The action may be evidenced by one or more written consents
describing the action taken, signed by each director, and included in the
minutes or filed with the corporate records reflecting the action taken. Action
evidenced by written consents under this section is effective when the last
director signs the consent, unless the consent specifies a different effective
date. A consent signed under this section has the effect of a meeting vote and
may be described as such in any document.
Section 3.10 Removal of a Director.
---------------------
The shareholders may remove one or more directors at a meeting
called for that purpose if notice has been given that a purpose of the meeting
is such removal. The removal may be with or without cause, provided that such
removal without cause shall be subject to the voting requirement set forth in
the articles of incorporation. If a director is elected by a voting group of
shareholders, only the shareholders of that voting group may participate in the
vote to remove him. A director may be removed for cause only if the number of
votes cast to remove him exceeds the number of votes cast not to remove him.
Section 3.11 Vacancies.
---------
Unless the articles of incorporation provide otherwise, if a
vacancy occurs on a board of directors, including a vacancy resulting from an
increase in the number of directors, the shareholders may fill the vacancy.
During such time that the shareholders fail or are unable to fill such vacancies
then and until the shareholders act:
(a) the board of directors may fill the vacancy; or
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(b) if the directors remaining in office constitute fewer than
a quorum of the board, they may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office
If the vacant office was held by a director elected by a
voting group of shareholders, only the holders of shares of that voting group
are entitled to vote to fill the vacancy if it is filled by the shareholders.
A vacancy that will occur at a specific later date (by reason
of a resignation effective at a later date) may be filled before the vacancy
occurs but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at
the next shareholders' meeting at which directors are elected. However, if his
term expires, he shall continue to serve until his successor is elected and
qualifies or until there is a decrease in the number of directors.
Section 3.12 Compensation.
------------
Unless otherwise provided in the articles, by resolution of
the board of directors, each director may be paid his expenses, if any, of
attendance at each meeting of the board of directors, and may be paid a stated
salary as director or a fixed sum for attendance at each meeting of the board of
directors or both. No such payment shall preclude any director from serving the
corporation in any capacity and receiving compensation therefor.
Section 3.13 Committees.
----------
(a) Creation of Committees.
Unless the articles of incorporation provide otherwise, the
board of directors may create one or more committees and appoint members of the
board of directors to serve on them or the president, if so delegated by the
board, may appoint members to serve on committees created by the board. Each
committee must have two or more members, who serve at the pleasure of the board
of directors.
(b) Selection of Members.
The creation of a committee and appointment of members to it
must be approved by the greater of (1) a majority of all the directors in office
when the action is taken or (2) the number of directors required by the articles
of incorporation to take such action (or, if not specified in the articles, the
numbers required by, Section 3.7 of this Article III to take action).
(c) Required Procedures.
Section 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of this Article III,
which govern meetings, action without meetings, notice and waiver of notice,
quorum and voting requirements of the board of directors, apply to committees
and their members.
(d) Authority.
Unless limited by the articles of incorporation, each
committee may exercise those aspects of the authority of the board of directors
which the board of directors confers upon such committee in the resolution
creating the committee. Provided, however, a committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the
Act requires be approved by shareholders;
16
(3) fill vacancies on the board of directors or on any of
its committees;
(4) amend the articles of incorporation pursuant to the
authority of directors;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder
approval;
(7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the
board of directors; or
(8) authorize or approve the issuance or sale or contract
for sale of shares or determine the designation and
relative rights, preferences, and limitations of a
class or series of shares, except that the board of
directors may authorize a committee (or a senior
executive officer of the corporation) to do so within
limits specifically prescribed by the board of
directors.
Section 3.14 Board Leadership.
----------------
(a) Chairman.
The Board of Directors shall elect a Chairman, who shall
preside over Board meetings and shareholder meetings, and shall otherwise
discharge duties specifically set forth herein and such other duties as are
typical of a chairman position.
(b) Deputy Chairman.
The Board of Directors shall appoint a Deputy Chairman who
shall discharge all duties otherwise accorded the Chairman under these Bylaws,
subject to Section 3.14(c) below, upon request of the Chairman.
(c) Lead Independent Director.
The Board of Directors shall appoint from among those
directors who are "independent directors" within the meaning of applicable SEC
proxy regulations a Lead Independent Director, who shall:
(1) Act as chair of meetings of the Board when the Chairman is
not present;
(2) Consult and meet with any or all outside directors as
required, and represent such directors in discussions with
management of the Corporation on corporate governance
issues and other matters;
(3) Ensure that the Board, committees of the Board, individual
directors and senior management of the Corporation
understand and discharge their duties and obligations
under the Corporation's system of corporate governance;
(4) Mentor and counsel new members of the Board to assist them
in becoming active and effective directors;
(5) conduct director evaluations;
(6) lead executive sessions on CEO evaluation and conduct
conversations with the CEO;
(7) perform such other duties and responsibilities as may be
delegated to the lead director by the Board from time to
time.
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ARTICLE IV.
OFFICERS
Section 4.1 Number.
------
The officers of the corporation shall be a president, a
secretary, and a treasurer, each of whom shall be appointed by the board of
directors. Such other officers and assistant officers as may be deemed
necessary, including any vice-presidents, may be appointed by the board of
directors. If specifically authorized by the board of directors, an officer may
appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the corporation.
Section 4.2 Appointment and Term of Office.
------------------------------
The officers of the corporation shall be appointed by the
board of directors for a term as determined by the board of directors. (The
designation of a specified term grants to the officer no contract rights, and
the board can remove the officer at any time prior to the termination of such
term.) If no term is specified, they shall hold office until they resign, die,
or until they are removed in the manner provided in Section 4.3 of this Article
IV.
Section 4.3 Removal.
-------
Unless appointed by the shareholders, any officer or agent may
be removed by the board of directors at any time, with or without cause. Any
officer or agent appointed by the shareholders may be removed by the
shareholders with or without cause. Such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Appointment of an officer
or agent shall not of itself create contract rights.
Section 4.4 The President.
-------------
The president shall be the principal executive 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, when present, preside at all meetings of the shareholders
and of the board of directors, unless a Chairman of the board of directors shall
have been designated by the board. He may sign, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts or other instruments which 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 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 4.5 The Vice-Presidents.
-------------------
If appointed, in the absence of the president or in the event
of his death, inability or refusal to act, the vice president (or, in the event
there be more than one vice-president, the vice-presidents in the order
designated at the time of their election, or in the absence of any designation,
then in the order of their appointment) 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. (If there is no vice-president, then
the treasurer shall perform such duties of the president.) Any vice-president
may sign, with the secretary or an assistant secretary, certificates for shares
of the corporation the issuance of which have been authorized by resolution of
the board of directors; and shall perform such other duties as from time to time
may be assigned to him by the president or by the board of directors.
Section 4.6 The Secretary.
-------------
The secretary shall: (a) keep the minutes of the proceedings
of the shareholders and of the board of directors 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
18
corporate records and of any seal of the corporation and if there is a seal of
the corporation, see that it is affixed to all documents the execution of which
on behalf of the corporation under its seal is duly authorized; (d) when
requested or required, authenticate any records of the corporation; (e) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (f) sign with the 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; (g)
have general charge of the stock transfer books of the corporation; and (h) 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.
Section 4.7 The Treasurer.
-------------
The treasurer shall: (a) have charge and custody of and be
responsible for all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories as shall be selected by the board
of directors and (c) in general perform all of the duties incident to the office
of treasurer and such duties as from time to time may be assigned to him by the
president or by the board of directors. If required by the board of directors,
the treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such surety or sureties as the board of directors shall determine.
Section 4.8 Assistant Secretaries and Assistant Treasurers.
----------------------------------------------
The assistant secretaries, when authorized by the board of
directors, may sign with the president or a vice-president certificates for
shares of the corporation the issuance of which shall have been authorized by a
resolution of the board of directors. The assistant treasurers shall
respectively, if required by the board of directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the board of
directors shall determine. The assistant secretaries and assistant treasurers,
in general, shall perform such duties as shall be assigned to them by the
secretary or the treasurer, respectively, or by the president or the board of
directors.
Section 4.9 Salaries.
--------
The salaries of the officers shall be fixed from time to time
by the board of directors, or by the Chief Executive Officer if so directed by
the board of directors.
ARTICLE V.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 Indemnification of Directors.
----------------------------
The corporation shall indemnify any individual made a party to
a proceeding because he is or was a director of the corporation against
liability incurred in the proceeding to the fullest extent permitted by law.
Section 5.2 Advance Expenses for Directors.
------------------------------
The corporation shall pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding to the fullest extent permitted by law.
Section 5.3 Other Employees and Agents. In addition to any
indemnification required by law, the corporation may, to the extent authorized
19
from time to time by the board of directors, grant rights to indemnification,
and rights to be paid by the corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent of the
corporation to the fullest extent of the provisions of this By-Law with respect
to the indemnification and advancement of expenses of directors and officers of
the corporation.
Section 5.4 Nature of Right to Indemnification. The right to
indemnification conferred in this By-Law shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the corporation within 30 days after the receipt by the
corporation of a statement or statements from the claimant requesting such
advances from time to time; provided, however, that the payment of such
expenses, incurred by a person to whom indemnification is or may be available
under this By-Law, in advance of the final disposition of a proceeding shall be
made only pursuant to Section 33-8-530 of the Act, or such successor provision
as may be in effect from time to time.
Section 5.5 Request for Indemnification; Determination of
Entitlement Thereto; When Paid. To obtain indemnification under this By-Law, a
claimant shall submit to the corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 5.5, a
determination with respect to the claimant's entitlement thereto shall be made
in accordance with Section 33-8-550 of the Act, or such successor provision as
may be in effect from time to time. If it is so determined that the claimant is
entitled to indemnification, payment to the claimant shall be made within 10
days after such determination.
Section 5.6 Right of Action; No Presumption. If a claim under
Section 5.1, 5.2 or 5.3 of this By-Law is not paid in full by the corporation
within thirty days after a written claim pursuant to Section 5.5 of this By-Law
has been received by the corporation, the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim to the extent permitted by law.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the requirements of Section 33-8-530 of the Act, or
any successor provision thereto that may be in effect from time to time, have
been complied with) that the claimant has not met the standard of conduct which
makes it permissible under the Act for the corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board of
directors, special counsel or shareholders) to have made a determination prior
to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Act, nor an actual determination by the corporation
(including its board of directors, special counsel or shareholders) that the
claimant has not met such applicable standard of conduct, shall create a
presumption that the claimant has not met the applicable standard of conduct.
Section 5.7 Binding Effect on the Corporation. If a
determination shall have been made pursuant to Section 5.5 of this By-Law that
the claimant is entitled to indemnification, the corporation shall be bound by
such determination in any judicial proceeding commenced pursuant to Section 5.6
of this By-Law.
Section 5.8 No Challenge to Validity. The corporation shall be
precluded from asserting in any judicial proceeding commenced pursuant to
Section 5.6 of this By-Law that the procedures and presumptions of this By-Law
are not valid, binding and enforceable and shall stipulate in such proceeding
that the corporation is bound by all the provisions of this By-Law.
Section 5.9 Nonexclusivity. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this By-Law shall not be exclusive of any other
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right which any person may have or hereafter acquire under any statute,
provision of the articles of incorporation, By-Laws, agreement, vote of
stockholders or directors or otherwise. No repeal or modification of this By-Law
shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
Section 5.10 Severability. If any provision or provisions of
this By-Law shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (1) the validity, legality and enforceability of the remaining
provisions of this By-Law (including, without limitation, each portion of any
Section of this By-Law containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to
the fullest extent possible, the provisions of this By-Law (including, without
limitation, each such portion of any Section of this By-Law containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
Section 5.11 Notices. Any notice, request or other
communication required or permitted to be given to the corporation under this
By-Law shall be in writing and either delivered in person or sent by telecopy,
telex, telegram, overnight mail or courier service, or certified or registered
mail, postage prepaid, return receipt requested, to the Secretary of the
corporation and shall be effective only upon receipt by the Secretary.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 Certificates for Shares.
(a) Content.
Certificates representing shares of the corporation shall at
minimum, state on their face the name of the issuing corporation and that it is
formed under the laws of South Carolina; the name of the person to whom issued;
and the number and class of shares and the designation of the series, if any,
the certificate represents; and be in such form as determined by the board of
directors. Such certificates shall be signed (either manually or by facsimile)
by the president or a vice-president and by the secretary or an assistant
secretary and may be sealed with a corporate seal or a facsimile thereof. Each
certificate for shares shall be consecutively numbered or otherwise identified.
(b) Legend as to Class or Series.
If the corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the board of directors to determine variations for future series)
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
(c) Shareholder List.
The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the corporation.
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(d) Transferring Shares.
All certificates surrendered to the corporation for transfer
shall be canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the corporation
as the board of directors may prescribe.
Section 6.2 Registration of the Transfer of Shares.
--------------------------------------
Registration of the transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation. In order to
register a transfer, the record owner shall surrender the shares to the
corporation for cancellation, properly endorsed by the appropriate person or
persons with reasonable assurances that the endorsements are genuine and
effective. Subject to the provisions of Section 33-7-300(d) of the Act (relating
to shares held in a voting trust), and unless the corporation has established a
procedure by which a beneficial owner of shares held by a nominee is to be
recognized by the corporation as the owner, the person in whose name shares
stand on the books of the corporation shall be deemed by the corporation to be
the owner thereof for all purposes.
Section 6.3 Restrictions on Transfer of Shares Permitted.
--------------------------------------------
The board of directors (or shareholders) may impose
restrictions on the transfer or registration of transfer of shares (including
any security convertible into, or carrying a right to subscribe for or acquire
shares). A restriction does not affect shares issued before the restriction was
adopted unless the holders of the shares are parties to the restriction
agreement or voted in favor of the restriction.
A restriction on the transfer or registration of transfer of
shares may be authorized:
(a) to maintain the corporation's status when it is dependent
on the number or identity of its shareholders;
(b) to preserve exemptions under federal or state securities
law;
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of
shares may:
(a) obligate the shareholder first to offer the corporation or
other persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted shares;
(c) require the corporation, the holders or any class of its
shares, or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable;
(d) prohibit the transfer of the restricted shares to
designated persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of
shares is valid and enforceable against the holder or a transferee of the holder
if the restriction is authorized by this section and its existence is noted
conspicuously on the front or back of the certificate. Unless so noted, a
restriction is not enforceable against a person without knowledge of the
restriction.
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Section 6.4 Acquisition of Shares.
---------------------
The corporation may acquire its own shares and unless
otherwise provided in the articles of incorporation, the shares so acquired
constitute authorized but unissued shares.
If the articles of incorporation prohibit the reissue of
acquired shares, the number of authorized shares is reduced by the number of
shares acquired, effective upon amendment of the articles of incorporation,
which amendment shall be adopted by the shareholders or the board of directors
without shareholder action. The article of amendment must be delivered to the
Secretary of State and must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized
by class and series; and
(c) the total number of authorized shares, itemized by class
and series, remaining after reduction of the shares.
ARTICLE VII.
DISTRIBUTIONS
Section 7.1 Distributions.
-------------
The board of directors may authorize, and the corporation may
make, distributions (including dividends on its outstanding shares) in the
manner and upon the terms and conditions provided by law and in the
corporation's articles of incorporation.
ARTICLE VIII.
CORPORATE SEAL
Section 8.1 Corporate Seal.
--------------
The board of directors may provide a corporate seal which may
be circular in form and have inscribed thereon any designation including the
name of the corporation, South Carolina as the state of incorporation, and the
words "Corporate Seal."
ARTICLE IX.
EMERGENCY BYLAWS
Section 9.1 Emergency Bylaws.
----------------
Unless the articles of incorporation provide otherwise, the
following provisions of this Article IX, Section 9.1 "Emergency Bylaws" shall be
effective during an emergency which is defined as when a quorum of the
corporation's directors cannot be readily assembled because of some catastrophic
event.
During such emergency:
(a) Notice of Board Meetings.
Any one member of the board of directors or any one of the
following officers: president, any vice-president, secretary, or treasurer, may
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call a meeting of the board of directors. Notice of such meeting need be given
only to those directors whom it is practicable to reach, and may be given in any
practical manner, including by publication and radio. Such notice shall be given
at least six hours prior to commencement of the meeting.
(b) Temporary Directors and Quorum.
One or more officers of the corporation present at the
emergency board meeting, as is necessary to achieve a quorum, shall be
considered to be directors for the meeting, and shall so serve in order of rank,
and within the same rank, in order of seniority. In the event that less than a
quorum (as determined by Article III Section 3.6) of the directors are present
(including any officers who are to serve as directors for the meeting), those
directors present (including the officers serving as directors) shall constitute
a quorum.
(c) Actions Permitted to Be Taken.
The board may as constituted in paragraph (b), and after
notice as set forth in paragraph (a):
(1) Officer's Powers.
Prescribe emergency powers to any officer of the
corporation;
(2) Delegation of any Power.
Delegate to any officer or director, any of the
powers of the board of directors;
(3) Lines of succession.
Designate lines of succession of officers and agents,
in the event that any of them are unable to discharge
their duties;
(4) Relocate Principal place of business.
Relocate the principal place of business, or
designate successive or simultaneous principal places
of business;
(5) All Other Action.
Take any other action, convenient, helpful, or
necessary to carry on the business of the
corporation.
ARTICLE X.
AMENDMENTS
Section 10.1 Amendments.
----------
The corporation's board of directors may amend or repeal any
of the corporation's bylaws unless:
(a) the articles of incorporation or the Act reserve this
power exclusively to the shareholders in whole or in part; or
(b) the shareholders in adopting, amending, or repealing a
particular bylaw provide expressly that the board of directors may not
amend or repeal that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a
supermajority shareholder quorum or voting requirement (as defined in
Section 2.8 of Article II).
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Any amendments to these bylaws by the board of directors shall
be made in accordance with applicable law.
Any amendment which changes the voting or quorum requirement
for the board must comply with Article III Section 3.8, and for the
shareholders, must comply with Article II Section 2.8.
The corporation's shareholders may amend or repeal the
corporation's bylaws even though the bylaws may also be amended or repealed by
its board of directors. Any notice of a meeting of shareholders at which bylaws
are to be adopted, amended, or repealed shall state that the purpose, or one of
the purposes, of the meeting is to consider the adoption, amendment or repeal of
bylaws and contain or be accompanied by a copy or summary of the proposal.
Amended and Restated as of August 17, 2005
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