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EXHIBIT 3.3
AMENDED AND RESTATED
BYLAWS
OF
PIERRE FOODS, INC.
(AMENDED AS OF SEPTEMBER 18, 2002)
ARTICLE I
OFFICES
SECTION 1.1. PRINCIPAL OFFICE. The principal office of the Corporation
shall be located at such place as the Board of Directors may fix from time to
time.
SECTION 1.2. REGISTERED OFFICE. The registered office of the
Corporation required by law to be maintained in the State of North Carolina may
be, but need not be, identical with the principal office.
SECTION 1.3. OTHER OFFICES. The Corporation may have offices at such
other places, either within or without the State of North Carolina as the Board
of Directors may designate or as the affairs of the Corporation may require from
time to time.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1. PLACE OF MEETINGS. All meetings (annual, substitute
annual or special) of shareholders shall be held at the executive office of the
Corporation in Hickory, North Carolina, or at such other place, either within or
without the State of North Carolina, as shall be designated in the notice of the
meeting.
SECTION 2.2. ANNUAL MEETING. The annual meeting of the shareholders
shall be held in May of each year, on any day (except Saturday, Sunday or a
legal holiday) in that month as determined by the Board of Directors for the
purpose of electing directors of the Corporation and for the transaction of such
other business as may be properly brought before the meeting.
SECTION 2.3. SPECIAL MEETINGS/SUBSTITUTE ANNUAL MEETINGS. Special
meetings and substitute annual meetings of the shareholders may be called at any
time by the Chairman, Vice Chairman or Board of Directors of the Corporation, or
may be called by the Secretary pursuant to the written request of the holders of
not less than one-tenth of all the votes entitled to be cast on any issue
proposed to be considered at the meeting.
SECTION 2.4. NOTICE OF MEETINGS. Written notice stating the date,
time, and place of the meeting shall be given not less than ten (10) nor more
than sixty (60) days before the date of any shareholders' meeting, either by
personal delivery, or by telegraph, teletype, or electronic communication, or by
facsimile transmission or by mail or private carrier, by or at the direction of
the Board of Directors, the Chairman, the Vice Chairman, or Secretary calling
the meeting, to each shareholder entitled to vote at such meeting; provided that
such notice must be given to all shareholders with respect to any meeting at
which a merger or share exchange is to be considered and in such other instances
as required by law. If mailed, such notice shall be deemed to be
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effective when deposited in the United States mail, correctly addressed to the
shareholder at the shareholder's address as it appears on the current record of
shareholders of the Corporation, with postage thereon prepaid.
In the case of a special meeting, the notice of the meeting shall
include a description of the purpose or purposes for which the meeting is
called; but, in the case of an annual or substitute annual meeting, the notice
of meeting need not include a description of the purpose or purposes for which
the meeting is called unless such a description is required by the provisions of
the North Carolina Business Corporation Act.
When a meeting is adjourned to a different date, time, or place,
notice need not be given of the new date, time, or place if the new date, time,
or place is announced at the meeting before adjournment and if a new record date
is not fixed for the adjourned meeting; but if a new record date is fixed for
the adjourned meeting (which must be done if the new date is more than 120 days
after the date of the original meeting), notice of the adjourned meeting must be
given as provided in this section to persons who are shareholders as of the new
record date.
Any shareholder may waive notice of any meeting before or after the
meeting. The waiver must be in writing, signed by the shareholder, and delivered
to the Corporation for inclusion in the minutes or filing with the corporate
records. A shareholder's attendance, in person or by proxy, at a meeting (a)
waives objection to lack of notice or defective notice of the meeting unless the
shareholder or his proxy at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting, and (b) waives objection to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder or
his proxy objects to considering the matter before it is voted upon.
SECTION 2.5. SHAREHOLDER'S LIST. After fixing the record date for a
meeting, the Secretary of the Corporation shall prepare an alphabetical list of
the shareholders entitled to notice of such meeting. The list shall be arranged
by voting group (and within each voting group by class or series or shares) and
show the address of and number of shares held by each shareholder. The list
shall be kept on file at the executive office of the Corporation in Hickory,
North Carolina, or at a place identified in the meeting notice in the city where
the meeting will be held, for a period beginning two business days after notice
of the meeting is given and continuing through the meeting, and shall be
available for inspection by any shareholder, his agent or attorney at any time
during regular business hours. The list shall also be available at the meeting
and shall be subject to inspection by any shareholder, his agent or attorney, at
any time during the meeting or any adjournment thereof.
SECTION 2.6. QUORUM. A majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If there is no quorum at the
opening of a meeting of shareholders, such meeting may be adjourned from time to
time by the vote of a majority of the shares voting on the motion to adjourn;
and, at any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the original meeting.
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Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. Any shareholder or shareholder's proxy not physically present
at a meeting of shareholders shall not be deemed in attendance.
SECTION 2.7. VOTING OF SHARES. Each outstanding share having voting
rights shall be entitled to one (1) vote on each matter submitted to a vote at a
meeting of shareholders.
Except in the election of directors, the vote of a majority of the
shares voted on any matter at a meeting of shareholders at which a quorum is
present shall be the act of the shareholders on that matter, unless the vote of
a greater number is required by law or by the Articles of Incorporation or
Bylaws of this Corporation. Voting on all matters except the election of
directors shall be by voice vote or by a show of hands unless the holders of
one-tenth (1/10) of the shares represented at the meeting shall, prior to the
voting, on any matter, demand a ballot vote on that particular matter.
SECTION 2.8. INFORMAL ACTION BY SHAREHOLDER. Any action that is
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting if one or more written consents, describing the actions so
taken, shall be signed by a majority of the shareholders who would be entitled
to take the action at a meeting at which all shareholders entitled to vote were
present and voted. The written consents bearing the date of signature and signed
by the number of shareholders sufficient to take the action without a meeting,
before of after such action, and describing the action taken, shall be delivered
to the Corporation for inclusion in the corporate records. A shareholder's
consent to action taken without meeting may be in facsimile form. Absent prior
approval of the Board of Directors, consent by electronic form and delivered by
electronic means will not be permitted.
Notwithstanding the foregoing, the election of directors at the annual
meeting may be taken without a meeting only by all the shareholders entitled to
vote on the action.
A shareholder's written consent to action to be taken without a
meeting shall cease to be effective on the sixty-first day after the date of
signature appearing on the consent unless prior to the sixty-first day the
Corporation has received written consents sufficient under this Section 2.8 to
take the action without meeting. Unless otherwise fixed by law, the record date
for determining shareholders entitled to take action without meeting is the
earliest date of signature appearing on any consent that is to be counted in
satisfying the requirements of this Section 2.8.
If action is taken without a meeting by fewer than all shareholders
entitled to vote on the action, the Corporation shall give written notice within
10 days after the action is taken to all shareholders who have not consented to
the action and who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting with the same record date as the action taken
without a meeting. The notice shall describe the action and indicate that the
action has been taken without a meeting of shareholders. Failure to comply with
the requirements of this subsection shall not invalidate any action taken that
otherwise complies with law. No prior or advance notice shall be given of any
proposed action to be taken which was duly approved through action taken without
meeting.
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SECTION 2.9. PROXIES. Shares may be voted either in person or by one
or more proxies authorized by a written or electronic appointment of proxy
signed by the shareholder or by his duly authorized attorney in fact. An
appointment of proxy is valid for eleven months from the date of its execution,
unless a different period is expressly provided in the appointment form.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors.
SECTION 3.2. NUMBER, TERM AND QUALIFICATIONS. The number of directors
shall be not less than three (3) nor more than five (5) as may be fixed or
changed from time to time, within the minimum or maximum by the shareholders or
Board of Directors. Each director shall continue in office until the annual
meeting of shareholders held next after his election and until his successor
shall have been elected and qualified, or until his death, or until he shall
resign, or shall have become disqualified, or shall have been removed in the
manner hereinafter provided. A director need not be a resident of the State of
North Carolina.
SECTION 3.3. ELECTION OF DIRECTORS. Except as provided in Section 3.5
of this Article, the directors shall be elected at the annual meeting of
shareholders, and those persons who receive the highest number of votes shall be
deemed to have been elected. There shall be no right to elect directors by
ballot. There shall be no right to cumulative voting.
SECTION 3.4. REMOVAL. Any director may be removed at any time with or
without cause by a vote of the shareholders if the number of votes cast to
remove such director exceeds the number of votes cast not to remove him. A
director may not be removed by the shareholders at a meeting unless the notice
of the meeting states that the purpose, or one of the purposes, of the meeting
is removal of the director. If any directors are so removed, new directors may
be elected at the same meeting.
SECTION 3.5. VACANCIES. Any vacancy occurring in the Board of
Directors, including without limitation a vacancy resulting from an increase in
the number of directors or from the failure by the shareholders to elect the
full authorized number of directors, may be filled by the shareholders or by the
Board of Directors, whichever group shall act first. If the directors remaining
in office do not constitute a quorum, the directors may fill the vacancy by the
affirmative vote of a majority of the remaining directors.
SECTION 3.6. PRESIDING OFFICER. There shall be a Chairman of the Board
of Directors and a Vice Chairman of the Board of Directors elected by the
directors from their number. The Chairman shall preside at all meetings of the
Board of Directors and perform such other duties as may be directed by the
Board. The Vice Chairman shall preside at all meetings of the Board of Directors
in the absence of the Chairman, and perform such other duties as may be directed
by
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the Board. In the absence of both the Chairman and the Vice Chairman, the Chief
Financial Officer of the Corporation shall preside at all meetings of the Board
of Directors.
SECTION 3.7. 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.
SECTION 3.8. COMMITTEES. The Board of Directors, by an affirmative
vote of a majority of the members constituting the Board of Directors, may
appoint committees which shall have and may exercise such powers as shall be
conferred or authorized by resolution by the Board. A majority of any such
committee may determine its action and fix the time and place of its meetings
unless the Board of Directors shall otherwise provide. The Board of Directors,
by such affirmative vote, shall have power at any time to change the powers and
members of any such committees, to fill vacancies and to dispose of any such
committee.
ARTICLE IV
MEETINGS OF DIRECTORS
SECTION 4.1. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held immediately after, and at the same place as the annual
meeting of shareholders. In addition, the Board of Directors may provide, by
resolution, the time and place, either within or without the State of North
Carolina for the holding of additional regular meetings.
SECTION 4.2. SPECIAL MEETINGS. Special meetings of the Board of
Directors may only be called by or at the request of the Chairman or Vice
Chairman. Such meetings may be held either within or without the State of North
Carolina.
SECTION 4.3. NOTICE OF MEETING. 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 (1) day before the meeting, give notice thereof by
any usual means of communication of the time and place of the meeting. Such
notice need not specify the purpose for which the meeting is called.
Attendance by a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called.
SECTION 4.4. QUORUM. A majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
SECTION 4.5. MANNER OF ACTING. Except as otherwise provided in these
Bylaws, the act of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. Directors may
participate in person at regular or special meetings, or by any means of
communication by which all directors participating may simultaneously hear each
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other during the meeting. A director participating in a meeting by this latter
means is deemed to be present in person at the meeting.
SECTION 4.6. PRESUMPTION OF ASSENT. 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
(a) he objects at the beginning of the meeting, or promptly upon his arrival, to
holding it or to transacting business at a meeting, or (b) his dissent or
abstention from the action taken is entered in the minutes of the meeting, or
(c) he files written notice of his dissent or abstention with the presiding
officer of the meeting before its adjournment or with the Corporation
immediately after the adjournment of the meeting. Such right of dissent or
abstention is not available to a director who votes in favor of the action
taken.
SECTION 4.7. INFORMAL ACTION BY DIRECTORS. Action permitted or
required to be taken at a meeting may be taken by all of the directors without a
meeting if written consent describing the action taken is signed by all the
directors and filed with the minutes of the proceedings of the Board, whether
done before or after the action is taken. A director's consent to action taken
without meeting may be in facsimile form. Absent prior approval of the Board of
Directors, consent by electronic form and delivered by electronic means will not
be permitted.
ARTICLE V
OFFICERS
SECTION 5.1. ELECTED OFFICERS. The elected officers of the Corporation
shall be a Chief Executive Officer, a President, a Chairman of the Board, a Vice
Chairman of the Board, a Chief Financial Officer, a Secretary, and a Treasurer
and such other officers (including, without limitation, Senior Vice Presidents)
as the Board of Directors from time to time may deem proper. The Chairman of the
Board and the Vice Chairman shall be chosen from among the directors. All
officers elected by the Board of Directors shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article. Such officers shall also have such powers and duties
as from time to time may be conferred by the Board of Directors or by any
committee thereof. Any two or more offices may be held by the same person.
SECTION 5.2. ELECTION AND TERM. The elected officers of the
Corporation shall be elected by the Board of Directors. Such election 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
his successor is elected and qualifies.
SECTION 5.3. REMOVAL/RESIGNATION. Any officer elected by the Board of
Directors may be removed by the Board with or without cause, but such removal
without cause shall be without prejudice to the contract rights, if any, of the
person so removed. An elected officer may resign at any time by communication of
his resignation to the Corporation, orally or in writing. A resignation is
effective when communicated unless it specifies in writing a later effective
date. If a resignation is made effective at a later date that is accepted by the
Corporation, the Board of Directors may fill the pending vacancy before the
effective date if the Board provides that the
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successor does not take office until the effective date. An officer's
resignation does not affect the Corporation's contract rights, if any, with the
officer.
SECTION 5.4. COMPENSATION OF OFFICERS. The compensation of all elected
officers of the Corporation shall be fixed by the Board of Directors. The
election of an officer does not of itself create contract rights.
SECTION 5.5. CHIEF EXECUTIVE OFFICER. Subject to and within such
authority granted by the Board of Directors, the Chief Executive Officer shall
be responsible for the general supervision and management of the affairs of the
Corporation and shall perform all duties incidental to such person's office
which may be required by law and all such other duties as are properly required
by the Board of Directors. The Chief Executive Officer shall be the principal
executive officer of the Corporation. The Chief Executive Officer shall make
reports to the Board of Directors and the shareholders, and shall see that all
orders and resolutions of the Board of Directors and of any committee thereof
are carried into effect.
The Chief Executive Officer may affix, or authorize another elected
officer to affix, the signature of this Corporation to all deeds, conveyances,
mortgages, leases, obligations, bonds, certificates and other papers and
instruments in writing which have been authorized by the Board of Directors or
which, in the judgment of the Chief Executive Officer should be executed on
behalf of this Corporation; and, subject to the direction of the Board of
Directors, shall have general charge of the property of this Corporation and of
the supervision and control all offices, agents and employees of this
Corporation.
SECTION 5.6. PRESIDENT. Subject to and within such authority granted
by the Board of Directors, the President shall be the chief operating officer of
the Corporation and as such shall have responsibility for the active management
and normal supervision over the operation of the business of the Corporation.
The President shall perform all duties incidental to the office of President and
such other duties as may be prescribed by the Chief Executive Officer and the
Board of Directors from time to time.
SECTION 5.7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall be the principal financial and accounting officer of the Corporation;
shall keep full and accurate accounts of all assets, liabilities, commitments,
revenues, costs and expenses, and other financial transactions of the
Corporation in books belonging to the Corporation, and conform them to sound
accounting principles with adequate internal controls; shall cause regular
audits of these books and records to be made; shall see that all expenditures
are made in accordance with procedures duly established, from time to time, by
the Corporation; shall render financial statements upon the request of the Chief
Executive Officer and Board of Directors; and, in general, shall perform all the
duties ordinarily connected with the office of Chief Financial Officer and such
other duties as may be assigned to him by the Chief Executive Officer or the
Board of Directors.
SECTION 5.8 CHAIRMAN. The Chairman is authorized to call meetings of
the shareholders and meetings of the Board of Directors in the manner prescribed
by law or by these Bylaws. The Chairman shall preside at all meetings of the
Board of Directors and at all meetings of
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shareholders. The Chairman shall perform such duties and special projects as may
be requested from time to time by the Board of Directors.
SECTION 5.9. VICE CHAIRMAN. The Vice Chairman, in the absence of the
Chairman or in the event of his death, inability or refusal to act, shall
perform the duties of the Chairman, and when so acting shall assume the powers
of and be subject to all the restrictions of the Chairman.
SECTION 5.10 SENIOR VICE PRESIDENTS. The Senior Vice Presidents shall
have such powers and duties as may be prescribed for them, respectively, by the
Board of Directors or the Chief Executive Officer. Each of such officers shall
report to the Chief Executive Officer or such other officer as the Board shall
direct.
SECTION 5.11. SECRETARY. The Secretary shall attend all meetings of
the shareholders and of the Board of Directors, shall keep a true and faithful
record thereof in proper books and shall have the custody and care of the
corporate seal, records, minute books and stock books of the Corporation and of
such other books and papers as in the practical business operations of the
Corporation shall naturally belong in the office or custody of the Secretary or
as shall be placed in the Secretary's custody by order of the Board of
Directors. The Secretary shall keep a suitable record of the addresses of
shareholders and shall, except as may be otherwise required by statute or these
Bylaws, sign and issue all notices required for meetings of shareholders or of
the Board of Directors. The Secretary shall sign all papers to which the
Secretary's signature may be necessary or appropriate, shall affix and attest
the seal of the Corporation to all instruments requiring the seal, shall have
the authority to certify the Bylaws, resolutions of the shareholders and Board
of Directors and other documents of the Corporation as true and correct copies
thereof and shall have such other powers and duties as are commonly incidental
to the office of Secretary and as may be prescribed by the Board of Directors or
the Chief Executive Officer.
SECTION 5.12. TREASURER. The Treasurer shall have charge of and
supervision over and be responsible for the funds, securities, receipts and
disbursements of the Corporation; cause the monies and other valuable effects of
the Corporation to be deposited in the name and to the credit of the Corporation
in such banks or trust companies or with such bankers or other depositories as
shall be selected in accordance with resolutions adopted by the Board of
Directors; cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositories of the Corporation, and cause to be
taken and preserved proper vouchers for all moneys disbursed; render to the
proper officers and to the Board of Directors, a statement of the financial
condition of the Corporation and of all his transactions as Treasurer; cause to
be kept at the principal executive offices of the Corporation correct books of
account of all its business and transactions; and, in general, perform all
duties incident to the office of Treasurer and such other duties as are required
by these Bylaws or as may be assigned to him by the Chief Executive Officer or
the Board of Directors.
SECTION 5.13. APPOINTED SUBORDINATE OFFICERS. In accordance with and
subject to such authorization, general or specific, granted by the Board of
Directors, the Chief Executive Officer shall have the power to appoint
additional persons to hold positions and titles such as assistant secretary,
assistant treasurer, assistant accounting officer, or vice president of the
Corporation or of a division or department of the Corporation, or similar such
titles, as the business of the
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Corporation may require. The Board of Directors shall be advised of any such
appointment at a meeting of the Board, and the appointment shall be noted in the
minutes of the meeting. The minutes shall clearly state that such persons are
noncorporate officers appointed pursuant to this Section 5.13 of these Bylaws.
Each such appointee shall have such title, shall serve in such
capacity and shall have such authority and perform such duties as the President,
within his granted authority, shall determine.
However, any such appointee, absent specific election by the Board as
an elected corporate officer, (i) shall not be considered an officer elected by
the Board of Directors pursuant to these Bylaws and shall not have the executive
powers (including making of company policy) or authority of corporate officers
elected pursuant to this Article, (ii) shall not be considered (a) an "officer"
of the Corporation for the purposes of Rule 3b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "Act") or an "executive officer" of
the Corporation for the purposes of Rule 3b-7 promulgated under the Act, and
similarly shall not be considered an "officer" of the Corporation for the
purposes of Section 16 of the Act (as such persons shall not be given the access
to inside information of the Corporation enjoyed by officers of the Corporation)
or an "executive officer" of the Corporation for the purposes of Section 14 of
the Act or (b) an "officer" for the purposes of the North Carolina Business
Corporation Act, except in any such case as otherwise required by law, and (iii)
shall be empowered to represent himself to third parties as an appointed
subordinate officer only, and shall be empowered to execute documents, bind the
Corporation or otherwise act on behalf of the Corporation only as authorized by
the President of the Corporation or by resolution of the Board of Directors.
SECTION 5.14. BONDS. The Board of Directors may by resolution or the
Chief Executive Officer in his discretion 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
his respective offices or positions, and to comply with such other conditions as
may from time to time be required by the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 6.1. CONTRACTS. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 6.2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 6.3. 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
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or agents of the Corporation, and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 6.4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such depositories as the Board of Directors may direct.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 7.1. CERTIFICATES FOR SHARES. Certificates representing shares
of the Corporation shall be issued to every shareholder for the fully paid
shares owned by him. Certificates for shares shall be of such form and style,
printed or otherwise, as the Board of Directors may designate, and each
certificate shall state all of the following facts:
(1) The certificate number;
(2) The date of issuance;
(3) The name of the record holder of the shares represented
thereby;
(4) The number of shares represented thereby;
(5) The par value, if any, of the shares represented
thereby.
They shall be consecutively numbered or otherwise identified; and 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.
SECTION 7.2. SIGNING CERTIFICATES -FACSIMILE SIGNATURES. All such
certificates shall be signed by the Chairman, or in his absence the Vice
Chairman, and the Secretary or be authenticated by facsimiles of the signatures
of the Chairman and Secretary or by a facsimile of the signature of the
Chairman, and the written signature of the Secretary. Even though an officer who
signed, or whose facsimile signature has been written, printed or stamped on, a
certificate for shares shall have ceased by death, resignation, or otherwise to
be an officer of the Corporation before such certificate is issued by the
Corporation, such certificate shall be valid.
SECTION 7.3. SHARE TRANSFER RECORDS. The Corporation shall maintain
share transfer records, containing the name and address of each shareholder of
record and the number and class or series of shares held by such shareholder.
Transfer of shares shall be made only on the stock transfer books of the
Corporation only upon surrender of the certificates for the shares sought to be
transferred by the record holder thereof or by his duly authorized agent,
transferee or legal representative. All certificates surrendered for transfer
shall be cancelled before new certificates for the transferred shares shall be
issued.
SECTION 7.4. FIXING RECORD DATE. The Board of Directors may fix a
future date as the record date for one or more voting groups in order to
determine the shareholders entitled to notice of a shareholders' meeting, to
demand a special meeting, to vote, or to take any other action. Such record date
may not be more than seventy (70) days before the meeting or action
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requiring a determination of shareholders. A determination of shareholders
entitled to notice of or to vote at a shareholders' meeting is effective for any
adjournment of the meeting unless the Board of Directors fixes a new record date
for the adjourned meeting, which it must do if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, the close of business on the day before the first notice of the
meeting is delivered to shareholders shall be the record date for such
determination of shareholders.
The Board of Directors may fix a date as the record date for
determining shareholders entitled to a distribution or share dividend. If no
record date is fixed by the Board of Directors for such determination, it is the
date the Board of Directors authorizes the distribution or share dividend.
SECTION 7.5. CANCELLATION AND EXCHANGE OF CERTIFICATES. When the
Articles of Incorporation are amended in any way affecting the statement
contained in the certificates for outstanding shares, or, it becomes desirable
for any reason to cancel any outstanding certificate for shares and issue a new
certificate therefor conforming to the rights of the holder, the Board of
Directors may order any holders of outstanding certificates for shares to
surrender and exchange them for new certificates within a reasonable time to be
fixed by the Board of Directors. The order may provide that a holder of any
certificates so ordered to be surrendered is not entitled to vote or to receive
dividends or to exercise any of the other rights of shareholders of record until
he has complied with the order, but such order shall operate to suspend such
rights only after notice and until compliance.
SECTION 7.6. LOST CERTIFICATES. The Board of Directors may direct a
new certificate to be issued in place of any certificate heretofore issued by
the Corporation claimed to have been lost or destroyed, upon receipt of an
affidavit of such fact from the person claiming the certificate to have been
lost or destroyed. When authorizing such issue of a new certificate, the
Secretary or Board of Directors shall require that the owner of such lost or
destroyed certificate, or his legal representative, give the Corporation a bond
in such sum and with such surety or other security as the Board may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate claimed to have been lost or destroyed, except where
the Board of Directors by resolution finds that in the judgment of the Board of
Directors the circumstances justify omission of a bond.
SECTION 7.7. HOLDER OF RECORD. Except as otherwise required by law,
the Corporation may treat the person in whose name the shares stand of record on
its books as the absolute owner of the shares and the person exclusively
entitled to receive notification and distributions, to vote, and to otherwise
exercise the rights, powers, and privileges of ownership of such shares.
ARTICLE VIII
INDEMNIFICATION
Any person who at any time serves or has served as a director or
elected officer of the Corporation, or who, while serving as a director or
elected officer of the Corporation, serves or
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has served, at the request of the Corporation, as a director, officer, partner,
trustee, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, or as a trustee or administrator under an employee
benefit plan, shall have a right to be indemnified by the Corporation to the
fullest extent permitted by law against (a) reasonable expenses, including
attorneys' fees, incurred by him in connection with any threatened, pending, or
completed civil, criminal, administrative, investigative, or arbitrative action,
suit, or proceeding (and any appeal therein ), whether or not brought by or on
behalf of the Corporation, seeking to hold him liable by reason of the fact that
he is or was acting in such capacity, and (b) reasonable payments made by him in
satisfaction of any judgment, money decree, fine (including an excise tax
assessed with respect to an employee benefit plan), penalty, or settlement for
which he may have become liable in any such action, suit, or proceeding.
To the fullest extent permitted by law, the Company agrees to pay the
indemnitee's expenses, including attorney's fees and expenses, incurred in
defending any such action, suit, or proceeding in advance of the final
disposition of such action, suit, or proceeding.
In addition, the indemnitee shall be entitled to recover and be
awarded all costs and expenses (including attorney's fees) incurred by him in
the exercise of his rights of indemnification hereunder, including such costs
and expenses incurred in an action against the Corporation for the benefits of
this provision in which he is the prevailing party.
The Board of Directors of the Corporation shall take all such action
as may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by law, including, without limitation, making a
determination that indemnification is permissible in the circumstances and a
good faith evaluation of the manner in which the claimant for indemnity acted
and of the reasonable amount of indemnity due him. The Board of Directors may
appoint a committee or special counsel to make such determination and
evaluation. To the extent needed, the Board shall give notice to, and obtain
approval by, the shareholders of the Corporation for any decision to indemnify.
Any person who at any time after the adoption of this Bylaw serves or
has served in the aforesaid capacity for or on behalf of the Corporation shall
be deemed to be doing or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and shall not be
exclusive of any other rights to which such person may be entitled apart from
the provision of this Bylaw.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and by its Articles of
Incorporation.
SECTION 9.2. SEAL. The corporate seal of the Corporation shall consist
of two concentric circles between which is the name of the Corporation, and the
year of incorporation, and in the
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center of which is inscribed SEAL; and such seal, as impressed on the margin
hereof, is hereby adopted as the corporate seal of the Corporation.
SECTION 9.3. WAIVER OF NOTICE. Whenever any notice is required to be
given to any shareholder or director under the provisions of the North Carolina
Business Corporation Act or under the provisions of the Articles of
Incorporation or Bylaws of this Corporation, a waiver thereof in writing signed
by the person or persons entitled to such notice, whether before or after the
time stated herein, shall be equivalent to the giving of such notice.
SECTION 9.4. FISCAL YEAR. Unless otherwise ordered by the Board of
Directors, the fiscal year of the Corporation shall be fixed by the Board of
Directors.
SECTION 9.5. AMENDMENTS. Except as otherwise provided by law or the
Articles of Incorporation, these Bylaws may be amended or repealed and new
Bylaws may be adopted by the affirmative vote of a majority of the Directors
then holding office at any regular or special meeting of the Board of Directors.
No Bylaw adopted, amended or repealed by the Shareholders shall be
readopted, amended or repealed by the Board of Directors, unless the Articles of
Incorporation or a Bylaw adopted by the Shareholders authorizes the Board of
Directors to adopt, amend or repeal that particular Bylaw or the Bylaws
generally.
SECTION 9.6. SHAREHOLDERS PROTECTION ACT OPT-OUT. As of May 22, 1987,
the provisions of the North Carolina Shareholders Protection Act shall not be
applicable to this Corporation.
SECTION 9.7. CONTROL SHARE ACQUISITION ACT OPT-OUT. As of November 9,
1987, and again as of September 26, 1990, the provisions of the North Carolina
Control Share Acquisition Act shall not be applicable to the Corporation.
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