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EXHIBIT 3.2
BYLAWS
OF
AMERICAN MULTIPLEXER CORPORATION
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be located at such place, within or without the State of North Carolina,
as shall be determined from time to time by the Board of Directors and as shall
have been so designated most recently in the annual report of the Corporation
or amendment thereto, filed with the North Carolina Secretary of State pursuant
to the North Carolina Business Corporation Act.
Section 1.2 REGISTERED OFFICE. The Corporation shall maintain a
registered office in the State of North Carolina as required by law, which 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 from time to time determine, or as the affairs of the
Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. All meetings of shareholders shall be
held at the principal office of the Corporation, or at such other place, either
within or without the State of North Carolina, as shall be designated by the
Board of Directors or the Chief Executive Officer of the Corporation.
Section 2.2 ANNUAL MEETINGS. The annual meeting of the shareholders
shall be held each year at such date and time as shall be designated by the
Board of Directors or the Chief Executive Officer of the Corporation, 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 SUBSTITUTE ANNUAL MEETING. If the annual meeting shall not
be held on the day provided for by these Bylaws, a substitute meeting may be
called in accordance with the provisions of Section 2.4. A meeting so called
shall be designated and treated for all purposes as the annual meeting.
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Section 2.4 SPECIAL MEETINGS. Special Meetings of the shareholders may be
called at any time by or at the request of the Chief Executive Officer or the
Board of Directors. Unless the Corporation is a "public corporation" (as defined
in the North Carolina Business Corporation Act), a special meeting of the
shareholders shall also be called upon the written demand or demands of the
holders of at least ten percent (10%) of all votes entitled to be cast on any
issue proposed to be considered at such meeting pursuant to such demand or
demands, provided such demand or demands describe the purpose or purposes for
which said special meeting is to be held and are signed, dated and delivered to
the Secretary of the Corporation. Notice of a special meeting called at the
demand of shareholders shall be given within thirty (30) days after the date of
receipt by the Secretary of the demand or demands requiring the call of such
special meeting.
Section 2.5 NOTICE OF MEETINGS. Written or printed 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 thereof, either personally or by
mail, at the direction of the person or persons calling the meeting, to each
shareholder entitled to vote at such meeting and each other shareholder
entitled to notice pursuant to the Articles of Incorporation or applicable law.
In the case of a special meeting, the notice of meeting shall specifically
state the purpose or purposes for which the meeting is called. In the case of
an annual meeting, the notice of meeting need not specifically state the
purpose or purposes thereof or the business to be transacted thereat unless
such statement is expressly required by the provisions of these Bylaws or by
applicable law.
If a meeting is adjourned for 120 days after the date fixed for the original
meeting, or if a new record date is fixed for the adjourned meeting, or if the
date, time and place for the adjourned meeting is not announced prior to
adjournment, then notice of the adjourned meeting shall be given as in the case
of an original meeting; otherwise, it is not necessary to give any notice of
the adjourned meeting other than by announcement at the meeting at which the
adjournment is taken.
A shareholder's attendance at a meeting constitutes a waiver by such
shareholder of (1) objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, and (b) objection
to consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the notice of the meeting, unless the
shareholder objects to considering the matter before it is voted upon.
Section 2.6 RECORD DATE. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of
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shareholders or any adjournment thereof, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for one or more voting groups for any such
determination of shareholders, such record date in any case to be not more than
seventy (70) days immediately preceding the date of the meeting or the date on
which the particular action, requiring such determination of shareholders, is to
be taken.
If no record date is fixed 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 date on which notice of the meeting is first mailed to
shareholders shall be the record date for such 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.
Section 2.7 SHAREHOLDERS' LIST. Not later than two (2) business days after
the date that notice of a meeting of shareholders is first given, the Secretary
or other officer or person having charge of the stock transfer books of the
Corporation shall prepare an alphabetical list of the shareholders entitled to
notice of such meeting, with the address of and number of shares held by each,
arranged by voting group (and by class or series of shares within each voting
group), which list shall be kept on file at the principal office of the
Corporation (or such other place in the city where the meeting is to be held as
may be identified in the notice of the meeting) for the period commencing two
(2) business days after notice of the meeting is first given and continuing
through such meeting, and which list shall be available for inspection by any
shareholder, or his or her agent or attorney, upon his or her demand, at any
time during regular business hours. This list shall also be produced and kept
open at the time and place of the meeting and shall be subject to inspection by
any shareholder, or his or her agent or attorney, during the whole time of the
meeting and any adjournment thereof.
Section 2.8 QUORUM. The holders of shares entitled to a majority of votes
entitled to be cast by a voting group (as described in Section 2.10), present
in person or represented by proxy, shall constitute a quorum of such voting
group at all meetings of shareholders for purposes of acting on any matter for
which action by such voting group is required. 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
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transacted which might have been transacted at the original meeting.
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 thereof unless a new record date is or must be set for that
adjourned meeting.
Section 2.9 ORGANIZATION. Each meeting of shareholders shall be presided
over by the Chief Executive Officer, or, in the absence or at the request of
the Chief Executive Officer, by such other officer as the Chief Executive
Officer or the Board of Directors may designate, or in their absence and in the
absence of such designation, by any person selected to preside by plurality
vote of the shares represented and entitled to vote at the meeting, with each
share having the same number of votes to which it would be entitled on any
other matter on which all shares represented and entitled to vote at the
meeting would be entitled to vote. The Secretary, or in the absence or at the
request of the Secretary, any person designated by the person presiding at the
meeting, shall act as secretary of the meeting.
Section 2.10 VOTING OF SHARES. Except as otherwise provided in the
Articles of Incorporation of the Corporation, each outstanding share,
regardless of class, having the right to vote on a matter or matters submitted
to a vote at a meeting of shareholders shall be entitled to one vote on each
such matter. A shareholder may vote in person or by proxy.
Except in the election of directors (as provided for in Section 3.4), if a
quorum of a voting group exists, action on a matter by such voting group is
approved by such voting group if the votes cast within such voting group
favoring the action exceed the votes cast within such voting group opposing the
action, unless a greater number of affirmative votes is required by law or the
Articles of Incorporation or a Bylaw adopted by the shareholders. If the
Articles of Incorporation, a Bylaw adopted by the shareholders or applicable
law provides for voting on a matter by two or more voting groups, action is
taken on that matter only when approved by each of those voting groups counted
separately; provided, that action may be taken by one voting group on a matter
even though no action is taken at the same time by another voting group
entitled to vote on the matter.
Voting on all matters including the election of directors shall be by
voice vote or by a show of hands unless, as to any matter, the holders of
shares entitled to at least twenty-five percent (25%) of the votes of shares
represented at the meeting and entitled to vote on that matter shall demand,
prior to the voting on such matter, a ballot vote on such matter.
As used in these Bylaws, the term "voting group" means all
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shares of one or more classes or series that, under the Articles of
Incorporation or applicable law, are entitled to vote and be counted together
collectively on a matter at a meeting of shareholders. All shares entitled by
the Articles of Incorporation or applicable law to vote generally on the matter
are for that purpose a single voting group. So long as the Corporation shall
have only one class of shares outstanding and the voting rights of all shares
of such class are identical, then all such outstanding shares shall constitute
a single voting group and the sole voting group, except to the extent that
applicable law or the Articles of Incorporation requires that any of such
shares be treated as a separate voting group.
Section 2.11 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of the shareholders may be taken without a meeting if one
or more written consents, describing the action so taken, shall be signed by
all of the persons who would be entitled to vote upon such action at a meeting,
whether before or after the action so taken, and shall be delivered to the
Corporation to be included in the corporate minute book or be filed with the
corporate record. Such consent has the same effect as a meeting vote and may be
described as such in any document. In the case of any action proposed to be so
taken by written consent that, if to be taken at a meeting, would require that
notice to be given to nonvoting shareholders, the Corporation shall give such
nonvoting shareholders written notice of the proposed action at least ten (10)
days before the action is taken, which notice shall contain or be accompanied
by the same material that, under applicable law, would have been required to be
sent to nonvoting shareholders in a notice of such a meeting.
Section 2.12 INFORMAL ACTION BY SHAREHOLDERS. Any action which may be
taken at a meeting of the shareholders may be taken without a meeting if a
consent in writing, describing forth the action so taken, shall be signed by
all of the persons who would be entitled to vote upon such action at a meeting,
and filed with the Secretary of the Corporation to be kept in the corporate
minute book.
ARTICLE III
DIRECTORS
Section 3.1 GENERAL POWERS. All corporate powers of the Corporation shall
be exercised by or under the authority of, and the business 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 of
this Corporation shall consist of such number, not less than three (3) nor more
than seven (7), as shall be determined
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from time to time by resolution of the shareholders or the Board of Directors.
No such resolution reducing the number of directors below the number of
directors then in office shall of itself have the effect of removing any
director prior to the expiration of such director's term of office. Any
positions on the Board of Directors created by an increase in the number of
directors pursuant to such a resolution and not filled by the shareholders
shall be treated as vacancies to be filled by and in the discretion of the
Board of Directors. The number of directors fixed pursuant to such a resolution
shall be deemed to be the number of directors prescribed by these Bylaws.
The terms of initial directors and the term of any director elected to
fill a vacancy shall expire at the next shareholders' meeting at which
directors are elected. Otherwise, the term of each director shall be the period
from the effective date of his or her election to the next annual meeting of
shareholders. Notwithstanding the stated terms of directors, a director shall
continue to serve after expiration of his or her stated term until his or her
successor is elected and qualifies or there is a decrease in the number of
directors eliminating his or her position, and a director shall cease to serve
as such and his or her position shall be deemed vacant upon his or her death,
resignation, removal of disqualification.
Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
Section 3.3 ELECTION OF DIRECTORS. Except as provided in Section 3.6,
directors other than the initial directors shall be elected at the annual
meeting of shareholders.
Section 3.4 VOTING FOR DIRECTORS. Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election of
directors at a meeting at which a quorum is present. Except as provided in the
Articles of Incorporation or required by applicable law, shareholders have no
right to cumulate their votes for directors.
Section 3.5 REMOVAL. Except as otherwise provided in the Articles of
Incorporation or by applicable law, a director may be removed from office with
or without cause by a vote of shareholders of the voting group entitled to
elect such directors, provided a quorum exists and the number of votes cast in
favor of such removal exceeds the number of votes cast against such removal. A
director may not be removed by the shareholders at a meeting unless the notice
of the meeting states that a purpose of the meeting is removal of such
director. If any directors are so removed, new directors may be elected at the
same meeting.
Section 3.6 VACANCIES. A vacancy occurring in the Board of Directors,
including positions not filled by the shareholders or
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those resulting from an increase in the number of directors, may be filled by a
majority of the remaining directors, though less than a quorum, or by the sole
remaining director. The shareholders may elect a director at any time to fill
any vacancy not filled by the directors.
Section 3.7 COMPENSATION. The Board of Directors, in its discretion, may
compensate directors for their services as such and may provide for the payment
of all expenses incurred by the directors in attending regular and special
meetings of the Board or of any Committee or in the performance of their other
duties as directors. Nothing herein contained, however, shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 3.8 COMMITTEES. The Board of Directors, by resolution adopted by a
majority of the number of directors then in office, may designate and appoint
from among its members one or more Committees, each consisting of two or more
directors, who shall serve as members of such Committee at the pleasure of the
Board of Directors. Each such Committee, to the extent provided in such
resolution, shall have and may exercise all of the authority of the Board of
Directors in the management of the Corporation, except that no such Committee
shall have authority to: (a) authorize dividends or other distributions not
permitted by applicable law to be authorized by a Committee; (b) approve or
propose to shareholders action that applicable law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or on any Committee;
(d) amend the Articles of Incorporation; (e) adopt, amend or repeal bylaws; (f)
approve a plan of merger not requiring shareholder approval; (g) authorize or
approve reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; (h) authorize or approve reacquisition of
shares, except according to a formula or method prescribed by the Board of
Directors; (h) 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 to do so within limits
specifically prescribed by the Board of Directors); or (i) amend or repeal any
resolution of the Board of Directors that by its terms provides that it is not
so amendable or repealable. Nothing herein shall preclude the Board of
Directors from establishing and appointing any committee, whether of directors
or otherwise, not having or exercising the authority of the Board of Directors.
ARTICLE IV
MEETINGS OF DIRECTORS
Section 4.1 REGULAR MEETINGS. A regular annual meeting of the Board of
Directors shall be held immediately after, and at the
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same place as, the annual meeting or substitute 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 be called by or at the request of the Chairman of the Board (if there shall
be a person holding such office), the Chief Executive Officer or any two
directors. Such meetings may be held within or without the State of North
Carolina.
Section 4.3 NOTICE OF MEETINGS. Regular meetings of the Board of
Directors may be held without notice.
The person or persons calling a special meeting of the Board of Directors
shall, at least two days before the meeting, give notice thereof by any usual
means of communication. Such notice need not specify the purpose for which the
meeting is called.
A director's attendance at or participation in a meeting shall constitute
a waiver by such director of notice of such meeting, unless the director at the
beginning of the meeting (or promptly upon his or her arrival) objects to
holding the meeting or to the transaction of business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 4.4 QUORUM. A majority of the number of directors fixed or
prescribed by these Bylaws shall be required for, and shall constitute, a
quorum for the transaction of business at any meeting of the Board of Directors.
Section 4.5 MANNER OF ACTING. Except as otherwise provided in these Bylaws
or required by applicable law, the affirmative vote of a majority of the
directors present at a meeting of the Board of Directors shall be the act of
the Board of Directors, if a quorum is present when the vote is taken.
Section 4.6 ORGANIZATION. Each meeting of the Board of Directors shall be
presided over by the Chairman of the Board (if there shall be a person holding
such office), or, in the absence or at the request of the Chairman of the
Board, by the Chief Executive Officer, and in their absence or at their
request, by any person selected to preside by vote of a majority of the
directors present. The Secretary, or in the absence or at the request of the
Secretary, any person designated by the person presiding at the meeting, shall
act as secretary of the meeting.
Section 4.7 ACTION WITHOUT MEETING. Action required or permitted to be
taken by the Board of Directors or a Committee at a meeting may be taken
without a meeting if one or more written consents describing the action taken
are signed by each of the directors or members of the Committee, as the case
may be, whether before or after the action so taken, and filed with corporate
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records or the minutes of the proceedings of the Board or Committee. Action so
taken is effective when the last consent specifies a different effective date.
Such consent has the effect of a meeting vote and may be described as such in
any document.
Section 4.8 PARTICIPATION BY CONFERENCE TELEPHONE. Any one or more
directors or members of a Committee may participate in a meeting of the Board
of Directors or Committee by means of a conference telephone or similar
communications device that allows all persons participating in the meeting to
simultaneously hear each other during the meeting, and such participation in a
meeting shall be deemed presence in person at such meeting.
ARTICLE V
OFFICERS
Section 5.1 GENERAL. The officers of the Corporation shall consist of a
Chief Executive Officer (who shall be either the Chairman of the Board or the
President, as provided in these Bylaws), a President, a Secretary, a Treasurer,
and may also include a Chairman of the Board, a Chief Operating Officer, and
such Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers as may be appointed by the Board of Directors or otherwise provided in
these Bylaws. Any two or more offices may be simultaneously held by the same
person, but no person may act in more than one capacity where action of two or
more officers is required. The title of any officer may include any additional
designation descriptive of such officer's duties as the Board of Directors may
prescribe.
Section 5.2 APPOINTMENT AND TERM. The officers of the Corporation shall
be appointed from time to time by the Board of Directors; provided, that the
Board of Directors may authorize a duly appointed officer to appoint one or
more other officers or assistant officers, other than appointment of the Chief
Executive Officer, the Chairman of the Board, the President or the Chief
Operating Officer. Each officer shall serve as such at the pleasure of the
Board of Directors.
Section 5.3 REMOVAL. Any officer may be removed by the Board of Directors
at any time with or without cause; but such removal shall not itself affect the
contract rights, if any, of the person so removed.
Section 5.4 COMPENSATION. The compensation of all officers of the
Corporation shall be fixed by, or in the manner prescribed by, the Board of
Directors.
Section 5.5 CHIEF EXECUTIVE OFFICER. If there is a Chairman of the Board
and the Board of Directors designates the Chairman of the Board as the Chief
Executive Officer, then the Chairman of the
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Board shall be the Chief Executive Officer of the Corporation. Otherwise, the
President shall be the Chief Executive Officer of the Corporation. Subject to
the direction and control of the Board of Directors, the Chief Executive
Officer shall supervise and control the management of the Corporation and shall
have such duties and authority as are normally incident to the position of
chief executive officer of a corporation and such other duties and authority as
may be prescribed from time to time by the Board of Directors or as are
provided for elsewhere in these Bylaws. The title of the Chairman of the Board
or President, as the case may be, serving as the Chief Executive Officer may,
but need not, also refer to his or her position as Chief Executive Officer.
Section 5.6 CHAIRMAN OF THE BOARD. The Board of Directors may, but need
not, appoint from among its members an officer designated as the Chairman of
the Board. If there is appointed a Chairman of the Board and such Chairman of
the Board is also designated by the Board of Directors to be the Chief
Executive Officer, then the Chairman of the Board shall have all of the duties
and authority of the Chief Executive Officer and shall also, when present,
preside over meetings of the Board of Directors. If there is a Chairman of the
Board but such Chairman of the Board is not also designated as the Chief
Executive Officer, then the Chairman of the Board shall, when present, preside
over meetings of the Board of Directors and shall have such other duties and
authority as may be prescribed from time to time by the Board of Directors or
as are provided for elsewhere in these Bylaws.
Section 5.7 CHIEF OPERATING OFFICER. If there is appointed a Chairman of
the Board who is also the Chief Executive Officer, then the President shall be
the Chief Operating Officer. If the President is the Chief Executive Officer,
then the President shall also serve as the Chief Operating Officer unless the
Board of Directors shall designate some other officer of the Corporation as the
Chief Operating Officer. Subject to the direction and control of the Chief
Executive Officer and the Board of Directors, the Chief Operating Officer shall
supervise and control the operations of the Corporation, shall have such duties
and authority as are normally incident to the position of chief operating
officer of a corporation and such other duties as may be prescribed from time
to time by the Chief Executive Officer of the Board of Directors, and, in the
absence of disability of the Chief Executive Officer, shall have the authority
to perform the duties of the Chief Executive Officer. The title of the
President or other officer serving as the Chief Operating Officer may, but need
not, also refer to his or her position as Chief Operating Officer.
Section 5.8 PRESIDENT. Unless there is appointed a Chairman of the Board
who is also designated the Chief Executive Officer, the President shall be the
Chief Executive Officer of the Corporation and shall have all of the duties and
authority of that office. If the President is not the Chief Executive Officer,
then
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the President shall be the Chief Operating Officer and shall have all of the
duties and authority of that office. If the President shall be the Chief
Executive Officer and no other officer shall have been designated by the Board
of Directors as the Chief Operating Officer, then the President shall also have
all of the duties and authority of the Chief Operating Officer. The President
shall also have such other duties and authority as may be prescribed from time
to time by the Board of Directors.
Section 5.9 VICE PRESIDENT. The Vice President, and if there be more
than one, the Executive Vice President or other Vice President designated by
the Board of Directors, shall, in the absence or disability of the President,
have the authority and perform the duties of said office (including the duties
and authority of the President as either Chief Executive Officer or Chief
Operating Officer or both, if the President serves as such). In addition, each
Vice President shall perform such other duties and have such other powers as
are normally incident to the office of the Vice President or as shall be
prescribed by the Chief Executive Officer, the Chief Operating Officer or the
Board of Directors.
Section 5.10 SECRETARY. The Secretary shall have the responsibility and
authority to maintain and authenticate the records of the Corporation; shall
keep, or cause to be kept, accurate records of the acts and proceedings of all
meetings of shareholders, directors and Committees; shall give, or cause to be
given, all notices required by law and by these Bylaws; shall have general
charge of the corporate books and records and of the corporate seal, and shall
affix the corporate seal to any lawfully executed instrument requiring it;
shall have general charge of the stock transfer books of the Corporation and
shall keep, or cause to be kept, all records of shareholders as are required by
applicable law or these Bylaws; shall sign such instruments as may require the
signature of the Secretary; and, in general, shall perform all duties incident
to the office of the Secretary and such other duties as may be assigned to him
or her from time to time by the Chief Executive Officer, the Chief Operating
Officer, or the Board of Directors.
Section 5.11 TREASURER. The Treasurer shall have custody of all funds
and securities belonging to the Corporation and shall receive, deposit or
disburse the same under the direction of the Board of Directors; shall keep, or
cause to be kept, full and accurate accounts of the finances of the Corporation
in books especially provided for that purpose, and shall generally have charge
over the Corporation's accounting and financial records; shall cause a true
statement of its assets and liabilities as of the close of each fiscal year,
and of the results of its operations and of cash flows for such fiscal year,
all in reasonable detail, including particulars as to convertible securities
then outstanding, to be made as soon as practicable after the end of
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such fiscal year. The Treasurer shall also prepare and file, or cause to be
prepared and filed, all reports and returns required by Federal, State or local
law and shall generally perform all other duties incident to the Office of the
Treasurer and such other duties as may be assigned to him or her from time to
time by the Chief Executive Officer, the Chief Operating Officer or the Board of
Directors.
Section 5.12 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries and Assistant Treasurers, if any, shall, in the absence or
disability of the Secretary or the Treasurer, respectively, have all the powers
and perform all of the duties of those offices, and they shall in general
perform such other duties as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the Chief Executive Officer, the Chief Operating
Officer or the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS 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 document or instrument on behalf of the Corporation, and such authority may
be general or confined to specific instances. Any resolution of the Board of
Directors authorizing the execution of documents by the proper officers of the
Corporation or by the officers generally and not specifying particular officers
shall be deemed to authorize such execution by the Chief Executive Officer, the
Chief Operating Officer, the Chairman of the Board, the President, or any Vice
President, or by any other officer if such execution is within the scope of the
duties and of such other office. The Board of Directors may by resolution
authorize such execution by means of one or more facsimile signatures.
Section 6.2 LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by 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 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
or invested shall be deposited from time to time to the credit of the
Corporation in such depositories as the Board of Directors direct.
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ARTICLE VII
SHARE CERTIFICATES
Section 7.1 CERTIFICATES FOR SHARES. Unless the Board of Directors
authorizes the issue of some or all of the shares of any or all classes or
series without certificates, certificates representing shares of the
Corporation shall be issued, in such form as the Board of Directors shall
determine, to every shareholder for the fully paid shares owned by him. These
certificates shall be signed by the Chief Executive Officer, the Chief
Operating Officer, the Chairman of the Board, the Assistant Secretary, the
Treasurer or an Assistant Treasurer, either manually or in facsimile (provided
that certificates bearing facsimile signatures of both officers shall be
manually countersigned by a registrar, transfer agent or other authenticating
agent). They shall be consecutively numbered or otherwise identified; and the
name and address of the persons to whom they are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
Corporation.
Section 7.2 TRANSFER OF SHARES. Transfer of shares represented by
certificates shall be made on the stock transfer books of the Corporation only
upon the 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, or as otherwise provided by applicable law. All
certificates surrendered for transfer shall be canceled before new certificates
for the transferred shares shall be issued.
Section 7.3 LOST CERTIFICATES. The Board of Directors may authorize the
issuance of a new share certificate in place of a certificate claimed to have
been lost, destroyed or wrongfully taken, upon receipt of an affidavit of such
fact from the person claiming the loss or destruction. When authorizing such
issuance of a new certificate, the Board may require the claimant to give the
Corporation a bond in such sum and with such sureties as it may direct to
indemnify the Corporation against loss from any claim with respect to the
certificate claimed to have been lost, destroyed or wrongfully taken; or the
Board may, by resolution reciting that the circumstances justify such action,
authorize the issuance of the new certificate without requiring such a bond
with respect to a certificate claimed to have been lost or destroyed. Any such
authorization by the Board of Directors may be general or confined to specific
instances. Nothing herein shall require the Board of Directors to authorize the
issuance of any such replacement certificate under any circumstances in which
the Corporation is not required to issue such certificate, this provision being
permissible and not mandatory.
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ARTICLE VIII
RECORDS AND REPORTS
Section 8.1 GENERAL. The Corporation shall keep all records and submit and
file all reports and filings as are required by applicable law. Unless the
Board of Directors otherwise directs, the Treasurer shall be responsible for
keeping, or causing to be kept, all financial and accounting records of the
Corporation and for submitting or filing, or causing to be submitted or filed,
all reports and filings of a financial or accounting nature, and the Secretary
shall be responsible for keeping, or causing to be submitted or filed, all
other reports and filings.
The Corporation shall keep as permanent records minutes of all meetings of
its incorporators, 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 Committees of the Board of Directors. The Corporation
shall maintain appropriate accounting records. The Corporation or its agent
shall maintain a record of its shareholders, in a form that permits preparation
of a list of the names and addresses of all shareholders, in alphabetical order
by class of shares showing the number and class of shares held by each. The
Corporation shall maintain its records in written form or in another form
capable of conversion into written form within a reasonable time.
Section 8.2 RECORDS AT PRINCIPAL OFFICE. The Corporation shall keep a copy
of the following records at the Corporation's principal office:
(a) Its Articles or restated Articles of Incorporation and all amendments
to them currently in effect;
(b) Its Bylaws or restated Bylaws and all amendments to them currently
in effect;
(c) Resolutions adopted by the 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;
(d) The minutes of all shareholders' meetings, and records of all action
taken by shareholders without a meeting, for the past three years;
(e) All written communications to shareholders generally within the past
three years and the financial statements required by law to be made available
to the shareholders for the past three years;
(f) A list of the names and business addresses of its current
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directors and officers; and
(g) Its most recent annual report delivered to the North Carolina
Secretary of State pursuant to the North Carolina Business Corporation Act.
Section 8.3 FINANCIAL STATEMENTS. The Corporation shall make available to
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 cash flows for the year
unless that information appears elsewhere in the financial statements. If
financial statements are prepared for the Corporation on the basis of generally
accepted accounting principles, the annual financial statements shall also be
prepared on that basis.
If the annual financial statements are reported upon by a public
accountant, such accountant's report shall accompany them. If not, the
statements shall be accompanied by a statement of the President or the
Treasurer or other person responsible for the Corporation's accounting records:
(a) Stating his or her reasonable belief whether the statements were
prepared on the basis of generally accepted accounting principles and, if not,
describing the basis of preparation; and
(b) Describing any respects in which the statements were not prepared on
a basis of accounting consistent with the statements prepared for the preceding
year.
The Corporation shall mail the annual financial statements, or a written
notice of their availability, to each shareholder within 120 days after the
close of each fiscal year; provided that the failure of the Corporation to
comply with this requirement shall not constitute the basis for any claim of
damages by any shareholder unless such failure was in bad faith. Thereafter, on
written request from a shareholder who was not mailed the statements, the
Corporation shall mail such shareholder the latest financial statements.
Section 8.4 OTHER REPORTS TO SHAREHOLDERS. If the Corporation is not a
public corporation and it indemnifies or advances expenses to a director in
connection with a proceeding by or in the right of the Corporation, the
Corporation shall report the indemnification or advance in writing to the
shareholders with or before notice of the next shareholders' meeting.
If the Corporation is not a public corporation and it issues or authorizes
the issuance of shares for promissory notes or for promises to render services
in the future, other than in a
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transaction or pursuant to a plan previously approved by a majority of the
shares entitled to vote thereon, the Corporation shall report in writing to the
shareholders the number of shares authorized or issued, and the consideration
received by the Corporation, with or before the notice of the next
shareholders' meeting.
Section 8.5 ANNUAL REPORT. The Corporation shall prepare and deliver to
the North Carolina Secretary of State for filing each year the annual report
required by the North Carolina Business Corporation Act. Such annual report
shall be filed each year within 60 days after the end of the month of _________
(month in which Corporation was incorporated), or at such other time as is then
required by applicable law. The Corporation may, and when required by law
shall, file all necessary or appropriate corrections and amendments to such
annual report, and shall promptly file an amendment to its annual report to
reflect any change in the location of the principal office of the Corporation.
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 the Articles
of Incorporation of the Corporation. The Board of Directors may fix in advance
a dividend. If such record date is not fixed by the Board of Directors, the
date the Board of Directors authorizes such dividend shall be the record date.
Section 9.2 SEAL. The corporate seal of the Corporation shall consist of
two concentric circles between or within which are name of the Corporation, the
state of incorporation, the year of incorporation and the word "SEAL." The seal
may be used by causing it or a facsimile thereof to be impressed, affixed,
stamped or reproduced by any means. Any officer of the Corporation authorized
to execute or attest a document on behalf of the Corporation may affix or
reproduce on such document, as and for the corporate seal of the Corporation, a
seal in any other form sufficient to evidence that it is intended by such
officer to represent the corporate seal of the Corporation, in which case such
seal shall be as effective as the corporate seal in the form herein prescribed.
Section 9.3 NOTICE AND WAIVER OF NOTICE. Except as otherwise provided in
the Articles of Incorporation or these Bylaws, any notice permitted or required
to be given pursuant to these Bylaws may be given in any manner permitted by
applicable law and with the effect therein provided. Without limiting the
generality of the foregoing, written notice by the Corporation to a shareholder
is effective when deposited in the United States mail with postage
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thereon prepaid and correctly addressed to the shareholder's address shown in
the Corporation's current record of shareholders.
Whenever any notice is required to be given to any shareholder or director
under the provisions of the North Carolina Business Corporation Act under the
provisions of the Articles of Incorporation or Bylaws of the corporation, a
waiver thereof in writing signed by the person or persons entitled to such
notice and included in the minutes or filed with the corporate records, whether
done before or after the time stated in the notice, shall be equivalent to the
giving of such notice.
Section 9.4 FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 9.5 INDEMNIFICATION. Any person who at any time serves or has
served as a director of the Corporation shall have a right to be indemnified by
the Corporation to the fullest extent permitted by law against (a) expenses,
including reasonable attorneys' fees, actually and necessarily incurred by him
or her in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, whether
formal or informal, and whether or not brought by or on behalf of the
Corporation, arising out of his or her status as such director, or his or her
status as an officer, employee or agent of the Corporation, or his or her
service, at the request of the Corporation, as a director, officer, partner,
trustee, employee or agent of any other corporation, partnership, joint
venture, trust or other enterprise or as a trustee or administrator under an
employee benefit plan, or his or her activities in any of the foregoing
capacities, and (b) any liability incurred by him, including without
limitation, satisfaction of any judgment, money decree, fine (including any
excise tax assessed with respect to an employee benefit plan), penalty or
settlement, for which he or she may have become liable in connection with any
such action, suit or proceeding.
The Board of Directors of the Corporation shall take all such action as
may be necessary and appropriate to authorize the Corporation to pay the
indemnification required by this Bylaw, including without limitation, to the
extent necessary, (a) making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him
or her and (b) giving notice to and obtaining approval by the shareholders of
the Corporation.
Expenses incurred by a director in defending an action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
the director to pay such amount unless it shall ultimately be determined that
he or she is entitled to be indemnified by the Corporation against such
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expenses.
Any person who at any time after the adoption of this Bylaw serves or has
served as a director 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, and any modification or repeal of these provisions for
indemnification shall be prospective only and shall not affect any rights or
obligations existing at the time of such modification or repeal. Such right
shall inure to the benefit of the legal representatives of any such person,
shall not be exclusive of any other rights to which such person may be entitled
apart from the provisions of this Bylaw, and shall not be limited by the
provisions for indemnification in Section 55-8-51 through 55-8-56 or the North
Carolina Business Corporation Act or any successor statutory provisions. Any
person who is entitled to indemnification by the Corporation hereunder shall
also be entitled to reimbursement of reasonable costs, expenses and attorneys'
fees incurred in obtaining such indemnification.
Section 9.6 CONSTRUCTION. All references in these Bylaws to "shareholder"
or "shareholders" refer to the person or persons in whose names shares are
registered in the records of the Corporation, except to the extent that a
beneficial owner of shares that are registered in the name of a nominee is
recognized by the Corporation as a "shareholder" in accordance with a procedure
therefor that the Corporation may, but need not, establish pursuant to
applicable law. All personal pronouns used in these Bylaws shall include
persons of any gender. All terms used herein and not specifically defined
herein but defined in the North Carolina Business Corporation Act shall have
the same meanings herein as given under the North Carolina Business act, unless
the context otherwise requires.
Section 9.7 AMENDMENTS. Except as otherwise provided herein or in the
Articles of Incorporation or by applicable law, these Bylaws may be amended or
repealed and new bylaws may be adopted by action of the Board of Directors or
the shareholders.
Adopted at Organization
Meeting of Directors
Held January 7, 1997.
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Secretary
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