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Exhibit 3.2
NATIONS EXPRESS, INC.
AMENDED AND RESTATED BYLAWS
(Effective November __, 2000)
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TABLE OF CONTENTS
AMENDED AND RESTATED BYLAWS
OF
NATIONS EXPRESS, INC.
ARTICLE I OFFICES............................................................1
Section 1.01. PRINCIPAL OFFICE..................................1
Section 1.02. REGISTERED OFFICE.................................1
Section 1.03. OTHER OFFICES.....................................1
ARTICLE II SHAREHOLDERS......................................................1
Section 2.01. ANNUAL MEETINGS...................................1
Section 2.02. SPECIAL MEETINGS..................................1
Section 2.03. PLACE OF MEETINGS.................................2
Section 2.04. NOTICE OF MEETINGS................................2
Section 2.05. WAIVER OF NOTICE..................................2
Section 2.06. PRESIDING OFFICER AND SECRETARY AT MEETINGS.......2
Section 2.07. QUORUM............................................2
Section 2.08. PROXIES...........................................3
Section 2.09. VOTING OF SHARES..................................3
Section 2.10. SHAREHOLDERS' LIST................................3
Section 2.11. INSPECTORS OF ELECTION............................4
Section 2.12. DIRECTOR NOMINATIONS AND SHAREHOLDER BUSINESS.....4
Section 2.13. CONTROL SHARE ACQUISITION ACT.....................5
ARTICLE III BOARD OF DIRECTORS...............................................5
Section 3.01. POWERS............................................5
Section 3.02. NUMBER OF DIRECTORS, TERM, AND QUALIFICATIONS.....6
Section 3.03. ELECTION OF DIRECTORS.............................6
Section 3.04. REMOVAL...........................................6
Section 3.05. VACANCIES.........................................6
Section 3.06. REGULAR MEETINGS..................................7
Section 3.07. SPECIAL MEETINGS..................................7
Section 3.08. NOTICE OF MEETINGS................................7
Section 3.09. WAIVER OF NOTICE..................................7
Section 3.10. TELEPHONE MEETING.................................8
Section 3.11. ACTION WITHOUT MEETING............................8
Section 3.12. PRESIDING OFFICER AND SECRETARY AT MEETINGS.......8
Section 3.13. QUORUM AND VOTING.................................8
Section 3.14. PRESUMPTION OF ASSENT.............................8
Section 3.15. COMPENSATION......................................9
ARTICLE IV COMMITTEES........................................................9
Section 4.01. EXECUTIVE COMMITTEE...............................9
Section 4.02. FINANCE COMMITTEE.................................9
Section 4.03. AUDIT COMMITTEE..................................10
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Section 4.04. COMPENSATION COMMITTEE...........................10
Section 4.05. NOMINATING COMMITTEE.............................11
Section 4.06. OTHER COMMITTEES.................................11
Section 4.07. MEETINGS OF COMMITTEES...........................12
ARTICLE V OFFICERS..........................................................12
Section 5.01 OFFICERS OF THE CORPORATION......................12
Section 5.02. APPOINTMENT AND TERM.............................12
Section 5.03. CHAIRMAN.........................................12
Section 5.04. PRESIDENT........................................12
Section 5.05. VICE-PRESIDENTS..................................13
Section 5.06. SECRETARY........................................13
Section 5.07. TREASURER........................................13
Section 5.08. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS...13
Section 5.09. OFFICERS HOLDING TWO OR MORE OFFICES.............14
Section 5.10. COMPENSATION OF OFFICERS.........................14
Section 5.11. RESIGNATIONS.....................................14
Section 5.12. REMOVAL..........................................14
Section 5.13. BONDS............................................14
ARTICLE VI CONTRACTS, LOANS AND DEPOSITS....................................14
Section 6.01. CONTRACTS........................................14
Section 6.02. LOANS............................................15
Section 6.03. CHECKS AND DRAFTS................................15
Section 6.04. DEPOSITS.........................................15
ARTICLE VII SHARES..........................................................15
Section 7.01. CERTIFICATES.....................................15
Section 7.02. TRANSFER OF SHARES...............................15
Section 7.03. TRANSFER AGENTS AND REGISTRARS...................15
Section 7.04. RECORD DATES.....................................16
Section 7.05. NEW CERTIFICATES.................................16
ARTICLE VIII INDEMNIFICATION................................................16
ARTICLE IX MISCELLANEOUS PROVISIONS.........................................17
Section 9.01. ANNUAL REPORT....................................17
Section 9.02. SEAL.............................................17
Section 9.03. VOTING OF SHARES IN OTHER CORPORATIONS...........17
Section 9.04. FISCAL YEAR......................................18
Section 9.05. AMENDMENTS.......................................18
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AMENDED AND RESTATED
BYLAWS
OF
NATIONS EXPRESS, INC.
ARTICLE I
OFFICES
Section 1.01. PRINCIPAL OFFICE. The principal office of Nations Express,
Inc. (hereinafter referred to as 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 any amendment thereto,
filed with the North Carolina Secretary of State pursuant to the North Carolina
Business Corporation Act.
Section 1.02. 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 1.03. 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
SHAREHOLDERS
Section 2.01. ANNUAL MEETINGS. The Corporation shall hold an annual meeting
of the shareholders for the election of directors and the transaction of any
business within the powers of the Corporation on or about the third Tuesday in
October at 10:00 a.m. in each year as shall be determined by the Board of
Directors or at such other time during the year as the Board of Directors may
prescribe. Subject to Section 2.12 of these bylaws, any business of the
Corporation may be transacted at such annual meeting. However, failure to hold
an annual meeting at the designated time shall not invalidate the corporate
existence or affect otherwise valid corporate acts.
Section 2.02. SPECIAL MEETINGS. At any time in the interval between annual
meetings, special meetings of the shareholders may be called by the Chairman,
President or the Board of Directors by vote at a meeting or in writing with or
without a meeting. It shall be the duty of the President to promptly call such
meetings whenever so requested.
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Section 2.03. PLACE OF MEETINGS. All meetings of shareholders shall be held
at such place within the United States as may be designated in the Notice of
Meeting.
Section 2.04. NOTICE OF MEETINGS. Not less than ten (10) days nor more than
sixty (60) days before the date of every shareholders' meeting, the Secretary
shall give to each shareholder entitled to vote at such meeting and each other
shareholder entitled to notice of the meeting, written or printed notice stating
the time and place of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, either by mail or by
presenting it to him or her personally or by leaving it at his or her residence
or usual place of business. If mailed, such notice shall be deemed to be given
when deposited in the United States mail addressed to the shareholder at his or
her post office address as it appears on the records of the Corporation, with
postage thereon prepaid. Any meeting of shareholders, annual or special, may
adjourn from time to time without further notice to a date not more than 120
days after the original record date at the same or some other place.
Section 2.05. WAIVER OF NOTICE. 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 2.06. PRESIDING OFFICER AND SECRETARY AT MEETINGS. At each meeting
of shareholders, the Chairman or in his or her absence the President, or in
their absence the person designated in writing by the Chairman, or if no person
is so designated, then a person designated by the Board of Directors, shall
preside as chairman of the meeting. If no person is so designated, then the
meeting shall choose a chairman by a majority of all votes cast at a meeting at
which a quorum is present. The Secretary or, in the absence of the Secretary, a
person designated by the chairman of the meeting shall act as secretary of the
meeting.
Section 2.07. QUORUM. Except as otherwise provided by law or by the
Articles of Incorporation of the Corporation shares entitled to vote as a
separate voting group (as defined in Section 2.09) may take action on a matter
at the meeting only if a quorum of those shares exists. A majority of the votes
entitled to be cast on the matter by the voting group (but in no event less than
one third of the total shares issued) constitutes a quorum of that voting group
for action on that matter.
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 that
adjourned meeting.
In the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the votes cast on the motion to
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adjourn. Subject to the provisions of Section 2.04, at any subsequent session of
a meeting that has been adjourned, any business may be transacted that might
have been transacted at the original meeting if a quorum exists with respect to
the matter proposed.
Section 2.08. PROXIES. Shares may be voted either in person or by one or
more proxies authorized by a written appointment of proxy signed by the
shareholder or by his duly authorized attorney in fact. An appointment of proxy
is valid for eleven (11) months from the date of its execution unless a
different period is expressly provided in the appointment form.
Section 2.09. VOTING OF SHARES. Subject to the provisions of the Articles
of Incorporation, each outstanding share shall be entitled to one vote on each
matter voted on at the meeting of shareholders.
Except in the election of directors as governed by the provisions of
Section 3.03, if a quorum exists, action on a matter by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action unless a greater vote is required by law, the
Articles of Incorporation, or these bylaws.
Absent special circumstances, shares of the Corporation are not entitled to
vote if they are owned, directly or indirectly, by another corporation in which
the Corporation owns, directly or indirectly, a majority of the shares entitled
to vote for directors of the second corporation; provided, however, that this
provision does not limit the power of the Corporation to vote its own shares
held by it in a fiduciary capacity.
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 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 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 2.10. SHAREHOLDERS' LIST. Before each meeting of shareholders, the
Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to notice of such meeting. The list shall be arranged by
voting group (and within each voting group by class or series of shares) and
show the address of and number of shares held by each shareholder. The list
shall be kept on file at the principal office of the Corporation, or at a place
identified in the meeting notice in the city where the meeting will be held, for
the period beginning two business days after notice of the meeting is given and
continuing through the meeting, and shall be available for inspection by any
shareholder, his agent or attorney, at any
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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 2.11. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint Inspectors of Election to act
at such meeting or at any adjournment or adjournments thereof. If Inspectors of
Election are not so appointed or fail or refuse to act, the chairman of any such
meeting may (and shall upon the request of shareholders entitled to cast a
majority of all the votes entitled to be cast at the meeting) make such
appointments. No Inspector of Election need be a shareholder of the Corporation.
If there are three (3) or more Inspectors of Election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all. The Inspectors of Election shall determine the number
of shares outstanding, the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect of
proxies. In addition, Inspectors of Election shall receive votes, ballots,
assents or consents, hear and determine all challenges and questions in any way
arising in connection with the vote, count and tabulate all votes, assents and
consents, and determine the result, and do such acts as may be proper to conduct
the election and the vote with fairness to all shareholders. On request, the
Inspectors shall make a report in writing of any challenge, question or matter
determined by them, and shall make and execute a certificate of any fact found
by them.
Section 2.12. DIRECTOR NOMINATIONS AND SHAREHOLDER BUSINESS.
1. Advance Notice of Nominations of Directors. Only persons who are
nominated in accordance with the provisions set forth in these bylaws shall be
eligible to be elected as directors at an annual or special meeting of
shareholders. Nomination for election to the Board of Directors shall be made by
the Board of Directors or a Nominating Committee appointed by the Board of
Directors.
Nomination for election of any person to the Board of Directors may also be
made by a shareholder if written notice of the nomination of such person shall
have been delivered to the Secretary of the Corporation at the principal office
of the Corporation not later than the close of business on the fifth business
day following the date on which notice is first given to shareholders of the
meeting at which such election is to be held. Each such notice shall set forth:
(a) the name and address of the shareholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
shareholder is a holder of record of shares of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission if the nominee had been nominated by
the Board of Directors; and (e) the written consent of each nominee to serve as
a director of the Corporation if so elected. The chairman of the meeting may
refuse to
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acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
2. Advance Notice of General Matters. No business shall be transacted
at an annual meeting of shareholders, except such business as shall be (a)
specified in the notice of meeting given as provided in Section 2.04, (b)
otherwise brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise brought before the meeting by a shareholder of
record entitled to vote at the meeting, in compliance with the procedure set
forth in this Section 2.13. For business to be brought before an annual meeting
by a shareholder pursuant to (c) above, the shareholder must have given timely
notice in writing to the Secretary. To be timely, a shareholder's notice must be
delivered to, or mailed to and received at, the principal executive offices of
the Corporation not less than ten (10) days prior to the meeting; provided,
however, that if less than twenty (20) days' notice or prior public disclosure
of the meeting is given or made to shareholders, notice by the shareholder will
be timely if received not later than the close of business on the fifth business
day following the day on which such notice of the date of the meeting or such
public disclosure was given or made. Notice of actions to be brought before the
annual meeting pursuant to (c) above shall set forth as to each matter the
shareholder proposes to bring before the annual meeting, including: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for bringing such business before the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of each shareholder
proposing such business, (iii) the classes and number of shares of the
Corporation that are owned of record and beneficially by such shareholder, and
(iv) any material interest of such shareholder in such business other than his
interest as a shareholder of the Corporation. Notwithstanding anything in these
bylaws to the contrary, no business shall be conducted at an annual meeting
except in accordance with the provisions set forth in this Section 2.13. If the
chairman of the annual meeting determines that any business was not properly
brought before the meeting in accordance with provisions prescribed by these
bylaws, he shall so declare to the meeting and, to the extent permitted by law,
any such business not properly brought before the meeting shall not be
transacted.
Section 2.13. CONTROL SHARE ACQUISITION ACT. The provisions of the North
Carolina Business Corporation Act entitled "The North Carolina Share Acquisition
Act" (as of the date hereof located in Article 9A) shall not apply to the
Corporation.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01. POWERS. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors. The Board of Directors
may exercise all the powers of the Corporation, except such as are by statute,
or the Articles of Incorporation or the bylaws conferred upon or reserved to the
shareholders.
Section 3.02. NUMBER OF DIRECTORS, TERM, AND QUALIFICATIONS. The number of
directors of the Corporation shall be not less than five (5) nor more than ten
(10). By a majority vote of the Board of Directors, the number of directors may
be increased or decreased, or fixed, from time to time, within the limits above
specified; provided, however, that the tenure
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of office of a director shall not be affected by any decrease in the number of
directors so made by the Board of Directors.
Except as provided in Section 3.03 regarding the staggered election of
directors, the term of each director shall be the period from the effective date
of his or her election until 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: (a) his or her successor
is elected and qualifies or (b) there is a decrease in the number of directors
eliminating his or her position. A director shall cease to serve as director and
his or her position shall be deemed vacant upon his or her death, resignation,
removal, or disqualification.
Directors need not be residents of the State of North Carolina or
shareholders of the Corporation.
Section 3.03. ELECTION OF DIRECTORS. Except as provided in Section 3.06,
directors shall be elected at the annual meeting of shareholders. Those persons
who receive the highest number of votes at a meeting at which a quorum is
present shall be deemed to have been elected.
At any time after the number of directors is fixed at six (6) or more, the
Board of Directors may divide the directors into three classes, as nearly equal
in number as may be, to serve in the first instance for terms of one, two or
three years, respectively, and thereafter the successors in each class of
directors shall be elected to serve for terms of three years. In the event of
any increase or decrease in the authorized number of directors, the additional
or eliminated directorships shall be so classified or chosen that all classes of
directors shall remain or become as nearly equal in number as may be reasonable;
provided, however, that if the authorized number of directors is decreased below
six (6) the directors shall no longer be divided into classes.
Section 3.04. 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. 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 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 3.05. VACANCIES. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors, shall be filled
only by a majority vote of the remaining directors then in office, though less
than a quorum; provided, however, that vacancies resulting from removal from
office by a vote of the shareholders may be filled by the shareholders at the
same meeting at which such removal occurs. All directors elected by the Board of
Directors to fill vacancies shall, in accordance with applicable law, stand for
election at the next annual meeting of shareholders, provided, however, that if
the directors shall have been divided into classes as provided in Section 3.03
regarding the staggered election of directors, a director elected to fill a
vacancy shall not be required to stand for election until the annual
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meeting of shareholders at which the terms of the other directors in the same
class shall expire. No decrease in the number of directors constituting the
Board of Directors shall affect the tenure of any incumbent director.
Section 3.06. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held immediately after the annual meeting of shareholders. In addition,
the Board of Directors may provide the time and place, either within or without
the State of North Carolina, for the holding of additional regular meetings.
Section 3.07. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called at any time, at any place, and for any purpose by the Chairman,
the President, the Chairman of the Executive Committee, or upon the request of a
majority of the Board by any officer of the Corporation.
Section 3.08. NOTICE OF MEETINGS. Regular meetings of the Board of
Directors may be held without notice. Notice of the place, day, and hour of
every special meeting of the Board of Directors shall be given to each director
at least twenty-four (24) hours before the meeting by telephoning the notice to
such director, delivering the notice to him or her personally, sending the
notice to him or her by telegram or facsimile, or leaving the notice at his or
her residence or usual place of business. In the alternative, notice of the
special meeting of the Board of Directors may be given to each director by
mailing such notice three (3) days (or more) before the meeting, postage
prepaid, and addressed to him or her at his or her last known post office
address, according to the records of the Corporation. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, properly
addressed, with postage thereon prepaid. If notice is given by telegram or
facsimile, such notice shall be deemed to be given when the telegram is
delivered to the telegraph company or when the facsimile is transmitted. If the
notice is given by telephone or by personal delivery, such notice shall be
deemed to be given at the time of the communication or delivery. Unless required
by law, the bylaws, or resolution of the Board of Directors, no notice of any
meeting of the Board of Directors need state the business to be transacted at
such meeting. Any meeting of the Board of Directors, regular or special, may
adjourn from time to time to reconvene at the same or some other place, and no
further notice need be given of any such adjourned meeting.
Section 3.09. WAIVER OF NOTICE. Any director may waive notice of any
meeting before or after the meeting. The waiver must be in writing, signed by
the director entitled to the notice, and delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. A director's
attendance at or participation in a meeting waives any required notice of such
meeting unless the director at the beginning of the meeting, or promptly upon
arrival, objects to holding the meeting or to transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
Section 3.10. TELEPHONE MEETING. Members of the Board, or of any committee
thereof, may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear
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each other at the same time. Participation in this manner shall constitute
presence in person at the meeting.
Section 3.11. ACTION WITHOUT MEETING. Action required or permitted to be
taken at a meeting of the Board of Directors may be taken without a meeting if
the action is taken by all members of the Board. The action must be evidenced by
one or more written consents signed by each director before or after such
action, describing the action taken, and included in the minutes or filed with
the corporate records.
Section 3.12. PRESIDING OFFICER AND SECRETARY AT MEETINGS. Each meeting of
the Board of Directors shall be presided over by the Chairman or, in his or her
absence, by the President or, if neither is present, by such member of the Board
of Directors as shall be chosen at the meeting. The Secretary or, in his or her
absence, an Assistant Secretary shall act as secretary of the meeting. If no
such officer is present, a secretary of the meeting shall be designated by the
person presiding over the meeting.
Section 3.13. QUORUM AND VOTING. At all meetings of the Board of Directors
a majority of the Board of Directors shall constitute a quorum for the
transaction of business. Except as otherwise provided by statute, the Articles
of Incorporation, or the bylaws, the vote of a majority of such quorum at a duly
constituted meeting shall be sufficient to pass any measure. In the absence of a
quorum, the directors present may adjourn the meeting by majority vote and
without notice other than by announcement until such time as a quorum shall be
present. At any meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the adjourned meeting as
originally notified.
Section 3.14. 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) at the beginning of the meeting or promptly upon his arrival at the meeting,
the director objects to holding the meeting or to transacting business at the
meeting, or (b) the director's dissent or abstention from the action taken is
entered in the minutes of the meeting, or (c) the director 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 3.15. COMPENSATION. The Board of Directors may provide by
resolution for the compensation of directors for their services as directors and
may provide for the payment of all expenses reasonably incurred by directors in
attending meetings of the Board of Directors, or any committee thereof, or in
the performance of their other duties as directors. However, nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
COMMITTEES
Section 4.01. EXECUTIVE COMMITTEE. By resolution adopted by a majority of
the Board of Directors, the Board of Directors may provide for an Executive
Committee of three (3) or more directors. If provision be made for an Executive
Committee, the members thereof shall be elected by the Board of Directors to
serve at the pleasure of the Board of Directors. Unless a chairman for the
Executive Committee was selected by the Board of Directors, the President shall
act as the chairman of the Executive Committee. During the intervals between the
meetings of the Board of Directors, the Executive Committee may possess and
exercise such powers in the management of the business and affairs of the
Corporation as may be authorized by the Board of Directors, subject to
applicable law. All actions by the Executive Committee shall be reported to the
Board of Directors at the next Board of Directors meeting following such action,
and shall be subject to revision and alteration by the Board of Directors.
Vacancies in the Executive Committee shall be filled by the Board of Directors.
Section 4.02. FINANCE COMMITTEE. By resolution adopted by a majority of the
Board of Directors, the Board of Directors may provide for a Finance Committee
of three (3) or more directors. If provision is made for a Finance Committee,
the members of the Finance Committee shall be elected by the Board of Directors
to serve at the pleasure of the Board of Directors. The Board of Directors shall
designate a chairman of the Finance Committee from among the committee's
membership. Except when such powers are by statute, the Articles of
Incorporation, or the bylaws either reserved to the full Board of Directors or
delegated to another committee of the Board of Directors, during the intervals
between the meetings of the Board of Directors, the Finance Committee may
possess and exercise all of the powers of the Board of Directors in the
management of the financial affairs of the Corporation, including but not
limited to establishing lines of credit or other short-term borrowing
arrangements and investing excess working capital funds on a short-term basis.
The Finance Committee will review all proposed changes to the capital structure
of the Corporation, including the incurrence of long-term indebtedness and the
issuance of additional equity securities, and will make suitable recommendations
to the Board of Directors. The Finance Committee will review annually the
proposed capital expenditure and contributions budgets of the Corporation and
make recommendations to the Board of Directors for their adoption. The Finance
Committee will also review the financial impact of the implementation of all
compensation and employee benefit plans and of any amendments or modifications
thereto, approve the actuarial assumptions and financial policies pertaining to
the investment of funds related to such plans, and further review such plans to
ensure that they are operated in accordance with existing legal requirements and
sound financial principles. All actions by the Finance Committee shall be
reported to the Board of Directors at the next Board of Directors meeting
following such action and shall be subject to revision and alteration by the
Board of Directors. Vacancies in the Finance Committee shall be filled by the
Board of Directors.
Section 4.03. AUDIT COMMITTEE. By resolution adopted by a majority of the
Board of Directors, the Board of Directors shall provide for an Audit Committee,
including three (3) or more directors that are not officers or employees of the
Corporation and that are otherwise independent of management and free from any
relationship that, in the opinion of the Board of Directors, would interfere
with the exercise of the independent judgment of such
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member as a Committee member. The members of the Audit Committee shall be
elected by the Board of Directors to serve at the pleasure of the Board of
Directors. By resolution adopted by a majority of the Board of Directors, the
Board of Directors shall adopt an Audit Committee Charter that sets forth the
duties and responsibilities of the Audit Committee. The Audit Committee shall
designate a chairman of the Audit Committee from among the membership of the
committee. Except when such powers are by statute, the Articles of
Incorporation, or the bylaws either reserved to the full Board of Directors or
delegated to another committee of the Board of Directors, the Audit Committee
may possess and exercise the powers of the Directors set forth in the Audit
Committee Charter, including (a) recommending to the Board of Directors the
selection of, and monitor the independence of, the independent public
accountants selected by the Board; (b) reviewing with the Corporation's
management and the independent public accountants the financial accounting and
reporting principles appropriate for the Corporation, the policies and
procedures concerning audits, accounting and financial controls, and any
recommendations to improve existing practices, and the qualifications and work
of the Corporation's internal auditing staff; (c) reviewing with the
Corporation's independent public accountants the results of their audit and
their report including any changes in accounting principles and any significant
amendments; and (d) meeting with the Corporation's internal audit department
representative to review the plan and scope of work of the internal auditing
staff. The Audit Committee shall hold meetings at such times as the Chairman
thereof deems necessary and at least once each year, shall separately meet in
executive session, with the Corporation's independent public accountants to
review all matters of concern presented to the Audit Committee. The Audit
Committee shall also: (a) review and monitor the adequacy of the Corporation's
policies and procedures, as well as the organizational structure, for ensuring
compliance with laws and regulations; (b) review at least annually the
Corporation's record of compliance with laws and regulations and the policies
and procedures relating thereto; (c) review with the Corporation's management
significant litigation and regulatory proceedings in which the Corporation is or
may become involved; and (d) review the accounting and financial reporting
issues, including the adequacy of disclosure, for all matters. The Audit
Committee shall have the power to investigate any matter falling within its
jurisdiction, and it shall also perform such other functions and exercise such
other powers as may be delegated to it from time to time by the Board of
Directors. All action by the Audit Committee shall be reported to the Board of
Directors at the Board of Directors meeting following such action. Vacancies in
the Audit Committee shall be filled by the Board of Directors.
Section 4.04. COMPENSATION COMMITTEE. By resolution adopted by a majority
of the Board of Directors, the Board of Directors may provide for a Compensation
Committee of three (3) or more directors of whom none shall be an officer or
employee of the Corporation. If provision is made for a Compensation Committee,
the members of the Compensation Committee shall be elected by the Board of
Directors to serve at the pleasure of the Board of Directors. The Board of
Directors shall designate a chairman for the Compensation Committee from among
the membership of the committee. The Compensation Committee may recommend to the
Board of Directors the compensation to be paid for services of elected officers
of the Corporation. The Compensation Committee may also have the power to fix
the compensation of all employees, except elected officers. The compensation of
elected officers shall be at such rate as may be established by resolution of
the Board of Directors from time to time. Except for such powers as are by
statute, the Articles of Incorporation, or the bylaws reserved to the full Board
of Directors, the Compensation Committee may have the power to
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approve the benefits provided by any bonus, supplemental, and special
compensation plans, including pension, insurance, health, and stock plans.
Except as otherwise required by law, all action by the Compensation Committee
shall be reported to the Board of Directors at the next Board of Directors
meeting following such action. Vacancies in the Compensation Committee shall be
filled by the Board of Directors.
Section 4.05. NOMINATING COMMITTEE. By resolution adopted by a majority of
the Board of Directors, the Board of Directors may provide for a Nominating
Committee of three (3) or more directors who are not officers or employees of
the Corporation. If provision is made for a Nominating Committee, the members of
the Nominating Committee shall be elected by the Board of Directors to serve at
the pleasure of the Board of Directors. The Board of Directors shall designate a
chairman of the Nominating Committee from among the membership of the committee.
The Nominating Committee may make recommendations to the Board of Directors
concerning the composition of the Board including its size and the
qualifications for membership. The Nominating Committee may also recommend to
the Board of Directors nominees for election to fill any vacancy occurring in
the Board and to fill new positions created by an increase in the authorized
number of directors of the Corporation. Annually, the Nominating Committee may
recommend to the Board of Directors a slate of directors to serve as
management's nominees for election at the annual meeting of shareholders.
Vacancies in the Nominating Committee shall be filled by the Board of Directors.
Section 4.06. OTHER COMMITTEES. By resolution adopted by a majority of the
Board of Directors, the Board of Directors may provide for such other standing
or special committees, composed of three (3) or more directors, or discontinue
the same. Each such committee shall have such powers and perform such duties,
not inconsistent with law, as may be assigned to it by the Board of Directors;
provided, however, 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 thereof; (d) amend the Articles of
Incorporation; (e) adopt, amend or repeal bylaws; (f) approve a plan of merger;
(g) 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 of the Board of
Directors 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.
Section 4.07. MEETINGS OF COMMITTEES. Each committee of the Board of
Directors shall fix its own rules of procedure consistent with the provisions of
the Board of Directors governing such committee and shall meet as provided by
such rules or by resolution of the Board of Directors. Each committee shall also
meet at the call of its chairman or any two (2) members of such committee.
Unless otherwise provided by such rules or by such resolution, the provisions of
Article 3 of the bylaws shall govern the place of holding and notice required
for meetings of committees of the Board of Directors. A majority of each
committee shall constitute a quorum thereof; provided, however, that in the
absence of any member of such committee, the members present at such meeting,
whether or not they constitute a quorum, may appoint a
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member of the Board of Directors, not otherwise prohibited by the bylaws from
serving on such committee, to act in the place of such absent member. Except in
cases in which it is otherwise provided by the rules of such committee or by
resolution of the Board of Directors, the vote of a majority of such quorum at a
duly constituted meeting shall be sufficient to pass any measure.
ARTICLE V
OFFICERS
Section 5.01. OFFICERS OF THE CORPORATION. The officers of the Corporation
shall consist of a Chairman, a President, a Secretary, a Treasurer and such
Vice-Presidents, Assistant Secretaries, Assistant Treasurers, and other officers
as may from time to time be appointed by or under the authority of the Board of
Directors. Any two or more offices may be held by the same person; provided,
however, no officer 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 including, but not limited to, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer and Principal Accounting Officer.
Section 5.02. APPOINTMENT AND TERM. The officers of the Corporation shall
be appointed from time to time by the Board of Directors; provided, however,
that the Board of Directors may authorize a duly appointed officer to appoint
one or more officers or assistant officers, other than appointment of the
President. Each officer shall serve at the pleasure of the Board of Directors.
Section 5.03. CHAIRMAN. The Chairman shall have such powers and perform
such duties as the Board of Directors may from time to time prescribe, and shall
perform such other duties as may be prescribed in these Bylaws.
Section 5.04. PRESIDENT. The President shall be the chief executive officer
of the Corporation and, while serving as the Chairman, shall preside at all
meetings of the shareholders. Subject to the authority of the Board of
Directors, he or she shall have general charge and supervision of the business
and affairs of the Corporation. With the Secretary or an Assistant Secretary, he
or she may sign certificates of shares of the Corporation. He or she shall have
the authority to sign and execute in the name of the Corporation all deeds,
mortgages, bonds, contracts or other instruments. He or she shall have the
authority to vote stock in other corporations and shall perform such other
duties of management as may be prescribed by a resolution or resolutions or as
otherwise may be assigned to him or her by the Board of Directors. He or she
shall have the authority to delegate such authorization and power as vested in
him or her by these bylaws to some other officer or employee or agent of the
Corporation as he or she shall deem appropriate.
Section 5.05. VICE-PRESIDENTS. In the absence of the President or in the
event of his or her death, inability or refusal to act, the Vice-Presidents in
the order of their length of service as such, unless otherwise determined by the
Board of Directors, shall perform the duties of the President. When acting as
President, the Vice-Presidents shall have all the powers of and be subject to
all the restrictions upon the President. With the Secretary or an Assistant
Secretary
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and in the absence of the Chairman or the President, any Vice-President may sign
certificates for shares of the Corporation. The Vice-Presidents shall perform
such other duties as from time to time may be prescribed by the President or
Board of Directors.
Section 5.06. SECRETARY. The Secretary shall keep the minutes of the
meetings of the shareholders and of the Board of Directors, in books provided
for the purpose and shall see that all notices of such meetings are duly given
in accordance with the provisions of the bylaws of the Corporation, or as
required by law. The Secretary may sign certificates of shares of the
Corporation with the Chairman, the President, or a Vice-President, as provided
in the bylaws. The Secretary shall be custodian of the corporate seal and shall
see that the corporate seal is affixed to all documents, the execution of which,
on behalf of the Corporation, under its seal, is duly authorized, and when so
affixed may attest the same. In general, the Secretary shall perform all duties
incident to the office of a secretary of a corporation, and such other duties as
from time to time may be assigned to the Secretary by the President or the Board
of Directors.
Section 5.07. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust
companies, or other depositories as shall, from time to time, be selected by the
Board of Directors. In general, the Treasurer shall perform all the duties
incident to the office of a treasurer of a corporation, and such other duties as
from time to time may be assigned to him or her by the President or the Board of
Directors.
Section 5.08. 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 such other duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
Section 5.09. OFFICERS HOLDING TWO OR MORE OFFICES. Any two (2) or more of
the above mentioned offices, except those of President and Vice-President, may
be held by the same person; provided, however, no officer shall execute,
acknowledge or verify any instrument in more than one capacity, if such
instrument is required by law, the Articles of Incorporation, or the bylaws, to
be executed, acknowledged or verified by any two (2) or more officers.
Section 5.10. COMPENSATION OF OFFICERS. The compensation of all elected
officers of the Corporation shall be fixed by or under the authority of the
Board of Directors and no officer shall serve the Corporation in any other
capacity and receive compensation therefor unless such additional compensation
shall be duly authorized. The appointment of an officer does not by itself
create contract rights.
Section 5.11. RESIGNATIONS. An officer may resign at any time by
communicating his or her resignation to the Corporation, orally or in writing. A
resignation is effective when communicated unless the resignation specifies in
writing a later effective date. If a resignation is made effective at a later
date and accepted by the Corporation, the Board of Directors may fill
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the pending vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
Section 5.12. REMOVAL. Any officer of the Corporation may be removed, with
or without cause, by the Board of Directors, if such removal is determined in
the judgment of the Board of Directors to be in the best interests of the
Corporation, and any officer of the Corporation duly appointed by another
officer may be removed, with or without cause, by such officer.
Section 5.13. BONDS. By resolution, the Board of Directors may require any
officer, agent, or employee of the Corporation to give bond to the Corporation,
with sufficient sureties, conditioned on the faithful performance of the duties
of his respective office or position and to comply with such other conditions as
may from time to time be required by the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS AND DEPOSITS
Section 6.01. 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 President, or any Vice
President, or by any other officer if such execution is within the scope of the
duties of such other office. The Board of Directors may by resolution authorize
such execution by means of one or more facsimile signatures.
Section 6.02. 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 6.03. 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 6.04. 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 shall direct.
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ARTICLE VII
SHARES
Section 7.01. CERTIFICATES. Each shareholder shall be entitled to a
certificate or certificates which shall represent and certify the number and
kind of shares owned by such shareholder in the Corporation. Such certificates
shall be signed by the Chairman, the President, or in his or her absence any
Vice-President, and countersigned by the Secretary or an Assistant Secretary,
and sealed with the seal of the Corporation or a facsimile of such seal. Shares
certificates shall be in such form, not inconsistent with law or with the
charter, as shall be approved by the Board of Directors. When certificates for
stock of any class are countersigned by a transfer agent, other than the
Corporation or its employee, or by a registrar, other than the Corporation or
its employee, any other signature on such certificates may be a facsimile. In
the event that any officer of the Corporation who has signed any certificate
ceases to be an officer of the Corporation, whether because of death,
resignation or otherwise, before such certificate is issued, the certificate may
nevertheless be issued and delivered by the Corporation as if the officer had
not ceased to be an officer as of the date of its issue.
Section 7.02. TRANSFER OF SHARES. Shares shall be transferable only on the
books of the Corporation by the holder thereof, in person or by duly authorized
attorney, and upon the surrender of the certificate representing the shares to
be transferred, properly endorsed. The Board of Directors shall have power and
authority to make such other rules and regulations concerning the issue,
transfer and registration of certificates of stock as it may deem expedient.
Section 7.03. TRANSFER AGENTS AND REGISTRARS. The Corporation may have one
or more transfer agents and one or more registrars of its stock, whose
respective duties the Board of Directors may, from time to time, define. No
certificate of stock shall be valid until countersigned by a transfer agent, if
the Corporation has a transfer agent, or until registered by a registrar, if the
Corporation has a registrar. The duties of transfer agent and registrar may be
combined.
Section 7.04. RECORD DATES. The Board of Directors is hereby empowered to
fix, in advance, a date as the record date for the purpose of determining
shareholders entitled to notice of, or to vote at, any meeting of shareholders,
or shareholders entitled to receive payment of any dividend or the allotment of
any rights, or in order to make a determination of shareholders for any other
proper purpose. Such date in any case shall be not more than seventy (70) days
and, in case of a meeting of shareholders, not less than ten (10) days, prior to
the date on which the particular action, requiring such determination of
shareholders, is to be taken. If a record date is not set and the transfer books
are not closed, the record date for the purpose of making any proper
determination with respect to shareholders shall be fixed in accordance with
applicable law.
Section 7.05. NEW CERTIFICATES. In case any certificate of stock is lost,
stolen, mutilated or destroyed, the Board of Directors may authorize the issue
of a new certificate in place thereof upon such terms and conditions as it may
deem advisable. In the alternative, the Board of Directors may delegate such
power to any officer or officers or agents of the Corporation; provided,
however, the Board of Directors or such officer or officers, in their
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discretion, may refuse to issue such new certificate save upon the order of some
court having jurisdiction in the premises.
ARTICLE VIII
INDEMNIFICATION
Any person who at any time serves or has served as an officer, employee
or a director of the Corporation, or who, while serving as an officer, employee
or a director of the Corporation, serves or 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) expenses, including attorneys' fees, incurred by him or her 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 or her liable by reason of the fact that such person is or
was acting in such capacity; and (b) payments made by such person in
satisfaction of any liability, judgment, money decree, fine (including an excise
tax assessed with respect to an employee benefit plan), penalty or settlement
for which he or she may have become liable in any such action, suit or
proceeding. From time to time and to the fullest extent permitted by law, the
Corporation 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. The
foregoing rights of the indemnitee hereunder shall inure to the benefit of the
indemnitee, whether or not he or she is an officer, director, employee, or agent
at the time such liabilities or expenses are imposed or incurred.
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, making a
determination that indemnification is permissible in the circumstances, a good
faith evaluation of the manner in which the claimant for indemnity acted, and of
the reasonable amount of indemnity due. The Board of Directors may appoint a
committee or special counsel to make such determination and evaluation. The
Board of Directors may give notice to, and obtain approval by, the shareholders
of the Corporation for any decision to indemnify.
At any time after the adoption of this bylaw, any person who 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, including a right of indemnification under any
statute, agreement or insurance policy.
Notwithstanding the foregoing, no indemnity offered under this Bylaw
shall be granted for liability or litigation expenses incurred on account of any
activities that were known or believed by the director, officer or employee who
undertook them to be clearly in conflict with the best interests of the
Corporation when they occurred.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. 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 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.
Section 9.02. SEAL. The corporate seal of the Corporation shall consist of
two concentric circles between which is the name of the Corporation and in the
center of which is inscribed SEAL; and such seal, as impressed or affixed on the
margin hereof, is hereby adopted as the corporate seal of the Corporation. The
seal may be used by causing it or a facsimile thereof to be impressed, affixed,
stamped or reproduced by any means.
Section 9.03. VOTING OF SHARES IN OTHER CORPORATIONS. Any shares in other
corporations or associations, which may from time to time be held by the
Corporation, may be represented and voted at any of the shareholders' meetings
thereof by the Chairman or President of the Corporation or by proxy or proxies
appointed by the Chairman or President of the Corporation. However, the Board of
Directors or Chairman may by resolution or delegation appoint some other person
or persons to vote such shares, in which case such person or persons shall be
entitled to vote such shares upon the production of a certified copy of such
resolution or delegation.
Section 9.04. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors. Until further resolution, the
fiscal year shall be from July 1st to June 30th.
Section 9.05. AMENDMENTS. Except as otherwise provided in the Articles of
Incorporation or by law, these bylaws, including any bylaws adopted by the
shareholders, may be amended or repealed and new bylaws may be adopted by the
Board of Directors. At all meetings of the shareholders, unless otherwise
provided by law or by the Articles of Incorporation, an affirmative vote of the
holders of sixty-six and two-third's percent (66-2/3%) of the voting shares
issued and outstanding shall be required to amend the Articles of Incorporation
or these Bylaws.
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