SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FIRST SOUTH BANCORP, INC.
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(Exact name of registrant as specified in its charter)
South Carolina 57-1086258
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
1450 Reidville Road, Spartanburg, South Carolina 29306
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered Each class is to be registered
None
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: N/A (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered
Authorized Capital. First South Bancorp is authorized to issue
20,000,000 shares of common stock, no par value per share.
Voting and Other Rights. The holders of First South Bancorp's Common
Stock are entitled to one vote per share on each matter voted on at a
shareholders' meeting. One-third of the shares entitled to vote, represented at
a meeting in person or by proxy, constitutes a quorum, and, in general, most
routine matters will be approved if the votes cast in favor of the matter exceed
the votes against the matter. Directors are elected by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at which a
quorum is present. Each shareholder entitled to vote in such an election shall
be entitled to vote each share of First South Bancorp's Common Stock owned by
such shareholder for as many persons as there are directors to be elected.
Pursuant to the Articles of Incorporation of First South Bancorp, shareholders
do not have cumulative voting rights.
In general, the affirmative vote of two-thirds of First South Bancorp's
Common Stock outstanding and entitled to vote is required to approve: (i)
amendments to First South Bancorp's Articles of Incorporation, (ii) the
dissolution of First South Bancorp, or (iii) a merger, exchange or consolidation
of First South Bancorp with, or the sale, exchange or lease of all or
substantially all of the assets of First South Bancorp to, any person or entity.
However, if the proposed transaction has not been approved by the affirmative
vote of at least two-thirds of the Board of Directors, then the vote required to
approve the transaction is 80% of the outstanding shares.
The shareholders of First South Bancorp shall have dissenters' rights
to an appraisal with respect to their shares of First South Bancorp's Common
Stock as provided by the South Carolina Business Corporation Act (the "Business
Corporation Act") in connection with certain types of merger or share exchange
transactions. Dissenters' rights generally are also available with respect to
certain sales of all or substantially all of the property of First South Bancorp
and certain amendments to First South Bancorp's Articles of Incorporation that
materially and adversely affect certain enumerated rights of a dissenter's
shares.
Directors and Classes of Directors. Under First South Bancorp's
Articles of Incorporation and Bylaws and pursuant to the Business Corporation
Act, the number of directors shall be determined from time to time by the Board
of Directors. Accordingly, the directors of First South Bancorp have the
authority to increase or decrease the number of directors, which is currently
fixed at eight.
When the number of directors is set at six or more, the Board of
Directors of First South Bancorp will be divided into three classes so that each
director serves for a term ending on the date of the third annual meeting
following the annual meeting at which such director was elected. In the event of
any increase in the authorized number of directors, the newly created
directorships resulting from such increase shall be apportioned among the three
classes of directors so as to maintain such classes as nearly equal as possible.
If six or more directors are elected at the 2000 annual meeting of shareholders
of First South Bancorp, the directors will be divided into three classes, with
directors of the first class to hold office for a term expiring at the annual
meeting of shareholders of First South Bancorp in 2001, directors of the second
class to hold office for a term expiring at the annual meeting of shareholders
of First South Bancorp in 2002, and directors of the third class to hold office
until the annual meeting of shareholders of First South Bancorp in 2003. At each
annual meeting thereafter, successors to the directors whose terms expire shall
be elected to hold office for terms expiring at the third succeeding annual
meeting following their election.
Because of the classification of directors, unless the shareholders act
under the Business Corporation Act to remove directors from office, two annual
meetings generally would be required to elect a majority of the Board of
Directors and three, rather than one, would be required to replace the entire
board.
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The Articles of Incorporation provide that a director may be removed
only for cause by the affirmative vote of at least 80% of the outstanding voting
stock.
Liquidation Rights. In the event of liquidation, the holders of First
South Bancorp's Common Stock would be entitled to receive pro rata any assets
legally available for distribution to shareholders with respect to shares held
by them.
Preemptive and Other Rights. First South Bancorp's Common Stock does
not have any preemptive rights, redemption privileges, sinking fund privileges
or conversion rights. Because the Common Stock does not have preemptive rights,
the directors may sell additional authorized shares of First South Bancorp's
Common Stock without first offering them to existing shareholders and giving
them the opportunity to purchase sufficient additional shares to prevent
dilution of their ownership interests. All the shares of First South Bancorp's
Common Stock will, upon issuance, be validly issued, fully paid and
nonassessable.
Distributions. First South Bancorp may issue share dividends in First
South Bancorp's Common Stock to the holders of shares of First South Bancorp's
Common Stock. In addition, the holders of shares of First South Bancorp's Common
Stock will be entitled to receive such other distributions as the Board of
Directors of First South Bancorp may declare, subject to any restrictions
contained in First South Bancorp's Articles of Incorporation (of which there
currently are none), unless after giving effect to such distribution, (i) First
South Bancorp would not be able to pay its debts as they become due in the usual
course of business or (ii) First South Bancorp's total assets would be less than
the sum of First South Bancorp's total liabilities plus the amount that would be
needed, if First South Bancorp were to be dissolved at the time of the
distribution, to satisfy claims of shareholders who have preferential rights
superior to the rights of holders of First South Bancorp's Common Stock.
Indemnification of Officers and Directors. Sections 33-8-500 through
33-8-580 of the Business Corporation Act contain provisions prescribing the
extent to which directors and officers shall or may be indemnified. Section
33-8-510 permits a corporation, with certain exceptions, to indemnify a current
or former director against liability if (i) he conducted himself in good faith,
(ii) he reasonably believed (x) that his conduct in his official capacity with
the corporation was in its best interest and (y) his conduct in other capacities
was at least not opposed to the corporation's best interest, and (iii) in the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. A corporation may not indemnify a current or former
director in connection with a proceeding by or in the right of the corporation
in which he was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him. The above standard of
conduct is determined by the Board of Directors or a committee thereof or
special legal counsel or the shareholders as prescribed in Section 33-8-550.
Sections 33-8-520 and 33-8-560 require a corporation to indemnify a
director or officer in the defense of any proceeding to which such person was a
party because of his or her capacity as officer or director against reasonable
expenses when such person is wholly successful in his or her defense, unless the
Articles of Incorporation provide otherwise. Upon application, the court may
order indemnification of the director or officer if such person is adjudged
fairly and reasonably so entitled under Section 33-8-540. Section 33-8-560
allows a corporation to indemnify and advance expenses to an officer, employee
or agent who is not a director to the same extent as a director or as otherwise
set forth in the corporation's Articles of Incorporation or Bylaws or by
resolution of the Board of Directors or by contract.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of First South Bancorp pursuant to the foregoing provisions, or
otherwise, First South Bancorp has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable.
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Limitation of Director Liability. As permitted by the Business
Corporation Act, First South Bancorp's Articles of Incorporation provide that no
director shall be personally liable to First South Bancorp or its shareholders
for monetary damages for breach of fiduciary duty as a director except for (a)
breach of the duty of loyalty to First South Bancorp or its shareholders, (b)
acts or omissions not in good faith or which involve gross negligence,
intentional misconduct or a knowing violation of law, (c) making unlawful
distributions or (d) a transaction from which the director derived an improper
personal benefit.
Duty of Directors in Connection with Business Combinations. First South
Bancorp's Articles of Incorporation require the Board of Directors to consider
the interests of the employees of First South Bancorp and the communities in
which it does business in addition to the interests of First South Bancorp and
its shareholders when evaluating a proposed plan of merger, consolidation,
exchange or sale of all, or substantially all, of the assets of First South
Bancorp.
Statutory Matters
Business Combination Statute. The South Carolina business combinations
statute provides that a 10% or greater shareholder of a resident domestic
corporation cannot engage in a "business combination" (as defined in the
statute) with such corporation for a period of two years following the date on
which the 10% shareholder became such, unless the business combination or the
acquisition of shares is approved by a majority of the disinterested members of
such corporation's board of directors before the 10% shareholder's share
acquisition date. This statute further provides that at no time (even after the
two-year period subsequent to such share acquisition date) may the 10%
shareholder engage in a business combination with the relevant corporation
unless certain approvals of the board of directors or disinterested shareholders
are obtained or unless the consideration given in the combination meets certain
minimum standards set forth in the statute. The law is very broad in its scope
and is designed to inhibit unfriendly acquisitions but it does not apply to
corporations whose articles of incorporation contain a provision electing not to
be covered by the law. First South Bancorp's articles of incorporation do not
contain such a provision. An amendment of the articles of incorporation to that
effect would, however, permit a business combination with an interested
shareholder even though that status was obtained prior to the amendment.
Control Share Acquisitions. South Carolina law also contains provisions
that, under certain circumstances, would preclude an acquiror of the shares of a
South Carolina corporation who crosses one of three voting thresholds (20%,
331/3 % or 50%) from obtaining voting rights with respect to such shares unless
a majority in interest of the disinterested shareholders of the corporation
votes to accord voting power to such shares.
The legislation provides that, if authorized by the articles of
incorporation or bylaws prior to the occurrence of a control share acquisition,
the corporation may redeem the control shares for their fair value if the
acquiring person has not complied with certain procedural requirements
(including the filing of an "acquiring person statement" with the corporation
within 60 days after the control share acquisition) or if the control shares are
not accorded full voting rights by the shareholders. First South Bancorp is not
authorized by its articles or bylaws to redeem control shares pursuant to such
legislation.
General. Taken together, the foregoing provisions of the Articles of
Incorporation and South Carolina law favor maintenance of the status quo and may
make it more difficult to change current management, and may impede a change of
control of First South Bancorp even if desired by a majority of its
shareholders.
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Item 2. Exhibits
Exhibit No. Description
3.1 Articles of Incorporation
3.2 Bylaws
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
(Registrant) FIRST SOUTH BANCORP, INC.
Date: November 10, 1999
s/Barry L. Slider
By:---------------------------------------------
Barry L. Slider
President and Chief Executive Officer
Jim Miles 1
Secretary of State
FILED
Mar 11 1999
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
1. The name of the proposed corporation is First South Bancorp, Inc.
2. The initial registered office of the corporation is 1450 Reidville Road
Spartanburg, SC 29306 and the initial registered agent at such address is
Barry L. Slider
3. The corporation is authorized to issue shares of stock as follows: Complete
a or b, whichever is applicable:
a. x If the corporation is authorized to issue a single class of shares,
the total number of shares authorized is 20,000,000 Common Stock.
b. The corporation is authorized to issue more than one class of shares:
Class of Shares Authorized No. of Each Class
The relative rights, preferences, and limitations of the shares of each
class, and of each series within a class, are as follows:
4. The existence of the corporation shall begin when these articles are filed
with the Secretary of State unless a delayed date is indicated (See
ss.33-1-230(b)) :
5. The optional provisions which the corporation elects to include in the
articles of incorporation are as follows (See ss.33-2-102 and the
applicable comments thereto; and 35-2-105 and 35-2-221 of the 1976 South
Carolina Code): See Exhibit "A"
6. The name and address of each incorporator is as follows (only one is
required):
Name Address Signature
Barry L. Slider 1450 Reidville Rd. s/Barry L. Slider
Spartanburg, S. C.
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7. I, George S. King, Jr. , an attorney licensed to practice in the State of
South Carolina, certify that the corporation, to whose articles of
incorporation this certificate is attached, has complied with the
requirements Section 33-2-102 of the 1976 South Carolina Code.
s/George S. King, Jr.
Date: 3/11/99 ---------------------------------------------
(Signature)
George S. King, Jr.
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(Type or Print Name)
P. O. Box 11889
Address:-------------------------------------
Columbia, S. C. 29211
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EXHIBIT A
5. The optional provisions which the Corporation elects to include in the
articles of incorporation are as follows:
A. NO PREEMPTIVE RIGHTS.
No holder of shares of the Corporation of any class, now or hereafter
authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any shares of the stock of the
Corporation of any class, now or hereafter authorized, or any options
or warrants for such shares, or any securities convertible into,
carrying an option to purchase or exchangeable for such shares, which
may at any time be issued, sold or offered for sale by the Corporation.
B. NO CUMULATIVE VOTING.
The holders of shares entitled to vote at an election of directors
shall not have the right to cumulate their votes.
C. CLASSIFICATION OF DIRECTORS: STAGGERED TERMS.
When the number of directors constituting the Corporation's Board of
Directors shall be fixed at six or more members, in lieu of electing
the whole number of directors annually, the directors shall be divided
into three classes, each class to be as nearly equal in number as
possible. The term of office of directors of the first class shall
expire at the first annual meeting of shareholders after their
election, that of the second class shall expire at the second annual
meeting after their election and that of the third class shall expire
at the third annual meeting after their election. At each annual
meeting after such classification, the number of directors equal to the
number of the class whose term expires at the time of such meeting
shall be elected to hold office until the third succeeding annual
meeting. In the event of any increase in the number of directors, the
newly created directorships resulting from such increase shall be
apportioned among the three classes of directors so as to maintain such
classes as nearly equal in number as possible.
D. BUSINESS COMBINATIONS.
Whether or not the Corporation has a class of voting shares registered
with the Securities and Exchange Commission or another federal agency
under Section 12 of the Securities Exchange Act of 1934 (the "1934
Act"), any "business combination," as defined in S. C. Code Section
35-2-205 (as such section may from time to time be amended) shall only
be undertaken in compliance with the provisions of Article 2 of Chapter
2 of Title 35 of the South Carolina Code (as such article may from time
to time be amended), as though the Corporation had a class of voting
shares registered under the 1934 Act; provided, however, if Article 2
of Chapter 2 of Title 35 of the South Carolina Code shall at any time
be repealed, this provision of the Corporation's Articles of
Incorporation shall not also be repealed, but shall remain in effect,
unless repealed by the shareholders, in the form such Article 2 was in
effect immediately prior to such repeal.
E. LIMITATION OF DIRECTOR LIABILITY.
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of his
fiduciary duty as a director occurring after the effective date hereof;
provided, however, the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of
loyalty to the Corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve gross negligence,
intentional misconduct or a knowing violation of law, (iii) imposed for
unlawful distributions as set forth in Section 33-8-330 of the South
Carolina Business Corporation Act of 1988, as it may be amended from
time to time (the "Act") or (iv) for any transaction from which the
director derived an improper personal benefit. This provision shall
eliminate or limit the liability of a director only
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EXHIBIT A
to the maximum extent permitted from time to time by Section
33-2-102(e) and by the Act or any successor law or laws. Any repeal or
modification of the foregoing protection by the shareholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
F. QUORUM.
One-third of the shares entitled to vote thereat shall constitute a
quorum at any meeting of shareholders for the transaction of any
business.
G. MERGERS, CONSOLIDATIONS, EXCHANGES, SALES OF ASSETS OR DISSOLUTION.
With respect to any plan of merger, consolidation or exchange, or any
plan for the sale of all, or substantially all, the property and
assets, with or without the good will, of the Corporation or any
resolution to dissolve the Corporation, which plan or resolution shall
not have been adopted by the affirmative vote of at least two-thirds of
the full board of directors, such plan or resolution must be approved
by the affirmative vote of holders of 80% of the outstanding shares of
the Corporation.
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EXHIBIT A
H. NOMINATION OF DIRECTORS.
No person shall be eligible to be elected a director of the Corporation
at a meeting of shareholders unless that person has been nominated by a
shareholder entitled to vote at such meeting by giving written notice
of such nomination to the secretary of the Corporation at least sixty
days prior to the date of the meeting. Such written notice shall
provide any information required in the Bylaws of the Corporation.
I. REMOVAL OF DIRECTORS.
An affirmative vote of 80% of the outstanding shares of the Corporation
shall be required to remove any or all of the directors without cause.
J. DUTY OF DIRECTORS.
When evaluating any proposed plan of merger, consolidation, exchange,
or sale of all, or substantially all,of the assets of the Corporation,
the board of directors shall consider the interests of the employees of
the Corporation and the community or communities in which the
Corporation and its subsidiaries, if any, do business in addition to
the interests of the Corporation's shareholders.
K. AMENDMENT TO ARTICLES OF INCORPORATION.
Any amendment to the Articles of Incorporation of the Corporation which
amends, alters, repeals or is inconsistent with any of the provisions
of Article 5.A, B, C, D, E, F, G, H, I or J above, unless such
amendment shall have been approved by the affirmative vote of at least
two-thirds of the full board of directors, shall not be effective
unless it is approved by the affirmative vote of 80% of the outstanding
shares of the Corporation.
L. INITIAL DIRECTORS
The initial directors of the Corporation who shall serve until the
first annual meeting of shareholders shall be:
Richard H. Brooks Harold E. Fleming, M.D.
1450 Reidville Rd 1450 Reidville Rd
Spartanburg, SC Spartanburg, SC
Joel C. Griffin Roger A. F. Habisreutinger
1450 Reidville Rd 1450 Reidville Rd
Spartanburg, SC Spartanburg, SC
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EXHIBIT A
Herman E. Ratchford Chandrakant V. Shanbhag
1450 Reidville Rd 1450 Reidville Rd
Spartanburg, SC Spartanburg, SC
Barry L. Slider David G. White
1450 Reidville Rd 1450 Reidville Rd
Spartanburg, SC Spartanburg, SC
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BY-LAWS OF FIRST SOUTH BANCORP, INC.
ARTICLE I
OFFICES
Section 1. Office. First South Bancorp, Inc., (hereinafter referred to as
the "Corporation"), is a South Carolina corporation. The main office of the
Corporation shall be located in the City of Spartanburg, County of Spartanburg,
and State of South Carolina.
Section 2. Additional Offices. The Corporation may also have offices and
places of business at such other places, within or without the State of South
Carolina, as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Time and Place. The annual meeting of the shareholders for the
election of directors and all special meetings of shareholders for that or for
any other purpose may be held at such time and place within or without the State
of South Carolina as shall be stated in the notice of the meeting, or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. An annual meeting of shareholders shall be held
each year at the time and place set by the Board of Directors. At each annual
meeting the shareholders shall elect directors and transact such other business
as may properly be brought before the meeting.
Section 3. Notice of Annual Meeting. Written notice of the place, date and
hour of the annual meeting shall be given personally or by mail to each
shareholder entitled to vote thereat not less than ten nor more than sixty days
prior to the meeting.
Section 4. Special Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the articles
of incorporation, may be called by the president or the chairman of the Board of
Directors or a majority of the directors and shall be called by the president or
the secretary at the request in writing of a majority of the directors, or at
the request in writing of shareholders owning at least ten per cent in amount of
the shares of the Corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed meeting.
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Section 5. Notice of Special Meeting. Written notice of a special meeting
of shareholders stating the place, date and hour of the meeting, the purpose or
purposes for which the meeting is called, and by or at whose direction it is
being issued shall be given personally or by mail to each shareholder entitled
to vote thereat not less than ten nor more than sixty days prior to the meeting.
Section 6. Quorum. The holders of one-third of the shares of the
Corporation issued and outstanding and entitled to vote thereat present in
person or represented by proxy shall be necessary to and shall constitute a
quorum for the transaction of business at all meetings of the shareholders.
If, however, such quorum shall not be present or represented at any meeting
of the shareholders, the shareholders entitled to vote thereat present in person
or represented by proxy shall have power to adjourn the meeting from time to
time, until a quorum shall be present or represented. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 7. Voting. At any meeting of the shareholders, every shareholder
having the right to vote shall be entitled to vote in person or by proxy. Except
as otherwise provided by law or the articles of incorporation, each shareholder
of record shall be entitled to one vote for every share of stock standing in his
name on the books of the Corporation. All elections shall be determined by a
plurality vote, and, except as otherwise provided by law or the articles of
incorporation, all other matters shall be determined by vote of a majority of
the shares present or represented at such meeting and voting on such questions.
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Section 8. Proxies. Every proxy must be executed in writing and dated by
the shareholder or by his attorney-in-fact. No proxy shall be valid after the
expiration of eleven months from the date thereof, unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the shareholder
executing it, except in those cases where an irrevocable proxy is permitted by
law and the proxy expressly states that it is irrevocable.
Section 9. Consents. Whenever by any provision of law the vote of
shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action, the meeting and vote of shareholders may
be dispensed with if all the shareholders who would have been entitled to vote
upon the action if such meeting were held shall consent in writing to such
corporate action being taken.
Section 10. Record date. For the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action affecting the interests of shareholders, the Board
of Directors may fix, in advance, a record date. Such date shall not be more
than seventy days before the date of any such meeting or other action requiring
a determination of shareholders.
In each such case, except as otherwise provided by law, only such persons
as shall be shareholders of record on the date so fixed shall be entitled to
notice of, and to vote at, such meeting and any adjournment thereof, or to
express such consent or dissent, or to receive payment of such dividend, or such
allotment of rights, or otherwise to be recognized as shareholders for the
related purpose, notwithstanding any registration of transfer of shares on the
books of the Corporation after any such record date so fixed.
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ARTICLE III
DIRECTORS
Section 1. Number; Tenure. The number of directors constituting the Board
of Directors shall from time to time be set by the Board of Directors. When the
number of directors constituting the Corporation's Board of Directors shall be
fixed at six or more members, directors' terms shall be staggered by dividing
the total number of directors into three groups with each group to be as nearly
equal in number as possible. Initially, one group will be elected for one year,
one group will be elected for two years, and one group will be elected for three
years. Thereafter, each group will be elected for three years. Directors shall
be elected at the annual meeting of the shareholders, except as provided in
Section 3 of this Article III, and each director shall be elected to serve until
his successor has been elected and has qualified.
Section 2. Resignation; Removal. Any director may resign at any time. The
shareholders entitled to vote for the election of directors may remove a
director, with or without cause; provided, however, an affirmative vote of 80%
of the outstanding shares of the Corporation shall be required to remove any or
all of the directors without cause.
Section 3. Vacancies. If any vacancies occur in the Board of Directors by
reason of the death, resignation, retirement, disqualification or removal from
office of any director, the remaining directors, although less than a quorum,
may by majority vote choose a successor or successors, and the directors so
chosen shall hold office until the next annual meeting of the shareholders and
until their successors shall be duly elected and qualified, unless sooner
displaced; provided, however, that if, in the event of any such vacancy, the
directors remaining in office shall be unable, by majority vote, to fill such
vacancy within thirty days of the occurrence thereof, the president or the
secretary may call a special meeting of the shareholders at which such vacancy
shall
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be filled. The board of directors may increase or decrease by not more than
thirty percent the number of directors last approved by the shareholders. Any
vacancy on the board of directors created by the increase in the number of
directors may be filled by a majority vote of the board of directors or by the
shareholders. Any director elected to fill a vacancy created by an increase in
the number of directors shall serve until the next annual meeting of
shareholders.
Section 4. Duties and Powers. The Board of Directors shall have control and
management of the affairs and business of the Corporation. In the transaction of
business, the act of a majority present at a meeting, except as otherwise
provided by law or the Articles of Incorporation, shall be the act of the Board,
provided a quorum is present. The Directors may adopt such rules for the conduct
of their meetings and the management of the Corporation as they deem proper, not
inconsistent with law or these Bylaws.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. Place. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of South
Carolina.
Section 2. First Meeting. A first meeting of the Board of Directors shall
be held immediately following each annual meeting of shareholders at which such
directors are elected, and no notice of such meeting to the directors shall be
necessary in order to constitute the meeting, provided a quorum shall be
present. In the event such meeting is not held at such time, the meeting may be
held at the time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors or as shall
be specified in a duly executed waiver of notice thereof.
Section 3. Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such time and at such place as shall from time to time
be determined by the Board of Directors.
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Section 4. Special Meetings. Special meetings of the Board of Directors may
be called by the chairman of the Board of Directors, if any, or by the president
on two days notice to each director, either personally or by telephone,
facsimile, courier, mail or other legal method. Special meetings shall be called
by the chairman, president or secretary in like manner and on like notice at the
written request of 25% or more of the directors.
Section 5. Quorum. At all meetings of the Board of Directors, a majority of
the directors then in office shall be necessary to and constitute a quorum for
the transaction of business, and the vote of a majority of the directors present
at the time of the vote if a quorum is present shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time until a quorum shall be present. Notice of any such adjournment shall be
given to any directors who were not present and, unless announced at the
meeting, to the other directors.
Section 6. Compensation. Directors, as such, shall not receive any stated
salary for their services, but, by resolution of the Board of Directors a fixed
fee and expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the board (or of any committee of the board),
provided that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 7. Any action which may be authorized or taken at a meeting of the
Board of Directors may be authorized or taken without a meeting in a writing or
writings signed by all of the directors. The action or authorization shall be
effective when the last director signs the writing unless the writing specifies
a different effective date. The writing or writings shall be filed with or
entered upon the records of the Corporation.
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ARTICLE V
NOTICES
Section 1. Form; Delivery. Except as otherwise provided in these Bylaws,
notices to directors and shareholders shall be in writing and may be delivered
personally or by mail, courier, facsimile or telegram. Notice by mail shall be
deemed to be given at the time when deposited in the post office or a letter
box, in a post-paid sealed wrapper, and addressed to the directors or the
shareholders at their addresses appearing on the records of the Corporation.
Section 2. Waiver. Whenever a notice is required to be given by any
statute, the articles of incorporation or these by-laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to such notice. ln
addition, any shareholder attending a meeting of shareholders in person or by
proxy without protesting prior to the conclusion of the meeting the lack of
notice thereof to him, and any director attending a meeting of the Board of
Directors without protesting prior to the meeting or at its commencement such
lack of notice shall be conclusively deemed to have waived notice of such
meeting.
ARTICLE VI
OFFICERS
Section 1. Executive Officers. The executive officers of the Corporation
shall be a president, secretary, treasurer and such assistant officers or vice
presidents as may from time to time be appointed by the Board. The Board may
also designate the chairman of the Board as an executive officer. If the
chairman of the Board is so designated, the Board of Directors shall also
designate whether the chairman or the president will serve as the chief
executive officer of the Corporation.
Section 2. Authority and duties. All officers, as between themselves and
the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided by these by-laws, or, to the
extent not so provided, by the Board of Directors.
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Section 3. Term of Office; Removal. All officers shall be elected by the
Board of Directors and shall hold office for such term as may be prescribed by
the Board. Any officer elected or appointed by the Board may be removed with or
without cause at any time by the Board.
Section 4. Compensation. The compensation of all officers of the
Corporation shall be fixed by the Board of Directors and the compensation of
agents shall either be so fixed or shall be fixed by officers thereunto duly
authorized.
Section 5. Vacancies. If an office becomes vacant for any reason, the Board
of Directors shall fill such vacancy. Any officer so appointed or elected by the
Board shall serve only until such time as the unexpired term of his predecessor
shall have expired unless re-elected or reappointed by the Board.
ARTICLE VII
SHARE CERTIFICATES
Section 1. Form; Signature. The certificates for shares of the Corporation
shall be in such form as shall be determined by the Board of Directors and shall
be numbered consecutively and entered in the books of the Corporation as they
are issued. Each certificate shall exhibit the registered holder's name and the
number and class of shares, and shall be signed by the president or a
vice-president and the secretary or an assistant secretary, and shall bear the
seal of the Corporation or a facsimile thereof. Where any such certificate is
countersigned by a transfer agent, or registered by a registrar, the signature
of any such officer may be a facsimile signature. In case any officer who signed
or whose facsimile signature or signatures were placed on any such certificate
shall have ceased to be such officer before such certificate is issued, it may
nevertheless be issued by the Corporation with the same effect as if he were
such officer at the date of issue.
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Section 2. Lost Certificates. The Board of Directors may direct a new share
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost or
destroyed, upon the compliance with notice, affidavit and bond requirements of
S. C. Code Section 36-8-405, unless compliance with such requirements shall have
been waived for good cause by the Board.
Section 3. Registration of Transfer. Upon surrender to the Corporation or
any transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or such transfer agent to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 4. Registered Shareholders. Except as otherwise provided by law,
the Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends or other
distributions, and to vote as such owner, and shall not be bound to recognize
any equitable or legal claim to or interest in such share or shares on the part
of any other person.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Instruments Under Seal. All deeds, bonds, mortgages, contracts,
and other instruments requiring a seal may be signed in the name of the
Corporation by the president or by any other officer authorized to sign such
instrument by the Board of Directors.
Section 2. Checks, etc. All checks or demands for money and notes or other
instruments evidencing indebtedness or obligations of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January and end on the last day of December in each calendar
year, unless a different fiscal year shall be fixed by resolution of the Board
of Directors.
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Section 5. Seal. The corporate seal shall have inscribed thereon the name
of the Corporation and shall be in such form as is determined by the Board of
Directors. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced. Such seal may be used in the
discretion of the officers and directors, and no document, contract or act of
the Corporation shall be invalid because it has not been sealed.
ARTICLE IX
AMENDMENTS
Section 1. Power to Amend. The Board of Directors shall have power to
amend, repeal or adopt by-laws at any regular or special meeting of the Board,
with the exception of any by-law adopted by the shareholders that expressly
provides that the Board may not adopt, amend or repeal that bylaw or any bylaw
on that subject. Any by-law adopted by the Board may be amended or repealed by
vote of the holders of a majority of the shares entitled at the time to vote for
the election of directors. Neither the directors nor the shareholders shall,
however, have the power to adopt, amend or repeal any by-law if such adoption,
amendment or repeal would cause the Corporation's by-laws to be inconsistent
with the Corporation's articles of incorporation.
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