FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DARLINGTON COUNTY BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
South Carolina 58-2459182
-------------- ----------
(State of incorporation (I.R.S. Employer
or organization) Identification Number)
202 Cashua Street, Darlington, South Carolina 29532
- --------------------------------------------- -----
(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 so registered each class is to be registered
None ______________________________
_____________________ ______________________________
______________________ ______________________________
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The title of the class of securities being registered is Common Stock, par
value $0.01 per share ("Common Stock").
Holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. A
dividend may not be made if, after giving it effect: (1) the corporation would
not be able to pay its debts as they become due in the usual course of business;
or (2) the corporation's total assets would be less than the sum of its total
liabilities plus the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution.
The Common Stock is fully paid and nonassessable and not subject to any
redemption or sinking fund privileges, any preemptive or other rights to
subscribe for any other shares or securities, or any conversion rights. In the
event of liquidation, holders of Common Stock are entitled to receive pro rata
any assets distributable to shareholders in respect of shares held by them.
Holders of Common Stock are entitled to one vote per share. Darlington
County Bancshares, Inc.'s Articles of Incorporation provide that shareholders
may not cumulate votes for the election of directors. Accordingly, holders of
more than 50% of the shares voting at the election of directors can elect all of
the directors if they choose to do so and, in such event, the holders of the
remaining shares (less than 50%) voting are not able to elect any board members.
In accordance with Darlington County Bancshares, Inc.'s Articles of
Incorporation, the Board of Directors is divided into three classes of directors
with each class having as nearly an equal number as possible. The members of
each class are elected for staggered three-year terms. The staggering of board
terms has the effect of making it more difficult to remove current directors
than would otherwise be the case.
The Company's Articles provide that the affirmative vote of the holders of
not less than 80% of the outstanding common stock of the Corporation entitled to
vote for approval shall be required if (a) this Corporation merges or
consolidates with any other corporation, or if (b) this Corporation sells or
exchanges all or a substantial part of its assets to or with any other
corporation, or if (c) this Corporation issues or delivers any stock or other
securities of its issue in exchange or payment for any properties or assets of
any other corporation, or securities issued by any other corporation, or in a
merger of any subsidiary of this Corporation (80% or more of the common stock of
which is held by this Corporation) with or into any other corporation; provided,
however, that the foregoing shall not apply to any plan of merger or
consolidation, or sale or exchange of assets, or issuance or delivery of stock
or other securities which was approved (or adopted) and recommended without
condition by the affirmative vote of not less than two-thirds of the directors,
nor shall it apply to any such transaction solely between this Corporation and
another corporation 50% or more of the voting stock of which is owned by this
Corporation. The Board of Directors shall be permitted to condition its approval
(or adoption) of any plan of merger or exchange of assets, or issuance or
delivery of stock or securities upon the approval of holders of 80% of the
outstanding stock of this Corporation entitled to vote on such plan of merger or
consolidation, or sale or exchange of assets, or issuance or delivery of stock
or securities.
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Item 2. Exhibits
3.1 Articles of Incorporation filed on March 31, 1999 in the office of the
Secretary of State of South Carolina.
3.2 By-Laws of Darlington County Bancshares, Inc.
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SIGNATURES
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.
DARLINGTON COUNTY BANCSHARES, INC.
Date: March 17, 2000 By: /s/ W. B. McCown, III
---------------------
W. B. McCown, III
President and Chief Executive Officer
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
FOR
DARLINGTON COUNTY BANCSHARES, INC.
1. The name of the proposed Corporation is Darlington County Bancshares, Inc.
2. The initial registered office of the Corporation is 202 Cashua Street,
Darlington, South Carolina 29532 (Darlington County) and the initial
registered agent at such address is W. B. McCown, III.
3. The Corporation is authorized to issue a single class of common shares, par
value $.01 per share, and the total number of common shares authorized is
1,000,000.
The Corporation is authorized to issue 200,000 shares of preferred stock.
The relative rights, preferences and limitations of such preferred stock
shall be determined by the Corporation's Board of Directors in its sole
discretion. The Corporation's Board of Directors shall have the sole
authority to issue shares of such preferred stock to whomever and for
whatever purposes it, in its sole discretion, deems appropriate. The Board
is expressly authorized to divide such preferred shares into separate
series, with each series separately designated so as to distinguish the
shares thereof from the shares of all other series. Each share of each
series of serial preferred stock shall have the same relative rights as and
be identical in all respects with all the other shares of the same series.
Among other things, the Board may designate the following variations among
any of the various series of preferred stock without further action of the
shareholders of the Corporation: (a) the distinctive serial designation and
the number of shares constituting such series; (b) the dividend rate or the
amount of dividends to be paid on the shares of such series, whether
dividends shall be cumulative and, if so, from which date(s) the payment
date(s) for dividends, and the participating or other special rights, if
any, with respect to dividends; (c) the voting powers, full or limited, if
any, of shares of such series; (d) whether the shares of such series shall
be redeemable and, if so, the price(s) at which, and the terms and
conditions on which, such shares may be redeemed; (e) the amount(s) payable
upon the shares of such series in the event of voluntary or involuntary
liquidation, dissolution, or winding up of the association; (f) whether the
shares of such series shall be entitled to the benefit of a sinking or
retirement fund to be applied to the purchase or redemption of such shares,
and if so entitled, the amount of such fund and the manner of its
application, including the price(s) at which such shares may be redeemed or
purchased through the application of such fund; (g) whether the shares of
such series shall be convertible into, or exchangeable for, shares of any
other class or classes of stock of the association and, if so, the
conversion price(s) or the rate(s) of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be made, and any
other terms and conditions of such conversion or exchange; (h) the price or
other consideration for which the shares of such series shall be issued;
and (i) whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial preferred
stock and whether such shares may be reissued as shares of the same or any
other series of serial preferred stock.
4. The existence of the corporation shall begin when these articles are filed
with the Secretary of State.
5. The optional provisions which the corporation elects to include in the
articles of incorporation are as follows: (See Section 33-2-102 and the
applicable comments thereto; and 35-2-105 and 35-2-221 of the 1976 South
Carolina Code).
(a) Shareholders of the Corporation shall not have statutory preemptive
rights to purchase shares of
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the Corporation.
(b) Shareholders shall not be entitled to cumulate votes for directors.
(c) A director of the corporation shall not be personally liable to the
corporation or any of its shareholders for monetary damages for breach
of fiduciary duty as a director, provided that this provision shall
not be deemed to 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 under Section 33-8-330 of the Act
(improper distribution to shareholder); or (iv) for any transaction
from which the director derived an improper personal benefit.
(d) No Director may be removed except upon cause.
(e) The Board of Directors shall be comprised of seven or more persons, as
determined from time to time by the corporation's shareholders and/or
board of directors in accordance with applicable law.
(f) When the Board of Directors shall consist of seven (7) or more
members, in lieu of electing the whole number of Directors annually,
the Directors shall be divided by the Board 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 end of 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.
(g) The Board of Directors, when evaluating any offer of another party to
(a) make a tender or exchange offer for any equity security of this
Corporation, (b) merge or consolidate this Corporation with another
corporation, or (c) purchase or otherwise acquire all or substantially
all of the properties and assets of this Corporation, shall, in
connection with the exercise of its judgment in determining what is in
the best interests of this Corporation and its stockholders, give due
consideration to (i) all relevant factors, including without
limitation the social, legal, environmental and economic effects on
the employees, customers, suppliers and other con stituencies of this
Corporation and its subsidiaries, on the communities and geographical
areas in which this Corporation and its subsidiaries operate or are
located and on any of the businesses and properties of this
Corporation or any of its subsidiaries, as well as such other factors
as the directors deem relevant, and (ii) not only the consideration
being offered, in relation to the then current market price for the
Corporation's outstanding shares of capital stock, but also in
relation to the then current value of the Corporation in a freely
negotiated transaction and in relation to the board of directors'
estimate of the future value of this Corporation (including the
unrealized value of its properties and assets) as an independent going
concern.
(h) The affirmative vote of the holders of not less than 80% of the
outstanding common stock of the Corporation entitled to vote for
approval shall be required if (a) this Corporation merges or
consolidates with any other corporation, or if (b) this Corporation
sells or exchanges all or a substantial part of its assets to or with
any other corporation, or if (c) this Corporation issues or delivers
any stock or other securities of its issue in exchange or payment for
any properties or assets of any other corporation, or securities
issued by any other corporation, or in a merger of any subsidiary of
this Corporation (80% or more of the common stock of which is held by
this Corporation) with or into any other corporation; provided,
however, that the foregoing shall not
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apply to any plan of merger or consolidation, or sale or exchange of
assets, or issuance or delivery of stock or other securities which was
approved (or adopted) and recommended without condition by the
affirmative vote of not less than two-thirds of the directors, nor
shall it apply to any such transaction solely between this Corporation
and another corporation 50% or more of the voting stock of which is
owned by this Corporation. The Board of Directors shall be permitted
to condition its approval (or adoption) of any plan of merger or
exchange of assets, or issuance or delivery of stock or securities
upon the approval of holders of 80% of the outstanding stock of this
Corporation entitled to vote on such plan of merger or consolidation,
or sale or exchange of assets, or issuance or delivery of stock or
securities.
(i) The affirmative vote of the holders of not less than 80% of the
outstanding common stock of the Corporation entitled to vote on any
proposal to change the size of the Board of Directors shall be
required in order to increase the number of directors on the Board of
Directors; provided, however, that the foregoing shall not apply if a
majority of the directors holding office prior to any proposal to
increase the number of directors and continuing in office at the time
of the Board of Directors votes on such proposal approves of such
proposal, in which case the number of directors may be increased by
any manner otherwise permitted by these Articles of Incorporation, the
Corporation's bylaws or by applicable law.
(j) A director of the Corporation shall be indemnified for liability
arising out of his service as a director to the maximum extent
permitted by Section 33-8-510 of the South Carolina Business
Corporation Act of 1988, as amended (or any successor provision).
The Corporation shall advance expenses to directors of the Corporation
to the maximum extent permitted by Section 33-8-530 of the South
Carolina Business Corporation Act of 1988, as amended (or any
successor provision).
6. The name, address and signature of each incorporator is as follows:
Name Address
William P. Crawford, Jr. 44 East Camperdown Way
/s/ William P. Crawford, Jr. Greenville, SC 29601
----------------------------
7. I, William P. Crawford, Jr., an attorney licensed to practice in the
State of South Carolina, certify that the above named corporation, has
complied with the requirements of Section 33-2- 102 of the 1976 Code
of Laws of South Carolina, as amended.
March 25, 1999 /s/ William P. Crawford, Jr.
----------------------------
William P. Crawford, Jr., Esquire
Wyche, Burgess, Freeman & Parham, P.A.
44 East Camperdown Way
Greenville, SC 29601
(864) 242-8265
BYLAWS OF
DARLINGTON COUNTY BANCSHARES, INC.
March 23 , 1999
Page
ARTICLE I.
OFFICES...............................................................4
Section 1.1 Business Office.....................................4
Section 1.2 Registered Office...................................4
ARTICLE II.
SHAREHOLDERS..........................................................4
Section 2.1 Annual Meeting......................................4
Section 2.2 Special Meetings....................................4
Section 2.3 Place of Meeting; Conduct of Meeting................6
Section 2.4 Notice of Meeting...................................6
Section 2.5 Fixing of Record Date...............................7
Section 2.6 Shareholder List....................................8
Section 2.7 Quorum and Voting Requirements......................8
Section 2.8 Increasing Either Quorum or Voting Requirements.....9
Section 2.9 Proxies ...........................................10
Section 2.10 Voting of Shares; Polls............................10
Section 2.11 Corporation's Acceptance of Votes..................10
Section 2.12 Informal Action by Shareholders....................11
Section 2.13 Notice of Shareholder Nominations..................12
Section 2.14 Procedures for Submission of Shareholder Proposals
at Annual Meeting...............................13
Section 2.15 Shareholders' Rights to Inspect Corporate Records..14
Section 2.16 Financial Statements Shall be Furnished to the
Shareholders ...........................15
Section 2.17 Dissenters' Rights.................................16
ARTICLE III.
BOARD OF DIRECTORS............................................ 16
Section 3.1 General Powers.............................. 16
Section 3.2 Number, Tenure and Qualifications of Directors.....16
Section 3.3 Regular Meetings...................................16
Section 3.4 Special Meetings...................................17
Section 3.5 Notice of Special Meeting..........................17
Section 3.6 Director Quorum....................................17
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Section 3.7 Manner of Acting...................................17
Section 3.8 Establishing a "Supermajority" Quorum or
Voting Requirement........................... 18
Section 3.9 Action Without a Meeting.............. ...........19
Section 3.10 Removal of a Director............................ 19
Section 3.11 Vacancies........................................ 19
Section 3.12 Compensation..................................... 19
Section 3.13 Committees....................................... 20
ARTICLE IV.
OFFICERS ..................................................21
Section 4.1 Number.............................................21
Section 4.2 Appointment and Term of Office.....................21
Section 4.3 Removal............................................21
Section 4.4 The President......................................21
Section 4.5 The Vice-Presidents................................22
Section 4.6 The Secretary......................................22
Section 4.7 The Treasurer......................................22
Section 4.8 Assistant Secretaries and Assistant Treasurers.... 22
Section 4.9 Salaries...........................................23
ARTICLE V.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
23
Section 5.1 Indemnification of Directors...................... 23
Section 5.2 Advance Expenses for Directors.................... 23
Section 5.3 Other Employees and Agents........................ 23
Section 5.4 Nature of Right to Indemnification................ 23
Section 5.5 Request for Indemnification; Determination of
Entitlement Thereto; When Paid..................24
Section 5.6 Right of Action; No Presumption....................24
Section 5.7 Binding Effect on the Corporation................. 24
Section 5.8 No Challenge to Validity...........................24
Section 5.9 Nonexclusivity.....................................24
Section 5.10 Severability.......................................25
Section 5.11 Notices............................................25
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER...........................25
Section 6.1 Certificates for Shares............................25
Section 6.2 Registration of the Transfer of Shares.............26
Section 6.3 Restrictions on Transfer of Shares Permitted.......26
Section 6.4 Acquisition of Shares..............................27
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ARTICLE VII.
DISTRIBUTIONS........................................................27
Section 7.1 Distributions......................................27
ARTICLE VIII.
CORPORATE SEAL..................................................... 27
Section 8.1 Corporate Seal.....................................27
ARTICLE IX.
EMERGENCY BYLAWS.................................................... 28
Section 9.1 Emergency Bylaws.................................. 28
ARTICLE X.
AMENDMENTS.......................................................... 29
Section 10.1 Amendments........................................ 29
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ARTICLE I.
OFFICES
Section 1.1 Business Office.
The original principal office of the corporation shall be within the State
of South Carolina and shall be located in Darlington County. The board of
directors may change the location of the principal office. The corporation shall
maintain at its principal office a copy of certain records, as specified in
Section 2.15 of Article II. The corporation may have such other offices, either
within or without the State of South Carolina, as the board of directors may
designate or as the business of the corporation may require.
Section 1.2 Registered Office.
The registered office of the corporation, required by Sectopm 33-5-101, of
the South Carolina Business Corporation Act of 1988 (the "Act") may be, but need
not be, identical with the principal office in the State of South Carolina, and
the address of the registered office may be changed from time to time.
ARTICLE II.
SHAREHOLDERS
Section 2.1 Annual Meeting.
The annual meeting of the shareholders shall be held on such date as may be
designated by the board of directors for the purpose of electing directors and
for the transaction of such other business as may come before the meeting. No
other matters may be brought before the meeting by any shareholder unless
written notice of such matters, together with an adequate description thereof,
shall have been provided to the corporation in compliance with Section 2.13 or
Section 2.14.
Section 2.2 Special Meetings.
(a) Special meetings of the shareholders, for any purpose or purposes,
described in the meeting notice (which may be limited to one or more
specific purpose), may be called by the president, or by the board of
directors, and shall be called by the president at the request of the
holders of not less than one-tenth of all outstanding votes of the
corporation entitled to be cast on any issue at the meeting. Only such
business shall be conducted at a special shareholder meeting as shall have
been brought before such meeting pursuant to the corporation's notice of
meeting given in accordance with Section 2.4.
(b) In order that any demand or request of a shareholder or shareholders for a
special meeting of shareholders contemplated by Section 2.2(a) be validly
and effectively made, such shareholder or shareholders and such demand or
request must comply with the following procedures:
(1) Any shareholder seeking to request or demand, or to have the
shareholders request or demand, a special meeting shall first, by
written notice to the Secretary of the corporation, request the board
of directors to fix a record date, pursuant to Section 2.5 hereof, for
the purpose of
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determining the shareholders entitled to request the special meeting.
The board of directors shall promptly, but in all events within 10
days after the date upon which such a request is received, fix such a
record date. Every request to fix a record date for determining the
shareholders entitled to request a special meeting shall be in writing
and shall set forth the purpose or purposes for which the special
meeting is requested, the name and address, as they appear in the
corporation's books, of each shareholder making the request and the
class and number of shares of the corporation which are owned of
record by each such shareholder, and shall bear the signature and date
of signature of each such shareholder.
In the event of the delivery to the corporation of any request(s)
or demand(s) by shareholders with respect to a special meeting, and/or
any related revocation or revocations, the corporation shall engage
independent inspectors of elections for the purpose of performing a
prompt ministerial review of the validity of the request(s), demand(s)
and/or revocation(s).
(2) No request or demand with respect to calling a special meeting of
shareholders shall constitute a valid and effective shareholder
request or demand for a special meet ing (i) unless (A) within 60 days
of the record date established in accordance with Section 2.2(b)(1),
written requests or demands signed by shareholders of record
representing a sufficient number of shares as of such record date to
request or demand a special meeting pursuant to Section 2.2(a) are
delivered to the Secretary of the corporation and (B) each request or
demand is made in accordance with and contains the information
required by Section 2.14(b)(2) as if such request or demand were a pro
posal to conduct business at an annual meeting of the corporation as
provided for therein and (ii) until such date as the independent
inspectors engaged in accordance with this Section 2.2(b)(2) certify
to the corporation that the requests or demands delivered to the
corporation in accordance with clause (i) of this Section 2.2(b)(2)
represent at least the minimum number of shares that would be
necessary to request such a meeting pursuant to Section 2.2(a).
(c) If the corporation determines that a shareholder or shareholders have
satisfied the notice, information and other requirements specified in
Section 2.2(b)(2)(i), then the board of directors shall adopt a resolution
calling a special meeting of the shareholders and fixing the record date
therefor for the purpose of determining the shareholders entitled to notice
of and to vote at such special meeting. Notice of such special meeting
shall be provided in accordance with Section 2.4(a), provided that such
notice shall be given within 30 days (or such longer period as from time to
time may be permitted by law) after the date valid and effective request(s)
or demand(s) for such special meeting is (or are) delivered to the
corporation in accordance with Section 2.2(b)(2)(i).
(d) In fixing a meeting date for the special meeting of shareholders, the board
of directors may consider such factors as it deems relevant within the good
faith exercise of its business judgment, including, without limitation, the
nature of the action proposed to be taken, the facts and circumstances
surrounding the request, and any plan of the board of directors to call a
special or annual meeting of shareholders for the conduct of related
business, provided that such date shall be determined in accordance with
Section 2.4(a) hereof.
(e) Nothing contained in this Section 2.2(b) shall in any way be construed to
suggest or imply that the board of directors or any shareholder shall not
be entitled to contest the validity of any request or demand or revocation
thereof, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect
thereto).
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Section 2.3 Place of Meeting; Conduct of Meeting.
The board of directors may designate any place as the place of meeting for
any annual or special meeting of the shareholders, which may be either within or
without the State of South Carolina. If no designation is made, the place of
meeting shall be the principal office of the corporation. Every meeting of
shareholders shall be chaired by the Chairman of the board of directors, or, in
the absence thereof, such person as the Chairman of the board of directors shall
appoint, or, in the absence thereof or in the event that the Chairman of the
board of directors shall fail to make such appointment, such person as shall be
appointed by vote of the Nominating Committee of the board of directors, or, in
the absence thereof or in the event that such Committee fails to make such
appointment, any officer of the corporation elected by the board of directors.
Section 2.4 Notice of Meeting.
(a) Required Notice.
Written notice stating the place, day and hour of any annual or special
shareholder meeting shall be delivered not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, by or at the
direction of the president or the board of directors. Only the president or the
board of directors shall have the authority to set the place, day and hour of
any special meeting. Such notice shall be given to each shareholder of record
entitled to vote at such meeting and to any other shareholder entitled by the
Act or the articles of incorporation to receive notice of the meeting.
Notice shall be deemed to be effective at the earlier of: (1) when
deposited in the United States mail, addressed to the shareholder at his address
as it appears on the stock transfer books of the corporation, with postage
thereon prepaid, (2) on the date shown on the return receipt if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee, (3) when received, or (4) 5 days after
deposit in the United States mail, if mailed postpaid and correctly addressed,
to an address other than that shown in the corporation's current record of
shareholders.
Any previously scheduled meeting of the shareholders may be postponed, and
any special meeting of the shareholders called by the board of directors may be
canceled, by resolution of the board of directors upon public notice given prior
to the date previously scheduled for such meeting of shareholders.
(b) Adjourned Meeting.
If any shareholder meeting is adjourned to a different date, time, or
place, notice need not be given of the new date, time or place, if the new date,
time and place is announced at the meeting before adjournment. If a new record
date for the adjourned meeting is, or must be, fixed (see Section 2.5 of this
Article II) then notice must be given pursuant to the requirements of paragraph
(a) of this Section 2.4, to those persons who are shareholders as of the new
record date.
(c) Waiver of Notice.
The shareholders may waive notice of the meeting (or any notice required by
the Act,
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articles of incorporation, or bylaws), by a writing signed by the shareholders
entitled to the notice, which is delivered to the corporation (either before or
after the date and time stated in the notice) for inclusion in the minutes or
filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting;
(2) waives objection to consideration of a particular matter at the
meeting that is not within the purpose or purposes described in the
meeting notice, unless the shareholder objects to considering the
matter when it is presented.
(d) Contents of Notice.
The notice of each special shareholder meeting shall include a description
of the
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purpose or purposes for which the meeting is called. Except as provided in this
Section 2.4(d), or as provided in the corporation's articles, or otherwise in
the Act, the notice of an annual shareholder meeting need not include a
description of the purpose or purposes for which the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a proposed
amendment to the articles of incorporation (including any restated articles
requiring shareholder approval); (2) a plan of merger or share exchange; (3) the
sale, lease, exchange or other disposition of all or substantially all of the
corporation's property; (4) the adoption, amendment or repeal of a bylaw; (5)
dissolution of the corporation; or, (6) removal of a director, the notice must
so state and be accompanied by respectively a copy or summary of the: (1)
articles of amendment; (2) plan of merger or share exchange; (3) transaction for
disposition of all the corporation's property; or (4) bylaw proposal. If the
proposed corporation action creates dissenters' rights, the notice must state
that shareholders are, or may be, entitled to assert dissenters' rights, and
must be accompanied by a copy of Chapter 13 of the Act. If the corporation
issues, or authorizes the issuance of, shares for promissory notes or for
promises to render services in the future, the corporation shall report in
writing to all the shareholders the number of shares authorized or issued, and
the consideration received with or before the notice of the next shareholder
meeting. Likewise, if the corporation indemnifies or advances expenses to a
director (pursuant to Section 33-16-210 of the Act) this shall be reported to
all the shareholders with or before notice of the next shareholder's meeting.
Section 2.5 Fixing of Record Date.
For the purpose of determining shareholders of any voting group entitled to
notice of or to vote at any meeting of shareholders, or shareholders entitled to
receive payment of any distribution or dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date. Such record date shall
not be more than seventy days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If no record date
is so fixed by the board for the determination of shareholders entitled to
notice of, or to vote at a meeting of shareholders, or shareholders entitled to
receive a share dividend or distribution, the record date for determination of
such shareholders shall be at the close of business on:
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(a) With respect to an annual shareholders' meeting or any special
shareholders' meeting called by the board or any person specifically
authorized by the board or these by laws to call a meeting, the day before
the first notice is delivered to shareholders;
(b) With respect to a special shareholders' meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the board
authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting, the date the
first shareholder signs a consent; and
(e) With respect to a distribution to shareholders (other than one involving
purchase or reacquisition of shares), the date the board authorizes the
distribution. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the board of
directors fixes a new record date which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the
original meeting.
Section 2.6 Shareholder List.
The officer or agent having charge of the stock transfer books for shares
of the corporation shall make a complete record of the shareholders entitled to
vote at each meeting of shareholders thereof, arranged in alphabetical order,
with the address of and the number of shares held by each. The list must be
arranged by voting group, if such exists, and within each voting group by class
or series of shares. The shareholders' list must be available for inspection by
any shareholder, beginning on the date on which notice of the meeting is given
for which the list was prepared and continuing through the meeting. The list
shall be available at the corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held. A
shareholder, his agent or attorney is entitled on written demand to inspect, and
subject to the requirements of Section 2.15 of this Article II, to copy the list
at his expense during regular business hours, and during the period it is
available for inspection. The corporation shall maintain the shareholder list in
written form or in another form capable of conversion into written form within a
reasonable time.
Section 2.7 Quorum and Voting Requirements.
(a) General. Unless the articles of incorporation, a bylaw adopted pursuant to
Section 2.8 of this Article II, or the Act provide otherwise, the presence
at any meeting, in person or by proxy, of the holders of record of a
majority of the shares then issued and outstanding and entitled to vote
shall be necessary and sufficient to constitute a quorum for the
transaction of business.
(b) Voting Groups. If the articles of incorporation or the Act provides for
voting by a single voting group on a matter, action on that matter is taken
when voted upon by that voting group. Shares entitled to vote as a separate
voting group may take action on a matter at a meeting only if a quorum of
those shares exists with respect to that matter. Unless the articles of
incorporation, a bylaw adopted pursuant to Section 2.8 of this Article II,
or the Act provide otherwise, the
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presence at any meeting, in person or by proxy, of the holders of record of
a majority of the shares of such separate voting group then issued and
outstanding and entitled to vote shall be necessary and sufficient to
constitute a quorum for the transaction of business.
If the articles of incorporation or the Act provide for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by
another voting group entitled to vote on the matter.
(c) Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of the meeting unless a new record date is or must be set under
the Act for the adjourned meeting. If a quorum exists, action on a matter
(other than the election of directors) is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the
action, unless the articles of incorpo ration, a bylaw adopted pursuant to
Section 2.8 of this Article II, or the Act require a greater number of
affirmative votes.
(d) Adjournment. The Chairman of the meeting or a majority of the shares
represented at the meeting in person or by proxy and entitled to vote
thereat may adjourn the meeting from time to time, whether or not there is
a quorum, unless otherwise proscribed by law. The shareholders present at a
duly called meeting at which a quorum is present, and at any adjournment
thereof, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 2.8 Increasing Either Quorum or Voting Requirements.
For purposes of this Section 2.8 a "supermajority" quorum is a requirement
that more than a majority of the votes of the voting group be present to
constitute a quorum; and a "supermajority" voting requirement is any requirement
that requires the vote of more than a majority of the affirmative votes of a
voting group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend or delete a bylaw which fixes a
"supermajority" quorum or "super majority" voting requirement.
The adoption or amendment of a bylaw that adds, changes, or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the same
quorum requirement and be adopted by the same vote and voting groups required to
take action under the quorum and voting requirement then in effect or proposed
to be adopted, whichever is greater.
A bylaw that fixes a "supermajority" quorum or voting requirement for
shareholders may not be adopted, amended, or repealed by the board of directors.
Section 2.9 Proxies.
At all meetings of shareholders, a shareholder may vote in person, or vote
by proxy which is executed in writing by the shareholder or which is executed by
his duly authorized attorney-in-fact. Such proxy shall be dated and filed with
the secretary of the corporation or other
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person authorized to tabulate votes before or at the time of the meeting. Unless
a time of expiration is otherwise specified, a proxy is valid for eleven months.
A proxy is revocable unless executed in compliance with Section 33-7-220(d) of
the Act, or any succeeding statute of like tenor and effect.
Section 2.10 Voting of Shares; Polls.
Unless otherwise provided in the articles of incorporation, each
outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Absent special circumstances, outstanding shares of the corporation are not
entitled to vote if they are owned directly or indirectly by another corporation
in which this corporation owns a majority of the shares entitled to vote for the
election of directors of the other corporation; provided, however, this
provision shall not limit the power of this corporation to vote its own shares
held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
At any meeting of shareholders, the Chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and closing of the
polls for each matter upon which the shareholders will vote at the meeting.
Section 2.11 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver, or proxy appointment
corresponds to the name of a shareholder, the corporation if acting in
good faith is entitled to accept the vote, consent, waiver, or proxy
appointment and give it effect as the act of the shareholders.
(b) If the name signed on a vote, consent, waiver, or proxy appointment
does not correspond to the name of its shareholder, the corporation if
acting in good faith is nevertheless entitled to accept the vote,
consent, waiver, or proxy appointment and give it effect as the act of
the shareholder if:
(1) the shareholder is an entity as defined in the Act and the name
signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the shareholder
and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation has been presented with respect to
the vote, consent, waiver, or proxy appointment;
(3) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
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(4) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of
the signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
(5) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at
least one of the co-owners and the person signing appears to be
acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
(d) The corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this section are not liable in
damages to the shareholder for the consequences of the acceptance or
rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this section is valid
unless a court of competent jurisdiction determines otherwise.
Section 2.12 Informal Action by Shareholders.
Any action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if one or more consents in writing,
setting forth the action so taken, shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof and are delivered to
the corporation for inclusion in the minute book. If the act to be taken
requires that notice be given to non-voting shareholders, the corporation shall
give the non-voting shareholders written notice of the proposed action at least
10 days before the action is taken, which notice shall contain or be accompanied
by the same material that would have been required if a formal meeting had been
called to consider the action. A consent signed under this section has the
effect of a meeting vote and may be described as such in any document. Every
written consent shall bear the date of signature of each shareholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest dated
written consent received by the cor poration, a written consent or consents
signed by all the shareholders entitled to vote on such corporate action are
delivered to the corporation.
Section 2.13 Notice of Shareholder Nominations.
(a) Only persons who are nominated in accordance with the procedures set
forth in this Section 2.13 shall be eligible for election as directors
of the corporation. Nomination of persons for election to the board of
directors of the corporation may be made at a meeting of shareholders
(i) by or at the direction of the board of directors or (ii) by any
shareholder of the corporation entitled to vote for the election of
directors at such meeting who complies with the procedures set forth
in this Section 2.13.
(b) All nominations by shareholders shall be made pursuant to timely
notice in proper written form to the Secretary of the corporation.
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(1) To be timely, a shareholder's notice shall be delivered to or
mailed and received at the principal executive offices of the
corporation not later than the close of business on the 30th day
nor earlier than the close of business on the 60th day prior to
the annual meeting of shareholders at which directors are to be
elected, unless such requirement is expressly waived in advance
of the meeting by formal action of the board of directors. In no
event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a
shareholder's notice as described above. For purposes of this
Section 2.13, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(2) To be in proper written form, such shareholder's notice shall set
forth in writing (a) as to each person whom the shareholder
proposes to nominate for election or re- election as a director,
all information relating to such Person that is required to be
disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act, including, without limitation, such
person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; and (b) as to
the shareholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination is made (i) the name and
address, as they appear on the corporation's books, of such
shareholder and such beneficial owner and (ii) the class and
number of shares of the corporation which are owned beneficially
and of record by such shareholder and such beneficial owner.
(c) At the request of the board of directors, any person nominated by the
board of directors for election as a director shall furnish to the
Secretary of the corporation that information required to be set forth
in a shareholder's notice of nomination which pertains to the nominee.
(d) In the event that a shareholder seeks to nominate one or more
directors, the Secretary shall appoint two inspectors, who shall not
be affiliated with the corporation, to determine whether a shareholder
has complied with this Section 2.13. If the inspectors shall determine
that a shareholder has not complied with this Section 2.13, the
inspectors shall direct the Chairman of the meeting to declare to the
meeting that the nomination was not made in accordance with the
procedures prescribed by the By-Laws of the corporation, and the
Chairman shall so declare to the meeting and the defective nomination
shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 2.13, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this 2.13.
(f) Nothing in this Section 2.13 shall be deemed to affect any rights of
holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 2.14 Procedures for Submission of Shareholder Proposals at Annual
Meeting.
(a) At any annual meeting of the shareholders of the corporation, only such
business shall be conducted as shall have been brought before the meeting
(i) by or at the direction of the board of directors or (ii) by any
shareholder of the corporation entitled to vote for the election
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of directors at such meeting who complies with the procedures set forth in
this Section 2.14.
(b) For business properly to be brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in
proper written form to the Sec retary of the corporation and such other
business must otherwise be a proper matter for shareholder action.
(1) To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the corporation not
later than the close of business on the 60th day nor earlier than the
close of business on the 90th day prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is more than 30 days before
or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to
such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the
giving of a shareholder's notice as described above. For purposes of
this Section 2.14, "Public announcement" shall have the same meaning
as set forth in Section 2.13.
(2) To be in proper written form, a shareholder's notice to the Secretary
shall set forth in writing as to each matter the shareholder proposes
to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and address, as they appear on the corporation's books, of the
shareholder proposing such business and the beneficial owner, if any,
on whose behalf the proposal is made, (iii) the class and number of
shares of the corporation which are owned beneficially and of record
by the shareholder and such beneficial owner and (iv) any material
interest of the shareholder and such beneficial owner in such
business.
(c) Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2.14. The Chairman of an annual
meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance
with the provisions of this Section 2.14, and, if he should so determine,
he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
(d) Notwithstanding the foregoing provisions of this Section 2.14, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.14. Nothing in this Section 2.14 shall
be deemed to affect any rights of shareholders to request inclusion of
proposals in the corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 2.15 Shareholders' Rights to Inspect Corporate Records.
(a) Minutes and Accounting Records.
The corporation shall keep as permanent records minutes of all
meetings of its shareholders and board of directors, a record of all
actions taken by the shareholders or board of
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directors without a meeting, and a record of all actions taken by a
committee of the board of directors in place of the board of directors on
behalf of the corporation. The corporation shall maintain appropriate
accounting records.
(b) Absolute Inspection Rights of Records Required at Principal Office.
If he gives the corporation written notice of his demand at least five
business days before the date on which he wishes to inspect and copy, a
shareholder (or his agent or attorney) has the right to inspect and copy,
during regular business hours, any of the following records, all of which
the corporation is required to keep at its principal office:
(1) its articles or restated articles of incorporation and all amendments
to them currently in effect;
(2) its bylaws or restated bylaws and all amendments to them currently in
effect;
(3) resolutions adopted by its board of directors creating one or more
classes or series of shares, and fixing their relative rights,
preferences, and limitations, if shares issued pursuant to those
resolutions are outstanding;
(4) the minutes of all shareholders' meetings, and records of all action
taken by shareholders without a meeting, for the past 10 years;
(5) all written communications to shareholders generally within the past
three years, including the financial statements furnished for the past
three years to the shareholders;
(6) a list of the names and business addresses of its current directors
and officers;
(7) its most recent annual report delivered to the South Carolina Tax
Commission; and
(8) if the shareholder owns at least one percent of any class of shares,
he may inspect and copy federal and state income tax returns for the
last 10 years.
(c) Conditional Inspection Right.
In addition, if he gives the corporation a written demand made in good
faith and for a proper purpose at least five business days before the date on
which he wishes to inspect and copy, he describes with reasonable particularity
his purpose and the records he desires to inspect, and the records are directly
connected with his purpose, a shareholder of a corporation (or his agent or
attorney) is entitled to inspect and copy, during regular business hours at a
reasonable location specified by the corporation, any of the following records
of the corporation:
(1) excerpts from minutes of any meeting of the board of directors,
records of any action of a committee of the board of directors on
behalf of the corporation, minutes of any meeting of the shareholders,
and records of action taken by the shareholders or board of directors
without a meeting, to
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the extent not subject to inspection under paragraph (a) of this
Section 2.14;
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than the date of the
shareholder's demand).
(d) Copy Costs.
The right to copy records includes, if reasonable, the right to receive
copies made by photographic, xerographic, or other means. The corporation may
impose a reasonable charge, covering the costs of labor and material, for copies
of any documents provided to the shareholder. The charge may not exceed the
estimated cost of production or reproduction of the records.
Section 2.16 Financial Statements Shall be Furnished to the
Shareholders.
(a) The corporation shall furnish its shareholders annual financial statements,
which may be consolidated or combined statements of the corporation and one
or more of its sub sidiaries, as appropriate, that include a balance sheet
as of the end of the fiscal year, an income statement for that year, and a
statement of changes in shareholders' equity for the year unless that
information appears elsewhere in the financial statements. If financial
statements are prepared for the corporation on the basis of generally
accepted accounting principles, the annual financial statements for the
shareholders also must be prepared on that basis.
(b) If the annual financial statements are reported upon by a public
accountant, his report must accompany them. If not, the statements must be
accompanied by a statement of the president or the person responsible for
the corporation's accounting records:
(1) stating his reasonable belief whether the statements were prepared on
the basis of generally accepted accounting principles and, if not,
describing the basis of preparation; and
(2) describing any respects in which the statements were not prepared on a
basis of accounting consistent with the statements prepared for the
preceding year.
(c) A corporation shall mail the annual financial statements to each
shareholder within 120 days after the close of each fiscal year.
Thereafter, on written request from a shareholder who was not mailed the
statements, the corporation shall mail him the latest financial statements.
Section 2.17 Dissenters' Rights.
Each shareholder shall have the right to dissent from, and obtain payment
for, his shares when so authorized by the Act, articles of incorporation, these
bylaws, or in a resolution of the board of directors.
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ARTICLE III.
BOARD OF DIRECTORS
Section 3.1 General Powers.
Unless the articles of incorporation have dispensed with or limited the
authority of the board of directors by describing who will perform some or all
of the duties of a board of directors, all corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be managed under the direction of, the board of directors.
Section 3.2 Number, Tenure and Qualifications of Directors.
The number of directors of the corporation shall be the number determined
by the directors at their initial or organizational meeting. Thereafter, the
number of directors may be increased or decreased by action of the board or
shareholders at any board meeting or annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders or
until removed. However, if his term expires, he shall continue to serve until
his successor shall have been elected and qualified or until there is a decrease
in the number of directors. Directors need not be residents of the State of
South Carolina or shareholders of the corporation unless so required by the
articles of incorporation or applicable law.
Section 3.3 Regular Meetings.
A regular meeting of the board of directors shall be held without other
notice than this bylaw immediately after, and at the same place as, the annual
meeting of shareholders. The board of directors may provide, by resolution, the
time and place for the holding of additional regular meetings without other
notice than such resolution.
Section 3.4 Special Meetings.
Unless otherwise provided in the articles, special meetings of the board of
directors may be called by or at the request of the chairman of the board, the
president or a majority of the board of directors. The person authorized to call
special meetings of the board of directors may fix any place as the place for
holding any special meeting of the board of directors.
Section 3.5 Notice of Special Meeting.
Notice of any special meeting of directors shall be given to each director
at his business or residence in writing by hand delivery, first-class or
overnight mail or courier service, telegram or facsimile or similar
transmission, or orally by telephone. If mailed by first-class mail, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least 72 hours before such
meeting. If by telegram, overnight mail or courier service, such notice shall be
deemed adequately delivered when the telegram is delivered to the telegraph
company or the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by facsimile or
similar transmission, such notice shall be deemed adequately delivered when the
notice is transmitted at least twenty-four (24) hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twenty-four
(24) hours prior to the time set for the meeting. Any
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director may waive notice of any meeting. Except as provided in the next
sentence, the waiver must be in writing, signed by the director entitled to the
notice, and filed with the minutes or corporate records. The attendance of a
director at a meeting shall constitute a waiver of notice of such meet ing,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business and at the beginning of the meeting (or
promptly upon his arrival) objects to holding the meeting or transacting
business at the meeting, and does not thereafter vote for or assent to action
taken at the meeting.
Section 3.6 Director Quorum.
A majority of the number of directors in office immediately before the
meeting begins shall constitute a quorum for the transaction of business at any
meeting of the board of directors. Any amendment to this quorum requirement is
subject to the provisions of Section 3.8 of this Article III.
Section 3.7 Manner of Acting.
(a) Required Vote.
The act of the majority of the directors present at a meeting at which a
quorum is present when the vote is taken shall be the act of the board of
directors unless the articles of incorporation require a greater percentage. Any
amendment which changes the number of directors needed to take action, is
subject to the provisions of Section 3.8 of this Article III.
(b) Telephone Meeting.
Any or all directors may participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of communication by which all
directors participating may simultaneously hear each other during the meeting. A
director participating in a meeting by this means is deemed to be present in
person at the meeting.
(c) Failure to Object to Action.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless: (1) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting business at
the meeting; or (2) his dissent or abstention from the action taken is entered
in the minutes of the meeting; or (3) he delivers written notice of his dissent
or abstention to the presiding officer of the meeting before its adjournment or
to the corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
Section 3.8 Establishing a "Supermajority" Quorum or Voting Requirement.
For purposes of this Section 3.8, a "supermajority" quorum is a requirement
that more than a majority of the directors in office constitute a quorum; and a
"supermajority" voting requirement is any requirement that requires the vote of
more than a majority of those directors present at a
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meeting at which a quorum is present to be the act of the directors.
A bylaw that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the shareholders);
(2) if originally adopted by the board of directors, either by the
shareholders or by the board of directors.
A bylaw adopted or amended by the shareholders that forms a supermajority
quorum or supermajority voting requirement for the board of directors may
provide that it may be amended or repealed only by a specified vote of either
the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the board
of directors to adopt, amend, or repeal a bylaw that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
Section 3.9 Action Without a Meeting.
Action required or permitted by the Act to be taken at a board of
directors' meeting may be taken without a meeting if the action is assented to
by all members of the board.
The action may be evidenced by one or more written consents describing the
action taken, signed by each director, and included in the minutes or filed with
the corporate records reflecting the action taken. Action evidenced by written
consents under this section is effective when the last director signs the
consent, unless the consent specifies a different effective date. A consent
signed under this section has the effect of a meeting vote and may be described
as such in any document.
Section 3.10 Removal of a Director.
The shareholders may remove one or more directors at a meeting called for
that purpose if notice has been given that a purpose of the meeting is such
removal. The removal may be with or without cause, unless provided otherwise by
the corporation's articles of incorporation. If a director is elected by a
voting group of shareholders, only the shareholders of that voting group may
participate in the vote to remove him. A director may be removed for cause only
if the number of votes cast to remove him exceeds the number of votes cast not
to remove him. If cumulative voting is in effect, a director may not be removed
if the number of votes sufficient to reelect the director under cumulative
voting is voted against such removal.
Section 3.11 Vacancies.
Unless the articles of incorporation provide otherwise, if a vacancy occurs
on a board of directors, including a vacancy resulting from an increase in the
number of directors, the
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shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies then and until the shareholders act:
(a) the board of directors may fill the vacancy; or
(b) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative
vote of a majority of all the directors remaining in office.
If the vacant office was held by a director elected by a voting group of
shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualifies
or until there is a decrease in the number of directors.
Section 3.12 Compensation.
Unless otherwise provided in the articles, by resolution of the board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the board of directors, and may be paid a stated salary as director
or a fixed sum for attendance at each meeting of the board of directors or both.
No such payment shall preclude any director from serving the corporation in any
capacity and receiving compensation therefor.
Section 3.13 Committees.
(a) Creation of Committees.
Unless the articles of incorporation provide otherwise, the board of
directors may create one or more committees and appoint members of the board of
directors to serve on them or the president, if so delegated by the board, may
appoint members to serve on committees created by the board. Each committee must
have two or more members, who serve at the pleasure of the board of directors.
(b) Selection of Members.
The creation of a committee and appointment of members to it must be
approved by the greater of (1) a majority of all the directors in office when
the action is taken or (2) the number of directors required by the articles of
incorporation to take such action (or, if not specified in the articles, the
numbers required by Section 3.7 of this Article III to take action).
(c) Required Procedures.
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Sections 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of this Article III, which govern
meetings, action without meetings, notice and waiver of notice, quorum and
voting requirements of the board of directors, apply to committees and their
members.
(d) Authority.
Unless limited by the articles of incorporation, each committee may
exercise those aspects of the authority of the board of directors which the
board of directors confers upon such committee in the resolution creating the
committee. Provided, however, a committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the Act requires be
approved by shareholders;
(3) fill vacancies on the board of directors or on any of its committees;
(4) amend the articles of incorporation pursuant to the authority of
directors;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except according to a
formula or method prescribed by the board of directors; or
(8) authorize or approve the issuance or sale or contract for sale of
shares or determine the designation and relative rights, preferences,
and limitations of a class or series of shares, except that the board
of directors may authorize a committee (or a senior executive officer
of the corporation) to do so within limits specifically prescribed by
the board of directors.
ARTICLE IV.
OFFICERS
Section 4.1 Number.
The officers of the corporation shall be a president, a secretary, and a
treasurer, each of whom shall be appointed by the board of directors. Such other
officers and assistant officers as may be deemed necessary, including any
vice-presidents, may be appointed by the board of directors. If specifically
authorized by the board of directors, an officer may appoint one or more
officers or assistant officers. The same individual may simultaneously hold more
than one office in the corporation.
Section 4.2 Appointment and Term of Office.
The officers of the corporation shall be appointed by the board of
directors for a term as determined by the board of directors. (The designation
of a specified term grants to the officer
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no contract rights, and the board can remove the officer at any time prior to
the termination of such term.) If no term is specified, they shall hold office
until they resign or die, or until they are removed in the manner provided in
Section 4.3 of this Article IV.
Section 4.3 Removal.
Unless appointed by the shareholders, any officer or agent may be removed
by the board of directors at any time, with or without cause. Any officer or
agent appointed by the shareholders may be removed by the shareholders with or
without cause. Such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Appointment of an officer or agent shall not
of itself create contract rights.
Section 4.4 The President.
The president shall be the principal executive officer of the corporation
and, subject to the control of the board of directors, shall in general
supervise and control all of the business and affairs of the corporation. He
shall, when present, preside at all meetings of the shareholders and of the
board of directors, unless a Chairman of the board of directors shall have been
designated by the board. He may sign, with the secretary or any other proper
officer of the corporation thereunto authorized by the board of directors,
certificates for shares of the corporation and deeds, mortgages, bonds,
contracts or other instruments which the board of directors has authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors or by these bylaws to some other
officer or agent of the corporation, or shall be required by law to be otherwise
signed or executed; and in general shall perform all duties incident to the
office of president and such other duties as may be prescribed by the board of
directors from time to time.
Section 4.5 The Vice-Presidents.
If appointed, in the absence of the president or in the event of his death,
inability or refusal to act, the vice president (or, in the event there be more
than one vice-president, the vice- presidents in the order designated at the
time of their election, or in the absence of any designation, then in the order
of their appointment) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. (If there is no vice-president, then the treasurer shall perform
such duties of the president.) Any vice-president may sign, with the secretary
or an assistant secretary, certificates for shares of the corporation the
issuance of which have been authorized by resolution of the board of directors;
and shall perform such other duties as from time to time may be assigned to him
by the president or by the board of directors.
Section 4.6 The Secretary.
The secretary shall: (a) keep the minutes of the proceedings of the
shareholders and of the board of directors in one or more books provided for
that purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law; (c) be custodian of the
corporate records and of any seal of the corporation and if there is a seal of
the corporation, see that it is affixed to all documents the execution of which
on behalf of the corporation under its seal is duly authorized; (d) when
requested or required, authenticate any records of the corporation;
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(e) keep a register of the post office address of each shareholder which shall
be furnished to the secretary by such shareholder; (f) sign with the president,
or a vice-president, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the board of directors; (g)
have general charge of the stock transfer books of the corporation; and (h) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the president or by the
board of directors.
Section 4.7 The Treasurer.
The treasurer shall: (a) have charge and custody of and be responsible for
all funds and securities of the corporation; (b) receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositories as shall be selected by the board of directors
and (c) in general perform all of the duties incident to the office of treasurer
and such duties as from time to time may be assigned to him by the president or
by the board of directors. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the board of directors shall determine.
Section 4.8 Assistant Secretaries and Assistant Treasurers.
The assistant secretaries, when authorized by the board of directors, may
sign with the president or a vice-president certificates for shares of the
corporation the issuance of which shall have been authorized by a resolution of
the board of directors. The assistant treasurers shall respec tively, if
required by the board of directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the board of directors shall
determine. The assistant secretaries and assistant treasurers, in general, shall
perform such duties as shall be assigned to them by the secretary or the
treasurer, respectively, or by the president or the board of directors.
Section 4.9 Salaries.
The salaries of the officers shall be fixed from time to time by the board
of directors.
ARTICLE V.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
Section 5.1 Indemnification of Directors and Officers.
The corporation shall indemnify any individual made a party to a proceeding
because he is or was a director of the corporation against liability incurred in
the proceeding to the fullest extent permitted by law.
Section 5.2 Advance Expenses for Directors and Officers.
The corporation shall pay for or reimburse the reasonable expenses incurred
by a director who is a party to a proceeding in advance of final disposition of
the proceeding to the fullest extent permitted by law.
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Section 5.3 Other Employees and Agents.
In addition to any indemnification required by law, the corporation may, to
the extent authorized from time to time by the board of directors, grant rights
to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
employee or agent of the corporation to the fullest extent of the provisions of
this By-Law with respect to the indemnification and advancement of expenses of
directors and officers of the corporation.
Section 5.4 Nature of Right to Indemnification.
The right to indemnification conferred in this By-Law shall be a contract
right and shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final disposition,
such advances to be paid by the corporation within 30 days after the receipt by
the corporation of a statement or statements from the claimant requesting such
advances from time to time; provided, however, that the payment of such
expenses, incurred by a person to whom indemnification is or may be available
under this By-Law, in advance of the final disposition of a proceeding shall be
made only pursuant to Section 33-8-530 of the Act, or such successor provision
as may be in effect from time to time.
Section 5.5 Request for Indemnification; Determination of Entitlement
Thereto; When Paid.
To obtain indemnification under this By-Law, a claimant shall submit to the
corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for indemnification pursuant
to the first sentence of this Section 5.5, a determination with respect to the
claimant's entitlement thereto shall be made in accordance with Section 33-8-550
of the Act, or such successor provision as may be in effect from time to time.
If it is so determined that the claimant is entitled to indemnification, payment
to the claimant shall be made within 10 days after such deter mination.
Section 5.6 Right of Action; No Presumption.
If a claim under Section 5.1, 5.2 or 5.3 of this By-Law is not paid in full
by the corporation within thirty days after a written claim pursuant to Section
5.5 of this By-Law has been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim to the extent
permitted by law. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the requirements of Section 33-8-530 of
the Act, or any successor provision thereto that may be in effect from time to
time, have been complied with) that the claimant has not met the standard of
conduct which makes it permissible under the Act for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its board of directors, special counsel or shareholders) to have made
a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Act, nor an actual determination
by the corporation (including its board of directors, special counsel or
shareholders) that the claimant has not met such applicable standard of conduct,
shall create a presumption that the claimant has not met the applicable standard
of conduct.
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Section 5.7 Binding Effect on the Corporation.
If a determination shall have been made pursuant to Section 5.5 of this
By-Law that the claimant is entitled to indemnification, the corporation shall
be bound by such determination in any judicial proceeding commenced pursuant to
Section 5.6 of this By-Law.
Section 5.8 No Challenge to Validity.
The corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to Section 5.6 of this By-Law that the procedures
and presumptions of this By-Law are not valid, binding and enforceable and shall
stipulate in such proceeding that the corporation is bound by all the provisions
of this By-Law.
Section 5.9 Nonexclusivity.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this By-
Law shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the articles of incorporation,
By-Laws, agreement, vote of shareholders or directors or otherwise. No repeal or
modification of this By-Law shall in any way diminish or adversely affect the
rights of any director, officer, employee or agent of the corporation hereunder
in respect of any occurrence or matter arising prior to any such repeal or
modification.
Section 5.10 Severability.
If any provision or provisions of this By-Law shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (1) the validity, legality
and enforceability of the remaining provisions of this By-Law (including,
without limitation, each portion of any Section of this By-Law containing any
such provision held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (2) to the fullest extent possible, the provisions of
this By-Law (including, without limitation, each such portion of any Section of
this By-Law containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 5.11 Notices.
Any notice, request or other communication required or permitted to be
given to the corporation under this By-Law shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 Certificates for Shares.
(a) Content.
Certificates representing shares of the corporation shall at minimum, state
on their face the name of the issuing corporation and that it is formed under
the laws of South Carolina; the name of the person to whom issued; and the
number and class of shares and the designation of the series, if any, the
certificate represents; and be in such form as determined by the board of
directors. Such certificates shall be signed (either manually or by facsimile)
by the president or a vice- president and by the secretary or an assistant
secretary and may be sealed with a corporate seal or a facsimile thereof. Each
certificate for shares shall be consecutively numbered or otherwise
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identified.
(b) Legend as to Class or Series.
If the corporation is authorized to issue different classes of shares or
different series within a class, the designations, relative rights, preferences,
and limitations applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and the authority of
the board of directors to determine variations for future series) must be
summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder this information on request in writing and without
charge.
(c) Shareholder List.
The name and address of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the corporation.
(d) Transferring Shares.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former certificate for
a like number of shares shall have been surrendered and canceled, except that in
case of a lost, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and indemnity to the corporation as the board of
directors may prescribe.
Section 6.2 Registration of the Transfer of Shares.
Registration of the transfer of shares of the corporation shall be made
only on the stock transfer books of the corporation. In order to register a
transfer, the record owner shall surrender the shares to the corporation for
cancellation, properly endorsed by the appropriate person or persons with
reasonable assurances that the endorsements are genuine and effective. Subject
to the provisions of Section 33-7-300(d) of the Act (relating to shares held in
a voting trust), and unless the corporation has established a procedure by which
a beneficial owner of shares held by a nominee is to be recognized by the
corporation as the owner, the person in whose name shares stand on the books of
the corporation shall be deemed by the corporation to be the owner thereof for
all purposes.
Section 6.3 Restrictions on Transfer of Shares Permitted.
The board of directors (or shareholders) may impose restrictions on the
transfer or registration of transfer of shares (including any security
convertible into, or carrying a right to subscribe for or acquire shares). A
restriction does not affect shares issued before the restriction was adopted
unless the holders of the shares are parties to the restriction agreement or
voted in favor of the restriction.
A restriction on the transfer or registration of transfer of shares may be
authorized:
(a) to maintain the corporation's status when it is dependent on the
number or
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identity of its shareholders;
(b) to preserve exemptions under federal or state securities law;
(c) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares
may:
(a) obligate the shareholder first to offer the corporation or other
persons (separately, consecutively, or simultaneously) an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons (separately,
consecutively, or simultaneously) to acquire the restricted
shares;
(c) require the corporation, the holders or any class of its shares,
or another person to approve the transfer of the restricted
shares, if the requirement is not manifestly unreasonable;
(d) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of
shares is valid and enforceable against the holder or a transferee of
the holder if the restriction is authorized by this section and its
existence is noted conspicuously on the front or back of the
certificate. Unless so noted, a restriction is not enforceable against
a person without knowledge of the restriction.
Section 6.4 Acquisition of Shares.
The corporation may acquire its own shares and unless otherwise provided in
the articles of incorporation, the shares so acquired constitute authorized but
unissued shares.
If the articles of incorporation prohibit the reissue of acquired shares,
the number of authorized shares is reduced by the number of shares acquired,
effective upon amendment of the articles of incorporation, which amendment shall
be adopted by the shareholders or the board of directors without shareholder
action. The article of amendment must be delivered to the Secretary of State and
must set forth:
(a) the name of the corporation;
(b) the reduction in the number of authorized shares, itemized by
class and series; and
(c) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares.
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ARTICLE VII.
DISTRIBUTIONS
Section 7.1 Distributions.
The board of directors may authorize, and the corporation may make,
distributions (including dividends on its outstanding shares) in the manner and
upon the terms and conditions provided by applicable law and in the
corporation's articles of incorporation.
ARTICLE VIII.
CORPORATE SEAL
Section 8.1 Corporate Seal.
The board of directors may provide a corporate seal which may be circular
in form and have inscribed thereon any designation including the name of the
corporation, South Carolina as the state of incorporation, and the words
"Corporate Seal."
ARTICLE IX.
EMERGENCY BYLAWS
Section 9.1 Emergency Bylaws.
Unless the articles of incorporation provide otherwise, the following
provisions of this Article IX, Section 9.1 "Emergency Bylaws" shall be effective
during an emergency which is defined as when a quorum of the corporation's
directors cannot be readily assembled because of some catastrophic event.
During such emergency:
(a) Notice of Board Meetings.
Any one member of the board of directors or any one of the
following officers: president, any vice-president, secretary, or
treasurer, may call a meeting of the board of directors. Notice of
such meeting need be given only to those directors whom it is
practicable to reach, and may be given in any practical manner,
including by publication and radio. Such notice shall be given at
least six hours prior to commencement of the meeting.
(b) Temporary Directors and Quorum.
One or more officers of the corporation present at the emergency
board meeting, as is necessary to achieve a quorum, shall be
considered to be directors for the meeting, and shall so serve in
order of rank, and within the same rank, in order of seniority. In the
event that less than a quorum (as determined by Article III Section
3.6) of the directors are present (including any officers who are to
serve as directors for the meeting), those directors present
(including the officers serving as directors) shall constitute a
quorum.
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(c) Actions Permitted to Be Taken.
The board may as constituted in paragraph (b), and after notice
as set forth in paragraph (a):
(1) Officer's Powers.
Prescribe emergency powers to any officer of the corporation;
(2) Delegation of any Power.
Delegate to any officer or director, any of the powers of the
board of directors;
(3) Lines of Succession.
Designate lines of succession of officers and agents, in the
event that any of them are unable to discharge their duties;
(4) Relocate Principal Place of Business.
Relocate the principal place of business, or designate successive
or simultaneous principal places of business;
(5) All Other Action.
Take any other action, convenient, helpful, or necessary to carry
on the business of the corporation.
ARTICLE X.
AMENDMENTS
Section 10.1 Amendments.
The corporation's board of directors may amend or repeal any of the
corporation's bylaws unless:
(a) the articles of incorporation or the Act reserve this power
exclusively to the shareholders in whole or in part; or
(b) the shareholders in adopting, amending, or repealing a particular
bylaw provide expressly that the board of directors may not amend or
repeal that bylaw; or
(c) the bylaw either establishes, amends, or deletes, a supermajority
shareholder quorum or voting requirement (as defined in Section 2.8).
Notwithstanding the foregoing, no amendments may be made to the
corporation's bylaws by the board of directors unless such amendments are
proposed at a meeting of the board of
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directors prior to the meeting at which such amendments are adopted.
Any amendment which changes the voting or quorum requirement for the board
must comply with Article III Section 3.8, and for the shareholders, must comply
with Article II Section 2.8.
The corporation's shareholders may amend or repeal the corporation's bylaws
even though the bylaws may also be amended or repealed by its board of
directors. Any notice of a meeting of shareholders at which bylaws are to be
adopted, amended, or repealed shall state that the purpose, or one of the
purposes, of the meeting is to consider the adoption, amendment or repeal of
bylaws and contain or be accompanied by a copy or summary of the proposal.
March, 1999
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