BYLAWS OF
UPSTATE BANCSHARES, INC.
January 20 , 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 8
Section 2.6.....Shareholder List 8
Section 2.7.....Quorum and Voting Requirements 9
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 15
ARTICLE III. BOARD OF DIRECTORS 16
Section 2.18....General Powers 16
Section 2.19....Number, Tenure and Qualifications of
Directors 16
Section 2.20....Regular Meetings 16
Section 2.21....Special Meetings 16
Section 2.22....Notice of Special Meeting 16
Section 2.23....Director Quorum 17
Section 2.24....Manner of Acting 17
Section 2.25....Establishing a "Supermajority" Quorum or
Voting Requirement 18
Section 2.26....Action Without a Meeting 18
Section 2.27....Removal of a Director 18
Section 2.28....Vacancies 19
Section 2.29....Compensation 19
Section 2.30....Committees 19
ARTICLE III. OFFICERS 21
Section 3.1....Number 21
Section 3.2....Appointment and Term of Office 22
Section 3.3....Removal 22
Section 3.4....The President 22
Section 3.5....The Vice-Presidents 22
Section 3.6....The Secretary 22
Section 3.7....The Treasurer 22
Section 3.8....Assistant Secretaries and Assistant
Treasurers 22
Section 3.9....Salaries 22
ARTICLE IV. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS, AND
EMPLOYEES 22
Section 4.1....Indemnification of Directors and Officers 22
Section 4.2....Advance Expenses for Directors and Officers 22
Section 4.3....Other Employees and Agents 23
Section 4.4....Nature of Right to Indemnification 23
Section 4.5....Request for Indemnification; Determination of
Entitlement Thereto; When Paid 23
Section 4.6....Right of Action; No Presumption 23
Section 5.7....Binding Effect on the Corporation 24
Section 4.7....No Challenge to Validity 24
Section 4.8....Nonexclusivity 24
Section 4.9....Severability 24
Section 4.10...Notices 24
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER 24
Section 5.1....Certificates for Shares 24
Section 5.2....Registration of the Transfer of Shares 24
Section 5.3....Restrictions on Transfer of Shares Permitted 25
Section 5.4....Acquisition of Shares 25
ARTICLE VII. DISTRIBUTIONS 25
Section 5.5....Distributions 25
ARTICLE VI. CORPORATE SEAL 26
Section 6.1....Corporate Seal 26
ARTICLE VII. EMERGENCY BYLAWS 26
Section 7.1....Emergency Bylaws 27
ARTICLE VIII. AMENDMENTS 28
Section 8.1....Amendments 28
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ARTICLE I.
OFFICES
Section 1.1 Business Office.
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The original principal office of the corporation shall be within the State
of South Carolina and shall be located in Spartanburg 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 Sec.
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.
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The registered office of the corporation, required by Sec. 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.
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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 Sec. 2.13 or Sec.
2.14.
Section 2.2 Special Meetings.
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(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 Sec. 2.4.
(b) In order that any demand or request of a shareholder or shareholders
for a special meeting of shareholders contemplated by Sec. 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 Sec. 2.5 hereof, for the purpose of determining the
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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 meeting (i) unless (A) within 60 days of the record date
established in accordance with Sec. 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 Sec.
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 Sec.
2.14(b)(2) as if such request or demand were a proposal 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 Sec.
2.2(b)(2) certify to the corporation that the requests or demands delivered to
the corporation in accordance with clause (i) of this Sec. 2.2(b)(2) represent
at least the minimum number of shares that would be necessary to request such a
meeting pursuant to Sec. 2.2(a).
(c) If the corporation determines that a shareholder or shareholders have
satisfied the notice, information and other requirements specified in Sec.
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 Sec. 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 Sec. 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 Sec. 2.4(a)
hereof.
(e) Nothing contained in this Sec. 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.
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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.
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(a) Required Notice.
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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.
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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 Sec. 2.5 of this
Article II) then notice must be given pursuant to the requirements of paragraph
(a) of this Sec. 2.4, to those persons who are shareholders as of the new record
date.
(c) Waiver of Notice.
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The shareholders may waive notice of the meeting (or any notice required by
the Act, articles of incorporation, or bylaws), by a writing signed by the
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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.
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The notice of each special shareholder meeting shall include a description
of the purpose or purposes for which the meeting is called. Except as provided
in this Sec. 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 Sec. 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.
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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 bylaws 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.
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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 Sec. 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.
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(a) General. Unless the articles of incorporation, a bylaw adopted pursuant
to Sec. 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
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bylaw adopted pursuant to Sec. 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 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 incorporation, a bylaw adopted pursuant to Sec. 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.
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For purposes of this Sec. 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 "supermajority" 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.
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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 person authorized to tabulate votes
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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 Sec. 33-7-220(d) of the Act, or any succeeding
statute of like tenor and effect.
Section 2.10 Voting of Shares; Polls.
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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.
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(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
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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 corporation, 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
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nominated in accordance with the procedures set forth in this Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 2.13. If the inspectors shall determine that a shareholder has
not complied with this Sec. 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 Sec. 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 Sec. 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
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Meeting.
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(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
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corporation entitled to vote for the election of directors at such meeting who
complies with the procedures set forth in this Sec. 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 Secretary 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
Sec. 2.14, "Public announcement" shall have the same meaning as set forth
in Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 2.14. Nothing in this Sec. 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
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shareholders or board of 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,
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and records of action taken by the shareholders or board of directors
without a meeting, to the extent not subject to inspection under
paragraph (a) of this Sec. 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 subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of 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 2.18 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 2.19 Number, Tenure and Qualifications of Directors.
-----------------------------------------------
The number of directors of the corporation shall be the number designated
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 2.20 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 2.21 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 2.22 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 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
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minutes or corporate records. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
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 2.23 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 Sec. 3.8 of this Article III.
Section 2.24 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 Sec. 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 2.25 Establishing a "Supermajority" Quorum or Voting Requirement.
------------------------------------------------------------
For purposes of this Sec. 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 meeting at which a quorum
is present to be the act of the directors.
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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 2.26 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 2.27 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 2.28 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 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:
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(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 2.29 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 2.30 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 Sec. 3.7 of this Article III to take action).
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(c) Required Procedures.
--------------------
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 III.
OFFICERS
Section 3.1 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 3.2 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 no contract rights, and the board can
20
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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 Sec. 4.3 of this Article IV.
Section 3.3 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 3.4 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 3.5 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 3.6 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; (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
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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 3.7 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 3.8 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 respectively, 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 3.9 Salaries.
---------
The salaries of the officers shall be fixed from time to time by the board
of directors.
ARTICLE IV.
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AGENTS, AND EMPLOYEES
Section 4.1 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 4.2 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 4.3 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 4.4 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 4.5 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 Sec. 5.5, a determination
with respect to the claimant's entitlement thereto shall be made in accordance
with Sec. 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
determination.
Section 4.6 Right of Action; No Presumption. If a claim under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 5.6 of this By-Law.
Section 4.7 No Challenge to Validity. The corporation shall be precluded
-------------------------
from asserting in any judicial proceeding commenced pursuant to Sec. 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 4.8 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 4.9 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 4.10 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 V.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 5.1 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 identified.
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(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 5.2 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 Sec. 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 5.3 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 identity of its shareholders;
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(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 5.4 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 5.5 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 VI.
CORPORATE SEAL
Section 6.1 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 VII.
EMERGENCY BYLAWS
Section 7.1 Emergency Bylaws.
-----------------
Unless the articles of incorporation provide otherwise, the following
provisions of this Article IX, Sec. 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 Sec. 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 VIII.
AMENDMENTS
Section 8.1 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 Sec. 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 directors prior to the meeting at which
such amendments are adopted.
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Any amendment which changes the voting or quorum requirement for the board
must comply with Article III Sec. 3.8, and for the shareholders, must comply
with Article II Sec. 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.
January, 1999
