As filed with the Securities and Exchange Commission on November 6, 1995.
Registration No. 33-62399
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO.1
ON FORM S-8
TO REGISTRATION STATEMENT
ON FORM S-4
UNDER THE SECURITIES ACT OF 1933
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FIRST UNION CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 56-0898180
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One First Union Center
Charlotte, North Carolina 28288-0013
(Address of principal executive offices) (Zip Code)
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Columbia First Bank, a Federal Savings Bank, 1986 Incentive Stock Option Plan
Columbia First Bank, a Federal Savings Bank, 1993 Premium Price Stock
Option Plan
(Full title of the plans)
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Marion A. Cowell, Jr., Esq.
Executive Vice President, Secretary and General Counsel
First Union Corporation
One First Union Center
Charlotte, North Carolina 28288-0013
(Name and address of agent for service)
(704) 374-6828
(Telephone number, including area code, of agent for service)
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This Post-Effective Amendment covers shares of the Registrant's $3.33 1/3 par
value common stock which were included in the shares of such common stock
originally registered on the Form S-4 to which this is an amendment. The
registration fee in respect to such common stock was paid at the time of the
original filing of the Registration Statement relating to such common stock.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(1) the Annual Report of First Union Corporation (the
"Corporation") on Form 10-K for the year ended December
31, 1994;
(2) the Corporation's Quarterly Reports on Form 10-Q for the
periods ended March 31, 1995 (as amended by Form 10-Q/A No.1
dated May 16, 1995) and June 30, 1995;
(3) the Corporation's Current Reports on Form 8-K filed June 19,
1995, June 20, 1995, June 21, 1995, June 30, 1995 and August
30, 1995; and
(4) the information set forth under "Description of the
Corporation's Capital Stock" in the Prospectus/Proxy Statement
dated October 5, 1995, filed with the Securities and Exchange
Commission relating to the Corporation's Registration
Statement No. 33-62399.
In addition, all documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of the Corporation's common stock
$3.33 1/3 par value per share (the "Common Stock"), issuable
under the Columbia First Bank, a Federal Savings Bank, 1986
Incentive Stock Option Plan and 1993 Premium Price Stock Option
Plan (together, the "Plans") has been passed upon for the
Corporation by Marion A. Cowell, Jr., Esq., Executive Vice
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President, Secretary and General Counsel of the Corporation. Mr.
Cowell owns shares of Common Stock and holds options to purchase
additional shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the North Carolina Business
Corporation Act contain specific provisions relating to indemnification of
directors and officers of North Carolina corporations. In general, the statute
provides that (i) a corporation must indemnify a director or officer who is
wholly successful in his defense of a proceeding to which he is a party because
of his status as such, unless limited by the articles of incorporation, and (ii)
a corporation may indemnify a director or officer if he is not wholly successful
in such defense, if it is determined as provided in the statute that the
director or officer meets a certain standard of conduct, provided when a
director or officer is liable, the corporation may not indemnify him. The
statute also permits a director or officer of a corporation who is a party to a
proceeding to apply to the courts for indemnification, unless the articles of
incorporation provide otherwise, and the court may order indemnification under
certain circumstances set forth in the statute. The statute further provides
that a corporation may in its articles of incorporation or bylaws or by contract
or resolution provide indemnification in addition to that provided by the
statute, subject to certain conditions set forth in the statute.
The Corporation's Bylaws provide for the indemnification of the
Corporation's directors and executive officers by the Corporation against
liability arising out of his status as such, excluding any liability relating to
activities which were at the time taken known or believed by such person to be
clearly in conflict with the best interests of the Corporation.
The Corporation's Articles of Incorporation provide for the elimination
of the personal liability of each director of the Corporation to the fullest
extent permitted by the provisions of the North Carolina Business Corporation
Act, as the same may from time to time be in effect.
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The Corporation maintains directors and officers liability insurance,
which provides coverage of up to $80,000,000, subject to certain deductible
amounts. In general, the policy insures (i) the Corporation's directors and
officers against loss by reason of any of their wrongful acts, and/or (ii) the
Corporation against loss arising from claims against the directors and officers
by reason of their wrongful acts, all subject to the terms and conditions
contained in the policy.
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Item 8. Exhibits.
Exhibit No. Description
(2)(a) -Agreement and Plan of Acquisition, dated as of
April 5, 1995, by and among the Corporation, First
Union Corporation of Virginia and Columbia First
Bank, a Federal Savings Bank (the "Columbia Merger
Agreement"), excluding the exhibits thereto.
(Incorporated by reference to Exhibit (2)(a) to
the Corporation's Registration Statement No. 33-
62399.)*
(2)(b) -Agreement and Plan of Merger, dated as of June 18,
1995, by and among the Corporation, First Union
Corporation of New Jersey and First Fidelity
Bancorporation (the "FFB Merger Agreement"),
excluding the exhibits thereto.*
(3)(a) -Articles of Incorporation of the Corporation, as
amended.*
(3)(b) -Bylaws of the Corporation.
(4)(a) -Shareholder Protection Rights Agreement, as
amended.*
(4)(b) -All instruments defining the rights of holders of
long-term debt of the Corporation and its
subsidiaries. (Not filed pursuant to (4)(iii) of Item
601(b) of Regulation S-K; to be furnished upon
request of the Commission.)
(5) -Opinion of Marion A. Cowell, Jr., Esq.*
(10) -Employment Agreement between the Corporation and
John R. Georgius.*
(23)(a) -Consent of KPMG Peat Marwick LLP.
(23)(b) -Consent of KPMG Peat Marwick LLP.
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(23)(c) -Consent of Marion A. Cowell, Jr., Esq. (Included
in Exhibit (5).)
(24) -Power of Attorney.*
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*Previously filed.
Item 9. Undertakings.
(A) RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933 (as amended, the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in the
volume of securities offered (if the
total dollar value of securities
offered would not exceed that which
was registered) and any deviation
from the low or high and of the
estimated maximum offering range may
be reflected in the form of
prospectus filed with the Commission
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and
price represent no more than 20
percent change in the maximum
aggregate offering price set forth
in the
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"Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (as amended, the "Exchange
Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be
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deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(H) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OF FILING OF REGISTRATION
STATEMENT ON FORM S-8.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Experts
The consolidated balance sheets of the Corporation as of December 31,
1994 and 1993, and the related consolidated statements of income, changes in
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1994, included in the Corporation's 1994 Annual Report
to Stockholders which is incorporated by reference in the Corporation's 1994
Annual Report on Form 10-K and incorporated by reference herein, have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing. The aforementioned report of KPMG Peat Marwick LLP covering the
Corporation's consolidated financial statements
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refers to a change in the method of accounting for investments in
1994.
The consolidated statements of condition of First Fidelity
Bancorporation ("FFB") as of December 31, 1994 and 1993, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1994,
included in FFB's 1994 Annual Report on Form 10-K and incorporated by reference
herein, have been incorporated by reference herein in reliance upon the report
of KPMG Peat Marwick LLP, independent certified public accountants, incorporated
by reference herein, and upon the authority of said firm as experts in
accounting and auditing. The aforementioned report of KPMG Peat Marwick LLP
covering FFB's consolidated financial statements refers to changes in the
methods of accounting for income taxes, postretirement benefits other than
pensions, postemployment benefits, and investments in 1993.
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<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 on Form S-8 to Registration Statement No.
33-62399 on Form S-4 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina, on November
6, 1995.
FIRST UNION CORPORATION
By:/s/ Kent S. Hathaway
Kent S. Hathaway
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-8 to Registration
Statement No. 33-62399 on Form S-4 has been signed by the
following persons in the capacities indicated and on the date
indicated.
Edward E. Crutchfield* Chairman and Chief
Edward E. Crutchfield Executive Officer and
Director
Robert T. Atwood * Executive Vice President
Robert T. Atwood and Chief Financial
Officer
James H. Hatch* Senior Vice President and
James H. Hatch Corporate Controller
(Principal Accounting
Officer)
G. Alex Bernhardt* Director
G. Alex Bernhardt
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W. Waldo Bradley* Director
W. Waldo Bradley
Robert J. Brown* Director
Robert J. Brown
Robert D. Davis* Director
Robert D. Davis
R. Stuart Dickson* Director
R. Stuart Dickson
B.F. Dolan* Director
B.F. Dolan
Roddey Dowd, Sr.* Director
Roddey Dowd, Sr.
John R. Georgius* Director
John R. Georgius
William N. Goodwin, Jr.* Director
William N. Goodwin, Jr.
Brenton S. Halsey* Director
Brenton S. Halsey
Howard H. Haworth* Director
Howard H. Haworth
Torrence E. Hemby, Jr.* Director
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Torrence E. Hemby, Jr.
Leonard G. Herring* Director
Leonard G. Herring
Jack A. Laughery* Director
Jack A. Laughery
Max Lennon* Director
Max Lennon
Radford D. Lovett* Director
Radford D. Lovett
Henry D. Perry, Jr.* Director
Henry D. Perry, Jr.
Randolph N. Reynolds* Director
Randolph N. Reynolds
Ruth G. Shaw* Director
Ruth G. Shaw
Lanty L. Smith* Director
Lanty L. Smith
Dewey L. Trogdon* Director
Dewey L. Trogdon
John D. Uible* Director
John D. Uible
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B.J. Walker* Director
B.J. Walker
Kenneth G. Younger* Director
Kenneth G. Younger
*By Kent S. Hathaway, Attorney-in-Fact
/s/ Kent S. Hathaway
Kent S. Hathaway
Date: November 6, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Location
<S> <C> <C>
(2)(a) -The Columbia Merger Agreement. Incorporated by
reference to
Exhibit (2)(a)
to the
Corporation's
Registration
Statement No.
33-62399
(2)(b) -The FFB Merger Agreement. *
(3)(a) -Articles of Incorporation of the *
Corporation, as amended.
(3)(b) -Bylaws of the Corporation, Filed herewith.
as amended.
(4)(a) -Shareholder Protection Rights *
Agreement, as amended.
(4)(b) -All instruments defining the Not filed
rights of holders of long- pursuant to (4)
term debt of the Corporation (iii) of Item
and its subsidiaries. 601(b) of
Regulation
S-K;
to be
furnished
upon
request
of the
Commission.
(5) -Opinion of Marion A. Cowell, *
Jr., Esq.
(10) -Employment Agreement between the *
Corporation and John R. Georgius.
<PAGE>
(23)(a) -Consent of KPMG Peat Marwick LLP. Filed herewith.
(23)(b) -Consent of KPMG Peat Marwick LLP. Filed herewith.
(23)(c) -Consent of Marion A. Cowell, Jr., Included in
Esq. Exhibit (5).
(24) -Power of Attorney. *
</TABLE>
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*Previously filed.
<PAGE>
RESTATED BY-LAWS OF
FIRST UNION CORPORATION
ADOPTED: 8/20/91
AMENDED: 10/17/95
<PAGE>
BYLAWS
OF
FIRST UNION CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. THE PRINCIPAL OFFICE OF THE CORPORATION
SHALL BE LOCATED AT SUCH PLACE AS THE BOARD OF DIRECTORS MAY FIX FROM TIME TO
TIME.
SECTION 2. REGISTERED OFFICE. THE REGISTERED OFFICE OF THE
CORPORATION REQUIRED BY LAW TO BE MAINTAINED IN THE STATE OF NORTH
CAROLINA MAY BE, BUT NEED NOT BE, IDENTICAL WITH THE PRINCIPAL OFFICE.
SECTION 3. OTHER OFFICES. THE CORPORATION MAY HAVE OFFICES AT SUCH
OTHER PLACES, EITHER WITHIN OR WITHOUT THE STATE OF NORTH CAROLINA, AS THE BOARD
OF DIRECTORS MAY DESIGNATE OR AS THE AFFAIRS OF THE CORPORATION MAY REQUIRE FROM
TIME TO TIME.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. ALL MEETINGS OF SHAREHOLDERS SHALL BE
HELD AT THE PRINCIPAL OFFICE OF THE CORPORATION, OR AT SUCH OTHER PLACE, EITHER
WITHIN OR WITHOUT THE STATE OF NORTH CAROLINA, AS SHALL IN EACH CASE BE FIXED BY
THE CHAIRMAN OF THE BOARD, THE PRESIDENT, THE SECRETARY OR THE BOARD OF
DIRECTORS AND DESIGNATED IN THE NOTICE OF THE MEETING.
SECTION 2. ANNUAL MEETINGS. THE ANNUAL MEETING OF SHAREHOLDERS SHALL
BE HELD AT 9:30 A.M. ON THE THIRD TUESDAY IN APRIL OF EACH YEAR, OR AT SUCH
OTHER TIME AND ON SUCH OTHER DATE AS THE BOARD OF DIRECTORS MAY DETERMINE. THE
BOARD OF DIRECTORS SHALL APPOINT PERSONS TO ACT AS CHAIRMAN AND AS SECRETARY OF
THE MEETING.
SECTION 3. SUBSTITUTE ANNUAL MEETING. IF THE ANNUAL MEETING SHALL NOT
BE HELD ON THE DAY DESIGNATED BY THESE BYLAWS, A SUBSTITUTE ANNUAL MEETING MAY
BE CALLED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 OF THIS ARTICLE II. A
MEETING SO CALLED SHALL BE DESIGNATED AND TREATED FOR ALL PURPOSES AS THE ANNUAL
MEETING.
SECTION 4. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE SHAREHOLDERS
MAY BE CALLED AT ANY TIME BY THE BOARD OF DIRECTORS, THE CHAIRMAN OF THE BOARD
OR THE PRESIDENT. THE BOARD OF DIRECTORS SHALL APPOINT PERSONS TO ACT AS
CHAIRMAN AND AS SECRETARY OF THE MEETING.
<PAGE>
SECTION 5. NOTICE OF MEETINGS. WRITTEN NOTICE STATING THE DATE,
TIME, AND PLACE OF EACH SHAREHOLDER MEETING SHALL BE GIVEN NOT LESS THAN
10 NOR MORE THAN 60 DAYS BEFORE THE DATE OF THE MEETING, BY PERSONAL
DELIVERY, TELEGRAPH, TELETYPE, OR OTHER FORM OF WIRE OR WIRELESS
COMMUNICATION, FACSIMILE TRANSMISSION, MAIL OR PRIVATE CARRIER, BY OR AT
THE DIRECTION OF THE BOARD OF DIRECTORS, THE CHAIRMAN OF THE BOARD OR
THE PRESIDENT, TO EACH SHAREHOLDER ENTITLED TO VOTE AT SUCH MEETING;
PROVIDED THAT SUCH NOTICE MUST BE GIVEN TO ALL SHAREHOLDERS WITH RESPECT
TO ANY MEETING AT WHICH A MERGER OR SHARE EXCHANGE IS TO BE CONSIDERED
AND IN SUCH OTHER INSTANCES AS REQUIRED BY LAW. IF MAILED, SUCH NOTICE
SHALL BE DEEMED TO BE EFFECTIVE WHEN DEPOSITED IN THE UNITED STATES
MAIL, CORRECTLY ADDRESSED TO THE SHAREHOLDER AT THE SHAREHOLDER'S
ADDRESS AS IT APPEARS ON THE CURRENT RECORD OF SHAREHOLDERS OF THE
CORPORATION, WITH POSTAGE THEREON PREPAID.
IN THE CASE OF A SPECIAL MEETING, THE NOTICE OF MEETING SHALL
INCLUDE A DESCRIPTION OF THE PURPOSE OR PURPOSES FOR WHICH THE MEETING
IS CALLED. IN THE CASE OF AN ANNUAL OR SUBSTITUTE ANNUAL MEETING, THE
NOTICE OF MEETING NEED NOT INCLUDE A DESCRIPTION OF THE PURPOSE OR
PURPOSES FOR WHICH THE MEETING IS CALLED, UNLESS SUCH A DESCRIPTION IS
REQUIRED BY THE PROVISIONS OF THE NORTH CAROLINA BUSINESS CORPORATION
ACT.
WHEN A MEETING IS ADJOURNED TO A DIFFERENT DATE, TIME OR PLACE,
NOTICE NEED NOT BE GIVEN OF THE NEW DATE, TIME OR PLACE IF (I) THE NEW
DATE, TIME OR PLACE IS ANNOUNCED AT THE MEETING BEFORE ADJOURNMENT, AND
(II) A NEW RECORD DATE IS NOT FIXED FOR THE ADJOURNED MEETING. IF A NEW
RECORD DATE IS FIXED FOR THE ADJOURNED MEETING (WHICH MUST BE DONE IF
THE NEW DATE IS MORE THAN 120 DAYS AFTER THE DATE OF THE ORIGINAL
MEETING), NOTICE OF THE ADJOURNED MEETING MUST BE GIVEN AS PROVIDED IN
THIS SECTION TO PERSONS WHO ARE SHAREHOLDERS AS OF THE NEW RECORD DATE.
SECTION 6. WAIVER OF NOTICE. ANY SHAREHOLDER MAY WAIVE NOTICE
OF ANY MEETING BEFORE OR AFTER THE MEETING. THE WAIVER MUST BE IN
WRITING, SIGNED BY THE SHAREHOLDER AND DELIVERED TO THE CORPORATION FOR
INCLUSION IN THE MINUTES OR FILING WITH THE CORPORATE RECORDS. A
SHAREHOLDER'S ATTENDANCE, IN PERSON OR BY PROXY, AT A MEETING (I) WAIVES
OBJECTION TO LACK OF NOTICE OR DEFECTIVE NOTICE OF THE MEETING, UNLESS
THE SHAREHOLDER OR HIS PROXY AT THE BEGINNING OF THE MEETING OBJECTS TO
HOLDING THE MEETING OR TRANSACTING BUSINESS AT THE MEETING, AND (II)
WAIVES OBJECTION TO CONSIDERATION OF A PARTICULAR MATTER AT THE MEETING
THAT IS NOT WITHIN THE PURPOSE OR PURPOSES DESCRIBED IN THE MEETING
NOTICE, UNLESS THE SHAREHOLDER OR HIS PROXY OBJECTS TO CONSIDERING THE
MATTER BEFORE IT IS VOTED UPON.
SECTION 7. SHAREHOLDERS' LIST. BEFORE EACH MEETING OF
SHAREHOLDERS, THE SECRETARY SHALL PREPARE AN ALPHABETICAL LIST OF THE
SHAREHOLDERS ENTITLED TO NOTICE OF SUCH MEETING. THE LIST SHALL BE
ARRANGED BY VOTING GROUP (AND WITHIN EACH VOTING GROUP
BY CLASS OR SERIES OF SHARES) AND SHOW THE ADDRESS OF AND NUMBER OF
SHARES HELD BY EACH SHAREHOLDER. THE LIST SHALL BE KEPT ON FILE AT THE
PRINCIPAL OFFICE OF THE CORPORATION OR AT A PLACE IDENTIFIED IN THE
MEETING NOTICE IN THE CITY WHERE THE MEETING WILL BE HELD, FOR THE
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PERIOD BEGINNING TWO BUSINESS DAYS AFTER NOTICE OF THE MEETING IS GIVEN
AND CONTINUING THROUGH THE MEETING AND SHALL BE AVAILABLE FOR INSPECTION
BY ANY SHAREHOLDER, HIS AGENT OR ATTORNEY, AT ANY TIME DURING REGULAR
BUSINESS HOURS. THE LIST SHALL ALSO BE AVAILABLE AT THE MEETING AND
SHALL BE SUBJECT TO INSPECTION BY ANY SHAREHOLDER, HIS AGENT OR
ATTORNEY, AT ANY TIME DURING THE MEETING OR ANY ADJOURNMENT THEREOF.
SECTION 8. VOTING GROUP. ALL SHARES OF ONE OR MORE CLASSES OR
SERIES THAT UNDER THE ARTICLES OF INCORPORATION OR THE NORTH CAROLINA
BUSINESS CORPORATION ACT ARE ENTITLED TO VOTE AND BE COUNTED TOGETHER
COLLECTIVELY ON A MATTER AT A MEETING OF SHAREHOLDERS, CONSTITUTE A
VOTING GROUP. ALL SHARES ENTITLED BY THE ARTICLES OF INCORPORATION OR
THE NORTH CAROLINA BUSINESS CORPORATION ACT TO VOTE GENERALLY ON A
MATTER ARE FOR THAT PURPOSE A SINGLE VOTING GROUP. CLASSES OR SERIES OF
SHARES SHALL NOT BE ENTITLED TO VOTE SEPARATELY BY VOTING GROUP UNLESS
EXPRESSLY AUTHORIZED BY THE ARTICLES OF INCORPORATION OR SPECIFICALLY
REQUIRED BY LAW.
SECTION 9. QUORUM. SHARES ENTITLED TO VOTE AS A SEPARATE VOTING
GROUP MAY TAKE ACTION ON A MATTER AT THE MEETING ONLY IF A QUORUM OF
THOSE SHARES EXISTS. A MAJORITY OF THE VOTES ENTITLED TO BE CAST ON THE
MATTER BY THE VOTING GROUP CONSTITUTES A QUORUM OF THAT VOTING GROUP FOR
ACTION ON THAT MATTER.
ONCE A SHARE IS REPRESENTED FOR ANY PURPOSE AT A MEETING, IT IS
DEEMED PRESENT FOR QUORUM PURPOSES FOR THE REMAINDER OF THE MEETING AND
FOR ANY ADJOURNMENT OF THAT MEETING UNLESS A NEW RECORD DATE IS OR MUST
BE SET FOR THAT ADJOURNED MEETING.
IN THE ABSENCE OF A QUORUM AT THE OPENING OF ANY MEETING OF
SHAREHOLDERS, SUCH MEETING MAY BE ADJOURNED FROM TIME TO TIME BY THE
VOTE OF A MAJORITY OF THE VOTES CAST ON THE MOTION TO ADJOURN. SUBJECT
TO THE PROVISIONS OF SECTION 5 OF THIS ARTICLE II, AT ANY ADJOURNED
MEETING ANY BUSINESS MAY BE TRANSACTED THAT MIGHT HAVE BEEN TRANSACTED
AT THE ORIGINAL MEETING IF A QUORUM EXISTS WITH RESPECT TO THE MATTER
PROPOSED.
SECTION 10. PROXIES. SHARES MAY BE VOTED EITHER IN PERSON OR BY
ONE OR MORE PROXIES AUTHORIZED BY A WRITTEN APPOINTMENT OF PROXY SIGNED
BY THE SHAREHOLDER OR BY HIS DULY AUTHORIZED ATTORNEY-IN-FACT. AN
APPOINTMENT OF PROXY IS VALID FOR 11 MONTHS FROM THE DATE OF ITS
EXECUTION, UNLESS A DIFFERENT PERIOD IS EXPRESSLY PROVIDED IN THE
APPOINTMENT FORM.
SECTION 11. VOTING OF SHARES. SUBJECT TO THE PROVISIONS OF THE
ARTICLES OF INCORPORATION, EACH OUTSTANDING SHARE SHALL BE ENTITLED TO
ONE VOTE ON EACH MATTER VOTED ON AT A MEETING OF SHAREHOLDERS.
EXCEPT IN THE ELECTION OF DIRECTORS AS GOVERNED BY THE
PROVISIONS OF SECTION 3 OF ARTICLE III, IF A QUORUM EXISTS, ACTION ON A
MATTER BY A VOTING GROUP IS APPROVED IF THE VOTES CAST WITHIN THE VOTING
GROUP FAVORING THE ACTION EXCEED THE VOTES CAST OPPOSING THE ACTION,
UNLESS A GREATER VOTE IS REQUIRED BY LAW, THE ARTICLES OF INCORPORATION
OR THESE BYLAWS.
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ABSENT SPECIAL CIRCUMSTANCES, SHARES OF THE CORPORATION ARE NOT
ENTITLED TO VOTE IF THEY ARE OWNED, DIRECTLY OR INDIRECTLY, BY ANOTHER
CORPORATION IN WHICH THE CORPORATION OWNS, DIRECTLY OR INDIRECTLY, A
MAJORITY OF THE SHARES ENTITLED TO VOTE FOR DIRECTORS OF THE SECOND
CORPORATION; PROVIDED THAT THIS PROVISION DOES NOT LIMIT THE POWER OF
THE CORPORATION TO VOTE ITS OWN SHARES HELD BY IT IN A FIDUCIARY
CAPACITY.
SECTION 12. INFORMAL ACTION BY SHAREHOLDERS. ANY ACTION THAT IS
REQUIRED OR PERMITTED TO BE TAKEN AT A MEETING OF THE SHAREHOLDERS MAY
BE TAKEN WITHOUT A MEETING IF ONE OR MORE WRITTEN CONSENTS, DESCRIBING
THE ACTION SO TAKEN, SHALL BE SIGNED BY ALL OF THE SHAREHOLDERS WHO
WOULD BE ENTITLED TO VOTE UPON SUCH ACTION AT A MEETING AND DELIVERED TO
THE CORPORATION FOR INCLUSION IN THE MINUTES OR FILING WITH THE
CORPORATE RECORDS.
IF THE CORPORATION IS REQUIRED BY LAW TO GIVE NOTICE TO
NONVOTING SHAREHOLDERS OF ACTION TO BE TAKEN BY UNANIMOUS WRITTEN
CONSENT OF THE VOTING SHAREHOLDERS, THEN THE CORPORATION SHALL GIVE THE
NONVOTING SHAREHOLDERS, IF ANY, WRITTEN NOTICE OF THE PROPOSED ACTION AT
LEAST 10 DAYS BEFORE THE ACTION IS TAKEN.
SECTION 13. ACTIONS TO BE TAKEN AT AN ANNUAL MEETING OF
SHAREHOLDERS. NO BUSINESS SHALL BE TRANSACTED AT AN ANNUAL MEETING OF
SHAREHOLDERS, EXCEPT SUCH BUSINESS AS SHALL BE (I) SPECIFIED IN THE
NOTICE OF MEETING GIVEN AS PROVIDED IN SECTION 5 OF THIS ARTICLE II,
(II) OTHERWISE BROUGHT BEFORE THE MEETING BY OR AT THE DIRECTION OF THE
BOARD OF DIRECTORS, OR (III) OTHERWISE BROUGHT BEFORE THE MEETING BY A
SHAREHOLDER OF RECORD OF THE CORPORATION ENTITLED TO VOTE AT THE
MEETING, IN COMPLIANCE WITH THE PROCEDURE SET FORTH IN THIS SECTION 13.
FOR BUSINESS TO BE BROUGHT BEFORE AN ANNUAL MEETING BY A SHAREHOLDER
PURSUANT TO (III) ABOVE, THE SHAREHOLDER MUST HAVE GIVEN TIMELY NOTICE
IN WRITING TO THE SECRETARY. TO BE TIMELY, A SHAREHOLDER'S NOTICE SHALL
BE DELIVERED TO, OR MAILED AND RECEIVED AT, THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION NOT LESS THAN 60 DAYS NOR MORE THAN 90 DAYS
PRIOR TO THE MEETING; PROVIDED, HOWEVER, IN THE EVENT THAT LESS THAN 70
DAYS' NOTICE OR PRIOR PUBLIC DISCLOSURE OF THE DATE OF THE MEETING IS
GIVEN OR MADE TO SHAREHOLDERS, NOTICE BY THE SHAREHOLDER TO BE TIMELY
MUST BE SO RECEIVED NOT LATER THAN THE CLOSE OF BUSINESS ON THE 10TH DAY
FOLLOWING THE DAY ON WHICH SUCH NOTICE OF THE DATE OF THE MEETING OR
SUCH PUBLIC DISCLOSURE WAS MADE. NOTICE SHALL BE DEEMED TO HAVE BEEN
GIVEN MORE THAN 70 DAYS IN ADVANCE OF THE ANNUAL MEETING IF THE ANNUAL
MEETING IS CALLED ON THE DATE INDICATED BY SECTION 2 OF THIS ARTICLE II
WITHOUT REGARD TO WHEN PUBLIC DISCLOSURE THEREOF IS MADE. NOTICE OF
ACTIONS TO BE BROUGHT BEFORE THE ANNUAL MEETING PURSUANT TO (III) ABOVE
SHALL SET FORTH, AS TO EACH MATTER THE SHAREHOLDER PROPOSES TO BRING
BEFORE THE MEETING, (A) A BRIEF DESCRIPTION OF THE BUSINESS DESIRED TO
BE BROUGHT BEFORE THE MEETING AND THE REASONS FOR BRINGING SUCH BUSINESS
BEFORE THE MEETING, AND (B) AS TO THE SHAREHOLDER GIVING THE NOTICE, (I)
THE NAME AND ADDRESS, AS THEY APPEAR ON THE CORPORATION'S BOOKS, OF SUCH
SHAREHOLDER, (II) THE CLASSES AND NUMBER OF SHARES OF THE CORPORATION
WHICH ARE OWNED OF RECORD OR BENEFICIALLY BY SUCH SHAREHOLDER, AND (III)
ANY MATERIAL INTEREST OF SUCH SHAREHOLDER IN SUCH BUSINESS OTHER THAN
HIS INTEREST AS A SHAREHOLDER OF THE CORPORATION. NOTWITHSTANDING
ANYTHING IN THESE BYLAWS TO THE CONTRARY, NO BUSINESS SHALL BE CONDUCTED
AT AN ANNUAL MEETING EXCEPT IN ACCORDANCE WITH THE PROVISIONS SET FORTH
IN THIS SECTION 13. THE CHAIRMAN OF THE MEETING SHALL, IF THE FACTS
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WARRANT, DETERMINE AND DECLARE TO THE MEETING THAT ANY BUSINESS WAS NOT
PROPERLY BROUGHT BEFORE THE MEETING IN ACCORDANCE WITH THE PROVISIONS
PRESCRIBED BY THESE BYLAWS AND, IF HE SHOULD SO DETERMINE, HE SHALL SO
DECLARE TO THE MEETING AND ANY SUCH BUSINESS NOT SO PROPERLY BROUGHT
BEFORE THE MEETING SHALL NOT BE TRANSACTED.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. 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. NUMBER, TERM OF OFFICE AND QUALIFICATION. THE
NUMBER OF DIRECTORS SHALL BE DETERMINED BY THE BOARD OF DIRECTORS IN
ACCORDANCE WITH ARTICLE 7 OF THE ARTICLES OF INCORPORATION. EACH
DIRECTOR SHALL CONTINUE IN OFFICE UNTIL THE ANNUAL MEETING OF
SHAREHOLDERS AT WHICH HIS TERM IS TO EXPIRE AND UNTIL HIS SUCCESSOR
SHALL HAVE BEEN ELECTED AND QUALIFIED, OR UNTIL HIS DEATH OR UNTIL HE
SHALL RESIGN OR SHALL HAVE BEEN DISQUALIFIED OR REMOVED IN THE MANNER
HEREINAFTER PROVIDED. DIRECTORS NEED NOT BE RESIDENTS OF THE STATE OF
NORTH CAROLINA OR SHAREHOLDERS OF THE CORPORATION.
SECTION 3. CLASSIFICATION AND ELECTION. THE BOARD OF DIRECTORS
SHALL BE CLASSIFIED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 7 OF
THE ARTICLES OF INCORPORATION. EACH CLASS OF DIRECTORS SHALL BE ELECTED
AT THE ANNUAL MEETING OF SHAREHOLDERS AT WHICH THE TERM OF THEIR
PREDECESSORS IS TO EXPIRE AND THE PERSONS WHO SHALL RECEIVE THE HIGHEST
NUMBER OF VOTES SHALL BE ELECTED DIRECTORS. IF PRIOR TO VOTING FOR THE
ELECTION OF DIRECTORS, DEMAND THEREFOR SHALL BE MADE BY OR ON BEHALF OF
ANY SHARES ENTITLED TO VOTE AT SUCH MEETING, THE ELECTION OF DIRECTORS
SHALL BE BY BALLOT.
SECTION 4. REMOVAL. THE BOARD OF DIRECTORS OR ANY INDIVIDUAL
DIRECTOR MAY BE REMOVED FROM OFFICE ONLY IN ACCORDANCE WITH THE
PROVISIONS OF ARTICLE 7 OF THE ARTICLES OF INCORPORATION.
SECTION 5. VACANCIES. ANY VACANCIES IN THE BOARD OF DIRECTORS
SHALL BE FILLED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 7 OF THE
ARTICLES OF INCORPORATION.
SECTION 6. COMPENSATION. THE BOARD OF DIRECTORS MAY PROVIDE
FOR THE COMPENSATION OF DIRECTORS FOR THEIR SERVICES AS SUCH AND FOR THE
PAYMENT OR REIMBURSEMENT OF ANY OR ALL EXPENSES INCURRED BY THEM IN
CONNECTION WITH SUCH SERVICES.
SECTION 7. NOMINATIONS FOR ELECTION OF DIRECTORS. ONLY PERSONS
WHO ARE NOMINATED IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THESE
BYLAWS SHALL BE ELIGIBLE TO BE ELECTED AS DIRECTORS AT AN ANNUAL MEETING
OF SHAREHOLDERS. NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF
DIRECTORS MAY BE MADE AT SUCH MEETING OF SHAREHOLDERS (I) BY OR AT THE
DIRECTION OF
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THE BOARD OF DIRECTORS, OR (II) BY ANY SHAREHOLDER OF THE CORPORATION
WHO IS A SHAREHOLDER OF RECORD AT THE TIME OF GIVING OF NOTICE PROVIDED
FOR IN THIS SECTION 7, WHO SHALL BE ENTITLED TO VOTE FOR THE ELECTION OF
DIRECTORS AT THE MEETING AND WHO COMPLIES WITH THE NOTICE PROCEDURES SET
FORTH IN THIS SECTION 7. SUCH NOMINATIONS, OTHER THAN THOSE MADE BY OR
AT THE DIRECTION OF THE BOARD, SHALL BE MADE PURSUANT TO TIMELY NOTICE
IN WRITING TO THE SECRETARY. TO BE TIMELY, A SHAREHOLDER'S NOTICE SHALL
BE DELIVERED TO, OR MAILED AND RECEIVED AT, THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION NOT LESS THAN 60 DAYS NOR MORE THAN 90 DAYS
PRIOR TO THE MEETING; PROVIDED, HOWEVER, IN THE EVENT THAT LESS THAN 70
DAYS' NOTICE OR PRIOR PUBLIC DISCLOSURE OF THE DATE OF THE MEETING IS
GIVEN OR MADE TO SHAREHOLDERS, NOTICE BY THE SHAREHOLDER TO BE TIMELY
MUST BE SO RECEIVED NOT LATER THAN THE CLOSE OF BUSINESS ON THE 10TH DAY
FOLLOWING THE DAY ON WHICH SUCH NOTICE OF THE DATE OF THE MEETING OR
SUCH PUBLIC DISCLOSURE WAS MADE. NOTICE SHALL BE DEEMED TO HAVE BEEN
GIVEN MORE THAN 70 DAYS IN ADVANCE OF THE ANNUAL MEETING IF THE ANNUAL
MEETING IS CALLED ON THE DATE INDICATED BY SECTION 2 OF ARTICLE II OF
THESE BYLAWS WITHOUT REGARD TO WHEN PUBLIC DISCLOSURE THEREOF IS MADE.
SUCH SHAREHOLDER'S NOTICE SHALL SET FORTH (A) AS TO EACH PERSON WHOM THE
SHAREHOLDER PROPOSES TO NOMINATE FOR ELECTION OR REELECTION AS A
DIRECTOR, INFORMATION RELATING TO SUCH PERSON SIMILAR IN SUBSTANCE TO
THAT REQUIRED TO BE DISCLOSED IN SOLICITATIONS OF PROXIES FOR ELECTION
OF DIRECTORS PURSUANT TO ITEMS 7(A) AND (B) OF REGULATION 14A UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND SUCH PERSON'S WRITTEN
CONSENT TO BEING NAMED AS A NOMINEE AND TO SERVING AS A DIRECTOR IF
ELECTED, AND (B) AS TO THE SHAREHOLDER GIVING THE NOTICE, (I) THE NAME
AND ADDRESS, AS THEY APPEAR ON THE CORPORATION'S BOOKS, OF SUCH
SHAREHOLDER, AND (II) THE CLASS AND NUMBER OF SHARES OF THE CORPORATION
WHICH ARE OWNED OF RECORD OR BENEFICIALLY BY SUCH SHAREHOLDER. AT THE
REQUEST OF THE BOARD OF DIRECTORS, ANY PERSON NOMINATED BY THE BOARD FOR
ELECTION AS A DIRECTOR SHALL FURNISH TO THE SECRETARY THAT INFORMATION
REQUIRED TO BE SET FORTH IN A SHAREHOLDER'S NOTICE OF NOMINATION WHICH
PERTAINS TO THE NOMINEE. THE CHAIRMAN OF THE MEETING SHALL, IF THE FACTS
WARRANT, DETERMINE AND DECLARE TO THE MEETING THAT A NOMINATION WAS NOT
MADE IN ACCORDANCE WITH THE PROVISIONS PRESCRIBED BY THESE BYLAWS AND,
IF HE SHOULD SO DETERMINE, HE SHALL SO DECLARE TO THE MEETING AND THE
DEFECTIVE NOMINATION SHALL BE DISREGARDED. THE FOREGOING PROVISIONS OF
THIS SECTION 7 SHALL NOT APPLY TO ANY DIRECTOR WHO IS NOMINATED AND
ELECTED UNDER SPECIFIED CIRCUMSTANCES BY HOLDERS OF ANY CLASS OR SERIES
OF STOCK HAVING A PREFERENCE OVER THE COMMON STOCK AS TO DIVIDENDS OR
UPON LIQUIDATION.
ARTICLE IV
MEETINGS OF DIRECTORS
SECTION 1. REGULAR MEETINGS. A REGULAR MEETING OF THE BOARD OF
DIRECTORS SHALL BE HELD IMMEDIATELY AFTER, AND AT THE SAME PLACE AS, THE ANNUAL
MEETING OF SHAREHOLDERS. IN ADDITION, THE BOARD OF DIRECTORS MAY PROVIDE, BY
RESOLUTION, THE TIME AND PLACE, EITHER WITHIN OR WITHOUT THE STATE OF NORTH
CAROLINA, FOR THE HOLDING OF ADDITIONAL REGULAR MEETINGS. SUCH A MEETING MAY BE
HELD BY TELECONFERENCE CALL TO THE EXTENT PERMITTED BY APPLICABLE LAW.
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SECTION 2. SPECIAL MEETINGS. SPECIAL MEETINGS OF THE BOARD
OF DIRECTORS MAY BE CALLED BY OR AT THE REQUEST OF THE CHAIRMAN OF THE
BOARD, THE PRESIDENT OR BY ANY THREE DIRECTORS. SUCH A MEETING MAY BE
HELD EITHER WITHIN OR WITHOUT THE STATE OF NORTH CAROLINA, AS FIXED BY
THE PERSON OR PERSONS CALLING THE MEETING. SUCH A MEETING MAY BE HELD
BY TELECONFERENCE CALL TO THE EXTENT PERMITTED BY APPLICABLE LAW.
SECTION 3. NOTICE OF MEETINGS. REGULAR MEETINGS OF THE BOARD OF
DIRECTORS MAY BE HELD WITHOUT NOTICE. THE PERSON OR PERSONS CALLING A
SPECIAL MEETING OF THE BOARD OF DIRECTORS SHALL, AT LEAST TWENTY-FOUR
HOURS BEFORE THE MEETING, GIVE OR CAUSE TO BE GIVEN NOTICE THEREOF BY
ANY USUAL MEANS OF COMMUNICATION. SUCH NOTICE NEED NOT SPECIFY THE
PURPOSE FOR WHICH THE MEETING IS CALLED. ANY DULY CONVENED REGULAR OR
SPECIAL MEETING MAY BE ADJOURNED BY THE DIRECTORS TO A LATER TIME
WITHOUT FURTHER NOTICE.
SECTION 4. WAIVER OF NOTICE. ANY DIRECTOR MAY WAIVE NOTICE OF
ANY MEETING BEFORE OR AFTER THE MEETING. THE WAIVER MUST BE IN WRITING,
SIGNED BY THE DIRECTOR ENTITLED TO THE NOTICE AND DELIVERED TO THE
CORPORATION FOR INCLUSION IN THE MINUTES OR FILING WITH THE CORPORATE
RECORDS. A DIRECTOR'S ATTENDANCE AT OR PARTICIPATION IN A MEETING WAIVES
ANY REQUIRED NOTICE OF SUCH MEETING, UNLESS THE DIRECTOR AT THE
BEGINNING OF THE MEETING, OR PROMPTLY UPON ARRIVAL, OBJECTS TO HOLDING
THE MEETING OR TO TRANSACTING BUSINESS AT THE MEETING AND DOES NOT
THEREAFTER VOTE FOR OR ASSENT TO ACTION TAKEN AT THE MEETING.
SECTION 5. QUORUM. UNLESS THE ARTICLES OF INCORPORATION OR
THESE BYLAWS PROVIDE OTHERWISE, A MAJORITY OF THE NUMBER OF DIRECTORS
FIXED BY OR PURSUANT TO THE ARTICLES OF INCORPORATION SHALL CONSTITUTE A
QUORUM FOR THE TRANSACTION OF BUSINESS AT ANY MEETING OF THE BOARD OF
DIRECTORS.
SECTION 6. MANNER OF ACTING. EXCEPT AS OTHERWISE PROVIDED IN
THE ARTICLES OF INCORPORATION OR THESE BYLAWS, INCLUDING SECTION 9 OF
THIS ARTICLE IV, THE AFFIRMATIVE VOTE OF A MAJORITY OF THE DIRECTORS
PRESENT AT A MEETING AT WHICH A QUORUM IS PRESENT SHALL BE THE ACT OF
THE BOARD OF DIRECTORS.
SECTION 7. PRESUMPTION OF ASSENT. A DIRECTOR WHO IS PRESENT AT
A MEETING OF THE BOARD OF DIRECTORS OR A COMMITTEE OF THE BOARD OF
DIRECTORS WHEN CORPORATE ACTION IS TAKEN IS DEEMED TO HAVE ASSENTED TO
THE ACTION TAKEN UNLESS (I) HE OBJECTS AT THE BEGINNING OF THE MEETING
OR PROMPTLY UPON HIS ARRIVAL, TO HOLDING THE MEETING OR TO TRANSACTING
BUSINESS AT THE MEETING, (II) HIS DISSENT OR ABSTENTION FROM THE ACTION
TAKEN IS ENTERED IN THE MINUTES OF THE MEETING, OR (III) HE FILES
WRITTEN NOTICE OF HIS DISSENT OR ABSTENTION WITH THE PRESIDING OFFICER
OF THE MEETING BEFORE ITS ADJOURNMENT OR WITH THE CORPORATION
IMMEDIATELY AFTER THE ADJOURNMENT OF THE MEETING. SUCH RIGHT OF DISSENT
OR ABSTENTION IS NOT AVAILABLE TO A DIRECTOR WHO VOTES IN FAVOR OF THE
ACTION TAKEN.
SECTION 8. ACTION WITHOUT MEETING. ACTION REQUIRED OR
PERMITTED TO BE TAKEN AT A MEETING OF THE BOARD OF DIRECTORS MAY BE
TAKEN WITHOUT A MEETING IF THE ACTION IS TAKEN BY ALL MEMBERS OF THE
BOARD. THE ACTION MUST BE EVIDENCED BY ONE OR MORE WRITTEN CONSENTS
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SIGNED BY EACH DIRECTOR BEFORE OR AFTER SUCH ACTION, DESCRIBING THE
ACTION TAKEN AND INCLUDED IN THE MINUTES OR FILED WITH THE CORPORATE
RECORDS.
SECTION 9. COMMITTEES OF THE BOARD. THE BOARD OF DIRECTORS MAY
CREATE AN EXECUTIVE COMMITTEE AND OTHER COMMITTEES OF THE BOARD AND
APPOINT MEMBERS OF THE BOARD OF DIRECTORS TO SERVE ON THEM. THE CREATION
OF A COMMITTEE OF THE BOARD AND APPOINTMENT OF MEMBERS TO IT MUST BE
APPROVED BY THE GREATER OF (I) A MAJORITY OF THE NUMBER OF DIRECTORS IN
OFFICE WHEN THE ACTION IS TAKEN, OR (II) THE NUMBER OF DIRECTORS
REQUIRED TO TAKE ACTION PURSUANT TO SECTION 6 OF THIS ARTICLE IV. EACH
COMMITTEE OF THE BOARD MUST HAVE TWO OR MORE MEMBERS AND, TO THE EXTENT
AUTHORIZED BY LAW AND SPECIFIED BY THE BOARD OF DIRECTORS, SHALL HAVE
AND MAY EXERCISE ALL OF THE AUTHORITY OF THE BOARD OF DIRECTORS IN THE
MANAGEMENT OF THE CORPORATION. EACH COMMITTEE MEMBER SERVES AT THE
PLEASURE OF THE BOARD OF DIRECTORS. THE PROVISIONS IN THESE BYLAWS
GOVERNING MEETINGS, ACTION WITHOUT MEETINGS, NOTICE, WAIVER OF NOTICE,
QUORUM AND VOTING REQUIREMENTS OF THE BOARD OF DIRECTORS APPLY TO
COMMITTEES OF THE BOARD ESTABLISHED UNDER THIS SECTION.
ARTICLE V
OFFICERS
SECTION 1. NUMBER OF OFFICERS. THE OFFICERS OF THE CORPORATION
MAY BE A CHAIRMAN OF THE BOARD, ONE OR MORE VICE CHAIRMEN (WHO SHALL NOT
BE REQUIRED TO BE DIRECTORS OF THE CORPORATION), A PRESIDENT, ONE OR
MORE VICE PRESIDENTS, A SECRETARY, A TREASURER AND SUCH OTHER OFFICERS
AS MAY BE APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE V.
ANY TWO OR MORE OFFICES MAY BE HELD BY ONE PERSON, BUT NO INDIVIDUAL MAY
ACT IN MORE THAN ONE CAPACITY WHERE ACTION OF TWO OR MORE OFFICERS IS
REQUIRED.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATION. EACH
OFFICER, EXCEPT SUCH OFFICERS AS MAY BE APPOINTED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3 OF THIS ARTICLE V, SHALL BE CHOSEN BY THE BOARD
OF DIRECTORS AND SHALL HOLD OFFICE UNTIL THE ANNUAL MEETING OF THE BOARD
OF DIRECTORS HELD NEXT AFTER HIS ELECTION OR UNTIL HIS SUCCESSOR SHALL
HAVE BEEN DULY CHOSEN AND QUALIFIED OR UNTIL HIS DEATH OR UNTIL HE SHALL
RESIGN OR SHALL HAVE BEEN DISQUALIFIED OR REMOVED FROM OFFICE.
SECTION 3. SUBORDINATE OFFICERS. THE BOARD OF DIRECTORS MAY
DELEGATE TO ANY OFFICER THE POWER TO APPOINT ANY SUBORDINATE OFFICER AND
TO PRESCRIBE HIS RESPECTIVE AUTHORITY AND DUTIES.
SECTION 4. OFFICERS ACTING AS ASSISTANT SECRETARY. ANY SENIOR VICE
PRESIDENT, VICE PRESIDENT OR ASSISTANT VICE PRESIDENT SHALL HAVE, BY VIRTUE OF
HIS OFFICE AND BY AUTHORITY OF THESE BYLAWS THE AUTHORITY FROM TIME TO TIME TO
ACT AS AN ASSISTANT SECRETARY OF THE CORPORATION AND TO SUCH EXTENT SAID
OFFICERS ARE APPOINTED TO THE OFFICE OF ASSISTANT SECRETARY.
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SECTION 5. REMOVAL. THE OFFICERS SPECIFICALLY DESIGNATED IN SECTION 1
OF THIS ARTICLE V MAY BE REMOVED, EITHER WITH OR WITHOUT CAUSE, BY VOTE OF A
MAJORITY OF THE NUMBER OF DIRECTORS THEN IN OFFICE. THE OFFICERS APPOINTED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THIS ARTICLE V MAY BE REMOVED,
EITHER WITH OR WITHOUT CAUSE, A MAJORITY VOTE OF THE DIRECTORS PRESENT AT ANY
MEETING OR BY ANY OFFICER UPON WHOM SUCH POWER OF REMOVAL MAY BE CONFERRED BY
THE BOARD OF DIRECTORS. THE REMOVAL OF ANY PERSON FROM OFFICE SHALL BE WITHOUT
PREJUDICE TO THE CONTRACT RIGHTS, IF ANY, OF THE PERSON SO REMOVED.
SECTION 6. RESIGNATIONS. ANY OFFICER MAY RESIGN AT ANY TIME BY GIVING
WRITTEN NOTICE TO THE BOARD OF DIRECTORS, THE CHAIRMAN OF THE BOARD OR THE
PRESIDENT, OR IF HE WAS APPOINTED BY AN OFFICER IN ACCORDANCE WITH SECTION 3 OF
THIS ARTICLE V, BY GIVING WRITTEN NOTICE TO THE OFFICER WHO APPOINTED HIM. SUCH
RESIGNATION SHALL TAKE EFFECT AT THE TIME SPECIFIED THEREIN, OR IF NO TIME IS
SPECIFIED THEREIN, AT THE TIME SUCH RESIGNATION IS RECEIVED BY THE CHAIRMAN OF
THE BOARD, THE PRESIDENT OR THE OFFICER WHO APPOINTED SUCH OFFICER, UNLESS IT
SHALL BE NECESSARY TO ACCEPT SUCH RESIGNATION BEFORE IT BECOMES EFFECTIVE, IN
WHICH EVENT THE RESIGNATION SHALL TAKE EFFECT UPON ITS ACCEPTANCE BY THE BOARD
OF DIRECTORS, THE CHAIRMAN OF THE BOARD, THE PRESIDENT OR THE OFFICER WHO
APPOINTED SUCH OFFICER. UNLESS OTHERWISE SPECIFIED THEREIN, THE ACCEPTANCE OF
ANY SUCH RESIGNATION SHALL NOT BE NECESSARY TO MAKE IT EFFECTIVE.
SECTION 7. VACANCIES. A VACANCY IN AN OFFICE BECAUSE OF DEATH,
RESIGNATION, REMOVAL, DISQUALIFICATION OR ANY OTHER CAUSE, SHALL BE FILLED FOR
THE UNEXPIRED PORTION OF THE TERM IN THE MANNER PRESCRIBED BY THESE BYLAWS FOR
REGULAR APPOINTMENTS OR ELECTIONS TO SUCH OFFICE.
SECTION 8. CHIEF EXECUTIVE OFFICER. THE CHAIRMAN SHALL BE THE CHIEF
EXECUTIVE OFFICER OF THE CORPORATION UNLESS SOME OTHER OFFICER IS SO DESIGNATED
BY THE BOARD OF DIRECTORS.
SECTION 9. DUTIES OF OFFICERS. THE DUTIES OF ALL OFFICERS ELECTED BY
THE BOARD OF DIRECTORS SHALL BE PRESCRIBED BY THE BOARD OF DIRECTORS.
NEVERTHELESS, THE BOARD OF DIRECTORS MAY DELEGATE TO THE CHIEF EXECUTIVE OFFICER
THE AUTHORITY TO PRESCRIBE THE DUTIES OF OTHER OFFICERS OF THE CORPORATION NOT
INCONSISTENT WITH LAW, THE ARTICLES OF INCORPORATION AND THESE BYLAWS.
IN CASE OF THE ABSENCE OF ANY OFFICER OF THE CORPORATION OR FOR ANY
OTHER REASON THAT THE BOARD OF DIRECTORS MAY DEEM SUFFICIENT, THE BOARD OF
DIRECTORS MAY DELEGATE THE POWERS OR DUTIES OF SUCH OFFICER TO ANY OTHER OFFICER
OR TO ANY DIRECTOR FOR THE TIME BEING, PROVIDED A MAJORITY OF THE DIRECTORS THEN
IN OFFICE CONCURS THEREIN.
SECTION 10. SALARIES OF OFFICERS. NO OFFICER OF THE CORPORATION SHALL
BE PREVENTED FROM RECEIVING A SALARY AS SUCH OFFICER OR FROM VOTING THEREON BY
REASON OF THE FACT THAT HE IS ALSO A DIRECTOR OF THE CORPORATION. THE SALARIES
OF THE OFFICERS OF THE CORPORATION, INCLUDING SUCH OFFICERS AS MAY BE DIRECTORS
OF THE CORPORATION, SHALL BE FIXED FROM TIME TO
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TIME BY THE BOARD OF DIRECTORS, EXCEPT THAT THE BOARD OF DIRECTORS MAY
DELEGATE TO ANY OFFICER WHO HAS BEEN GIVEN POWER TO APPOINT SUBORDINATE
OFFICERS, AS PROVIDED IN SECTION 3 OF THIS ARTICLE V, THE AUTHORITY TO
FIX THE SALARIES OR OTHER COMPENSATION OF ANY SUCH OFFICERS APPOINTED BY
HIM.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. THE BOARD OF DIRECTORS MAY AUTHORIZE ANY
OFFICER OR OFFICERS, AGENT OR AGENTS, TO ENTER INTO ANY CONTRACT OR
EXECUTE AND DELIVER ANY INSTRUMENT IN THE NAME OF AND ON BEHALF OF THE
CORPORATION. SUCH AUTHORITY MAY BE GENERAL OR CONFINED TO SPECIFIC
INSTANCES.
SECTION 2. LOANS. NO LOANS SHALL BE CONTRACTED ON BEHALF OF
THE CORPORATION AND NO EVIDENCE OF INDEBTEDNESS SHALL BE ISSUED IN ITS
NAME UNLESS AUTHORIZED BY THE BOARD OF DIRECTORS. SUCH AUTHORITY MAY BE
GENERAL OR CONFINED TO SPECIFIC INSTANCES.
SECTION 3. CHECKS AND DRAFTS. ALL CHEEKS, DRAFTS OR OTHER
ORDERS FOR THE PAYMENT OF MONEY, ISSUED IN THE NAME OF THE CORPORATION,
SHALL BE SIGNED BY SUCH OFFICER OR OFFICERS, AGENT OR AGENTS OF THE
CORPORATION AND IN SUCH MANNER AS SHALL FROM TIME TO TIME BE DETERMINED
BY THE BOARD OF DIRECTORS.
SECTION 4. DEPOSITS. ALL FUNDS OF THE CORPORATION NOT OTHERWISE
EMPLOYED SHALL BE DEPOSITED FROM TIME TO TIME TO THE CREDIT OF THE
CORPORATION IN SUCH DEPOSITORIES AS MAY BE SELECTED BY OR UNDER THE
AUTHORITY OF THE BOARD OF DIRECTORS.
ARTICLE VII
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. THE BOARD OF DIRECTORS MAY
AUTHORIZE THE ISSUANCE OF SOME OR ALL OF THE SHARES OF THE CORPORATION'S CLASSES
OR SERIES WITHOUT ISSUING CERTIFICATES TO REPRESENT SUCH SHARES. IF SHARES ARE
REPRESENTED BY CERTIFICATES, THE CERTIFICATES SHALL BE IN SUCH FORM AS REQUIRED
BY LAW AND AS DETERMINED BY THE BOARD OF DIRECTORS. CERTIFICATES SHALL BE
SIGNED, EITHER MANUALLY OR IN FACSIMILE, BY THE CHAIRMAN OF THE BOARD, THE
PRESIDENT OR A VICE PRESIDENT AND BY THE SECRETARY OR TREASURER OR AN ASSISTANT
SECRETARY OR AN ASSISTANT TREASURER. ALL CERTIFICATES FOR SHARES SHALL BE
CONSECUTIVELY NUMBERED OR OTHERWISE IDENTIFIED AND ENTERED INTO THE STOCK
TRANSFER BOOKS OF THE CORPORATION. WHEN SHARES ARE REPRESENTED BY CERTIFICATES,
THE CORPORATION SHALL ISSUE AND DELIVER TO EACH SHAREHOLDER TO WHOM SUCH SHARES
HAVE BEEN ISSUED OR TRANSFERRED, CERTIFICATES REPRESENTING THE SHARES OWNED BY
HIM. WHEN SHARES ARE NOT REPRESENTED BY
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CERTIFICATES, THEN WITHIN A REASONABLE TIME AFTER THE ISSUANCE OR
TRANSFER OF SUCH SHARES, THE CORPORATION SHALL SEND THE SHAREHOLDER TO
WHOM SUCH SHARES HAVE BEEN ISSUED OR TRANSFERRED A WRITTEN STATEMENT OF
THE INFORMATION REQUIRED BY LAW TO BE ON CERTIFICATES.
SECTION 2. STOCK TRANSFER BOOKS. THE CORPORATION SHALL KEEP A
BOOK OR SET OF BOOKS, TO BE KNOWN AS THE STOCK TRANSFER BOOKS OF THE
CORPORATION, CONTAINING THE NAME OF EACH SHAREHOLDER OF RECORD, TOGETHER
WITH SUCH SHAREHOLDER'S ADDRESS AND THE NUMBER AND CLASS OR SERIES OF
SHARES HELD BY HIM. TRANSFERS OF SHARES OF THE CORPORATION SHALL BE MADE
ONLY ON THE STOCK TRANSFER BOOKS OF THE CORPORATION BY THE HOLDER OF
RECORD THEREOF OR BY HIS LEGAL REPRESENTATIVE, WHO SHALL FURNISH PROPER
EVIDENCE OF AUTHORITY TO TRANSFER, OR BY HIS ATTORNEY AUTHORIZED TO
EFFECT SUCH TRANSFER BY POWER OF ATTORNEY DULY EXECUTED AND FILED WITH
THE SECRETARY, AND UPON SURRENDER FOR CANCELLATION OF THE CERTIFICATE
FOR SUCH SHARES (IF THE SHARES ARE REPRESENTED BY CERTIFICATES).
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. THE BOARD OF
DIRECTORS MAY DIRECT A NEW CERTIFICATE TO BE ISSUED IN PLACE OF ANY
CERTIFICATE THERETOFORE ISSUED BY THE CORPORATION CLAIMED TO HAVE BEEN
LOST, STOLEN OR DESTROYED, UPON RECEIPT OF AN AFFIDAVIT OF SUCH FACT
FROM THE PERSON CLAIMING THE CERTIFICATE TO HAVE BEEN LOST, STOLEN OR
DESTROYED. WHEN AUTHORIZING SUCH ISSUE OF A NEW CERTIFICATE, THE BOARD
OF DIRECTORS SHALL REQUIRE THAT THE OWNER OF SUCH LOST, STOLEN OR
DESTROYED CERTIFICATE, OR HIS LEGAL REPRESENTATIVE, GIVE THE CORPORATION
A BOND IN SUCH SUM AND WITH SUCH SURETY OR OTHER SECURITY AS THE BOARD
MAY DIRECT AS INDEMNITY AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THE
CORPORATION WITH RESPECT TO THE CERTIFICATE CLAIMED TO HAVE BEEN LOST,
STOLEN OR DESTROYED, EXCEPT WHERE THE BOARD OF DIRECTORS BY RESOLUTION
FINDS THAT IN THE JUDGMENT OF THE DIRECTORS THE CIRCUMSTANCES JUSTIFY
OMISSION OF A BOND.
SECTION 4. FIXING RECORD DATE. THE BOARD OF DIRECTORS MAY FIX A
FUTURE DATE AS THE RECORD DATE FOR ONE OR MORE VOTING GROUPS IN ORDER TO
DETERMINE THE SHAREHOLDERS ENTITLED TO NOTICE OF A SHAREHOLDERS'
MEETING, TO DEMAND A SPECIAL MEETING, TO VOTE OR TO TAKE ANY OTHER
ACTION. SUCH RECORD DATE MAY NOT BE MORE THAN 70 DAYS BEFORE THE MEETING
OR ACTION REQUIRING A DETERMINATION OF SHAREHOLDERS. A DETERMINATION OF
SHAREHOLDERS ENTITLED TO NOTICE OF OR TO VOTE AT A SHAREHOLDERS' MEETING
IS EFFECTIVE FOR ANY ADJOURNMENT OF THE MEETING UNLESS THE BOARD OF
DIRECTORS FIXES A NEW RECORD DATE FOR THE ADJOURNED MEETING, WHICH IT
MUST DO IF THE MEETING IS ADJOURNED TO A DATE MORE THAN 120 DAYS AFTER
THE DATE FIXED FOR THE ORIGINAL MEETING.
IF NO RECORD DATE IS FIXED BY THE BOARD OF DIRECTORS FOR THE
DETERMINATION OF SHAREHOLDERS ENTITLED TO NOTICE OF OR TO VOTE AT A
MEETING OF SHAREHOLDERS, THE CLOSE OF BUSINESS ON THE DAY BEFORE THE
FIRST NOTICE OF THE MEETING IS DELIVERED TO SHAREHOLDERS SHALL BE THE
RECORD DATE FOR SUCH DETERMINATION OF SHAREHOLDERS.
THE BOARD OF DIRECTORS MAY FIX A DATE AS THE RECORD DATE FOR
DETERMINING SHAREHOLDERS ENTITLED TO A DISTRIBUTION OR SHARE DIVIDEND.
IF NO RECORD DATE IS FIXED BY THE
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BOARD OF DIRECTORS FOR SUCH DETERMINATION, IT IS THE DATE THE BOARD OF
DIRECTORS AUTHORIZES THE DISTRIBUTION OR SHARE DIVIDEND.
SECTION 5. HOLDER OF RECORD. EXCEPT AS OTHERWISE REQUIRED BY
LAW, THE CORPORATION MAY TREAT THE PERSON IN WHOSE NAME THE SHARES STAND
OF RECORD ON ITS BOOKS AS THE ABSOLUTE OWNER OF THE SHARES AND THE
PERSON EXCLUSIVELY ENTITLED TO RECEIVE NOTIFICATION AND DISTRIBUTIONS,
TO VOTE AND TO OTHERWISE EXERCISE THE RIGHTS, POWERS AND PRIVILEGES OF
OWNERSHIP OF SUCH SHARES.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS. THE BOARD OF DIRECTORS MAY FROM
TIME TO TIME AUTHORIZE, AND THE CORPORATION MAY GRANT, DISTRIBUTIONS AND
SHARE DIVIDENDS TO ITS SHAREHOLDERS PURSUANT TO LAW AND SUBJECT TO THE
PROVISIONS OF THE ARTICLES OF INCORPORATION.
SECTION 2. SEAL. THE CORPORATE SEAL OF THE CORPORATION SHALL
CONSIST OF TWO CONCENTRIC CIRCLES BETWEEN WHICH IS THE NAME OF THE
CORPORATION AND IN THE CENTER OF WHICH IS INSCRIBED SEAL; AND SUCH SEAL,
AS IMPRESSED OR AFFIXED ON THE MARGIN HEREOF, IS HEREBY ADOPTED AS THE
CORPORATE SEAL OF THE CORPORATION.
SECTION 3. FISCAL YEAR. THE FISCAL YEAR OF THE CORPORATION
SHALL BE FIXED BY THE BOARD OF DIRECTORS.
SECTION 4. AMENDMENTS. EXCEPT AS OTHERWISE PROVIDED IN THESE
BYLAWS, THE ARTICLES OF INCORPORATION OR THE NORTH CAROLINA BUSINESS
CORPORATION ACT, THESE BYLAWS MAY BE AMENDED OR REPEALED AND NEW BYLAWS
MAY BE ADOPTED BY THE AFFIRMATIVE VOTE OF A MAJORITY OF THE NUMBER OF
DIRECTORS THEN IN OFFICE AT ANY REGULAR OR SPECIAL MEETING OF THE BOARD
OF DIRECTORS. THE BOARD OF DIRECTORS SHALL NOT HAVE POWER TO AMEND,
REPEAL OR ADOPT A BYLAW (I) REQUIRING MORE THAN A MAJORITY OF THE VOTING
SHARES FOR A QUORUM AT A MEETING OF SHAREHOLDERS OR MORE THAN A MAJORITY
OF THE VOTES CAST TO CONSTITUTE ACTION BY THE SHAREHOLDERS, EXCEPT WHERE
HIGHER PERCENTAGES ARE REQUIRED BY LAW, (II) PROVIDING FOR THE
MANAGEMENT OF THE CORPORATION OTHER THAN BY THE BOARD OF DIRECTORS OR
ITS EXECUTIVE COMMITTEE, (III) INCREASING OR DECREASING THE AUTHORIZED
NUMBER OF DIRECTORS BEYOND THE MAXIMUM NUMBER OR MINIMUM NUMBER SET
FORTH IN ARTICLE 7 OF THE ARTICLES OF INCORPORATION, OR (IV)
INCONSISTENT WITH, OR (AS TO ANY MATTER COVERED BY SAID ARTICLE 7) IN A
MANNER OTHER THAN AS PRESCRIBED BY, ARTICLE 7 OF THE ARTICLES OF
INCORPORATION. THE SHAREHOLDERS MAY AMEND OR REPEAL THE BYLAWS AND ADOPT
NEW BYLAWS AT ANY ANNUAL MEETING OR AT A SPECIAL MEETING CALLED FOR SUCH
PURPOSE PROVIDED THAT NO BYLAW MAY BE SO AMENDED, REPEALED OR ADOPTED
WHICH IS INCONSISTENT WITH, OR (AS TO ANY MATTER COVERED BY SAID ARTICLE
7) ADOPTED IN A MANNER OTHER THAN AS PRESCRIBED BY, ARTICLE 7 OF THE
ARTICLES OF INCORPORATION WITHOUT THE AFFIRMATIVE VOTE OF THE HOLDERS OF
NOT LESS THAN 80% OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF THE
CORPORATION ENTITLED TO VOTE IN THE ELECTION OF DIRECTORS, VOTING
TOGETHER AS A
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SINGLE CLASS. NO BYLAW ADOPTED OR AMENDED BY THE SHAREHOLDERS SHALL BE
ALTERED OR REPEALED BY THE BOARD OF DIRECTORS, EXCEPT WHEN THE ARTICLES
OF INCORPORATION OR A BYLAW ADOPTED BY THE SHAREHOLDERS AUTHORIZES THE
BOARD OF DIRECTORS TO ADOPT OR REPEAL ANY SUCH BYLAW.
SECTION 5. DEFINITIONS. UNLESS THE CONTEXT OTHERWISE REQUIRES,
TERMS USED IN THESE BYLAWS SHALL HAVE THE MEANINGS ASSIGNED TO THEM IN
THE NORTH CAROLINA BUSINESS CORPORATION ACT TO THE EXTENT DEFINED
THEREIN.
SECTION 6. INAPPLICABILITY OF THE NORTH CAROLINA SHAREHOLDER
PROTECTION ACT. THE PROVISIONS OF THE NORTH CAROLINA SHAREHOLDER
PROTECTION ACT (N.C.G.S. SS. 55-9-01 THROUGH SS. 55-9-05) SHALL NOT BE
APPLICABLE TO THE CORPORATION, EFFECTIVE AS OF AUGUST 21, 1990, THE DATE
THIS BYLAW WAS ADOPTED BY THE BOARD OF DIRECTORS IN ACCORDANCE WITH
SECTION 55-9-05 OF SUCH ACT.
SECTION 7. INAPPLICABILITY OF THE NORTH CAROLINA CONTROL SHARE
ACQUISITION ACT. THE PROVISIONS OF THE NORTH CAROLINA CONTROL SHARE
ACQUISITION ACT (N.C.G.S. SS. 55-9A-01 THROUGH SS. 55-9A-09) SHALL NOT
BE APPLICABLE TO THE CORPORATION, EFFECTIVE AS OF AUGUST 21, 1990, THE
DATE THIS BYLAW WAS ADOPTED BY THE BOARD OF DIRECTORS IN ACCORDANCE WITH
SECTION 55-9A-09 OF SUCH ACT.
ARTICLE IX
INDEMNIFICATION
SECTION 1. DIRECTORS AND EXECUTIVE OFFICERS INDEMNITY. EACH
DIRECTOR AND EXECUTIVE OFFICER OF THE CORPORATION SHALL BE INDEMNIFIED
BY THE CORPORATION AGAINST LIABILITY IN ANY PROCEEDING (INCLUDING
WITHOUT LIMITATION A PROCEEDING BROUGHT BY OR ON BEHALF OF THE
CORPORATION ITSELF) ARISING OUT OF HIS STATUS AS SUCH OR HIS ACTIVITIES
IN EITHER OF THE FOREGOING CAPACITIES, EXCEPT FOR ANY LIABILITY INCURRED
ON ACCOUNT OF ACTIVITIES WHICH WERE AT THE TIME TAKEN KNOWN OR BELIEVED
BY SUCH PERSON TO BE CLEARLY IN CONFLICT WITH THE BEST INTERESTS OF THE
CORPORATION. LIABILITIES INCURRED BY A DIRECTOR OR EXECUTIVE OFFICER OF
THE CORPORATION IN DEFENDING A PROCEEDING SHALL BE PAID BY THE
CORPORATION IN ADVANCE OF THE FINAL DISPOSITION OF SUCH PROCEEDING UPON
RECEIPT OF AN UNDERTAKING BY THE DIRECTOR OR EXECUTIVE OFFICER TO REPAY
SUCH AMOUNT IF IT SHALL BE DETERMINED, AS PROVIDED IN SECTION 5(A)
HEREOF, THAT HE IS NOT ENTITLED TO BE INDEMNIFIED BY THE CORPORATION
AGAINST SUCH LIABILITIES.
THE INDEMNITY AGAINST LIABILITY IN THE PRECEDING PARAGRAPH OF
THIS SECTION 1, INCLUDING LIABILITIES INCURRED IN DEFENDING A
PROCEEDING, SHALL BE AUTOMATIC AND SELF-OPERATIVE.
SECTION 2. ADDITIONAL INDEMNITY. ANY DIRECTOR, OFFICER OR
EMPLOYEE OF THE CORPORATION WHO SERVES AT THE REQUEST OF THE CORPORATION
AS A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF A CHARITABLE,
NOT-FOR-PROFIT, RELIGIOUS, EDUCATIONAL OR HOSPITAL CORPORATION,
PARTNERSHIP, JOINT VENTURE, TRUST OR OTHER ENTERPRISE, OR A TRADE
ASSOCIATION, OR AS A TRUSTEE OR
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ADMINISTRATOR UNDER AN EMPLOYEE BENEFIT PLAN, OR WHO SERVES AT THE
REQUEST OF THE CORPORATION AS A DIRECTOR, OFFICER OR EMPLOYEE OF A
BUSINESS CORPORATION IN CONNECTION WITH THE ADMINISTRATION OF AN ESTATE
OR TRUST BY THE CORPORATION, SHALL HAVE THE RIGHT TO BE INDEMNIFIED BY
THE CORPORATION, SUBJECT TO THE PROVISIONS SET FORTH IN THE FOLLOWING
PARAGRAPH OF THIS SECTION 2, AGAINST LIABILITIES IN ANY MANNER ARISING
OUT OF OR ATTRIBUTABLE TO SUCH STATUS OR ACTIVITIES IN ANY SUCH
CAPACITY, EXCEPT FOR ANY LIABILITY INCURRED ON ACCOUNT OF ACTIVITIES
WHICH WERE AT THE TIME TAKEN KNOWN OR BELIEVED BY SUCH PERSON TO BE
CLEARLY IN CONFLICT WITH THE BEST INTERESTS OF THE CORPORATION, OR OF
THE CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, ENTERPRISE,
ASSOCIATION OR PLAN BEING SERVED BY SUCH PERSON.
IN THE CASE OF ALL PERSONS EXCEPT THE DIRECTORS AND EXECUTIVE
OFFICERS OF THE CORPORATION, THE DETERMINATION OF WHETHER A PERSON IS
ENTITLED TO INDEMNIFICATION UNDER THE PRECEDING PARAGRAPH OF THIS
SECTION 2 SHALL BE MADE BY AND IN THE SOLE DISCRETION OF THE CHIEF
EXECUTIVE OFFICER OF THE CORPORATION. IN THE CASE OF THE DIRECTORS AND
EXECUTIVE OFFICERS OF THE CORPORATION, THE INDEMNITY AGAINST LIABILITY
IN THE PRECEDING PARAGRAPH OF THIS SECTION 2 SHALL BE AUTOMATIC AND
SELF-OPERATIVE.
SECTION 3. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE IX OF
THESE BYLAWS ONLY, THE FOLLOWING TERMS SHALL HAVE THE MEANINGS
INDICATED:
(A) THE TERM "CORPORATION" MEANS FIRST UNION CORPORATION
AND ITS DIRECT AND INDIRECT WHOLLY-OWNED (EXCLUDING
DIRECTORS' QUALIFYING SHARES) SUBSIDIARIES.
(B) THE TERM "DIRECTOR" MEANS AN INDIVIDUAL WHO IS OR WAS
A DIRECTOR OF THE CORPORATION.
(C) THE TERM "EXECUTIVE OFFICER" MEANS AN OFFICER OF THE
CORPORATION WHO BY RESOLUTION OF THE BOARD OF
DIRECTORS OF THE CORPORATION HAS BEEN DETERMINED TO BE
AN EXECUTIVE OFFICER OF THE CORPORATION FOR PURPOSES
OF REGULATION O OF THE FEDERAL RESERVE BOARD.
(D) THE TERM "LIABILITY" MEANS THE OBLIGATION TO PAY A
JUDGMENT, SETTLEMENT, PENALTY, FINE (INCLUDING AN
EXCISE TAX ASSESSED WITH RESPECT TO AN EMPLOYEE
BENEFIT PLAN), OR REASONABLE EXPENSES, INCLUDING
COUNSEL FEES AND EXPENSES, INCURRED WITH RESPECT TO A
PROCEEDING.
(E) THE TERM "PARTY" INCLUDES AN INDIVIDUAL WHO WAS, IS,
OR IS THREATENED TO BE MADE A NAMED DEFENDANT OR
RESPONDENT IN A PROCEEDING.
(F) THE TERM "PROCEEDING" MEANS ANY THREATENED, PENDING,
OR COMPLETED CLAIM, ACTION, SUIT, OR PROCEEDING,
WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE, OR
INVESTIGATIVE AND WHETHER FORMAL OR INFORMAL.
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SECTION 4. SETTLEMENTS. THE CORPORATION SHALL HAVE NO
OBLIGATION TO INDEMNIFY ANY PERSON FOR AN AMOUNT PAID IN SETTLEMENT OF A
PROCEEDING UNLESS THE CORPORATION CONSENTS IN WRITING TO SUCH
SETTLEMENT.
SECTION 5. ADDITIONAL PROVISIONS.
(A) NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED
HEREIN, NO PERSON SHALL HAVE A RIGHT TO
INDEMNIFICATION WITH RESPECT TO ANY LIABILITY TO THE
EXTENT SUCH PERSON IS ENTITLED TO RECEIVE PAYMENT
THEREFOR UNDER ANY INSURANCE POLICY OR FROM ANY
CORPORATION, PARTNERSHIP, JOINT VENTURE, TRUST, TRADE
ASSOCIATION, EMPLOYEE BENEFIT PLAN, OR OTHER
ENTERPRISE OTHER THAN THE CORPORATION, OR TO THE
EXTENT THAT A COURT OF COMPETENT JURISDICTION
DETERMINES THAT SUCH INDEMNIFICATION IS VOID OR
PROHIBITED UNDER STATE OR FEDERAL LAW.
(B) THE RIGHT TO INDEMNIFICATION HEREIN PROVIDED FOR SHALL
APPLY TO PERSONS WHO ARE DIRECTORS, OFFICERS, OR
EMPLOYEES OF CORPORATIONS OR OTHER ENTITIES THAT ARE
HEREAFTER MERGED OR OTHERWISE COMBINED WITH THE
CORPORATION ONLY AFTER THE EFFECTIVE DATE OF SUCH
MERGER OR OTHER COMBINATION AND ONLY AS TO THEIR
STATUS AND ACTIVITIES AFTER SUCH DATE.
(C) THE RIGHT TO INDEMNIFICATION HEREIN PROVIDED FOR SHALL
INURE TO THE BENEFIT OF THE HEIRS AND LEGAL
REPRESENTATIVES OF ANY PERSON ENTITLED TO SUCH RIGHT.
(D) NO REVOCATION OF, CHANGE IN, OR ADOPTION OF ANY
RESOLUTION OR PROVISION IN THE ARTICLES OF
INCORPORATION OR BYLAWS OF THE CORPORATION
INCONSISTENT WITH, THIS BYLAW SHALL ADVERSELY AFFECT
THE RIGHTS OF ANY DIRECTOR, OFFICER, OR EMPLOYEE OF
THE CORPORATION WITH RESPECT TO (I) ANY PROCEEDING
COMMENCED OR THREATENED PRIOR TO SUCH REVOCATION,
CHANGE, OR ADOPTION, OR (II) ANY PROCEEDING ARISING
OUT OF ANY ACT OR OMISSION OCCURRING PRIOR TO SUCH
REVOCATION, CHANGE, OR ADOPTION, IN EITHER CASE,
WITHOUT THE WRITTEN CONSENT OF SUCH DIRECTOR, OFFICER,
OR EMPLOYEE.
(E) THE RIGHTS HEREUNDER SHALL BE IN ADDITION TO AND NOT
EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH A DIRECTOR,
OFFICER, OR EMPLOYEE OF THE CORPORATION MAY BE
ENTITLED UNDER ANY STATUTE, AGREEMENT, INSURANCE
POLICY OR OTHERWISE.
(F) THE CORPORATION SHALL HAVE THE POWER TO PURCHASE AND
MAINTAIN INSURANCE ON BEHALF OF ANY PERSON WHO IS OR
WAS A DIRECTOR, OFFICER, OR EMPLOYEE OF THE
CORPORATION, OR IS OR WAS SERVING AT THE REQUEST OF
THE CORPORATION AS A DIRECTOR, OFFICER, EMPLOYEE, OR
AGENT OF ANOTHER CORPORATION, PARTNERSHIP, JOINT
VENTURE, TRUST, TRADE ASSOCIATION, EMPLOYEE BENEFIT
PLAN, OR OTHER ENTERPRISE, AGAINST ANY LIABILITY
ASSERTED AGAINST SUCH DIRECTOR, OFFICER, OR EMPLOYEE
IN ANY SUCH CAPACITY, OR ARISING OUT OF THEIR STATUS
AS SUCH, WHETHER OR NOT THE
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CORPORATION WOULD HAVE THE
POWER TO INDEMNIFY SUCH DIRECTOR, OFFICER, OR EMPLOYEE
AGAINST SUCH LIABILITY.
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Exhibit 23(a)
CONSENT OF KPMG PEAT MARWICK LLP
Board of Directors
First Union Corporation
We consent to the incorporation by reference in this Post- Effective
Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 No. 33-62399
of First Union Corporation of our report on the consolidated financial
statements included in the 1994 Annual Report to Stockholders which is
incorporated by reference in the 1994 Form 10-K of First Union Corporation and
to the reference to our firm under the heading "Experts" in the Post- Effective
Amendment No. 1 on Form S-8. Our report refers to a change in the method of
accounting for investments in 1994.
KPMG PEAT MARWICK LLP
Charlotte, North Carolina
November 6, 1995
<PAGE>
Exhibit 23(b)
CONSENT OF KPMG PEAT MARWICK LLP
Board of Directors
First Fidelity Bancorporation
We consent to the incorporation by reference in this Post- Effective
Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 No. 33-62399
of First Union Corporation of our report on the consolidated financial
statements included in the 1994 Annual Report on Form 10-K of First Fidelity
Bancorporation and to the reference to our firm under the heading "Experts" in
the Post-Effective Amendment No. 1 on Form S-8. Our report dated January 18,
1995, refers to changes in the methods of accounting for income taxes,
postretirement benefits other than pensions, postemployment benefits, and
investments in 1993.
KPMG PEAT MARWICK LLP
New York, New York
November 6, 1995
