AMENDED
AND RESTATED BYLAWS
ARTICLE
I.
STOCKHOLDERS
SECTION
1.1
Annual
Meetings.
MFA Financial, Inc. (the “Corporation”) shall hold
an annual meeting of its stockholders to elect directors and transact any other
business within its powers, either at 10:00 a.m. on the first Wednesday of May
in each year if not a legal holiday, or at such other time on such other day
falling on or before the 30th day thereafter as shall be set by the Board of
Directors. Except as the Corporation’s charter (the “Charter”) or
statute provides otherwise, any business may be considered at an annual meeting
without the purpose of the meeting having been specified in the
notice. Failure to hold an annual meeting does not invalidate the
Corporation’s existence or affect any otherwise valid corporate
acts.
SECTION
1.2
Special
Meetings.
(a)
General
. The
Chairman of the Board, President, Chief Executive Officer or Board of Directors
may call a special meeting of the stockholders. Subject to subsection
(b) of this Section 1.2, a special meeting of stockholders shall also be called
by the Secretary of the Corporation upon the written request of stockholders
entitled to cast not less than a majority of all the votes entitled to be cast
at such meeting.
(b)
Stockholder Requested
Special Meetings
. (1) Any stockholder of record seeking to
have stockholders request a special meeting shall, by sending written notice to
the Secretary (the “Record Date Request Notice”) by registered mail, return
receipt requested, request the Board of Directors to fix a record date to
determine the stockholders entitled to request a special meeting (the “Request
Record Date”). The Record Date Request Notice shall set forth the
purpose of the meeting and the matters proposed to be acted on at it, shall be
signed by one or more stockholders of record as of the date of signature (or
their agents duly authorized in a writing accompanying the Record Date Request
Notice), shall bear the date of signature of each such stockholder (or such
agent) and shall set forth all information relating to each such stockholder
that must be disclosed in solicitations of proxies for election of directors in
an election contest (even if an election contest is not involved), or is
otherwise required, in each case pursuant to Regulation 14A (or any successor
provision) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Upon receiving the Record Date Request Notice, the Board of
Directors may fix a Request Record Date. The Request Record Date
shall not precede and shall not be more than ten days after the close of
business on the date on which the resolution fixing the Request Record Date is
adopted by the Board of Directors. If the Board of Directors, within
ten days after the date on which a valid Record Date Request Notice is received,
fails to adopt a resolution fixing the Request Record Date, the Request Record
Date shall be the close of business on the tenth day after the first date on
which the Record Date Request Notice is received by the Secretary.
(2) In
order for any stockholder to request a special meeting, one or more written
requests for a special meeting signed by stockholders of record (or their agents
duly authorized in a writing accompanying the request) as of the Request Record
Date entitled to cast not less than a majority (the “Special Meeting
Percentage”) of all of the votes entitled to be cast at such meeting (the
“Special Meeting Request”) shall be delivered to the Secretary. In
addition, the Special Meeting Request (a) shall set forth the purpose of the
meeting and the matters proposed to be acted on at it (which shall be limited to
those lawful matters set forth in the Record Date Request Notice received by the
Secretary), (b) shall bear the date of signature of each such stockholder (or
such agent) signing the Special Meeting Request, (c) shall set forth the name
and address, as they appear in the Corporation’s books, of each stockholder
signing such request (or on whose behalf the Special Meeting Request is signed),
the class, series and number of all shares of stock of the Corporation which are
owned by each such stockholder, and the nominee holder for, and number of,
shares owned by such stockholder beneficially but not of record, (d) shall be
sent to the Secretary by registered mail, return receipt requested, and (e)
shall be received by the Secretary within 60 days after the Request Record
Date. Any requesting stockholder (or agent duly authorized in a
writing accompanying the revocation or the Special Meeting Request) may revoke
his, her or its request for a special meeting at any time by written revocation
delivered to the Secretary.
(3) The
Secretary shall inform the requesting stockholders of the reasonably estimated
cost of preparing and mailing the notice of meeting (including the Corporation’s
proxy materials). The Secretary shall not be required to call a
special meeting upon stockholder request and such meeting shall not be held
unless, in addition to the documents required by paragraph (2) of this Section
1.2(b), the Secretary receives payment of such reasonably estimated cost prior
to the preparation and mailing of any notice of the meeting.
(4) Except
as provided in the next sentence, any special meeting shall be held at such
place, date and time as may be designated by the Chairman of the Board, Chief
Executive Officer, President or Board of Directors, whoever has called the
meeting. In the case of any special meeting called by the Secretary
upon the request of stockholders (a “Stockholder Requested Meeting”), such
meeting shall be held at such place, date and time as may be designated by the
Board of Directors;
provided
, however,
that the date of any Stockholder Requested Meeting shall be not more than 90
days after the record date for such meeting (the “Meeting Record Date”); and
provided
further
that if the
Board of Directors fails to designate, within ten days after the date that a
valid Special Meeting Request is actually received by the Secretary (the
“Delivery Date”), a date and time for a Stockholder Requested Meeting, then such
meeting shall be held at 2:00 p.m. local time on the 90
th
day
after the Meeting Record Date or, if such 90
th
day is
not a Business Day (as defined below), on the first preceding Business Day; and
provided
further
that in the
event that the Board of Directors fails to designate a place for a Stockholder
Requested Meeting within ten days after the Delivery Date, then such meeting
shall be held at the principal executive office of the
Corporation. In fixing a date for any special meeting, the Chairman
of the Board, Chief Executive Officer, President or Board of Directors may
consider such factors as he, she or it deems relevant within the good faith
exercise of business judgment, including, without limitation, the nature of the
matters to be considered, the facts and circumstances surrounding any request
for the meeting and any plan of the Board of Directors to call an annual meeting
or a special meeting. In the case of any Stockholder Requested
Meeting, if the Board of Directors fails to fix a Meeting Record Date that is a
date within 30 days after the Delivery Date, then the close of business on the
30
th
day after the Delivery Date shall be the Meeting Record Date. The
Board of Directors may revoke the notice for any Stockholder Requested Meeting
in the event that the requesting stockholders fail to comply with the provisions
of paragraph (3) of this Section 1.2(b).
(5) If
written revocations of the Special Meeting Request have been delivered to the
Secretary and the result is that stockholders of record (or their agents duly
authorized in writing), as of the Request Record Date, entitled to cast less
than the Special Meeting Percentage have delivered, and not revoked, requests
for a special meeting to the Secretary, the Secretary shall: (i) if the notice
of meeting has not already been mailed, refrain from mailing the notice of the
meeting and send to all requesting stockholders who have not revoked such
requests written notice of any revocation of a request for the special meeting,
or (ii) if the notice of meeting has been mailed and if the Secretary first
sends to all requesting stockholders who have not revoked requests for a special
meeting written notice of any revocation of a request for the special meeting
and written notice of the Secretary’s intention to revoke the notice of the
meeting, revoke the notice of the meeting at any time before ten days before the
commencement of the meeting. Any request for a special meeting
received after a revocation by the Secretary of a notice of a meeting shall be
considered a request for a new special meeting.
(6) The
Chairman of the Board, Chief Executive Officer, President or Board of Directors
may appoint regionally or nationally recognized independent inspectors of
elections to act as the agent of the Corporation for the purpose of promptly
performing a ministerial review of the validity of any purported Special Meeting
Request received by the Secretary. For the purpose of permitting the
inspectors to perform such review, no such purported request shall be deemed to
have been delivered to the Secretary until the earlier of (i) five Business Days
after receipt by the Secretary of such purported request and (ii) such date as
the independent inspectors certify to the Corporation that the valid requests
received by the Secretary represent, as of the Request Record Date, stockholders
of record entitled to cast not less than a majority of the votes that would be
entitled to be cast at such meeting. Nothing contained in this
paragraph (6) shall in any way be construed to suggest or imply that the
Corporation or any stockholder shall not be entitled to contest the validity of
any request, whether during or after such five Business Day period, or to take
any other action (including, without limitation, the commencement, prosecution
or defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
(7) For
purposes of these Bylaws, “Business Day” shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
SECTION
1.3
Place of
Meetings.
Meetings of stockholders shall be held at such place
in the United States as is set from time to time by the Board of Directors and
stated in the notice of the meeting.
SECTION
1.4
Notice of
Meetings; Waiver of Notice.
Not less than ten nor more than 90
days before each stockholders meeting, the Secretary shall give written or
printed notice of the meeting to each stockholder entitled to vote at such
meeting and to each other stockholder not entitled to vote who is entitled to
notice of the meeting. The notice shall state the time and place of
the meeting and, if the meeting is a special meeting or notice of the purpose is
required by statute, the purpose for which the meeting is
called. Notice is given to a stockholder when it is personally
delivered to him, left at his residence or usual place of business, mailed to
him at his address as it appears on the records of the Corporation or given by
any other means permitted by Maryland law. A single notice shall be
effective as to all stockholders who share an address, except to the extent that
a stockholder at such address objects to such single notice. Failure
to give notice of any meeting to one or more stockholders, or any irregularity
in such notice, shall not affect the validity of any meeting fixed in accordance
with this Article I, or the validity of any proceedings at any such
meeting. Notwithstanding the foregoing provisions, each person who is
entitled to notice waives notice if before or after the meeting he signs a
waiver of the notice which is filed with the records of stockholders meetings or
is present at the meeting in person or by proxy. The Corporation may
postpone or cancel a meeting of stockholders by making a “public announcement”
(as defined in Section 1.12(c)(3)) of such postponement or cancellation prior to
the meeting.
SECTION
1.5
Quorum.
Unless
the Charter or statute provides otherwise, at any meeting of stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
all the votes entitled to be cast at such meeting on any matter shall constitute
a quorum; but this sentence shall not affect any requirement under any statute
or the Charter for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present at any meeting
of the stockholders, the chairman of the meeting shall have the power to adjourn
the meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally notified. The stockholders present either in
person or by proxy, at a meeting which has been duly called and at which a
quorum was established, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION
1.6
Voting.
A
majority of the votes cast at a meeting of stockholders duly called and at which
a quorum is present shall be sufficient to approve any matter which may properly
come before the meeting, except that a plurality of all the votes cast at a
meeting of stockholders at which a quorum is present shall be sufficient to
elect a director. In all elections for directors, each share may be
voted for as many individuals as there are directors to be elected and for whose
election the share is entitled to be voted. Unless otherwise provided
by statute or by the Charter, each outstanding share, regardless of class, shall
be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. Voting on any question or in any election may be
viva voce
unless the
chairman of the meeting shall order that voting be by ballot.
SECTION
1.7
Proxies.
A
stockholder may cast the votes entitled to be cast by the holder of the shares
of stock owned of record by the stockholder in person or by proxy executed by
the stockholder or by his duly authorized agent in any manner permitted by
law. Such proxy or evidence of authorization of such proxy shall be
filed with the Secretary of the Corporation before or at the
meeting. Unless a proxy provides otherwise, it is not valid more than
11 months after its date. A proxy is revocable by a stockholder at
any time without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be
made irrevocable for so long as it is coupled with an interest. The
interest with which a proxy may be coupled includes an interest in the stock to
be voted under the proxy or another general interest in the Corporation or its
assets or liabilities.
SECTION
1.8
Organization and
Conduct.
Every meeting of stockholders shall be conducted by
an individual appointed by the Board of Directors to be chairman of the meeting
or, in the absence of such appointment, by the Chairman of the Board or, in the
case of a vacancy in the office or absence of the Chairman of the Board, by one
of the following officers present at the meeting: the Vice Chairman
of the Board, if there is one, the President, the Vice Presidents in their order
of rank and seniority, or, in the absence of such officers, a chairman chosen by
the stockholders by the vote of a majority of the votes cast by stockholders
present in person or by proxy. The Secretary, or, in the Secretary’s
absence, an Assistant Secretary, or in the absence of both the Secretary and
Assistant Secretaries, a person appointed by the Board of Directors or, in the
absence of such appointment, a person appointed by the chairman of the meeting
shall act as secretary of the meeting. In the event that the
Secretary presides at a meeting of the stockholders, an Assistant Secretary, or
in the absence of Assistant Secretaries, an individual appointed by the Board of
Directors or the chairman of the meeting, shall record the minutes of the
meeting. The order of business and all other matters of procedure at
any meeting of stockholders shall be determined by the chairman of the
meeting. The chairman of the meeting may prescribe such rules,
regulations and procedures and take such action as, in the discretion of the
chairman and without any action by the stockholders, are appropriate for the
proper conduct of the meeting, including, without limitation, (a) restricting
admission to the time set for the commencement of the meeting; (b) limiting
attendance at the meeting to stockholders of record of the Corporation, their
duly authorized proxies and other such individuals as the chairman of the
meeting may determine; (c) limiting participation at the meeting on any matter
to stockholders of record of the Corporation entitled to vote on such matter,
their duly authorized proxies and other such individuals as the chairman of the
meeting may determine; (d) limiting the time allotted to questions or comments
by participants; (e) determining when the polls should be opened and closed; (f)
maintaining order and security at the meeting; (g) removing any stockholder or
any other individual who refuses to comply with meeting procedures, rules or
guidelines as set forth by the chairman of the meeting; (h) concluding a
meeting or recessing or adjourning the meeting to a later date and time and at a
place announced at the meeting; and (i) complying with any state and local laws
and regulations concerning safety and security. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
SECTION
1.9
Voting of Stock
by Certain Holders.
Stock of the Corporation registered in the
name of a corporation, partnership, trust or other entity, if entitled to be
voted, may be voted by the president or a vice president, a general partner or
trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote
such stock pursuant to a bylaw or a resolution of the governing body of such
corporation or other entity or agreement of the partners of a partnership
presents a certified copy of such bylaw, resolution or agreement, in which case
such person may vote such stock. Any director or other fiduciary may
vote stock registered in his or her name in his or her capacity as such
fiduciary, either in person or by proxy.
Shares of
stock of the Corporation directly or indirectly owned by it shall not be voted
at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held
by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given
time.
The Board
of Directors may adopt by resolution a procedure by which a stockholder may
certify in writing to the Corporation that any shares of stock registered in the
name of the stockholder are held for the account of a specified person other
than the stockholder. The resolution shall set forth the class of
stockholders who may make the certification; the purpose for which the
certification may be made; the form of certification and the information to be
contained in it; if the certification is with respect to a record date, the time
after the record date within which the certification must be received by the
Corporation; and any other provisions with respect to the procedure which the
Board of Directors considers necessary or desirable. On receipt of
such certification, the person specified in the certification shall be regarded
as, for the purposes set forth in the certification, the stockholder of record
of the specified stock in place of the stockholder who makes the
certification.
SECTION
1.10
Inspectors.
The
Board of Directors or the chairman of the meeting may appoint, before or at the
meeting, one or more inspectors for the meeting and any successor
thereto. The inspectors, if any, shall (i) determine the number of
shares of stock represented at the meeting, in person or by proxy and the
validity and effect of proxies, (ii) receive and tabulate all votes, ballots or
consents, (iii) report such tabulation to the chairman of the meeting, (iv) hear
and determine all challenges and questions arising in connection with the right
to vote, and (v) do such acts as are proper to fairly conduct the election or
vote. Each such report shall be in writing and signed by him or her
or by a majority of them if there is more than one inspector acting at such
meeting. If there is more than one inspector, the report of a
majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the meeting and
the results of the voting shall be
prima
facie
evidence
thereof.
SECTION
1.11
Informal Action
by Stockholders.
Any action required or permitted to be taken
at a meeting of stockholders may be taken without a meeting if there is filed
with the records of stockholders meetings a unanimous consent which sets forth
the action and is given in writing or by electronic transmission by each
stockholder entitled to vote on the matter and a waiver of any right to dissent
given in writing or by electronic transmission by each stockholder entitled to
notice of the meeting but not entitled to vote at it.
SECTION
1.12
Advance Notice of
Stockholder Nominees for Director and other Stockholder
Proposals.
(a)
Annual Meetings of
Stockholders
. (1) Nominations of individuals for election to
the Board of Directors and the proposal of other business to be considered by
the stockholders may be made at an annual meeting of stockholders (i) pursuant
to the Corporation’s notice of meeting, (ii) by or at the direction of the Board
of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record both at the time of giving of notice by the stockholder as
provided for in this Section 1.12(a) and at the time of the annual meeting, who
is entitled to vote at the meeting on the election or the proposal for other
business and who has complied with this Section 1.12(a).
(2) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 1.12,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such other business must otherwise be a proper
matter for action by the stockholders. To be timely, a stockholder’s
notice shall set forth all information required under this Section 1.12 and
shall be delivered to the Secretary at the principal executive office of the
Corporation not earlier than the 150
th
day nor
later than 5:00 p.m., Eastern Time, on the 120
th
day
prior to the first anniversary of the date of the proxy statement for the
preceding year’s annual meeting;
provided
, however,
that in the event that the date of the annual meeting is advanced or delayed by
more than 30 days from the first anniversary of the date of the preceding year’s
annual meeting, notice by the stockholder to be timely must be so delivered not
earlier than the 150
th
day
prior to the date of such annual meeting and not later than 5:00 p.m., Eastern
Time, on the later of the 120
th
day
prior to the date of such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first
made. The public announcement of a postponement or adjournment of an
annual meeting shall not commence a new time period for the giving of a
stockholder’s notice as described above. Such stockholder’s notice
shall set forth (i) as to each individual whom the stockholder proposes to
nominate for election or reelection as a director, (A) the name, age, business
address and residence address of such individual, (B) the class, series and
number of any shares of stock of the Corporation that are beneficially owned by
such individual, (C) the date such shares were acquired and the investment
intent of such acquisition and (D) all other information relating to such
individual that is required to be disclosed in solicitations of proxies for
election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or
any successor provision) under the Exchange Act and the rules thereunder
(including such individual’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as to any
other business that the stockholder proposes to bring before the meeting, a
description of such business, the reasons for proposing such business at the
meeting and any material interest in such business of such stockholder and any
Stockholder Associated Person (as defined below), individually or in the
aggregate, including any anticipated benefit to the stockholder or the
Stockholder Associated Person therefrom; (iii) as to the stockholder giving the
notice and any Stockholder Associated Person, (A) the class, series and number
of all shares of stock of the Corporation which are owned by such stockholder
and by such Stockholder Associated Person, if any, (B) the nominee holder for,
and number of, shares owned beneficially but not of record by such stockholder
and by any such Stockholder Associated Person, (C) whether and the extent to
which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding (including any short position or any borrowing or lending of
shares) has been made, the effect or intent of which is to mitigate loss to or
manage risk or benefit of share price changes for, or to increase or decrease
the voting power of, such stockholder or any such Stockholder Associated Person
with respect to any share of stock of the Corporation (collectively, “Hedging
Activities”) and (D) a general description of whether and the extent to which
such stockholder or such Stockholder Associated Person has engaged in Hedging
Activities with respect to shares of stock or other equity interest of any other
company; (iv) as to the stockholder giving the notice and any Stockholder
Associated Person covered by clauses (ii) or (iii) of this paragraph (2) of this
Section 1.12(a), (A) the name and address of such stockholder, as they appear on
the Corporation’s stock ledger and current name and address, if different, and
of such Stockholder Associated Person and (B) the investment strategy or
objective, if any, of such stockholder or Stockholder Associated Person and a
copy of the prospectus, offering memorandum or similar document, if any,
provided to investors or potential investors in such stockholder or Stockholder
Associated Person and (v) to the extent known by the stockholder giving the
notice, the name and address of any other stockholder supporting the nominee for
election or reelection as a director or the proposal of other business on the
date of such stockholder’s notice.
(3) Notwithstanding
anything in this subsection (a) of this Section 1.12 to the contrary, in the
event the number of directors to be elected to the Board of Directors is
increased, and there is no public announcement of such action at least 130 days
prior to the first anniversary of the date of the proxy statement for the
preceding year’s annual meeting, a stockholder’s notice required by this Section
1.12(a) shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive office of the Corporation not later than
5:00 p.m., Eastern Time, on the tenth day following the day on which such public
announcement is first made by the Corporation.
(4) For
purposes of this Section 1.12, “Stockholder Associated Person” of any
stockholder shall mean (i) any person controlling, directly or indirectly, or
acting in concert with, such stockholder, (ii) any beneficial owner of shares of
stock of the Corporation owned of record or beneficially by such stockholder and
(iii) any person controlling, controlled by or under common control with such
Stockholder Associated Person.
(b)
Special Meetings of
Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting. Nominations of
individuals for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporation’s notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record both at the time of giving of notice
provided for in this Section 1.12 and at the time of the special meeting, who is
entitled to vote at the meeting and who has complied with the notice procedures
set forth in this Section 1.12. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
individuals to the Board of Directors, any such stockholder may nominate an
individual or individuals (as the case may be) for election as a director as
specified in the Corporation’s notice of meeting, if the stockholder’s notice
required by paragraph (a)(2) of this Section 1.12 shall be delivered to the
Secretary at the principal executive office of the Corporation not earlier than
the 120
th
day
prior to such special meeting and not later than 5:00 p.m., Eastern Time on the
later of the 90
th
day
prior to such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such
meeting. The public announcement of a postponement or adjournment of
a special meeting shall not commence a new time period for the giving of a
stockholder’s notice as described above.
(c)
General
. (1) If
any information submitted pursuant to this Section 1.12 by any stockholder
proposing a nominee for election as a director or any proposal for other
business at a meeting of stockholders shall be inaccurate in any material
respect, such information may be deemed not to have been provided in accordance
with this Section 1.12. Upon written request by the Secretary or the
Board of Directors, any stockholder proposing a nominee for election as a
director or any proposal for other business at a meeting of stockholders shall
provide, within five Business Days of delivery of such request (or such other
period as may be specified in such request), (A) written verification,
satisfactory, in the discretion of the Board of Directors or any authorized
officer of the Corporation, to demonstrate the accuracy of any information
submitted by the stockholder pursuant to this Section 1.12, and (B) a written
update of any information submitted by the stockholder pursuant to this Section
1.12 as of an earlier date. If a stockholder fails to provide such
written verification or written update within such period, the information as to
which written verification or a written update was requested may be deemed not
to have been provided in accordance with this Section 1.12.
(2) Only
such individuals who are nominated in accordance with this Section 1.12 shall be
eligible for election by stockholders as directors, and only such business shall
be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with this Section 1.12. The chairman of the
meeting shall have the power to determine whether a nomination or any other
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with this Section 1.12.
(3) “Public
announcement” shall mean disclosure (i) in a press release reported by the Dow
Jones News Service, Associated Press, Business Wire, PR Newswire or other widely
circulated news or wire service or (ii) in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to the Exchange
Act.
(4) Notwithstanding
the foregoing provisions of this Section 1.12, a stockholder shall also comply
with all applicable requirements of state law and of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Section 1.12. Nothing in this Section 1.12 shall be deemed to affect
any right of a stockholder to request inclusion of a proposal in, nor the right
of the Corporation to omit a proposal from, the Corporation’s proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
ARTICLE
II.
BOARD
OF DIRECTORS
SECTION
2.1
Function of
Directors.
The business and affairs of the Corporation shall
be managed under the direction of its Board of Directors. All powers
of the Corporation may be exercised by or under authority of the Board of
Directors, except as conferred on or reserved to the stockholders by statute or
by the Charter or Bylaws.
SECTION
2.2
Number of
Directors.
At any regular meeting or at any special meeting
called for that purpose, the Board may, by a vote of at least two-thirds of the
entire Board, establish, increase or decrease the number of directors, provided
that the number thereof shall never be less than the minimum number required by
the Maryland General Corporation Law, nor more than 15, and further provided
that the tenure of office of a director shall not be affected by any decrease in
the number of directors.
SECTION
2.3
Election and
Tenure of Directors.
Subject to the rights of the holders of
any class of stock separately entitled to elect one or more directors, at each
annual meeting, the stockholders shall elect directors to hold office for the
term set forth in the Charter.
SECTION
2.4
Removal of
Director.
Any director or the entire Board of Directors may be
removed only in accordance with the provisions of the Charter.
SECTION
2.5
Vacancy on
Board.
Subject to the rights of the holders of any class of
stock separately entitled to elect one or more directors, the stockholders may
elect a successor to fill a vacancy on the Board of Directors which results from
the removal of a director. A director elected by the stockholders to
fill a vacancy which results from the removal of a director serves for the
balance of the term of the removed director. Subject to the rights of
the holders of any class of stock separately entitled to elect one or more
directors, a majority of the remaining directors, whether or not sufficient to
constitute a quorum, may fill a vacancy on the Board of Directors which results
from any cause except an increase in the number of directors and a majority of
the entire Board of Directors may fill a vacancy which results from an increase
in the number of directors. A director elected by the Board of
Directors to fill a vacancy serves until the next annual meeting of stockholders
and until his successor is elected and qualifies.
SECTION
2.6
Regular
Meetings.
After each meeting of stockholders at which
directors shall have been elected, the Board of Directors shall meet as soon
thereafter as practicable for the purpose of organization and the transaction of
other business. In the event that no other time and place are
specified by resolution of the Board of Directors or announced by the President
or the Chairman of the Board at such stockholders meeting, the Board of
Directors shall meet immediately following the close of, and at the place of,
such stockholders meeting. Any other regular meeting of the Board of
Directors shall be held on such date and time and at such place as may be
designated from time to time by the Board of Directors. No notice of
such meeting following a stockholders meeting or any other regular meeting shall
be necessary if held as hereinabove provided.
SECTION
2.7
Special
Meetings.
Special meetings of the Board of Directors may be
called at any time by or at the request of the Chairman of the Board, the Chief
Executive Officer, the President or by a majority of the directors then in
office. The person or persons 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 called by them. The Board of
Directors may provide, by resolution, the time and place for the holding of
special meetings of the Board of Directors without other notice than such
resolution.
SECTION
2.8
Notice of
Meeting.
Except as provided in Section 2.6, the Secretary
shall give notice to each director of each regular and special meeting of the
Board of Directors. The notice shall state the time and place of the
meeting. Notice is given to a director when it is delivered
personally to him, left at his residence or usual place of business, or sent by
telegraph, facsimile transmission, telephone or electronic mail, at least 24
hours before the time of the meeting or, in the alternative by mail to his
address as it shall appear on the records of the Corporation, at least 72 hours
before the time of the meeting. Unless specifically required by
statute, the Bylaws or a resolution of the Board of Directors, the notice need
not state the business to be transacted at or the purposes of any regular or
special meeting of the Board of Directors. No notice of any meeting
of the Board of Directors need be given to any director who attends except where
a director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened or to any director who, in writing executed and filed with the records
of the meeting either before or after the holding thereof, waives such
notice. Any meeting of the Board of Directors, regular or special,
may adjourn from time to time to reconvene at the same or some other place, and
no notice need be given of any such adjourned meeting other than by
announcement.
SECTION
2.9
Quorum; Action by
Directors
.
A majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business. In the absence of a quorum, the directors present by
majority vote and without notice other than by announcement may adjourn the
meeting from time to time until a quorum shall attend. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified. If, pursuant to applicable law, the Charter or these
Bylaws, the vote of a majority or other percentage of a particular group of
directors is required for action, a quorum must also include a majority of such
group. The directors present at a meeting which has been duly called
and at which a quorum was established may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
Unless
any statute or the Charter or Bylaws requires a greater proportion, the action
of a majority of the directors present at a meeting at which a quorum is present
shall be the action of the Board of Directors. If enough directors
have withdrawn from a meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of that number of directors necessary to
constitute a quorum at such meeting shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable law, the Charter or these Bylaws. Any action
required or permitted to be taken at a meeting of the Board of Directors may be
taken without a meeting, if a unanimous consent in writing or by electronic
transmission to such action is given by each director and filed with the minutes
of proceedings of the Board of Directors.
SECTION
2.10
Meeting by
Conference Telephone.
Members of the Board of Directors may
participate in a meeting by means of a conference telephone or other
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these
means constitutes presence in person at a meeting.
SECTION
2.11
Compensation.
By
resolution of the Board of Directors a fixed sum and expenses, if any, for
attendance at each regular or special meeting of the Board of Directors or of
committees thereof, and other compensation for their services as such or on
committees of the Board of Directors, may be paid to
directors. Directors who are full-time employees of the Corporation
need not be paid for attendance at meetings of the Board or committees thereof
for which fees are paid to other directors. A director who serves the
Corporation in any other capacity also may receive compensation for such other
services, pursuant to a resolution of the directors.
SECTION
2.12
Advisory
Directors.
The Board of Directors may by resolution appoint
advisory directors to the Board of Directors, who may also serve as directors
emeriti, and shall have such authority and receive such compensation and
reimbursement as the Board of Directors shall provide. Advisory
directors or directors emeriti shall not have the authority to participate by
vote in the transaction of business.
SECTION
2.13
Ratification.
The Board of Directors or the stockholders may ratify and make binding on the
Corporation any action or inaction by the Corporation or its officers to the
extent that the Board of Directors or the stockholders could have originally
authorized the matter. Moreover, any action or inaction questioned in
any stockholders’ derivative proceeding or any other proceeding on the ground of
lack of authority, defective or irregular execution, adverse interest of a
director, officer or stockholder, non-disclosure, miscomputation, the
application of improper principles or practices of accounting, or otherwise, may
be ratified, before or after judgment, by the Board of Directors or by the
stockholders, and if so ratified, shall have the same force and effect as if the
questioned action or inaction had been originally duly authorized, and such
ratification shall be binding upon the Corporation and its stockholders and
shall constitute a bar to any claim or execution of any judgment in respect of
such questioned action or inaction.
ARTICLE
III.
COMMITTEES
SECTION
3.1
Committees.
The
Board of Directors may appoint from among its members an Audit Committee,
Compensation Committee, Nominating and Corporate Governance Committee, and other
committees composed of one or more directors and delegate to these committees
any of the powers of the Board of Directors, except as prohibited by
law. The Audit Committee, Compensation Committee and Nominating and
Corporate Governance Committee shall consist entirely of directors who are
independent of management.
SECTION
3.2
Committee
Procedure.
Each committee may fix rules of procedure for its
business. A majority of the members of a committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present at a meeting at which a quorum is present shall be the act of the
committee. The members of a committee present at any meeting, whether
or not they constitute a quorum, may appoint a director to act in the place of
an absent member. Any action required or permitted to be taken at a
meeting of a committee may be taken without a meeting, if a unanimous consent in
writing or by electronic transmission to such action is given by each member of
the committee and is filed with the minutes of proceedings of such
committee. The members of a committee may conduct any meeting thereof
by conference telephone in accordance with the provisions of Section
2.10. Each committee shall keep minutes of its
proceedings.
SECTION
3.3
Emergency.
In
the event of a state of disaster of sufficient severity to prevent the conduct
and management of the affairs and business of the Corporation by its directors
and officers as contemplated by the Charter and the Bylaws, any two or more
available members of the then incumbent Executive Committee shall constitute a
quorum of that committee for the full conduct and management of the affairs and
business of the Corporation in accordance with the provisions of Section
3.1. In the event of the unavailability, at such time, of a minimum
of two members of the then incumbent Executive Committee, the available
directors shall elect an Executive Committee consisting of any two members of
the Board of Directors, whether or not they be officers of the Corporation,
which two members shall constitute the Executive Committee for the full conduct
and management of the affairs of the Corporation in accordance with the
foregoing provisions of this Section. This Section shall be subject
to implementation by resolution of the Board of Directors passed from time to
time for that purpose, and any provisions of the Bylaws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary resolutions shall be
suspended until it shall be determined by any interim Executive Committee acting
under this Section that it shall be to the advantage of the Corporation to
resume the conduct and management of its affairs and business under all the
other provisions of the Bylaws.
SECTION
3.4
Vacancies.
Subject
to the provisions hereof, the Board of Directors shall have the power at any
time to change the membership of any committee, to fill any vacancy, to
designate an alternate member to replace any absent or disqualified member or to
dissolve any such committee.
ARTICLE
IV.
OFFICERS
SECTION
4.1
Executive and
Other Officers.
The Corporation shall have a President, a
Secretary and a Treasurer. It may also have a Chairman of the
Board. The Board of Directors shall designate who shall serve as
Chief Executive Officer, who shall have general supervision of the business and
affairs of the Corporation, and may designate a Chief Operating Officer, who
shall have supervision of the operations of the Corporation. In the
absence of any designation, the Chairman of the Board, if there be one, shall
serve as Chief Executive Officer and the President shall serve as Chief
Operating Officer. The same person may hold both
offices. The Corporation may also have one or more Vice-Presidents,
assistant officers and subordinate officers as may be established by the Board
of Directors. In addition, the Board of Directors may from time to
time elect such other officers with such powers and duties as they shall deem
necessary or desirable. A person may hold more than one office in the
Corporation except that no person may serve concurrently as both President and
Vice-President of the Corporation. The Chairman of the Board shall be
a director; the other officers may be directors.
SECTION
4.2
Chairman of the
Board.
The Chairman of the Board, if one be elected, shall
preside at all meetings of the Board of Directors and of the stockholders at
which he or she shall be present. Unless otherwise specified by the
Board of Directors, he or she shall be the Chief Executive Officer of the
Corporation. In general, he or she shall perform such duties as are
customarily performed by the Chief Executive Officer of a corporation and may
perform any duties of the President and shall perform such other duties as are
from time to time assigned to him or her by the Board of Directors.
SECTION
4.3
Chief Executive
Officer.
The Board of Directors shall designate a Chief
Executive Officer. In addition to general supervisory duties
described in Section 4.1, the Chief Executive Officer shall perform such duties
as are from time to time assigned to him or her by the Board of
Directors.
SECTION
4.4
Chief Operating
Officer.
The Board of Directors may designate a Chief
Operating Officer. The Chief Operating Officer shall have supervision
of the operations of the Corporation and perform such other duties as are from
time to time assigned to him or her by the Board of Directors or the Chief
Executive Officer.
SECTION
4.5
President.
Unless
otherwise provided by resolution of the Board of Directors, the President, in
the absence of the Chairman of the Board, shall preside at all meetings of the
Board of Directors and of the stockholders at which he or she shall be
present. Unless otherwise specified by the Board of Directors, the
President shall be the Chief Operating Officer of the Corporation and perform
the duties customarily performed by chief operating officers. He or
she may sign and execute, in the name of the Corporation, all authorized deeds,
mortgages, bonds, contracts or other instruments, except in cases in which the
signing and execution thereof shall have been expressly delegated to some other
officer or agent of the Corporation. In general, he or she shall
perform such other duties customarily performed by a president of a corporation
and shall perform such other duties and have such other powers as are from time
to time assigned to him by the Board of Directors or the Chief Executive Officer
of the Corporation.
SECTION
4.6
Vice-Presidents.
The
Vice-President or Vice-Presidents, at the request of the Chief Executive Officer
or the President, or in the President’s absence or during his or her inability
to act, shall perform the duties and exercise the functions of the President,
and when so acting shall have the powers of the President. If there
be more than one Vice-President, the Board of Directors may determine which one
or more of the Vice-Presidents shall perform any of such duties or exercise any
of such functions, or if such determination is not made by the Board of
Directors, the Chief Executive Officer or the President may make such
determination; otherwise any of the Vice-Presidents may perform any of such
duties or exercise any of such functions. The Vice-President or
Vice-Presidents shall have such other powers and perform such other duties, and
have such additional descriptive designations in their titles (if any), as are
from time to time assigned to them by the Board of Directors, the Chief
Executive Officer or the President.
SECTION
4.7
Secretary.
The
Secretary shall keep the minutes of the meetings of the stockholders and the
meetings of the Board of Directors and any committees thereof, in books provided
for the purpose; the Secretary shall see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; he or she
shall be custodian of the records of the Corporation; he or she may witness any
document on behalf of the Corporation, the execution of which is duly
authorized, see that the Corporation’s seal is affixed where such document is
required or desired to be under its seal, and, when so affixed, may attest the
same. In general, he or she shall perform such other duties
customarily performed by a secretary of a corporation and shall perform such
other duties and have such other powers as are from time to time assigned to him
or her by the Board of Directors, the Chief Executive Officer or the
President.
SECTION
4.8
Treasurer.
The
Treasurer shall have charge of, and be responsible for, all funds, securities,
receipts and disbursements of the Corporation and shall deposit, or cause to be
deposited, in the name of the Corporation, all moneys or other valuable effects
in such banks, trust companies or other depositories as shall, from time to
time, be selected by the Board of Directors; he shall render to the President
and to the Board of Directors, whenever requested, an account of the financial
condition of the Corporation; and, in general, he shall perform all the duties
incident to the office of a treasurer of a corporation, and such other duties as
are from time to time assigned to him by the Board of Directors, the Chief
Executive Officer or the President.
SECTION
4.9
Assistant and
Subordinate Officers.
The assistant and subordinate officers
of the Corporation are all officers below the office of Vice-President,
Secretary or Treasurer. The assistant or subordinate officers shall
have such duties as are from time to time assigned to them by the Board of
Directors, the Chief Executive Officer or the President.
SECTION
4.10
Election, Tenure
and Removal of Officers.
The Board of Directors shall elect
the officers. The Board of Directors may from time to time authorize
any committee or officer to appoint assistant and subordinate
officers. Election or appointment of an officer, employee or agent
shall not of itself create contract rights. All officers shall be
appointed to hold their offices, respectively, during the pleasure of the Board
of Directors. The Board of Directors (or, as to any assistant or
subordinate officer, any committee or officer authorized by the Board of
Directors) may remove any officer or agent of the Corporation, with or without
cause, but such removal shall not prejudice any of the contract rights, if any,
of the person so removed. The Board of Directors (or, as to any
assistant or subordinate officer, any committee or officer authorized by the
Board of Directors) may fill a vacancy which occurs in any office for the
unexpired portion of the term.
SECTION
4.11
Compensation.
The
Board of Directors or the Compensation Committee thereof shall have power to fix
the salaries and other compensation and remuneration, of whatever kind, of all
officers of the Corporation. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation. The Board of Directors may authorize any committee or
officer, upon whom the power of appointing assistant and subordinate officers
may have been conferred, to fix the salaries, compensation and remuneration of
such assistant and subordinate officers.
ARTICLE
V.
DIVISIONAL
TITLES
SECTION
5.1
Conferring
Divisional Titles.
The Board of Directors may from time to
time confer upon any employee of a division of the Corporation the title of
President, Vice-President, Treasurer or Controller of such division or any other
title or titles deemed appropriate, or may authorize the Chairman of the Board
or the President to do so. Any such titles so conferred may be
discontinued and withdrawn at any time by the Board of Directors or by the
Chairman of the Board or the President if so authorized by the Board of
Directors. Any employee of a division designated by such a division
title shall have the powers and duties with respect to such division as shall be
prescribed by the Board of Directors, the Chairman of the Board or the
President.
SECTION
5.2
Effect of
Divisional Titles.
The conferring of divisional titles shall
not create an office of the Corporation under Article IV unless specifically
designated as such by the Board of Directors; but any person who is an officer
of the Corporation may also have a divisional title.
ARTICLE
VI.
STOCK
SECTION
6.1
Certificates.
Except
as may be otherwise provided by the Board of Directors, stockholders of the
Corporation are not entitled to certificates representing the shares of stock
held by them. In the event that the Corporation issues shares of
stock represented by certificates, such certificates shall be in such form as
prescribed by the Board of Directors or a duly authorized officer, shall contain
the statements and information required by the Maryland General Corporation Law
and shall be signed by the officers of the Corporation in the manner permitted
by the Maryland General Corporation Law. In the event that the
Corporation issues shares of stock without certificates, to the extent then
required by the Maryland General Corporation Law, the Corporation shall provide
to the record holders of such shares a written statement of the information
required by the Maryland General Corporation Law to be included on stock
certificates. There shall be no differences in the rights and
obligations of stockholders based on whether or not their shares are evidenced
by certificates.
SECTION
6.2
Transfers.
All
transfers of shares of stock shall be made on the books of the Corporation, by
the holder of the shares, in person or by his or her attorney, in such manner as
the Board of Directors or any officer of the Corporation may prescribe and, if
such shares are certificated, upon surrender of certificates duly
endorsed. The issuance of a new certificate upon the transfer of
certificated shares is subject to the determination of the Board of Directors
that such shares shall no longer be evidenced by certificates. Upon
the transfer of uncertificated shares, to the extent then required by the
Maryland General Corporation Law, the Corporation shall provide to record
holders of such shares a written statement of the information required by the
Maryland General Corporation Law to be included on stock
certificates.
The
Corporation shall be entitled to treat the holder of record of any share of
stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or on the
part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding
the foregoing, transfers of shares of any class or series of stock will be
subject in all respects to the Charter and all of the terms and conditions
contained therein.
SECTION
6.3
Record Dates and
Closing of Transfer Books.
The Board of Directors may set a
record date or direct that the stock transfer books be closed for a stated
period for the purpose of making any proper determination with respect to
stockholders, including which stockholders are entitled to notice of a meeting,
vote at a meeting, receive a dividend or be allotted other
rights. The record date may not be prior to the close of business on
the day the record date is fixed nor, subject to Section 1.5, more than 90 days
before the date on which the action requiring the determination will be taken;
the transfer books may not be closed for a period longer than 20 days; and, in
the case of a meeting of stockholders, the record date or the closing of the
transfer books shall be at least ten days before the date of the
meeting.
When a
determination of stockholders entitled to vote at any meeting of stockholders
has been made as provided in this section, such determination shall apply to any
adjournment or postponement thereof, except when the meeting is adjourned or
postponed to a date more than 120 days after the record date fixed for the
original meeting, in which case a new record date shall be determined as set
forth herein.
SECTION
6.4
Stock
Ledger.
The Corporation shall maintain a stock ledger which
contains the name and address of each stockholder and the number of shares of
stock of each class which the stockholder holds. The stock ledger may
be in written form or in any other form which can be converted within a
reasonable time into written form for visual inspection. The original
or a duplicate of the stock ledger shall be kept at the offices of a transfer
agent for the particular class of stock, or, if none, at the principal office in
the State of Maryland or the principal executive offices of the
Corporation.
SECTION
6.5
Lost Stock
Certifications.
Any officer of the Corporation may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
destroyed, stolen or mutilated, upon the making of an affidavit of that fact by
the person claiming the certificate to be lost, destroyed, stolen or mutilated;
provided
,
however, if such shares have ceased to be certificated, no new certificate shall
be issued unless requested in writing by such stockholder and the Board of
Directors has determined such certificates may be issued. Unless
otherwise determined by an officer of the Corporation, the owner of such lost,
destroyed, stolen or mutilated certificate or certificates, or his or her legal
representative, shall be required, as a condition precedent to the issuance of a
new certificate or certificates, to give the Corporation a bond in such sums as
it may direct as indemnity against any claim that may be made against the
Corporation.
SECTION
6.6
Fractional Stock;
Issuance of Units.
The Board of Directors may issue fractional
stock or provide for the issuance of scrip, all on such terms and under such
conditions as they may determine. Notwithstanding any other provision
of the Charter or these Bylaws, the Board of Directors may issue units
consisting of different securities of the Corporation. Any security
issued in a unit shall have the same characteristics as any identical securities
issued by the Corporation, except that the Board of Directors may provide that
for a specified period securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
SECTION
6.7
Control Share
Acquisition Act.
Notwithstanding any other provision of the
Charter or these Bylaws, Title 3, Subtitle 7 of the Maryland General
Corporation Law (or any successor statute) shall not apply to any acquisition by
any person of shares of stock of the Corporation. This section may be
repealed, in whole or in part, at any time, whether before or after an
acquisition of control shares and, upon such repeal, may, to the extent provided
by any successor bylaw, apply to any prior or subsequent control share
acquisition.
ARTICLE
VII.
FINANCE
SECTION
7.1
Checks, Drafts,
Etc.
All checks, drafts and orders for the payment of money,
notes and other evidences of indebtedness, issued in the name of the
Corporation, shall, unless otherwise provided by resolution of the Board of
Directors, be signed by the President, a Vice-President or an Assistant
Vice-President and countersigned by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary.
SECTION
7.2
Annual Statement
of Affairs.
The President or chief accounting officer shall
prepare annually a full and correct statement of the affairs of the Corporation,
to include a balance sheet and a financial statement of operations for the
preceding fiscal year. The statement of affairs shall be submitted at
the annual meeting of the stockholders and, within 20 days after the meeting,
placed on file at the Corporation’s principal office.
SECTION
7.3
Fiscal
Year.
The fiscal year of the Corporation shall be the twelve
calendar months period ending December 31 in each year, unless otherwise
provided by the Board of Directors.
SECTION
7.4
Dividends.
If
declared by the Board of Directors at any meeting thereof, the Corporation may
pay dividends on its shares in cash, property or in shares of the capital stock
of the Corporation, unless such dividend is contrary to law or to a restriction
contained in the Charter.
SECTION
7.5
Contracts.
To
the extent permitted by the applicable law, and except as otherwise prescribed
by the Charter or these Bylaws with respect to certificates for shares, the
Board of Directors may authorize any officer, employee or agent of the
Corporation 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.
ARTICLE
VIII.
SUNDRY
PROVISIONS
SECTION
8.1
Books and
Records.
The Corporation shall keep correct and complete books
and records of its accounts and transactions and minutes of the proceedings of
its stockholders and Board of Directors and of any executive or other committee
when exercising any of the powers of the Board of Directors. The
books and records of a Corporation may be in written form or in any other form
which can be converted within a reasonable time into written form for visual
inspection. Minutes shall be recorded in written form but may be
maintained in the form of a reproduction. The original or a certified
copy of the Bylaws shall be kept at the principal office of the
Corporation.
SECTION
8.2
Corporate
Seal.
The Board of Directors shall provide a suitable seal,
bearing the name of the Corporation, which shall be in the charge of the
Secretary. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof. If the Corporation is
required to place its corporation seal to a document, it is sufficient to meet
the requirement of any law, rule or regulation relating to a corporate seal to
place the word “Seal” adjacent to the signature of the person authorized to sign
the document on behalf of the Corporation.
SECTION
8.3
Voting Upon
Shares in Other Corporations.
Stock of other corporations or
associations, registered in the name of the Corporation, may be voted by the
President, a Vice-President or a proxy appointed by either of
them. The Board of Directors, however, may by resolution appoint some
other person to vote such shares, in which case such person shall be entitled to
vote such shares upon the production of a certified copy of such
resolution.
SECTION
8.4
Mail.
Any
notice or other document which is required by these Bylaws to be mailed shall be
deposited in the United States mails, postage prepaid.
SECTION
8.5
Execution of
Documents.
A person who holds more than one office in the
Corporation may not act in more than one capacity to execute, acknowledge or
verify an instrument required by law to be executed, acknowledged or verified by
more than one officer.
SECTION
8.6
Amendments.
In
accordance with the Charter, these Bylaws may be repealed, altered, amended or
rescinded (a) by the stockholders of the Corporation only by vote of not less
than 80% of the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this purpose as
one class) cast at any meeting of the stockholders called for that purpose
(provided that notice of such proposed repeal, alteration, amendment or
rescission is included in the notice of such meeting) or (b) by vote of a
majority of the Board of Directors at a meeting held in accordance with the
provisions of these Bylaws.
ARTICLE
IX.
INDEMNIFICATION
SECTION
9.1
Procedure.
Any
indemnification, or payment of expenses in advance of the final disposition of
any proceeding, shall be made promptly, and in any event within 60 days, upon
the written request of the director or officer entitled to seek indemnification
(the “Indemnified Party”). The right to indemnification and advances
hereunder shall be enforceable by the Indemnified Party in any court of
competent jurisdiction, if (i) the Corporation denies such request, in whole or
in part or (ii) no disposition thereof is made within 60 days. The
Indemnified Party’s costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be reimbursed by the Corporation. It shall be a
defense to any action for advance of expenses that the Corporation has not
received either (i) an undertaking as required by law to repay such advances in
the event it shall ultimately be determined that the standard of conduct has not
been met or (ii) a written affirmation by the Indemnified Party of such
Indemnified Party’s good faith belief that the standard of conduct necessary for
indemnification by the Corporation has been met.
SECTION
9.2
Exclusivity,
Etc.
The indemnification and advance of expenses provided by
the Charter and these Bylaws shall not be deemed exclusive of any other rights
to which a person seeking indemnification or advance of expenses may be entitled
under any law (common or statutory) or any agreement, vote of stockholders or
disinterested directors or other provision that is consistent with law, both as
to action in his official capacity and as to action in another capacity while
holding office or while employed by or acting as agent for the Corporation,
shall continue in respect of all events occurring while a person was a director
or officer after such person has ceased to be a director or officer, and shall
inure to the benefit of the estate, heirs, executors and administrators of such
person. The Corporation shall not be liable for any payment under
this Bylaw in connection with a claim made by a director or officer to the
extent such director or officer has otherwise actually received payment under
insurance policy, agreement, vote or otherwise, of the amounts otherwise
indemnifiable hereunder. All rights to indemnification and advance of
expenses under the Charter of the Corporation and hereunder shall be deemed to
be a contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this Bylaw
is in effect. Nothing herein shall prevent the amendment of this
Bylaw, provided that no such amendment shall diminish the rights of any person
hereunder with respect to events occurring or claims made before its adoption or
as to claims made after its adoption in respect of events occurring before its
adoption. Any repeal or modification of this Bylaw shall not in any
way diminish any rights to indemnification or advance of expenses of such
director or officer or the obligations of the Corporation arising hereunder with
respect to events occurring, or claims made, while this Bylaw or any provisions
hereof is in force.
SECTION
9.3
Severability;
Definitions.
The invalidity or unenforceability of any
provision of this Article IX shall not affect the validity or enforceability of
any other provisions hereof. The phrase “this Bylaw” in this Article
IX means this Article IX in its entirety.
