Exhibit 2.1
BY-LAWS
of
AMERITRANS CAPITAL CORPORATION
ARTICLE I
Offices
1. The corporation may have offices at such places within or without the
State of Delaware as the board of directors may from time to time determine or
as the business of the corporation may require.
ARTICLE II
Stockholders' Meetings
1. Place of all meetings. All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the board of
directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
Delaware.
2. Annual meeting of stockholders. The annual meeting of stockholders shall
be held each year on the first Friday in the fourth month following the close of
the fiscal year commencing at some time between 10 a.m. and 3 p.m. if not a
legal holiday, and if a legal holiday, then on the day following at the same
time. In the event that such an annual meeting is not held as herein provided
for, the annual meeting may be held as soon thereafter as convenient. Such
subsequent meeting shall be called in the same manner as hereinafter provided
for special meetings of stockholders. Written notice of the time and place of
the annual meeting shall be given by mail to each stockholder entitled to vote
at least ten days prior to the date thereof, unless waived as provided by
Article IX of these By-laws.
3. Special meetings of stockholders. Special meetings of stockholders may
be called at any time by order of the board of directors or the executive
committee and shall be called by the president or secretary at the written
request of the holders of 25% of the shares of stock then outstanding and
entitled to vote, stating the purpose or purposes thereof. Notice of all such
meetings of the stockholders, stating the time, place, and the purposes thereof
shall be given by mail as soon as possible to each stockholder entitled to vote
thereat at his last known address or by delivering the same personally at least
ten days before the meeting. Meetings of the stockholders may be held at any
time without notice when all the stockholders entitled to vote thereat are
represented in person or by proxy.
4. Voting at stockholder's meetings. At all meetings of the stockholder's,
each stockholder entitled to vote for each share of stock standing on record in
his name, subject to any restrictions or qualifications set forth in the
Certificate of Incorporation or any amendment thereto.
5. Quorum at stockholder's meetings. At any stockholders' meeting, a
majority of the stock outstanding and entitled to vote thereat represented in
person or by proxy shall constitute a quorum. Whether or not a quorum is present
the meeting may be adjourned from time to time by a vote of the holders of a
majority of the shares present. 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 if held at the time specified in the notice thereof.
When a quorum is present at any meeting, a majority in interest of the stock
entitled to vote represented thereat shall decide any question brought before
such meeting unless the question is one upon which, by express provision of law
or of the Certificate of Incorporation or of these By-laws, a different vote is
required, in which case such express provision shall govern.
6. List of stockholders to be filed, etc. At least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the election, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder,
shall be prepared by the secretary. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the City where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The original or duplicate stock ledger shall be
the only evidence as to who are the stockholders entitled to examine such list
or the books of this corporation or to vote in person or by proxy at such
meeting.
ARTICLE III
Board of Directors
1. Number and qualification. A board of directors shall be elected at each
annual meeting of stockholders, or at a special meeting held in lieu thereof as
above provided. Each of the directors shall hold office until the annual meeting
next after his election and until his successor shall be elected and shall
qualify, or until his death in office or his earlier resignation or removal in
the manner hereinafter provided. The number of directors shall be such as may be
determined by the incorporators or from time to time by the stockholders or by
the board of directors. In case of any increase in the number of directors
between elections by the stockholders, the additional directorships shall be
considered vacancies and shall be filled in the manner prescribed in Article V
of these By-laws. Directors need not be stockholders.
2. Powers of directors. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors which may
exercise all the powers possessed by the corporation itself and do all such
lawful acts and things as are not inconsistent with the laws of the State of
Delaware, with the Certificate of Incorporation, or with these By-laws. The
board of directors shall have authority from time to time to set apart out of
any assets of the corporation otherwise available for dividends a reserve or
reserves of working capital, or for any such proper purpose or purposes, and to
abolish or add to any such reserve or reserves from time to time as the board
may deem to be in the interests of the corporation; and the board shall likewise
have power, subject to the provisions of the Certificate of Incorporation, to
determine in its discretion what part of the earned surplus and/or net assets of
the corporation in excess of such reserve or reserves shall be declared in
dividends and paid to the stockholders of the corporation.
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3. Compensation of directors. The board of directors may from time to time
by resolution authorize the payment of fees or compensation, to the directors
for services as such to the corporation, including, but not limited to, fees and
traveling expenses for attendance at all meetings of the board or of the
executive or other committees, and determine the amount of such fees and
compensation. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
4. Directors' meetings. Meetings of the board of directors may be held
either within or outside the State of Delaware. A quorum shall be a majority of
directors.
The board of directors elected at any stockholders' meeting shall at the
close of that meeting, without further notice if a quorum of directors be then
present, or as soon thereafter as may be convenient, hold a meeting for the
election of officers and the transaction of any other business. At such meeting
they shall elect a president, one or more vice presidents, a secretary and a
treasurer, and such other officers as they may deem proper, none of whom except
the president need be members of the board of directors.
The board of directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may be
called at any time by the president and must be called by the president or by
the secretary upon the written request of any director or a majority of the
executive committee.
Notice of each meeting, other than a regular meeting (unless required by
the board of directors), shall be given to each director by mailing the same to
each director at his residence or business address at least two days before the
meeting or by delivering the same to him personally or by telephone or telegraph
to him at least one day before the meeting unless, in case of exigency, the
president or secretary shall prescribe a shorter notice to be given personally
or by telephone, telegraph, facsimile transmission, cable or wireless to all or
any one or more of the directors at their respective residences or places of
business.
Notice of all meetings shall state the time and place of such meeting, but
need not state the purposes thereof unless otherwise required by statute, the
Certificate of Incorporation, the By-laws, of the board of directors.
5. Manner of Acting. Except as herein otherwise provided, and except as
otherwise provided by the General Corporation Law, the act of the Board shall be
the act by vote of a majority of the directors present at a meeting, a quorum
being present. The quorum and voting provisions herein stated shall not be
construed as conflicting with any provisions herein of the General Corporation
Law and these By-Laws which govern a meeting of directors to be held to fill
vacancies and newly created directorships in the Board.
6. Executive committee. The board of directors may provide for an executive
committee of two or more directors and shall elect the members thereof to serve
at the pleasure of the board and may designate one of such members to act as
chairman. The board shall have the power at any time to change the membership of
the committee, to fill vacancies in it, or to dissolve it.
During the intervals between the meetings of the board of directors, the
executive committee shall possess and may exercise any or all of the powers of
the board of directors in the management of the
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business and affairs of the corporation to the extent authorized by resolution
adopted by a majority of the entire board of directors.
The executive committee may determine its rules or procedure and notice to
be given of its meetings, and it may appoint such committees and assistants as
it shall from time to time deem necessary. A majority of the members of the
committee shall constitute a quorum.
7. Other committees. The board of directors by resolution may provide for
such other standing or special committees as it deems desirable and may
discontinue the same at its pleasure. Each such committee shall have the powers
and perform such duties, not inconsistent with law, as may be assigned to it by
the board of directors.
8. Notice of Nominations. (a) Nominations for the election of directors may
be made by the board of directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
secretary of the corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the secretary of the corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to the stockholders.
Notice of nominations which are proposed by the board of directors shall be
given by the Chairman on behalf of the board. (b) Each notice under subsection
(a) shall set forth (i) the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee and (iii) the number of shares of stock of
the corporation which are beneficially owned by each such nominee. (c) The
Chairman of the meeting may, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the foregoing
procedure and if he shall so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
9. Chairman of the Board. The Chairman of the Board (hereinafter sometimes
called the "Chairman") if appointed by the board of directors, when present
shall preside at all meetings of the stockholders, the board of directors and
the Executive Committee. The Chairman shall perform such other duties as the
board of directors or Executive Committee may prescribe from time to time.
ARTICLE IV
Officers
1. Titles and election. The officers of this corporation shall be a
president, one or more vice presidents, a secretary and a treasurer who shall be
elected at the annual meeting of the board of directors. Each of the officers
shall hold office until the next annual meeting after his election and until his
successor shall be elected and shall qualify, or until his death in office or
earlier resignation or removal in the manner herein specified. Any person may
hold more than one office if the duties thereof can be consistently performed by
the same person, and to the extent permitted by law.
The board of directors, in its discretion, may at any time elect or appoint
a chairman of the board of directors, who shall be a director, and one or more
vice presidents, assistant secretaries and assistant treasurers and such other
officers or agents as it may deem advisable, all of whom shall hold office at
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the pleasure of the board and shall have such authority and shall perform such
duties as the board shall prescribe from time to time.
The board of directors may require any officer, agent or employee to give
bond for the faithful performance of this duties in such form and with such
sureties as the board may require.
2. Duties. Subject to such extension, limitations, and other provisions as
the board of directors or the By-laws may from time to time prescribe, the
following officers shall have the following powers and duties:
(a) President. The president shall be the chief executive officer of
the corporation and shall have the general supervision of the business,
affairs and property of the corporation and over its officers subject to
the control of the board of directors and Executive Committee. In the
absence or inability to act of the Chairman, the president shall preside at
all meetings of the stockholders and the board of directors and shall have
and perform all the powers and duties of the Chairman, subject to the
control of the board of directors and Executive Committee. The president or
a vice president, unless some other person is authorized by the board of
directors or Executive Committee, shall sign all certificates representing
shares of stock of the corporation and all bonds, deeds and contracts of
the corporation. In general, the president shall exercise the powers and
authority and perform all of the duties commonly incident to the office of
president and shall have such other powers and perform such other duties as
may be assigned to him from time to time by the board of directors or
Executive Committee. The same individual may be elected or appointed
Chairman of the Board and President.
(b) Vice President. The vice president or vice presidents shall
perform such duties as may be assigned to them by the board of directors
and, in the absence or disability of the president, the vice presidents in
order of seniority shall exercise all powers and duties pertaining to the
office of the president.
(c) Secretary. The secretary shall keep the minutes of all meetings of
stockholders and of the board of directors, give and serve all notices,
attend to such correspondence as may be assigned to him, keep in safe
custody the seal of the corporation, and affix such seal to all such
instruments properly executed as may require it, and shall have such other
duties and powers as the board of directors shall prescribe from time to
time.
(d) Treasurer. Subject to the direction of the Vice President-Finance,
if any, the treasurer, in all cases subject to the direction of the board
of directors, shall have the care and custody of the monies, funds,
valuable papers and documents of the corporation (other than his own bond,
if any, which shall be in the custody of the president), and shall have and
exercise, under the supervision of the board of directors, all the powers
and duties commonly incident to his office. He shall deposit all funds of
the corporation in such bank or banks, trust company or trust companies, or
with such firm or firms doing a banking business as the board of directors
shall designate. He may endorse for deposit of collection all checks,
notes, etc. payable to the corporation or to its order. He shall keep
accurate books of account of the corporation's transactions, which shall be
the property of the corporation, and, together with all its property in his
possession, shall be subject at all times to the inspection and control of
the board of directors. He shall do and perform such other duties as may
from time to time be assigned to him by the Vice President-Finance. The
treasurer shall be subject in every way to the order of the board of
directors and/or the president of the corporation, whenever they may
require it, an account of all his transactions and of the financial
condition of the corporation.
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3. Delegation of authority. The board of directors or the Executive
Committee may at any time delegate the powers and duties of any officer for the
time being to any other officer, director or employee.
4. Salaries. The salaries of all officers shall be fixed by the board of
directors or the Executive Committee, and the fact that any officer is a
director shall not preclude him from receiving a salary or from voting upon the
resolution providing the same.
ARTICLE V
Resignation, Removals and Vacancies
1. Resignation. Any director, officer, or agent may resign at any time by
giving written notice thereof to the board of directors, the president, or the
secretary. Any such resignation shall take effect at the time specified therein
or, if the time be not specified, upon receipt thereof; and unless otherwise
specified therein, the acceptance of any resignation shall not be necessary to
make it effective.
2. Removals. The holders of the Common and Preferred Stock, voting together
as one class, at any meeting called for such purpose may, by vote of the
majority of the issued and outstanding shares of the Common and Preferred Stock
entitled to vote, remove from office, with or without cause, any director
elected by such Stockholders, and elect his successor. Directors who are elected
solely by the holders of a Class of Preferred Stock, by vote of the majority of
the issued and outstanding shares of such class of Preferred Stock, remove from
office, with or without cause, any such director, and elect his successor. The
board of directors, by a majority vote of the total number of directors at a
meeting called for such purpose, may remove from office any officer of the
corporation with or without cause. The board may delegate the powers and duties
for the time being of any officer to any other officer or to any director.
3. Vacancies. When the office of any director or officer becomes vacant,
whether by reason of increase in the number of directors or otherwise, the
remaining director or directors, although less than a quorum, may elect a
successor for such office who shall hold the same for the unexpired term, or the
directors may reduce their number by the number of such vacancies in the board
provided such reduction shall not reduce the board to less than one.
ARTICLE VI
Capital Stock
1. Certificates of stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the corporation
in such form as may be prescribed by the board of directors, duly numbered
setting forth the number and kind of shares represented thereby. Such
certificates shall be signed by the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of such signatures and the corporate seal affixed to any stock
certificate may be in facsimile.
In case any officer who has signed, or whose facsimile signature has been
used on a certificate has ceased to be an officer before the certificate has
been delivered, such certificate may nevertheless be adopted and issued and
delivered by the corporation, or its transfer agent, as though the officer who
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signed such certificate or certificates, or whose facsimile signature or
signatures shall have been used thereon, had not ceased to be such officer of
the corporation.
2. Transfer of stock. Shares of the capital stock of the corporation shall
be transferable only upon the books of the corporation by the holder in person
or by attorney duly authorized and upon the surrender of the certificate or
certificates properly assigned and endorsed. If the corporation has a transfer
agent or agents or transfer clerk and registrar of transfers acting on its
behalf, the signature of any office or representative thereof may be in
facsimile.
The board of directors may appoint a transfer agent and one or more
co-transfer agents and a registrar of transfer and may make all such rules and
regulations as it deems expedient concerning the issue, transfer and
registration of shares of stock.
3. Transfer books. The board of directors may fix a date, not exceeding
sixty days preceding the date of any meeting of stockholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall come into
effect,as a record date for the determination of the stockholders entitled to
notice of and to vote at any such meeting, or entitled to receive payment of any
such dividend, or any such allotment of rights, or to exercise the rights in
respect to any such change, conversion or exchange of capital stock, and in such
case only stockholders of record on the date so fixed shall be entitled to such
notice of and vote at such meeting or to receive payment of such dividend, or
allotment of rights, or exercise such rights, as the case ma be, notwithstanding
any transfer of any stock on the books of the corporation after any such record
date fixed as aforesaid. The record date shall not precede the date upon which
the resolution fixing the record date is adopted.
4. Lost certificates. In case of loss or mutilation or theft or destruction
of a certificate of stock of this corporation, a duplicate certificate may be
issued upon such terms as the board of directors may determine.
ARTICLE VII
Fiscal Year, Bank Deposits, Checks, etc.
1. Fiscal year. The fiscal year of the corporation will commence on the
first day of January of each year or at such other time as the board of
directors may designate.
2. Bank deposits, checks, etc. The funds of the corporation shall be
deposited in the name of the corporation in such banks or trust companies as the
board of directors may from time to time designate.
All checks, drafts, notes or other obligations for the payment of money
shall be signed by such persons as the board of directors may from time to time
by resolution may direct or authorize.
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ARTICLE VIII
Books and Records
1. Place of keeping books. Unless otherwise expressly required by the laws
of Delaware, the books and records of this corporation may be kept outside of
the State of Delaware at such place or places as may be designated from time to
time by the board of directors.
2. Examination of books. Except as otherwise provided in the Certificate of
Incorporation or in these By-laws, the board of directors shall have the power
to determine from time to time whether and to what extent and at what times and
places and under what conditions and regulations the accounts, records and books
of this corporation, or any of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to inspect any account or
book or document of this corporation except as prescribed by statute or
authorized by express resolution of the stockholders or of the board of
directors.
ARTICLE IX
Notices
1. Requirements of notice. Whenever notice is required to be given by
statute or by these By-laws, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office or letter box, postpaid and addressed to the person to whom such
notice is directed at the address of such person on the records of the
corporation, and such notice shall be deemed given at the time when the same
shall be thus mailed.
2. Waivers. Any stockholder, director or officer may, in writing or by
telegram or cable or facsimile transmission, or facsimile transmission at any
time waive any notice or other formality required by statute or these By-laws.
Such waiver of notice, whether given before or after any meeting, shall be
deemed equivalent to notice. Presence of a stockholder either in person or by
proxy at any stockholders' meeting and presence of any director at any meeting
of the board of directors shall constitute a waiver of such notice as may be
required by any statute or these By-laws.
ARTICLE X
Seal
The corporate seal of the corporation shall be circular in form and shall
contain the name of the corporation the year of its creation and the words
"Corporate Seal, Delaware."
ARTICLE XI
Powers of Attorney
The board of directors may authorize one or more of the officers of the
corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the corporation, with or without
power of substitution.
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ARTICLE XII
Indemnification of Directors and Officers
1. Definitions. As used in this article, the term "person" means any past,
present or future director or officer of the corporation or a designated officer
of an operating division of the corporation.
2. Indemnification granted. The corporation shall indemnify, to the full
extent and under the circumstances permitted by the Delaware General Corporation
Law in effect from time to time, any person as defined above, made or threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director, officer of the corporation, or is or
was serving at the specific request of the corporation as a director, officer or
employee or agent of another company or other enterprise in which the
corporation should own, directly or indirectly, an equity interest or of which
it may be a creditor.
This right of indemnification shall not be deemed exclusive of any other
rights to which a person indemnified herein may be entitled by By-law,
agreement, vote of stockholders or disinterested directors or otherwise, and
shall continue as to a person who has ceased to be a director, officer,
designated officer, employee or agent and shall inure to the benefit of the
heirs, executors, administrators and other legal representatives of such person.
It is not intended that the provisions of this article be applicable to, and
they are not to be construed as granting indemnity with respect to, matters as
to which indemnification would be in contravention of the laws of Delaware or of
the Unites States of America whether as a matter of public policy or pursuant to
statutory provision.
3. Miscellaneous. The board of directors may also on behalf of the
corporation grant indemnification to any individual other than a person defined
herein to such extent and in such manner as the Board in its sole discretion
from time to time and at any time determine.
ARTICLE XIII
Amendments
These By-laws may be amended or repealed at any meeting of stockholders or
at any meeting of the board of directors, as provided in Article II and Article
III hereof, respectively, provided in the notice of such meeting thereof shall
contain a statement of substance of the proposed amendment or repeal.
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