EXHIBIT 3(ii)
BY-LAWS
OF
BANKNORTH GROUP, INC.
A Delaware Corporation
As Amended through June 23, 1998
BY-LAWS
OF
BANKNORTH GROUP, INC.
A Delaware Corporation
Article I
General
Section 1.1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 1.2. Offices. The principal office and place of business of
the Corporation shall be in the City of Burlington, County of Chittenden and
State of Vermont. The Corporation may also have offices at such other
places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the Corporation
may require.
Section 1.3. Seal. The seal of the Corporation shall be in the form
of a circle and shall have inscribed thereon the name of the Corporation,
the year of its organization and the words, "Corporate Seal, Delaware."
Section 1.4. Fiscal Year. The fiscal year of the Corporation shall be
the period from January 1 to December 31.
Article II
Stockholders
Section 2.1. Place of Meetings. All meetings of the stockholders shall
be held at the principal office of the Corporation, except such meetings as
the board of directors expressly determine shall be held elsewhere, in which
case meetings may be held upon notice as hereinafter provided at such other
place or places as the board of directors shall have determined and as shall
be stated in such notice.
Section 2.2. Annual Meeting. The annual meeting of the stockholders
shall be held during the month of May in each year at such date and time as
shall be designated from time to time by the board of directors and stated
in the Notice of the Meeting. In the event the annual meeting is omitted by
oversight or otherwise on the date herein provided, then a substituted
annual meeting may be held on any subsequent date prior to the close of the
corporate fiscal year, and any business transacted or elections held at such
meeting shall be as valid and effective as if transacted or held at the
regular annual meeting. A written and signed application for such
substituted annual meeting may be made by any stockholder, and notice shall
be given therefor as hereinafter provided by these Bylaws.
At each annual meeting, the stockholders entitled to vote shall elect
those directors whose terms expire at such annual meeting, in accordance
with Article Sixth of the Certificate of Incorporation, by majority vote by
ballot, and they may transact such other corporate business as may properly
be brought before the meeting. At the annual meeting any business may be
transacted, irrespective of whether the notice calling such meeting shall
have contained a reference thereto, except where notice is required by law,
the Certificate of Incorporation, or these Bylaws.
Section 2.3. Quorum. At all meetings of the stockholders the holders
of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a
quorum requisite for the transaction of business except as otherwise
provided by law, by the Certificate of Incorporation or by these Bylaws. If,
however, such majority shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in
person or by proxy, by a majority vote, shall have power to adjourn the
meeting from time to time without notice other than announcement at the
meeting until the requisite amount of voting stock shall be present. If the
adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting, at which the requisite
amount of voting stock shall be represented, any business may be transacted
which might have been transacted if the meeting had been held as originally
called.
The vote of a majority of the quorum shall decide any question or
matter, except as otherwise required by law, the Certificate of
Incorporation, or these Bylaws.
Section 2.4. Adjourned Meeting. Any meeting of stockholders, either
annual or special, and whether a quorum is present or not, may be adjourned
from time to time by vote of a majority of the shares, the holders of which
are either present in person or represented by proxy, but in the absence of
a quorum, no other business shall be transacted.
When any such meeting is adjourned for more than thirty (30) days,
notice of such adjourned meeting shall be given as provided in these Bylaws,
but except as aforesaid, it shall not be necessary to give any notice of an
adjournment of the business to be transacted thereat, other than by
announcement at the meeting at which such adjournment is taken.
Section 2.5. Right to Vote; Proxies. Each stockholder having the
right to vote at any meeting shall be entitled to one vote for each share of
stock held by said stockholder. Any
stockholder entitled to vote at any meeting of stockholders may vote either
in person or by proxy, but no proxy which is dated more than three years
prior to the meeting at which it is offered shall confer the right to vote
thereat unless the proxy provides that it shall be effective for a longer
period. Every proxy shall be in writing, subscribed by a stockholder or
said stockholder's duly authorized attorney in fact, and dated, but need not
be sealed, witnessed, or acknowledged.
Section 2.6. Voting. At all meetings of stockholders all questions,
except as otherwise expressly provided for by statute, the Certificate of
Incorporation or these Bylaws, shall be determined by a majority vote of the
stockholders present in person or represented by proxy. Except as otherwise
expressly provided by law, the Certificate of Incorporation, these Bylaws or
the board of directors, at all meetings of stockholders, the voting shall be
taken by ballot, each of which shall state the name of the stockholder
voting and the number of shares voted by said stockholder, and, if such
ballot be cast by a proxy, it shall also state the name of the proxy.
Except as otherwise provided in the Certificate of Incorporation or by the
Bylaws, all elections shall be decided by majority vote.
Section 2.7. Notice of Annual Meeting. Written notice of the annual
meeting of the stockholders shall be mailed to each stockholder entitled to
vote thereat at such address as appears on the stock books of the
Corporation at least ten (10) days and not more than sixty (60) days prior
to the meeting. It shall be the duty of every stockholder to furnish to the
Secretary of the Corporation or to the transfer agent, if any, the class of
stock owned by said stockholder, the stockholder's post-office address and
to notify said Secretary or transfer agent of any change therein.
Section 2.8. Stockholders' List. A complete list of the stockholders
entitled to vote at any meeting of stockholders, 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 and filed 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, at least
ten days before such meeting, and shall at all times during ordinary
business hours, and during the whole time of said meeting, be open to
examination of any stockholder for a purpose germane to the meeting.
Section 2.9. Special Meetings. Special meetings of the stockholders,
unless otherwise provided by statute, may be called at any time by the board
of directors, or by the President of the Corporation. The business
transacted at such special meeting shall be confined to the purpose or
purposes stated in the notice therefor.
Written notice of a special meeting of stockholders, stating the time
and place and object thereof, shall be mailed, postage prepaid, not less
than ten (10) nor more than sixty (60) days before such meeting, to each
stockholder entitled to vote thereat, at such address as appears on the
books of the Corporation.
Section 2.10. Notice of Stockholder Business and Nominations.
A. Annual Meetings of Stockholders. (1) Nominations of persons
for election to the board of directors of the Corporation and the proposal
of business to be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the Corporation's notice of the
meeting, (b) by or at the direction of the board of directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time
of giving of notice provided for in this By-law, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
By-law.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-law, 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 stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary at the principal
executive offices of the Corporation not later than the close of business on
the 90th day nor earlier than the close of business on the 120th day prior
to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than
30 days before or more then 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close
of business on the 120th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made by the Corporation. In no event
shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or as otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as
a director if elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the nomination
or proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of Paragraph
(A)(2) of this By-law to the contrary, in the event that the number of
directors to be elected to the board of directors of the Corporation is
increased and there is no public announcement by the Corporation naming all
of the nominees for director or specifying the size of the increased board
of directors at least 100 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this By-
law 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 offices of the Corporation not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
(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 the meeting.
Nominations of persons for election to the board of directors may be made at
a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction
of the board of directors or (b) provided that the board of directors has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this By-law, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
By-law. In the event the Corporation calls a special meeting of
stockholders for purposes of electing one or more directors to the board of
directors, any such stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this By-law shall be delivered to the secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than
the close of business on the later of the 90th day prior to such special
meeting or the 10th 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. In no event shall
the public announcement of an adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(C) General. (1) Only such persons who are nominated in accordance
with the procedures set forth in this By-law shall be eligible to serve 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 the procedures set forth in this By-law. Except as otherwise provided
by law, the Certificate of Incorporation or these Bylaws, the Chairman of
the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this By-law and, if any proposed nomination or business is not in compliance
with this By-law, to declare that such defective proposal or nomination
shall be disregarded.
(2) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-law. Nothing in this By-law shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act or (ii) of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
Section 2.11. Inspectors. One or more inspectors may be appointed by
the board of directors before or at any meeting of stockholders, or, if no
such appointment shall have been made, the presiding officer may make such
appointment, if deemed necessary, at the meeting. At the meeting for which
the inspector or inspectors are appointed, the inspectors shall open and
close the polls, receive and take charge of the proxies and the acceptance
and rejection of votes. If any inspector previously appointed shall fail to
attend or refuse or be unable to serve the presiding officer shall appoint a
substitute inspector.
Section 2.12. Stockholders' Action by Unanimous Consent. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action by any provisions of law, the
Certificate of incorporation, or these Bylaws, the meeting and vote of
stockholders may be dispensed with under the conditions specified in the
Certificate of incorporation.
Section 2.13. Waiver of Notice. Any meeting at which all of the
stockholders entitled to vote are present, either in person or by proxy, or
at which those not present have waived notice in writing, either prior or
subsequent to such meeting, shall be a legal meeting for the transaction of
any business, notwithstanding that notice has not been given, provided a
quorum be present in person or by proxy. Such waivers shall not be
recognized unless filed with the Secretary, or someone acting in such
capacity.
Article III
Directors
Section 3.1. Number of Directors. Except as otherwise provided by
law, the Certificate of Incorporation or these By-laws, the property and
business of the Corporation shall be managed by or under the direction of
the Board of Directors. The Board of Directors shall be divided into three
classes (designated Class I, Class II and Class III, respectively), as
nearly equal in number as possible. The number of directors constituting
the initial Board of Directors of the Corporation is twenty (20). The
number of directors of the Corporation shall be fixed from time to time by
the Board of Directors up to a maximum of twenty (20). The current number
of directors is fixed at fourteen (14). The initial directors of the
Corporation shall serve in the respective classes and until the respective
annual meetings of the stockholders of the Corporation set forth below
opposite their names and mailing addresses, or until their successors are
elected and qualified. Thereafter, each class of directors shall be
elected to a term of office of three years. Directors need not be
stockholders, residents of Delaware or citizens of the United States. The
stockholders shall, at each annual meeting or meeting held in place
thereof, elect one class of Directors. Except as herein provided with
respect to vacancies, and except with respect to the initial Directors, as
set out in the Certificate of Incorporation, each Director shall hold
office for three years and until his successor is elected and qualified.
In case of any vacancy on the Board of Directors by reason of death,
resignation, disqualification, removal, failure to elect, increase in the
number of directors or otherwise, the remaining Directors, although more or
less than a quorum, by a majority vote of such remaining Directors may
elect a successor or successors who shall hold office for the unexpired
term.
Section 3.2. Change in Maximum Number of Directors; Vacancies. Any
alteration, change, amendment or repeal to Section 3.1 or 3.2 for the
purpose of increasing or decreasing the maximum number of directors provided
herein shall require the affirmative vote of holders of at least 80% of the
outstanding Voting Stock (as defined in Article Thirteenth of the
Certificate of Incorporation), which vote shall include the affirmative vote
of at least two-thirds (2/3) of the outstanding Voting Stock held by
stockholders other than an Interested Stockholder (as defined in Article
Thirteenth of the Certificate of Incorporation) if an interested Stockholder
exists on the record date of the meeting at which such action is submitted
to the stockholders for their consideration; provided, however, that such
higher voting requirement shall not apply to any amendment, alteration,
change, amendment or repeal recommended to the shareholders by a majority of
the Continuing Directors (as defined in Article Thirteenth of the
Certificate of Incorporation). If the number of Directors is so increased
or decreased by action of the Board of Directors or of the stockholders then
the additional Directors may be elected in the manner provided above for the
filing of vacancies in the Board of Directors or at the annual meeting of
stockholders or at a special meeting called for that purpose.
Section 3.3. Chairman of the Board. The Directors shall elect a
Chairman of the Board. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and Directors, and shall have
such other duties as may be assigned to him/her from time to time by the
Board of Directors.
Section 3.4. Resignation. Any Director of the Corporation may resign
at any time by giving written notice to the President or the Secretary of
the Corporation. Such resignation shall take effect at the time specified
therein, at the time of receipt if no time is specified therein and at the
time of acceptance if the effectiveness of such resignation is conditioned
upon its acceptance. Unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.5. Removal. Any Director or the entire Board of Directors
may be removed only for cause, and pursuant to the procedure set forth in
Article Ninth (b) of the Certificate of Incorporation.
Section 3.6. Place of Meeting and Books. The Board of Directors may
hold their meetings and keep the books of the Corporation outside the State
of Delaware, at such places as they may from time to time determine.
Section 3.7. General Powers. In addition to the powers and authority
expressly conferred upon them by these Bylaws, the Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by
these Bylaws directed or required to be exercised or done by the
stockholders.
Section 3.8. Executive Committee. There may be an executive committee
of one or more Directors designated by resolution of the Board of Directors.
The act of a majority of the members of such committee shall be the act of
the committee. Said committee may meet at stated times or on notice to all
by any of their own number, and shall have and may exercise those powers of
the Board of Directors in the management of the business affairs of the
Corporation as are provided by law and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Vacancies in
the membership of the committee shall be filled by the Board of Directors at
a regular meeting or at a special meeting called for that purposes.
Section 3.9. Other Committees. The Board of Directors may also
designate one or more committees in addition to the executive committee, by
resolution or resolutions of the Board of Directors; such committee or
committees shall consist of one or more Directors of the Corporation, and to
the extent provided in the resolution or resolutions designating them, shall
have and may exercise specific powers of the Board of Directors in the
management of the business and affairs of the Corporation to the extent
permitted by statute and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it. Such committee
or committees shall have such name or names as may be determined from time
to time by resolution adopted by the Board of Directors.
Section 3.10. Powers Denied to Committees. Committees of the Board of
Directors shall not, in any event, have any power or authority in reference
to the following matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware
General Corporation Law to be submitted to stockholders of the Corporation
for approval or (ii) adopting, amending or repealing any By-law of the
Corporation.
Section 3.11. Substitute Committee Member. In the absence or on the
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he,
she or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of such absent or
disqualified member. Any committee shall keep regular minutes of its
proceedings and report the same to the Board as may be required by the Board.
Section 3.12. Compensation of Directors. The Board of Directors shall
have the power to fix the compensation of Directors and members of
committees of the Board. The Directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors and/or a
stated retainer as Director. No such payment shall preclude any Director
from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for being members of those committees and/or
attending committee meetings.
Section 3.13. Annual Meeting. The Board may meet at such place and
time as shall be fixed and announced by the presiding officer at the annual
meeting of stockholders, for the purpose of organization or otherwise, and
no further notice of such meeting shall be necessary to the Directors
(including the newly elected Directors) in order legally to constitute the
meeting, provided a quorum shall be present, or they may meet at such place
and time as shall be stated in a notice given to such Directors two (2) days
prior to such meeting, or as shall be fixed by the consent in writing of all
the Directors.
Section 3.14. Regular Meetings. The annual meeting of the Board of
Directors shall be held as soon as practical following the adjournment of
the annual meeting of stockholders upon notice from the Chairman of the
Board, if any, or the President. Other regular meetings of the Board of
Directors may be held at such times and at such places within or without the
State of Vermont as the Board may by vote determine from time to time, and,
if so determined, no notice thereof need be given, provided, however, a
regular meeting of the Board shall be held at least once each calendar
quarter.
Section 3.15. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board, if any, or the President, on two (2)
days' notice to each Director, or such shorter period of time before the
meeting as will nonetheless be sufficient for the convenient assembly of the
Directors so notified; special meetings shall be called by the Secretary in
like manner and on like notice, on the written request of two or more
Directors.
Section 3.16. Waiver of Notice. Attendance of a Director at a
meeting shall constitute a waiver of notice of such meeting, except where a
Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 3.17. Quorum. At all meetings of the Board of Directors, a
majority of the total number of Directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the act of a
majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically permitted or provided by statute, or by the Certificate of
Incorporation, or by these Bylaws. If at any meeting of the Board there
shall be less than a quorum present, a majority of those present may adjourn
the meeting to a definite date and place from time to time until a quorum is
obtained, and no further notice thereof need be given other than by
announcement at said meeting which shall be so adjourned.
Section 3.18. Telephonic Participation in Meetings. Members of the
Board of Directors or any committee designated by such Board may participate
in a meeting of the Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant
to this section shall constitute presence in person at such meeting.
Section 3.19. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if written consent thereto
is signed by all members of the Board or of such committee as the case may
be and such written consent is filed with the minutes of proceedings of the
Board or committee.
Section 3.20. Minutes and Records. Minutes of all meetings of
Directors shall be taken by the Secretary, or in his/her absence, by someone
appointed by the presiding officer to take and authenticate the record of
the meeting.
Section 3.21. Director of Subsidiaries. Except for the President and
Chief Executive Officer and the Vice Chairman and Chief Operating Officer,
no person who serves as a Director of the Corporation shall also serve as a
Director of any of the Corporation's subsidiaries.
Section 3.22. Maximum Age of Director. No person shall serve as a
Director of the Corporation after the annual meeting following attainment of
age 70.
Article IV
Officers
Section 4.1. Selection; Statutory Officers. The officers of the
Corporation shall be chosen by the Board of Directors. There shall be a
President and Chief Executive Officer, a Vice Chairman and Chief Operating
Officer, one or more Vice Presidents, a Treasurer and a Secretary (Clerk).
The same person may hold more than one office except that the same person
shall not be both President and Secretary.
Section 4.2. Time of Election. The officers above named, shall be
chosen by the Board of Directors at its first meeting after each annual
meeting of stockholders. Nothing herein shall be deemed to restrict the
power of the Board to discharge or remove any officer, and to fill the
vacancy created thereby, at any time. None of said officers need be a
Director.
Section 4.3. Additional Officers. The Board may appoint such other
officers and agents as it shall deem necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
Section 4.4. Subordinate Officers. The Board of Directors may
appoint such subordinate officers as the business of the Corporation may
require, each of such officers to hold office at the pleasure of the Board,
and to have such authority, and perform such duties as the Board of
Directors may from time to time determine.
Section 4.5. Terms of Office. Each officer of the Corporation shall
hold office until his/her successor is chosen and qualified, or until
his/her earlier resignation or removal. Any officer elected or appointed by
the Board of Directors may be removed at any time by the Board of Directors.
Section 4.6. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors, the President or Secretary.
Any such resignation shall be effective at the date of receipt of such
notice or at any later date specified therein. Unless otherwise specified
in said resignation, acceptance shall not be necessary to make it effective.
Section 4.7. Compensation of Officers. The Board of Directors shall
have power to fix the compensation of all officers of the Corporation. It
may authorize any officer, upon whom the power of appointing subordinate
officers may have been conferred, to fix the compensation of such
subordinate officers.
Section 4.8. President. The President shall be the Chief Executive
Officer and head of the Corporation. In the absence of the Chairman of the
Board, the President shall preside at all meetings of Directors and
stockholders. Under the supervision of the Board of Directors and of the
executive committee, if any, the President shall have the general control
and management of the Corporation's business and affairs, subject, however,
to the right of the Board of Directors and of the executive committee to
confer any specific power, except such as may be by statute exclusively
conferred on the President, upon any other officer or officers of the
Corporation. The President shall perform and do all acts and things
incident to the position of President and such other duties as may be
lawfully assigned to him/her from time to time by the Board of Directors or
the executive committee.
Section 4.9. Vice Chairman and Chief Operating Officer. The Vice
Chairman and Chief Operating Officer shall perform and do all acts and
things incident to the position of Vice Chairman and Chief Operating Officer
and such other duties as may be lawfully assigned to him/her from time to
time by the Board of Directors of the Executive Committee. In the absence
of the President, the Vice Chairman and Chief Operating Officer shall
perform the President's functions.
Section 4.10. Vice Presidents. The Vice Presidents in order of their
rank as fixed by the Board of Directors, or, if not ranked, as designated by
the Board of Directors shall perform such of the duties of the President on
behalf of the Corporation as may be respectively assigned to them from time
to time by the Board of Directors or by the executive committee or by the
President. The Board of Directors or the executive committee may designate
one or more of the Vice Presidents as an Executive Vice President, and in
the absence or inability of the President and Vice Chairman and Chief
Operating Officer to act, such Executive Vice Presidents shall have and
possess all of the powers and discharge all of the duties of the President
and/or Vice Chairman and Chief Operating Officer, subject to the control of
the Board and of the executive committee.
Section 4.11. Treasurer. The Treasurer shall have the care and
custody of all the funds and securities of the Corporation which may come
into his/her hands as Treasurer, and the power and authority to endorse
checks, drafts and other instruments for the payment of money for deposit or
collection when necessary or proper and to deposit the same to the credit of
the Corporation in such bank or banks or depository as the Board of
Directors or the executive committee, or the officers or agents to whom the
Board of Directors or the executive committee may delegate such authority,
may designate, and he/she may endorse all commercial documents requiring
endorsements for or on behalf of the Corporation. The Treasurer may sign
all receipts and vouchers for the payments made to the Corporation. The
Treasurer shall render an account of his transactions to the Board of
Directors or to the executive committee as often as the Board or the
committee shall require the same. The Treasurer shall enter regularly in
the books to be kept by him/her for that purpose full and adequate account
of all moneys received and paid by him/her on account of the Corporation.
The Treasurer shall perform all acts incident to the position of Treasurer,
subject to the control of the Board of Directors or the executive committee,
give a bond to the Corporation conditioned for the faithful performance of
his duties, the expense of which bond shall be borne by the Corporation.
Section 4.12. Secretary. The Secretary shall maintain the office of
the Secretary at the place where the principal office of the Corporation is
located. The Secretary shall have and keep in his/her custody at the office
of the Secretary, the corporate seal and corporate documents and records,
including the minutes of all meetings of the Stockholders and Board of
Directors. The Secretary shall keep full and accurate minutes of all
meetings of the Board of Directors and of the stockholders; he shall attend
to the giving and serving of all notices of the Corporation. Except as
otherwise ordered by the Board of Directors or the executive committee, the
Secretary shall attest the seal of the Corporation upon all contracts and
instruments executed under such seal and shall affix the seal of the
Corporation thereto and to all certificates of shares of the Capital Stock.
The Secretary shall have charge of the stock certificate book, transfer book
and stock ledger, and such other books and papers as the Board of Directors
or the executive committee may direct. The Secretary shall, in general,
perform all the duties of the Secretary, subject to the control of the Board
of Directors and of the executive committee.
Section 4.13. Assistant Secretary. The Board of Directors may appoint
or remove one or more Assistant Secretaries of the Corporation. Any
Assistant Secretary upon appointment shall perform such duties of the
Secretary, and have any and all such other duties as the Board of Directors
may designate.
Article V
Stock
Section 5.1. Amount. The amount of the capital stock of the
Corporation shall be defined by the Certificate of Incorporation and
amendments thereto.
Section 5.2. Stock. (a) The Board of Directors may authorize the
issuance of shares of stock of the Corporation, with or without
certificates. Each holder of shares of the Corporation's stock represented
by certificates and upon request, every holder of uncertificated shares,
shall be entitled to a certificate or certificates of stock of the
Corporation in such form as the Board of Directors may from time to time
prescribe, representing the number of shares registered in certificate form.
The certificates of stock of the Corporation shall be numbered and shall be
entered in the books of the Corporation as they are issued. They shall
certify the holder's name and number and class of shares and shall be signed
by both of (a) either the President or a Vice President, and (b) any one of
the Treasurer or an Assistant Treasurer or the Secretary of an Assistant
Secretary, and shall be sealed with the corporate seal of the Corporation.
If such certificate is countersigned (a) by a transfer agent other than the
Corporation or its employee, or (b) by a registrar other than the
Corporation or its employee, the signature of the officers of the
Corporation and the registrar may be facsimiles. In case any officer or
officers who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates shall cease to
be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates shall have
been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as
though the person or persons who signed such certificate or certificates or
whose facsimile signature shall have been used thereon had not ceased to be
such officer or officers of the Corporation.
(b) If the Corporation is authorized to issue different classes of
stock or different series within a class, the powers, designations,
preferences, and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preference and/or rights shall be set forth in full
or summarized on the front or back of each certificate representing such
stock. Alternatively, each certificate may state conspicuously on its front
or back that the Corporation will furnish the stockholder such information
on request of the stockholder and without charge. If any such shares are
issued as uncertificated shares, within a reasonable time after the issuance
or transfer of such uncertificated stock, the Corporation shall send to the
registered owner thereof a written notice containing the information
required to be set forth or stated on certificates representing such shares
or, alternatively, such notice shall state that the Corporation will furnish
to the stockholder such information on request and without charge. Except
as otherwise expressly provided by law, the rights and obligations of the
holders of uncertificated stock and the rights and obligations of the
holders of certificates representing stock of the same class and series
shall be identical.
Section 5.3. Fractional Share Interests. The Corporation may, but
shall not be required to, issue fractions of a share with or without
certificates. If the Corporation does not issue fractions of a share, it
shall (a) arrange for the disposition of fractional interests by those
entitled thereto, (b) pay in cash the fair value of fractions of a share as
of the time when those entitled to receive such fractions are determined, or
(c) issue scrip or warrants in registered or bearer form which shall entitle
the holder to receive a certificate for a full share upon the surrender of
such scrip or warrants aggregating a full share. A fractional share (
whether or not represented by a certificate) shall, but scrip or warrants
shall not unless otherwise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, and to participate in any of
the assets of the Corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the conditions
that they shall become void if not exchanged for full shares before a
specified date, or subject to the conditions that the shares for which scrip
or warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
Section 5.4. Transfers of Stock. Registration of the transfer of
stock of the Corporation shall be made only on the stock transfer books of
the Corporation. In order to register a transfer, the record owner of stock
represented by certificates shall surrender the stock to the Corporation for
cancellation, properly endorsed by the appropriate person or persons, and
the record owner of uncertified shares shall submit to the Corporation a
signed written request for such transfer, with assurances acceptable to the
Corporation that such endorsements or signatures are genuine and effective.
The Corporation shall be entitled to treat the holder of record of any share
or shares 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 on the part of any other person whether or not it shall have express
or other notice thereof save as expressly provided by the laws of Delaware.
Section 5.5. Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or the allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion, or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) days nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. If no such record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the date next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on which the meeting is held; the record date for determining stockholders
entitled to express consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is necessary, shall
be the day on which the first written consent is expressed; and the record
date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at any meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 5.6. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars and may require all certificates of stock to bear the signature
or signatures of any of them.
Section 5.7. Dividends.
1. Power to Declare. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation and the laws of Delaware.
2. Reserves. Before payment of any dividend, there may be set
aside out of the funds of the Corporation available for dividends such
sum or sums as the Directors from time to time in their absolute
discretion, think proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property
of the Corporation, or for such other purpose as the Directors shall
think conducive to interest of the Corporation, and the Directors may
modify or abolish any such reserve in the manner in which it was created.
Section 5.8. Lost, Stolen or Destroyed Certificates. No certificates
for shares of stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed except upon
production of such evidence of the loss, theft or destruction and upon
indemnification of the Corporation and its agents to such extent and in such
manner as the Board of Directors may from time to time prescribe.
Section 5.9. Inspection of Books. The stockholders of the Corporation
by a majority vote at any meeting of stockholders duly called, or in case
the stockholders shall fail to act, the Board of Directors shall have power
from time to time to determine whether and to what extent and at what times
and places and under what conditions and regulations the accounts and books
of the Corporation (other than the stock ledger) or any of them, shall be
open to inspection by stockholders; and no stockholder shall have any right
to inspect any account or book or document of the Corporation except as
conferred by statute or authorized by the Board of Directors or by a
resolution of the stockholders.
Article VI
Miscellaneous Management Provisions
Section 6.1. Checks, Drafts and Notes. All checks, drafts or orders
for the payment of money, and all notes and acceptances of the Corporation
shall be signed by such officer or officers, agent or agents as the Board of
Directors may designate.
Section 6.2. Notices.
1. Notices to Directors may, and notices to stockholders shall be
in writing and delivered personally or mailed to the Directors or
stockholders at their addresses appearing on the books of the
Corporation. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to Directors may also be given
by telegram or orally, by telephone or in person.
2 . Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or
of these Bylaws, a written waiver of notice, signed by the person or
persons entitled to said notice, whether before or after the time stated
herein, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting except
when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
Section 6.3. Authorization and Execution of Contracts. The Board of
Directors, except as otherwise provided in the Bylaws, may authorize any
officer or officers, agent or agents to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined in specific instances.
Section 6.4. Conflict of Interest. No contract or transaction between
the Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of or committee thereof which
authorized the contract or transaction, or solely because his or her votes
are counted for such purpose, provided that the material facts as to his or
her relationship or interest as to the contract or transaction are disclosed
or are known to the Board of Directors or the committee and the Board or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested Directors, even though
the disinterested Directors be less than a quorum or provided that the
contract or transaction is otherwise authorized in accordance with the laws
of Delaware. Common or interested Directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
Section 6.5. Voting of Securities Owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any shares
or other securities issued by any other corporation and owned or controlled
by the Corporation may be voted in person at any meeting of security holders
of such other corporation by the President of the Corporation if he is
present at such meeting, or in his absence by the Treasurer of the
Corporation if he is present at such meeting, and (b) whenever, in the
judgment of the President, it is desirable for the Corporation to execute a
proxy or written consent in respect to any shares or other securities issued
by any other corporation and owned by the Corporation, such proxy or consent
shall be executed in the name of the Corporation by the President, without
necessity of any authorization by the Board of Directors, affixation of
corporate seal or countersignature or attestation by another officer,
provided that if the President is unable to execute such proxy or consent by
reason of sickness, absence from the United States or other similar cause,
the Treasurer may execute such proxy or consent. Any person or persons
designated in the manner above stated as the proxy or proxies of the
Corporation shall have full right, power and authority to vote the shares or
other securities issued by such other corporation and owned by the
Corporation the same as such shares or other securities might be voted by
the Corporation.
Section 6.6. Indemnification and Insurance. (A) Each person who was
or is made a party or is threatened to be made a party to or is involved in
any action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative , is or was a
director or officer of the Corporation or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans maintained or
sponsored by the Corporation, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (C) of this By-law, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of
Directors. The right to indemnification conferred in this By-law shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition, such advances to be paid by the Corporation within 20 days
after the receipt by the Corporation of a statement or statements from the
claimant requesting such advance or advances from time to time; provided,
however, that if the General Corporation Law of the State of Delaware
requires, the payment of such expenses incurred by a director or officer in
his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director of
officer, including, without limitation, service to an employee benefit plan)
in advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately
be determined that such director or officer is not entitled to be
indemnified under this By-law or otherwise.
(B) To obtain indemnification under this By-law, a claimant shall
submit to the Corporation a written request, including therein or therewith
such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent
the claimant is entitled to indemnification. Upon written request by a
claimant for indemnification pursuant to the first sentence of this
paragraph (B), a determination, if required by applicable law, with respect
to the claimant's entitlement thereto shall be made as follows: (1) if
requested by the claimant, by Independent Counsel (as hereinafter defined),
or (2) if no request is made by the claimant for a determination by
Independent Counsel, (i) by the Board of Directors by a majority vote of a
quorum consisting of Disinterested Directors (as hereinafter defined), or
(ii) if a quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable, or even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written
opinion to the Board of Directors a copy of which shall be delivered to the
claimant, or (iii) if a quorum of Disinterested Directors so directs, by the
stockholders of the Corporation. In the event the determination of
entitlement to indemnification is to be made by Independent Counsel at the
request of the claimant, the Independent Counsel shall be selected by the
Board of Directors unless there shall have occurred within two years prior
to the date of the commencement of the action, suit or proceeding for which
indemnification is claimed a "Change of Control" as defined in the Banknorth
Group, Inc. 1997 Equity Compensation Plan, in which case the Independent
Counsel shall be selected by the claimant unless the claimant shall request
that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this By-law is not paid in full
by the Corporation within 30 days after a written claim pursuant to
paragraph (B) of this By-law has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation), that
the claimant has not met the standard of conduct which makes it permissible
under the General Corporation Law of the State of Delaware, or under the
Certificate of Incorporation, for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its
Board of Directors, Independent Counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, Independent Counsel or Stockholders) that
the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph
(B) of this By-law that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this By-law.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this By-law that the
procedures and presumptions of this By-law are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions of this By-law.
(F) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in
this By-law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this By-law shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence
or matter arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of the State of
Delaware. To the extent that the Corporation maintains any policy or
policies providing such insurance, each such director or officer, and each
such agent or employee to which rights to indemnification have been granted
as provided in paragraph (H) of this By-law, shall be covered by such policy
or policies in accordance with its or their terms to the maximum extent of
the coverage thereunder for any such director, officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, and rights to be
paid by the Corporation the expenses incurred in defending any proceeding
in advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this By-law with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(I) If any provision or provisions of this By-law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this
By-law (including, without limitation, each portion of any paragraph of this
By-law containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (2)
to the fullest extent possible, the provisions of this By-law (including,
without limitation, each such portion of any paragraph of this By-law
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
(J) For purposes of this By-law:
(1) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the matter in respect of
which indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in
matters of corporation law and shall include any person who,
under the applicable standards of professional conduct then
prevailing, would not have a conflict of interest in
representing either the Corporation or the claimant in an
action to determine the claimant's rights under this By-law.
(K) Any notice, request or other communication required or permitted
to be given to the Corporation under this By-law shall be in writing and
either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
(L) Nothing in this By-law shall eliminate the liability of a
Director, to the extent such liability is provided by applicable law, (i)
for any breach of the Director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the Director derived an improper personal benefit.
Article VII
Director Emeritus
Section 7.1. Director Emeritus
a. An individual who is a Director of the Corporation on February
27, 1996 and who continues to be a Director until their retirement
from the Board at the Annual Meeting following their attainment of
age 65 and prior to the first Annual Meeting after attainment of
age 67 will thereupon be appointed to the status of Director
Emeritus and be entitled to remain as such until the Annual Meeting
following their attainment of age 72.
b. Directors appointed to the status of Director Emeritus will be
entitled to attend all Board meetings of the Corporation as
non-voting members and will continue to receive the Directors'
annual retainer so long as they remain Director Emeritus.
c. An individual who becomes a Director of the Corporation after
February 27, 1996 shall not be eligible to receive the attendant
benefits of a Director Emeritus upon his/her retirement from the
Board.
Article VIII
Amendments
Section 8.1. Amendments. Except as otherwise provided in these
Bylaws, the Bylaws of the Corporation may be altered, amended or repealed at
any regular or special meeting of the Board of Directors by a vote of at
least a majority of the Directors or by or at any meeting of the
stockholders by the vote of the holders of at least a majority of the stock
issued and outstanding and entitled to vote at such meeting, in accordance
with the provisions of the Certificate of Incorporation and of the laws of
Delaware, provided notice of the proposed amendment, alteration or repeal is
mailed to each such holder at least ten days prior to such meeting.