EXHIBIT 3.2
BY-LAWS
OF
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware, County of New Castle. The name
of the its registered agent at such address is The Corporation Trust Company.
The registered office and/or registered agent of the corporation may be changed
from time to time by action of the board of directors.
Section 2. Other Offices. 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders
shall be held each year for the purpose of electing members of the board of
directors and conducting such other proper business as may come before the
meeting. The date and time of the annual meeting shall be determined by the
president of the corporation; provided that if the president does not act, the
board of directors shall determine the date and time of such meeting.
Section 2. Special Meeting. Special meetings of stockholders may be
called for any purpose and may be held at such time and place, within or without
the State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by
the president, the stockholders, or by resolution of the board of directors.
Section 3. Place of Meetings. The board of directors may designate
any place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting called by the board of
directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal executive office of the
corporation.
Section 4. Notice. Whenever stockholders are required or permitted
to take action at a meeting, written or printed notice stating the place, date,
time, and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting unless
notice is waived by the stockholder. All such notices shall be delivered, either
personally or by mail, by or at the direction of the board of directors, the
president or the secretary, and if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the stockholder at his, her or its address as the same appears on the records
of the corporation. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends 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 5. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. 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 10 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 list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding
shares of capital stock, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise
provided by statute or by the certificate of incorporation. If a quorum is not
present, the holders of a majority of the shares present in person or
represented by proxy at the meeting, and entitled to vote at the meeting, may
adjourn the meeting to another time and/or place. When a quorum is once present
to commence a meeting of stockholders, it is not broken by the subsequent
withdrawal of any stockholders or their proxies.
Section 7. Adjourned Meetings. When a meeting is adjourned to
another time and place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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.
Section 8. Vote Required. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless the question is one upon which by express provisions of any
applicable law or of the certificate of incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question. All elections for members of the board of directors
shall be decided by a plurality of the vote.
Section 9. Voting Rights. Except as otherwise provided by the
General Corporation Law of the State of Delaware or by the certificate of
incorporation of the corporation or any amendments thereto and subject to
Section 3 of Article VI hereof, every
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stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of common stock held by such stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or person to act for him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. At each meeting of the
stockholders, and before any voting commences, all proxies filed at or before
the meeting shall be submitted to and examined by the secretary or a person
designated by the secretary, and no shares may be represented or voted under a
proxy that has been found to be invalid or irregular.
Section 11. Action by Written Consent. Unless otherwise provided in
the certificate or incorporation, any action required to be taken at any annual
or special meeting of stockholders of the corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken and bearing the dates of
signature of the stockholders who signed the consent or consents, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing. Any action taken pursuant to such written consent or
consents of the stockholders shall have the same force and effect as if taken by
the stockholders at a meeting thereof.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
corporation shall be managed by or under the direction of the board of directors
which may exercise all 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
By-laws directed or required to be exercised or done by the stockholders.
Section 2. Number, Election and Term of Office. Subject to Section
14 of this Article III, the total number of members of the board of directors
shall be established from time to time by resolution of the board, provided that
such number shall not be less than three. The members of the board of directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote in the election of
members of the board of directors. The members of the board of directors shall
be elected in this manner at the annual meeting of the stockholders, except as
provided in Section 4 of this Article III. Each member of the board of directors
elected shall hold office until a successor is duly elected and qualified or
until his or her earlier resignation or removal as hereinafter provided.
Section 3. Removal and Resignation. Any member of the board of
directors or the entire board of directors may be removed at any time, with or
without cause, by the holders or a majority of the shares then entitled to vote
at an election of members of the board of
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directors. Any member of the board of directors may resign at any time upon
written notice to the corporation. Such written resignation shall take effect at
the time specified therein, and if no time be specified, at the time of its
receipt by the president or secretary. The acceptance of a resignation shall not
be necessary to make it effective.
Section 4. Vacancies. Subject to Section 14 of this Article III,
vacancies and newly created positions on the board of directors resulting from
any increase in the authorized number of positions on the board of directors may
be filled by a majority of the members of the board of directors then in office,
though less than a quorum, or by a sole remaining member of the board of
directors. Each member of the board of directors so chosen shall hold office
until a successor is duly elected and qualified or until his or her earlier
resignation or removal as herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this By-laws
immediately after, and at the same place as, the annual meeting of stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than
the annual meeting, of the board of directors may be held within or without the
State of Delaware and without notice at such time and at such place as shall
from time to time be determined by resolution of the board. Special meetings of
the board of directors may be called by or at the request of the president or
any member of the board of directors on at least 24 hours notice to each member
of the board of directors, either personally, by telephone, by mail or by
facsimile transmission.
Section 7. Quorum, Required Vote and Adjournment. A majority of the
total number of members of the board of directors shall constitute a quorum for
the transaction of business. The vote of a majority of members of the board of
directors present at a meeting at which a quorum is present shall be the act of
the board of directors. If a quorum shall not be present at any meeting of the
board of directors, the members of the board of directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 8. Committees. The board of directors may, by resolution
passed by a majority of the whole board, designate one or more committees, each
committee to consist of one or more of the members of the board of directors of
the corporation, which to the extent provided in such resolution or these
By-laws shall have and may exercise the powers of the board of directors in the
management and affairs of the corporation except as otherwise limited by law.
The board of directors may designate one or more members of the board of
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. 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. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
Section 9. Committee Rules. Each committee of the board of directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as
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may otherwise be provided by a resolution of the board of directors designating
such committee. Unless otherwise provided in such a resolution, the presence of
at least a majority of the members of the committee shall be necessary to
constitute a quorum. In the event that a member and that member's alternate, if
alternates are designated by the board of directors as provided in Section 8 of
this Article III, of such committee is or are absent or disqualified, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in place
of any such absent or disqualified member.
Section 10. Communications Equipment. Members of the board of
directors or any committee thereof may participate in and act at any meeting of
such board or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in the meeting pursuant to this
section shall constitute presence in person at the meeting.
Section 11. Waiver of Notice and Presumption of Assent. Any member
of the board of directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends for the express purpose of objection at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action.
Section 12. Action by Written Consent. Unless otherwise restricted
by the certificate of incorporation, any action required or permitted to be
taken by any meeting of the board of directors, or of any committee thereof, may
be taken without a meeting if, before or after the action, all members of the
board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
Section 13. Compensation. Unless otherwise restricted by the
certificate of incorporation, the board of directors shall have the authority to
fix the compensation of members of the board of directors by written resolution.
Nothing herein shall be construed to preclude any member of the board of
directors from serving the corporation in any other capacity as an officer,
agent or otherwise, and receiving compensation therefor.
Section 14. Independent Directors. Acting in accordance with the
requirements of this Section 14, the board of directors may amend the By-laws to
provide that the board of directors shall thereafter include at all times one or
more individuals who are Independent Directors (as defined in such an
amendment). Any such amendment of the By-laws in accordance with this Section 14
shall not hereafter be amended, altered or repealed without the written consent
of each Rating Agency.
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ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be elected
by the board of directors and shall consist of a president, one or more managing
directors, one or more directors, one or more senior vice presidents, one or
more vice presidents, a secretary, a treasurer, and such other officers and
assistant officers as may be deemed necessary or desirable by the board of
directors. Any number of offices may be held by the same person. In its
discretion, the board of directors may choose not to fill any office for any
period as it may deem advisable, except that the offices of president and
secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office. The officers of the
corporation shall be elected annually by the board of directors at its first
meeting held after each annual meeting of stockholders or as soon thereafter as
conveniently may be. Vacancies may be filled or new offices created and filled
at any meeting of the board of directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier resignation
or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term by the members of the
board of directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed
by the board of directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a member of the board of
directors of the corporation.
Section 6. The President. The president shall be the chief executive
officer of the corporation and shall have the powers and perform the duties
incident to that position. The president shall preside at all meetings of the
board of directors and stockholders. Subject to the powers of the board of
directors, he or she shall be in the general and active charge of the entire
business, affairs and property of the corporation, and control over its
officers, agents and employees; shall be its chief policy making officer, and
shall see that all orders and resolutions of the board of directors are carried
into effect. The president shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other office or agent of the corporation. The president shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or as may be provided in these By-laws.
Section 7. Senior Vice Presidents. The senior vice president, or if
there shall be more than one, the senior vice presidents in the order determined
by the board of directors
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shall, in the absence or disability of the president, act with all of the powers
and be subject to all the restrictions of the president. The senior vice
presidents shall also perform such other duties and have such other powers as
the board of directors, the president or these By-laws may, from time to time,
prescribe.
Section 8. Vice Presidents. The vice president, or if there shall be
more than one, the vice presidents in the order determined by the board of
directors shall, in the absence or disability of the senior vice president, act
with all of the powers and be subject to all the restrictions of the senior vice
president. The vice presidents shall also perform such other duties and have
such other powers as the board of directors, the president or these By-laws may,
from time to time, prescribe.
Section 9. The Secretary and Assistant Secretaries. The secretary
shall attend all meetings of the board of directors, all meetings of the
committees thereof and all meetings of the stockholders and record all the
proceedings of the meetings in a book or books to be kept for that purpose.
Under the president's supervision, the secretary shall give, or cause to be
given, all notices required to be given by these By-laws or by law; shall have
such powers and perform such duties as the board of directors, the president or
these By-laws may, from time to time, prescribe; and shall have custody of the
corporate seal of the corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of such secretary or assistant secretary. The board of directors may
give general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his or her signature. The assistant secretary, or
if there be more than one, the assistant secretaries in the order determined by
the board of directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the board of directors, the
president, or secretary may, from time to time, prescribe.
Section 10. The Treasurer and Assistant Treasurers. The treasurer
shall have the custody of the corporate funds and securities; shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the corporation as may be ordered by the board of directors;
shall cause the funds of the corporation to be disbursed when such disbursements
have been duly authorized, taking proper vouchers for such disbursements; and
shall render to the president and the board of directors, whenever they may
require, an account of the treasurer's actions; shall have such powers and
perform such duties as the board of directors, the president or these By-laws
may prescribe. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in
the absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer. The assistant treasurers shall perform such other
duties and have such other powers as the board of directors, the president or
treasurer may, from time to time, prescribe.
Section 11. Managing Directors, Directors, Other Officers, Assistant
Officers and Agents. Managing directors, directors, officers, assistant officers
and agents, if any, other than those whose duties are provided for in these
By-laws, shall have such authority and perform such duties as may from time to
time be prescribed by resolution of the board of directors.
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Section 12. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the board of directors may by resolution delegate the powers and
duties of such officer to any other officer or to any member of the board of
directors, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification of Members of the Board of
Directors and Officers. Subject to the other provisions of this article, the
corporation shall indemnify and advance expenses to every member of the board of
directors and officer (and to such person's heirs, executors, administrators or
other legal representatives) in the manner and to the full extent and under the
circumstances permitted by applicable law as it presently exists, including
without limitation Section 145 of the General Corporation Law of the State of
Delaware, or may hereafter be amended, against any and all amounts (including
judgments, fines, payments in settlement, attorneys' fees and other expenses)
reasonably incurred by or on behalf of such person in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("a proceeding"), in which such member
of the board of directors or officer was or is made or is threatened to be made
a party or is otherwise involved by reason of the fact that such person is or
was a member of the board of directors or officer of the corporation, or is or
was serving at the request of the corporation as a member of the board of
directors, officer, employee, fiduciary or member of any other corporation,
partnership, joint venture, trust, organization or other enterprise. The
corporation shall not be required to indemnify a person in connection with a
proceeding initiated by such person if the proceeding was not authorized by the
board of directors of the corporation.
Section 2. Advancement of Expenses of Members of the Board of
Directors and Officers. The corporation shall pay the expenses of members of the
board of directors and officers incurred in defending any proceeding in advance
of its final disposition ("advancement of expenses"); provided, however, that
the advancement of expenses incurred by a member of the board of directors or
officer in advance of the final disposition of the proceeding shall be made only
upon receipt of an undertaking by the member of the board of directors or
officer to repay all amounts advanced if it should be ultimately determined that
the member of the board of directors or officer is not entitled to be
indemnified under this article or otherwise.
Section 3. Claims by Officers or Members of the Board of Directors.
If a claim for indemnification or advancement of expenses by an officer or
member of the board of directors under this Article V is not paid in full within
ninety days after a written claim therefor has been received by the corporation,
the claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the corporation shall bear the burden
of proving that the claimant was not entitled to the requested indemnification
or advancement of expenses under applicable law.
Section 4. Indemnification of Employees. Subject to the other
provisions of this Article V, the corporation may indemnify and advance expenses
to every employee who is
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not a member of the board of directors or officer (and to such person's heirs,
executors, administrators or other legal representatives) in the manner and to
the full extent and under the circumstances permitted by applicable law as it
presently exists, including without limitation Section 145 of the General
Corporation Law of the State of Delaware, or may hereafter be amended against
any and all amounts (including judgments, fines, payments in settlement,
attorneys' fees and other expenses) reasonably incurred by or on behalf of such
person in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigatory ("a
proceeding"), in which such employee was or is made or is threatened to be made
a party or is otherwise involved by reason of the fact that such person is or
was an employee of the corporation, or is or was serving as the request of the
corporation as a member of the board of directors, officer, employee, fiduciary
or member of any other corporation, partnership, joint venture, trust,
organization or other enterprise. The ultimate determination of entitlement to
indemnification of employees who are not officers and members of the board of
directors shall be made by the board of directors or by a committee of the board
of directors in such manner as the board or such committee shall determine. The
corporation shall not be required to indemnify a person in connection with a
proceeding initiated by such person if the proceeding was not authorized by the
board of directors of the corporation.
Section 5. Advancement of Expenses of Employees. The advancement of
expenses of an employee who is not an officer or member of the board of
directors shall be made by or in the manner provided by resolution of the board
of directors or by a committee of the board of directors.
Section 6. Non-Exclusivity of Rights. The rights conferred on any
person by this Article V shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these By-laws, agreement, vote of stockholders or
disinterested members of the board of directors or otherwise.
Section 7. Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a member of
the board of directors, officer or employee of another corporation, partnership,
joint venture, trust, organization or other enterprise shall be reduced by any
amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, organization or other enterprise.
Section 8. Insurance. The board of directors may, to the full extent
permitted by applicable law as it presently exists, or may hereafter be amended
from time to time, authorize an appropriate officer or officers to purchase and
maintain at the corporation's expense insurance: (a) to indemnify the
corporation for any obligation which it incurs as a result of the
indemnification of members of the board of directors, officers and employees
under the provisions of this Article V; and (b) to indemnify or insure members
of the board of directors, officers and employees against liability in instances
in which they may not otherwise be indemnified by the corporation under the
provisions of this Article V.
Section 9. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article V shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
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ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by or in the name of the corporation by
the president or a vice president and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by such holder in the
corporation. If such a certificate is countersigned (1) by a transfer agent or
an assistant transfer agent other than the corporation or its employees or (2)
by a registrar, other than the corporation or its employees, the signature of
any such president, vice president, secretary, or assistant secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signatures 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 have been
delivered by the corporation, such certificate or certificates may nevertheless
be issued and delivered as though the person or persons who signed such
certificate or certificate or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the corporation.
All certificates for shares shall be consecutively numbered or otherwise
identified. The name of the persons to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the corporation. Shares of stock of the corporation shall only be
transferred on the books of the corporation by the holder of record thereof or
by such holder's attorney duly authorized in writing, upon surrender to the
corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization, and other matters as the corporation may
reasonably require, and accompanied by all necessary stock transfer stamps. In
that event, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate or certificates, and
record the transaction on its books. The board of directors may appoint a bank
or trust company organized under the laws of the United States or any state
thereof to act as its transfer agent or registrar, or both in connection with
the transfer of any class or series of securities of the corporation.
Section 2. Lost Certificates. The board of directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. In order
that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors, and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the board of
directors, the
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record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be the close of business on the next day 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 was held. A
determination of stockholders of record entitled to notice of or to vote at a
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 4. Fixing a Record Date for Action by Written Consent. In
order that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the board of directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the board of directors. If no
record date has been fixed by the board of directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the board of directors is required by
statute, shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the board of directors and prior action by the board of directors is required by
statute, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the board of directors adopts the resolution taking such
prior action.
Section 5. Fixing a Record Date for Other Purposes. In order that
the corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment or any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purposes of any other lawful action,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
Section 6. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof.
Section 7. Subscriptions for Stock. Unless otherwise provided for in
the subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined by
the board of directors. Any call made
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by the board of directors for payment on subscriptions shall be uniform as to
all shares of the same class or as to all shares of the same series. In the case
of default in the payment of any installment or call when such payment is due,
the corporation may proceed to collect the amount due in the same manner as any
debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. 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. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the members
of the board of directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meeting contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
any other purpose and the members of the board of directors may modify or
abolish any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other
orders for the payment of money by or to the corporation and all notes and other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner, as shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 3. Execution of Instruments. All agreements indentures,
mortgages, deeds, conveyances, transfers, contracts, checks, notes, drafts, loan
documents, letters of credit, master agreements, swap agreements, guarantees of
signatures, certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, amounts, affidavits, bonds,
undertakings, proxies and other instruments or documents may be signed,
executed, acknowledged, verified, attested, delivered or accepted on behalf of
the corporation by the chairman of the board, any vice chairman of the board,
the president, any managing director, any director, any senior vice president,
any vice president, any assistant vice president, or any individual who is
listed on the corporation's officer's payroll in a position equal to any of the
aforementioned officer positions, or such other officers, employees or agents as
the board of directors or any of such designated officers or individuals may
direct. The provisions of this Section 3 are supplementary to any other
provision of these By-laws and shall not be construed to authorize execution of
instruments otherwise dictated by law.
Section 4. Fiscal Year. The fiscal year of the corporation shall be
the year ending December 31.
Section 5. Corporate Seal. The board of directors may provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
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Section 6. Voting Securities Owned By Corporation. Voting securities
in any other corporation held by the corporation shall be voted by the
president, any managing director or senior vice president, unless the board of
directors specifically confers authority to vote with respect thereof, which
authority may be general or confined to specific instances, upon some other
person or officer. Any person authorized to vote securities shall have the power
to appoint proxies, with general power of substitution.
Section 7. Inspection of Books and Records. Any stockholder of
record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours
for business to inspect for any proper purpose the corporation's stock ledger, a
list of its stockholders, and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean any purpose reasonably related
to such person's interest as a stockholder. In every instance where an attorney
or other agent shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation at its
registered office in the State of Delaware or at its principal place of
business.
Section 8. Section Headings. Section headings in these By-laws are
for convenience of reference only and shall not be given any substantive effect
in limiting or otherwise construing any provision herein.
Section 9. Inconsistent Provisions. In the event that any provision
of these Bylaws is or becomes inconsistent with any provision of the certificate
of incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these By laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VIII
SEPARATE CONDUCT OF BUSINESS
Section 1. The corporation shall maintain separate corporate records
and books of account. The books of the corporation may be kept outside the State
of Delaware at such place or places as may be designated from time to time by
the board of directors or in the By-laws of the corporation.
Section 2. The corporation's cash accounts shall not be commingled
with those of any of its affiliates.
Section 3. The corporation shall, when appropriate, obtain proper
authorization from its board of directors for corporate action.
Section 4. The corporation shall conduct its business so as to not
mislead others as to the identity of the entity with which they are concerned.
Section 5. The corporation shall provide for its operating expenses
and liabilities from its own funds, which may include funds borrowed from
affiliates.
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Section 6. The corporation shall, when appropriate, obtain proper
authorization from its stockholders for corporate action.
Section 7. The corporation shall act solely in its corporate name
and through its duly authorized officers or agents in the conduct of its
business.
Section 8. The corporation shall not hold itself out as being liable
for the debts of any other entity and shall not permit any affiliate to hold
itself out as liable for the debts of the corporation.
Section 9. The corporation shall maintain an arm's length
relationship in any transactions entered into or other business dealings with
its affiliates.
ARTICLE IX
AMENDMENTS
Except as provided in Sections 14 and 15 of Article III, these
By-laws may be amended, altered, or repealed and new By-laws adopted at any
meeting of the board of directors by a majority vote. The fact that the power to
adopt, amend, alter or repeal the By-laws has been conferred upon the board of
directors shall not divest the stockholders of the same power.
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