EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF ST. JOSEPH BANCORP, INC.
ST. JOSEPH BANCORP, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting.
The Corporation shall hold an annual meeting of its stockholders to elect
directors and to transact any other business within its powers, at such place,
on such date, and at such time as the Board of Directors shall each year fix.
Failure to hold an annual meeting does not invalidate the Corporation's
existence or affect any otherwise valid corporate act.
Section 2. Special Meetings.
Special meetings of stockholders of the Corporation may be called by the
President or by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors that the Corporation would have if
there were no vacancies on the Board of Directors (hereinafter the "Whole
Board"). Special meetings of the stockholders shall be called by the Secretary
at the request of stockholders only on the written request of stockholders
entitled to cast at least a majority of all the votes entitled to be cast at the
meeting. Such written request shall state the purpose or purposes of the meeting
and the matters proposed to be acted upon at the meeting, and shall be delivered
at the principal office of the Corporation addressed to the President or the
Secretary. The Secretary shall inform the stockholders who make the request of
the reasonably estimated cost of preparing and mailing a notice of the meeting
and, upon payment of these costs to the Corporation, notify each stockholder
entitled to notice of the meeting. The Board of Directors shall have the sole
power to fix (1) the record date for determining stockholders entitled to
request a special meeting of stockholders and the record date for determining
stockholders entitled to notice of and to vote at the special meeting and (2)
the date, time and place of the special meeting and the means of remote
communication, if any, by which stockholders and proxy holders may be considered
present in person and may vote at the special meeting.
Section 3. Notice of Meetings; Adjournment.
Not less than ten (10) nor more than ninety (90) days before each
stockholders' meeting, the Secretary shall give notice of the meeting in writing
or by electronic transmission to each stockholder entitled to vote at the
meeting and to each other stockholder entitled to notice of the meeting. The
notice shall state the time and place of the meeting, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and may vote at the meeting, and, if the meeting is a
special meeting or notice of the purpose is required by statute, the purpose of
the meeting. Notice is given to a stockholder when it is personally delivered to
the stockholder, left at the stockholder's usual place of business, mailed to
the stockholder at his or her address as it appears on the records of the
Corporation, or transmitted to the stockholder by an electronic transmission to
any address or number of the stockholder at which the stockholder receives
electronic transmissions. If the Corporation has received a request from a
stockholder that notice not be sent by electronic transmission, the Corporation
may not provide notice to the stockholder by electronic transmission.
Notwithstanding the foregoing provisions, each person who is entitled to notice
waives notice if such person, before or after the meeting, delivers a written
waiver or waiver by electronic transmission which is filed with the records of
the stockholders' meetings, or is present at the meeting in person or by proxy.
A meeting of stockholders convened on the date for which it was called may
be adjourned from time to time without further notice to a date not more than
one hundred twenty (120) days after the original record date. At any adjourned
meeting, any business may be transacted that might have been transacted at the
original meeting.
As used in these Bylaws, the term "electronic transmission" shall have the
meaning given to such term by Section 1-101(k-1) of the Maryland General
Corporation Law (the "MGCL") or any successor provision.
Section 4. Quorum.
At any meeting of the stockholders, the holders of at least a majority of
all of the shares of the stock entitled to vote at the meeting, present in
person or by proxy (after giving effect to the provisions of Article 5.D of the
Articles of Incorporation of the Corporation), shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number
may be required by law. Unless the Articles of the Corporation provide
otherwise, where a separate vote by a class or classes is required, a majority
of the shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock who are present at the
meeting, in person or by proxy, may, in accordance with Section 3 of this
Article I, adjourn the meeting to another place, date or time.
Section 5. Organization and Conduct of Business.
The Chairman of the Board of the Corporation or Chief Executive Officer, or
in his or her absence, the President, or in his or her absence, such other
person as may be designated by a majority of the Whole Board, shall call to
order any meeting of the stockholders and act as chairman of the meeting. In the
absence of the Secretary, the secretary of the meeting shall be such person as
the chairman appoints. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
or her in order.
Section 6. Advance Notice Provisions for Business to be Transacted at Annual
Meetings and Elections of Directors.
(a) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) as specified in the
Corporation's notice of the meeting, (ii) by or at the direction of the Board of
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Directors or (iii) by any stockholder of the Corporation who (1) is a
stockholder of record on the date of giving the notice provided for in this
Section 6(a) and on the record date for the determination of stockholders
entitled to vote at such annual meeting, and (2) complies with the notice
procedures set forth in this Section 6(a). For business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of the
immediately preceding sentence, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such business must
otherwise be a proper matter for action by stockholders.
To be timely, a stockholder's notice must be delivered or mailed to and
received by the Secretary at the principal executive office of the Corporation
by not later than the close of business on the 90th day prior to the anniversary
date of the date of the proxy statement relating to the preceding year's annual
meeting and not earlier than the close of business on the 120th day prior to the
anniversary date of the date of the proxy statement relating to the preceding
year's annual meeting; provided, however, that in the event the annual meeting
is the first annual meeting of stockholders of the Corporation, notice by the
stockholder to be timely must be so received by not later than the close of
business on the 90th day prior to the date of the annual meeting of stockholders
of the Corporation, and not earlier than the close of business on the 120th day
prior to the date of the annual meeting of stockholders of the Corporation;
provided, further, that in the event that the date of the annual meeting is
advanced by more than 20 days, or delayed by more than 60 days, from the
anniversary date of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the 90th day prior to the date of such annual meeting and not
earlier than the close of business on the 120th day prior to the date of such
annual meeting. No adjournment or postponement of a meeting of stockholders
shall commence a new period for the giving of notice hereunder.
A stockholder's notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting; (ii) the name
and address of such stockholder as they appear on the Corporation's books and of
the beneficial owner, if any, on whose behalf the proposal is made; (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder and such beneficial
owner; (iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business; and (v) a representation
that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be brought before or conducted at an annual meeting except in accordance with
the provisions of this Section 6(a). The officer of the Corporation or other
person presiding over the annual meeting shall, if the facts so warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 6(a) and,
if he or she should so determine, he or she shall so declare to the meeting and
any such business so determined to be not properly brought before the meeting
shall not be transacted.
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At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting pursuant to the
Corporation's notice of the meeting.
(b) Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of stockholders at which directors are to be elected
only (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation who (1) is a stockholder of record on the date of
giving the notice provided for in this Section 6(b) and on the record date for
the determination of stockholders entitled to vote at such meeting, and (2)
complies with the notice procedures set forth in this Section 6(b). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made by timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered or mailed
to and received by the Secretary at the principal executive office of the
Corporation by not later than the close of business on the 90th day prior to the
anniversary date of the date of the proxy statement relating to the preceding
year's annual meeting and not earlier than the close of business on the 120th
day prior to the anniversary date of the date of the proxy statement relating to
the preceding year's annual meeting; provided, however, that in the event the
annual meeting is the first annual meeting of stockholders of the Corporation
notice by the stockholder to be timely must be so received by not later than the
close of business on the 90th day prior to the date of the annual meeting of
stockholders of the Corporation, and not earlier than the close of business on
the 120th day prior to the date of the annual meeting of stockholders of its
Corporation; provided, further, that in the event that the date of the annual
meeting is advanced by more than 20 days, or delayed by more than 60 days, from
the anniversary date of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the 90th day prior to the date of such annual meeting and not
earlier than the close of business on the 120th day prior to the date of such
annual meeting.
A stockholder's notice must be in writing and set forth (a) as to each
person whom the stockholder proposes to nominate for election as a director, all
information relating to such person that would indicate such person's
qualification under Article 2, Section 12, including an affidavit that such
person would not be disqualified under the provisions of Section 12(b) and such
information relating to such person that is required to be disclosed in
connection with solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any successor rule or
regulation; and (b) as to the stockholder giving the notice: (i) the name and
address of such stockholder as they appear on the Corporation's books and of the
beneficial owner, if any, on whose behalf the nomination is made; (ii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder and such beneficial owner;
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
stockholder; (iv) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice;
and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Regulation 14A under the Exchange Act or any successor rule or
regulation. Such notice must be accompanied by a written consent of each
proposed nominee to be named as a nominee and to serve as a director if elected.
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No person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the provisions of this Section 6(b). The officer of
the Corporation or other person presiding at the meeting shall, if the facts so
warrant, determine that a nomination was not made in accordance with such
provisions and, if he or she should so determine, he or she shall so declare to
the meeting and the defective nomination shall be disregarded.
(c) For purposes of subsections (a) and (b) of this Section 6, the term
"public announcement" shall mean disclosure (i) in a press release reported by a
nationally recognized news service, (ii) in a document publicly filed or
furnished by the Corporation with the U.S. Securities and Exchange Commission or
(iii) on a website maintained by the Corporation.
Section 7. Proxies and Voting.
Unless the Articles of the Corporation provide for a greater or lesser
number of votes per share or limits or denies voting rights, each outstanding
share of stock, regardless of class, is entitled to one vote on each matter
submitted to a vote at a meeting of stockholders; however, a share is not
entitled to be voted if any installment payable on it is overdue and unpaid. In
all elections for directors, directors shall be determined by a plurality of the
votes cast, and except as otherwise required by law or as provided in the
Articles of the Corporation, all other matters voted on by stockholders shall be
determined by a majority of the votes cast on the matter.
A stockholder may vote the stock the stockholder owns of record either in
person or by proxy. A stockholder may sign a writing authorizing another person
to act as proxy. Signing may be accomplished by the stockholder or the
stockholder's authorized agent signing the writing or causing the stockholder's
signature to be affixed to the writing by any reasonable means, including
facsimile signature. A stockholder may authorize another person to act as proxy
by transmitting, or authorizing the transmission of, an authorization for the
person to act as the proxy to the person authorized to act as proxy or to any
other person authorized to receive the proxy authorization on behalf of the
person authorized to act as the proxy, including a proxy solicitation firm or
proxy support service organization. The authorization may be transmitted by a
telegram, cablegram, datagram, electronic mail or any other electronic or
telephonic means. Unless a proxy provides otherwise, it is not valid more than
11 months after its date. A proxy is revocable by a stockholder at any time
without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for as long as it is coupled with an interest. The interest with
which a proxy may be coupled includes an interest in the stock to be voted under
the proxy or another general interest in the Corporation or its assets or
liabilities.
Section 8. Consent of Stockholders in Lieu of Meeting.
Except as provided in the following sentence, any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if a unanimous consent which sets forth the action is given in writing
or by electronic transmission by each stockholder entitled to vote on the matter
and is filed in paper or electronic format with the records of stockholder
meetings. Unless the Articles of the Corporation require otherwise, the holders
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of any class of the Corporation's stock other than common stock entitled to vote
generally in the election of directors, may take action or consent to any action
by delivering a consent in writing or by electronic transmission of the
stockholders entitled to cast not less than the minimum number of votes that
would be necessary to authorize or take the action at a meeting of the
stockholders if the Corporation gives notice of the action so taken to each
stockholder not later than ten days after the effective time of the action.
Section 9. Conduct of Voting
The Board of Directors shall, in advance of any meeting of stockholders,
appoint one or more persons as inspectors of election, to act at the meeting or
any adjournment thereof and make a written report thereof, in accordance with
applicable law. At all meetings of stockholders, the proxies and ballots shall
be received, and all questions relating to the qualification of voters and the
validity of proxies and the acceptance or rejection of votes shall be decided or
determined by the inspector of election. All voting, including on the election
of directors but excepting where otherwise required by law, may be by a voice
vote; provided, however, that upon demand therefor by a stockholder entitled to
vote or his or her proxy or the chairman of the meeting, a written vote shall be
taken. Every written vote shall be taken by ballot, each of which shall state
the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote taken by
ballot shall be counted by an inspector or inspectors appointed by the chairman
of the meeting. No candidate for election as a director at a meeting shall serve
as an inspector at such meeting.
Section 10. Control Share Acquisition Act.
Notwithstanding any other provision of the Articles of the Corporation or
these Bylaws, Title 3, Subtitle 7 of the MGCL (or any successor statute) shall
not apply to any acquisition by any person of shares of stock of the
Corporation. This Section 10 may be repealed, in whole or in part, at any time,
whether before or after an acquisition of Control Shares (as defined in Section
3-701(d) of the MGCL, or any successor provision) and, upon such repeal, may, to
the extent provided by any successor bylaw, apply to any prior or subsequent
Control Share Acquisition (as defined in Section 3-701(d) of the MGCL, or any
successor provision).
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers, Number and Term of Office.
The business and affairs of the Corporation shall be managed under the
direction of the Board of Directors. The number of directors of the Corporation
shall, by virtue of the Corporation's election made hereby to be governed by
Section 3-804(b) of the MGCL, be fixed from time to time exclusively by vote of
the Board of Directors; provided, however, that such number shall never be less
than the minimum number of directors required by the MGCL now or hereafter in
force. The Board of Directors shall annually elect a Chairman of the Board from
among its members and shall designate the Chairman of the Board or his designee
to preside at its meetings.
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The directors, other than those who may be elected by the holders of any
series of preferred stock, shall be divided into three classes, as nearly equal
in number as reasonably possible, with the term of office of the first class to
expire at the first annual meeting of stockholders, the term of office of the
second class to expire at the annual meeting of stockholders one year thereafter
and the term of office of the third class to expire at the annual meeting of
stockholders two years thereafter, with each director to hold office until his
or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the first annual meeting, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election or for such shorter period of time as the Board of
Directors may determine, with each director to hold office until his or her
successor shall have been duly elected and qualified.
Section 2. Vacancies and Newly Created Directorships.
By virtue of the Corporation's election made hereby to be subject to
Section 3-804(c) of the MGCL, any vacancies in the Board of Directors resulting
from an increase in the size of the Board of Directors or the death, resignation
or removal of a director may be filled only by the affirmative vote of
two-thirds of the remaining directors in office, even if the remaining directors
do not constitute a quorum, and any director elected to fill a vacancy shall
hold office for the remainder of the full term of the class of directors in
which the vacancy occurred and until a successor is elected and qualifies. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places or by means of remote communication, on such date or dates, and at such
time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required. Any regular meeting of the Board of Directors may adjourn from time to
time to reconvene at the same or some other place, and no notice need be given
of any such adjourned meeting other than by announcement.
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called by one-third (1/3)
of the directors then in office (rounded up to the nearest whole number), the
Chairman of the Board, or by the President and shall be held at such place or by
means of remote communication, on such date, and at such time as they or he or
she shall fix. Notice of the place, date, and time of each such special meeting
shall be given to each director who has not waived notice by mailing and
post-marking written notice not less than five days before the meeting, or by
facsimile or other electronic transmission of the same not less than 72 hours
before the meeting. Any director may waive notice of any special meeting, either
before or after such meeting, by delivering a written waiver or a waiver by
electronic transmission that is filed with the records of the meeting.
Attendance of a director at a special meeting shall constitute a waiver of
notice of such meeting, except where the director attends the 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. Neither the business to be transacted nor the purpose of any special
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meeting of the Board of Directors need be specified in the notice of such
meeting. Any special meeting of the Board of Directors may adjourn from time to
time to reconvene at the same or some other place, and no notice need be given
of any such adjourned meeting other than by announcement.
Section 5. Quorum.
At any meeting of the Board of Directors, a majority of the authorized
number of directors then constituting the Board shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
Section 6. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of a conference
telephone or other communications equipment if all persons participating in the
meeting can hear each other at the same time. Such participation shall
constitute presence in person at such meeting.
Section 7. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided in these Bylaws, the Corporation's Articles or
required by law. Action may be taken by the Board of Directors without a meeting
if a unanimous consent which sets forth the action is given in writing or by
electronic transmission by each member of the Board of Directors and filed in
paper or electronic form with the minutes of proceedings of the Board of
Directors.
Section 8. Powers.
All powers of the Corporation may be exercised by or under the authority of
the Board of Directors except as conferred on or reserved to the stockholders by
law or by the Corporation's Articles or these Bylaws. Consistent with the
foregoing, the Board of Directors shall have, among other powers, the
unqualified power:
(i) To declare dividends from time to time in accordance with law;
(ii) To purchase or otherwise acquire any property, rights or privileges
on such terms as it shall determine;
(iii) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things
necessary in connection therewith;
(iv) To remove any officer of the Corporation with or without cause, and
from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
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(v) To confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents;
(vi) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers,
employees and agents of the Corporation and its subsidiaries as it
may determine;
(vii) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(viii) To adopt from time to time regulations, not inconsistent with these
Bylaws, for the management of the Corporation's business and
affairs.
Section 9. Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board of
Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
Section 10. Resignation.
Any director may resign at any time by giving written notice of such
resignation to the President or the Secretary at the principal office of the
Corporation. Unless otherwise specified therein, such resignation shall take
effect upon receipt thereof.
Section 11. Presumption of Assent.
A director of the Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be presumed to
have assented to such action unless such director announces his dissent at the
meeting and (a) such director's dissent is entered in the minutes of the
meeting, (b) such director files his written dissent to such action with the
secretary of the meeting before the adjournment thereof, or (c) such director
forwards his written dissent within 24 hours after the meeting is adjourned, by
certified mail, return receipt requested, bearing a postmark from the United
States Postal Service, to the secretary of the meeting or the Secretary of the
Corporation. Such right to dissent shall not apply to a director who voted in
favor of such action or failed to make his dissent known at the meeting.
Section 12. Qualifications
(a) Each Director shall be a stockholder of the Corporation. No person may
be eligible for nomination, election, re-election, appointment or reappointment
to the Board unless such person is under the age of 72 at the time of such
nomination, election, re-election, appointment or reappointment; provided,
however, that this restriction shall not apply to any person serving on the
Board of the Corporation on the date of the consummation of the conversion of
Midwest Federal Savings and Loan Association of St. Joseph from mutual to stock
form.
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(b) No person shall be eligible for nomination, election or appointment to
the Board of Directors: (i) if such person has been the subject of supervisory
action by a financial regulatory agency that resulted in a cease and desist
order or an agreement or other written statement subject to public disclosure
under 12 U.S.C. ss.1818(u), or any successor provision; (ii) if such person has
been convicted of a crime involving dishonesty or breach of trust which is
punishable by imprisonment for a term exceeding one year under state or federal
law; (iii) if such person is currently charged in any information, indictment,
or other complaint with the commission of or participation in such a crime; and
(iv) unless such person has been, for a period of at least one year immediately
before his or her nomination or appointment, a resident of the State of
Missouri. No person may serve on the Board of Directors and at the same time be
a director or officer of another savings bank, savings and loan association,
co-operative bank, credit union, trust company, bank holding company or banking
association (in each case whether chartered by a state, the federal government
or any other jurisdiction) that engages in business activities in the same
market area as the Corporation or any of its subsidiaries. No person shall be
eligible for election or appointment to the Board of Directors if such person is
the nominee or representative of a company, as that term is defined in Section
10 of the Home Owners' Loan Act or any successor provision, of which any
director, partner, trustee or stockholder controlling more than 10% of any class
of voting stock would not be eligible for election to the Board of Directors
under this Section 12. No person shall be eligible for election to the Board of
Directors if such person is the nominee or representative of a person or group,
or of a group acting in concert (as defined in 12 C.F.R. Section 574.4(d)), that
includes a person who is ineligible for election to the Board of Directors under
this Section 12. The Board of Directors shall have the power to construe and
apply the provisions of this Section 12 and to make all determinations necessary
or desirable to implement such provisions, including but not limited to
determinations as to whether a person is a nominee or representative of a
person, a company or a group, whether a person or company is included in a
group, and whether a person is the nominee or representative of a group acting
in concert.
Section 13. Attendance at Board Meetings.
The Board of Directors shall have the right to remove any director from the
board upon a director's unexcused absence of three consecutive regularly
scheduled meetings of the board of directors.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors.
(a) General Provisions. The Board of Directors may appoint from among its
members an Audit Committee, a Compensation Committee, a Governance/Nominating
Committee, and such other committees as the Board of Directors deems necessary
or desirable. The membership of the Audit Committee, the Compensation Committee
and the Governance/Nominating Committee shall consist of independent directors
to the extent required by the applicable rules of the Securities and Exchange
Commission or the NASDAQ Stock Market. The Board of Directors may delegate to
any committee so appointed any of the powers and authorities of the Board of
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Directors to the fullest extent permitted by the MGCL and any other applicable
law.
(b) Composition. Each committee shall be composed of one or more Directors
or any other number of members specified in these Bylaws. The Chairman of the
Board may recommend committees, committee memberships, and committee
chairmanships to the Board of Directors. The Board of Directors shall have the
power at any time to appoint the chairman and the members of any committee,
change the membership of any committee, to fill all vacancies on committees, to
designate alternate members to replace or act in the place of any absent or
disqualified member of a committee, or to dissolve any committee.
(c) Governance/Nominating Committee. The Governance/Nominating Committee,
if appointed, shall consist of not less than three members who meet the
applicable independence requirements referenced in Section 1.(a), above and
shall have authority: (i) to review any nominations for election to the Board of
Directors made by a stockholder of the Corporation pursuant to Article I,
Section 6 of these Bylaws in order to determine compliance with such Bylaw
provision; and (ii) to recommend to the Board of Directors nominees for election
to the Board of Directors to replace those Directors whose terms expire at the
annual meeting of stockholders next ensuing. No Director shall participate in
the deliberations or vote in the meeting of the Governance/Nominating Committee
at which he or she has been or is seeking to be proposed as a nominee.
(d) Issuance of Stock. If the Board of Directors has given general
authorization for the issuance of stock providing for or establishing a method
or procedure for determining the maximum number of shares to be issued, a
committee of the Board of Directors, in accordance with that general
authorization or any stock option or other plan or program adopted by the Board
of Directors, may authorize or fix the terms of stock subject to classification
or reclassification and the terms on which any stock may be issued, including
all terms and conditions required or permitted to be established or authorized
by the Board of Directors. Any committee so designated may exercise the power
and authority of the Board of Directors if the resolution that designated the
committee or a supplemental resolution of the Board of Directors shall so
provide.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall constitute
a quorum unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all matters shall be determined
by a majority vote of the members present. Action may be taken by any committee
without a meeting if a unanimous consent which sets forth the action is given in
writing or by electronic transmission by each member of the committee and filed
in paper or electronic form with the minutes of the proceedings of such
committee. The members of any committee may conduct any meeting thereof by
conference telephone or other communications equipment in accordance with the
provisions of Section 6 of Article II.
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ARTICLE IV
OFFICERS
Section 1. Generally.
(a) The Board of Directors as soon as may be practicable after the annual
meeting of stockholders shall choose a Chairman of the Board, Chief Executive
Officer, President, one or more Vice Presidents, a Secretary and a Chief
Financial Officer/Treasurer and from time to time may choose such other officers
as it may deem proper. Any number of offices may be held by the same person,
except that no person may concurrently serve as both President and Vice
President of the Corporation.
(b) The term of office of all officers shall be until the next annual
election of officers and until their respective successors are chosen, but any
officer may be removed from office at any time by the affirmative vote of a
majority of the authorized number of directors then constituting the Board of
Directors.
(c) All officers chosen by the Board of Directors shall each have such
powers and duties as generally pertain to their respective offices, subject to
the specific provisions of this Article IV. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board of
Directors or by any committee thereof.
Section 2. Chairman of the Board of Directors.
The Chairman of the Board of Directors of the Corporation shall perform all
duties and have all powers which are commonly incident to the office of Chairman
of the Board or which are delegated to him or her by the Board of Directors. He
or she shall have power to sign all stock certificates, contracts and other
instruments of the Corporation that are authorized.
Section 3. Chief Executive Officer.
The Chief Executive Officer, subject to the control of the Board of
Directors, shall serve in general executive capacity and have general power over
the management and oversight of the administration and operation of the
Corporation's business and general supervisory power and authority over its
policies and affairs. The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors and of any committee thereof are carried
into effect.
Section 4. President.
The President shall perform the duties of the Chief Executive Officer in
the Chief Executive Officer's absence or during his or her disability to act. In
addition, the President shall perform the duties and exercise the powers usually
incident to their respective office and/or such other duties and powers as may
be properly assigned to the President from time to time by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer.
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Section 5. Vice President.
The Vice President or Vice Presidents (including Executive Vice Presidents
or other levels of Vice President designated by the Board of Directors), if any,
shall perform the duties of the Chief Executive Officer in the absence of both
the Chief Executive Officer and the President, or during their disability to
act. In addition, the Vice Presidents shall perform the duties and exercise the
powers usually incident to their respective office and/or such other duties and
powers as may be properly assigned to the Vice Presidents from time to time by
the Board of Directors, the Chairman of the Board or the Chief Executive
Officer.
Section 6. Secretary.
The Secretary or an Assistant Secretary shall issue notices of meetings,
shall keep their minutes, shall have charge of the seal and the corporate books,
shall perform such other duties and exercise such other powers as are usually
incident to such offices and/or such other duties and powers as are properly
assigned thereto by the Board of Directors, the Chairman of the Board or the
Chief Executive Officer.
Section 7. Chief Financial Officer/Treasurer.
The Chief Financial Officer/Treasurer shall have charge of all monies and
securities of the Corporation, other than monies and securities of any division
of the Corporation that has a treasurer or financial officer appointed by the
Board of Directors, and shall keep regular books of account. The funds of the
Corporation shall be deposited in the name of the Corporation by the Chief
Financial Officer/Treasurer with such banks or trust companies or other entities
as the Board of Directors from time to time shall designate. The Chief Financial
Officer/Treasurer shall sign or countersign such instruments as require his or
her signature, shall perform all such duties and have all such powers as are
usually incident to such office and/or such other duties and powers as are
properly assigned to him or her by the Board of Directors, the Chairman of the
Board or the Chief Executive Officer, and may be required to give bond for the
faithful performance of his or her duties in such sum and with such surety as
may be required by the Board of Directors.
Section 8. Other Officers.
The Board of Directors may designate and fill such other offices in its
discretion and the persons holding such other offices shall have such powers and
shall perform such duties as the Board of Directors or Chief Executive Officer
may from time to time assign.
Section 9. Action with Respect to Securities of Other Corporations
Stock of other corporations or associations, registered in the name of the
Corporation, may be voted by the Chief Executive Officer, the President, a
Vice-President, or a proxy appointed by either of them. The Board of Directors,
however, may by resolution appoint some other person to vote such shares, in
which case such person shall be entitled to vote such shares upon the production
of a certified copy of such resolution.
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ARTICLE V
STOCK
Section 1. Certificates of Stock.
The Board of Directors may determine to issue certificated or
uncertificated shares of capital stock and other securities of the Corporation.
For certificated stock, each stockholder is entitled to certificates which
represent and certify the shares of stock he or she holds in the Corporation.
Each stock certificate shall include on its face the name of the Corporation,
the name of the stockholder or other person to whom it is issued, and the class
of stock and number of shares it represents. It shall also include on its face
or back (a) a statement of any restrictions on transferability and a statement
of the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption of the stock of each class which the Corporation is
authorized to issue, of the differences in the relative rights and preferences
between the shares of each series of preferred stock which the Corporation is
authorized to issue, to the extent they have been set, and of the authority of
the Board of Directors to set the relative rights and preferences of subsequent
series of preferred stock or (b) a statement which provides in substance that
the Corporation will furnish a full statement of such information to any
stockholder on request and without charge. Such request may be made to the
Secretary or to the Corporation's transfer agent. Upon the issuance of
uncertificated shares of capital stock, the Corporation shall send the
stockholder a written statement of the same information required above on stock
certificates. Each stock certificate shall be in such form, not inconsistent
with law or with the Corporation's Articles, as shall be approved by the Board
of Directors or any officer or officers designated for such purpose by
resolution of the Board of Directors. Each stock certificate shall be signed by
the Chairman of the Board, the President, or a Vice-President, and countersigned
by the Secretary, an Assistant Secretary, the Treasurer, or an Assistant
Treasurer. Each certificate may be sealed with the actual corporate seal or a
facsimile of it or in any other form and the signatures may be either manual or
facsimile signatures. A certificate is valid and may be issued whether or not an
officer who signed it is still an officer when it is issued. A certificate may
not be issued until the stock represented by it is fully paid.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these Bylaws,
an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 3. Record Dates or Closing of Transfer Books.
The Board of Directors may, and shall have the power to, set a record date
or direct that the stock transfer books be closed for a stated period for the
purpose of making any proper determination with respect to stockholders,
including which stockholders are entitled to notice of a meeting, vote at a
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meeting, receive a dividend, or be allotted other rights. The record date may
not be prior to the close of business on the day the record date is fixed nor,
subject to Section 3 of Article I, more than 90 days before the date on which
the action requiring the determination will be taken; the transfer books may not
be closed for a period longer than 20 days; and, in the case of a meeting of
stockholders, the record date or the closing of the transfer books shall be at
least ten days before the date of the meeting. Any shares of the Corporation's
own stock acquired by the Corporation between the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders and
the time of the meeting may be voted at the meeting by the holder of record as
of the record date and shall be counted in determining the total number of
outstanding shares entitled to be voted at the meeting.
Section 4. Lost, Stolen or Destroyed Certificates.
The Board of Directors of the Corporation may determine the conditions for
issuing a new stock certificate in place of one which is alleged to have been
lost, stolen, or destroyed, or the Board of Directors may delegate such power to
any officer or officers of the Corporation. In their discretion, the Board of
Directors or such officer or officers may require the owner of the certificate
to give a bond, with sufficient surety, to indemnify the Corporation against any
loss or claim arising as a result of the issuance of a new certificate. In their
discretion, the Board of Directors or such officer or officers may refuse to
issue such new certificate without the order of a court having jurisdiction over
the matter.
Section 5. Stock Ledger.
The Corporation shall maintain a stock ledger which contains the name and
address of each stockholder and the number of shares of stock of each class
which the stockholder holds. The stock ledger may be in written form or in any
other form which can be converted within a reasonable time into written form for
visual inspection. The original or a duplicate of the stock ledger shall be kept
at the offices of a transfer agent for the particular class of stock or, if
none, at the principal executive office of the Corporation.
Section 6. Regulations.
The issue, transfer, conversion and registration of certificates of stock
shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI
MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal.
The Board of Directors may provide a suitable seal, bearing the name of the
Corporation, which shall be in the charge of the Secretary. The Board of
Directors may authorize one or more duplicate seals and provide for the custody
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thereof. If the Corporation is required to place its corporate seal to a
document, it is sufficient to meet the requirement of any law, rule, or
regulation relating to a corporate seal to place the word "(seal)" adjacent to
the signature of the person authorized to sign the document on behalf of the
Corporation.
Section 3. Books and Records.
The Corporation shall keep correct and complete books and records of its
accounts and transactions and minutes of the proceedings of its stockholders and
Board of Directors and of any committee when exercising any of the powers of the
Board of Directors. The books and records of the Corporation may be in written
form or in any other form which can be converted within a reasonable time into
written form for visual inspection. Minutes shall be recorded in written form
but may be maintained in the form of a reproduction. The original or a certified
copy of these Bylaws shall be kept at the principal office of the Corporation.
Section 4. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer and agent of the Corporation shall, in the
performance of his or her duties, in addition to any protections conferred upon
him or her by law, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director, committee member, officer or
agent reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
Section 5. Fiscal Year.
The fiscal year of the Corporation shall be December 31, unless otherwise
fixed by the Board of Directors.
Section 6. Time Periods.
In applying any provision of these Bylaws that requires that an act be done
or not be done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event, calendar
days shall be used, the day of the doing of the act shall be excluded and the
day of the event shall be included.
Section 7. Checks, Drafts, Etc.
All checks, drafts and orders for the payment of money, notes and other
evidences of indebtedness, issued in the name of the Corporation, shall be
signed by any officer, employee or agent of the Corporation that is authorized
by the Board of Directors.
Section 8. Mail.
Any notice or other document that is required by these Bylaws to be mailed
shall be deposited in the United States mail, postage prepaid.
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Section 9. Contracts and Agreements.
To the extent permitted by applicable law, and except as otherwise
prescribed by the Articles or these Bylaws, the Board of Directors may authorize
any officer, employee or agent of the Corporation to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation. Such authority may be general or confined to specific instances. A
person who holds more than one office in the Corporation may not act in more
than one capacity to execute, acknowledge, or verify an instrument required by
law to be executed, acknowledged, or verified by more than one officer.
ARTICLE VIII
AMENDMENTS
These Bylaws may be adopted, amended or repealed as provided in the
Articles of the Corporation.
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