[EXHIBIT 3.3]
BYLAWS
OF
KNIGHT ENERGY CORP.
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ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be in the
City and County of Baltimore, State of Maryland or such other
city and county as the Board of Directors (the "Board") shall
determine. The name and address of the Corporation's registered
agent is The Corporation Trust Incorporated, 300 East Lombard
Street, Baltimore, Maryland 21202.
SECTION 2. OTHER OFFICES
The Corporation may have offices at such other places both
within and without the State of Maryland as the Board may from
time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS
A meeting of the stockholders for the purpose of electing
directors and for the transaction of such other business as may
properly be brought before the meeting shall be held annually at
such time and such date as shall be fixed by resolution of the
Board. If the day fixed for the annual meeting shall be a legal
holiday, such meeting shall be held on the next succeeding
business day.
SECTION 2. SPECIAL MEETINGS
Unless the Articles of Incorporation provide otherwise,
special meetings of the stockholders for any purpose or purposes,
unless otherwise prescribed by statute, may be called only by a
majority of the Board or by the written request of stockholders
in accordance with this Article II, Section 2. 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 to the principal office of the Corporation addressed to
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.
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SECTION 3. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such
places within or without the State of Maryland or at such other
place in the United States as may be stated in the notice of the
meeting.
SECTION 4. NOTICE OF MEETINGS
4.1 Giving of Notice. Except as otherwise provided by
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statute, written notice of each meeting of the stockholders,
whether annual or special, shall be given not less than 10 nor
more than 90 days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, notice
shall be given when deposited in the United States mails, postage
prepaid, directed to such stockholder at his address as it
appears in the stock ledger of the Corporation. Each such notice
shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the
meeting is called.
4.2 Notice of Adjourned Meetings. When a meeting is
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adjourned to another time and place, notice of the adjourned
meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is given. If
the adjournment is for more than 30 days, or if, after the
adjournment, a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
4.3 Waiver of Notice.
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4.3.1 Whenever any notice is required to be
given to any stockholder under the provisions of these
Bylaws, the Articles of Incorporation or the General
Corporation Law of the State of Maryland, a waiver thereof
in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
4.3.2 The attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting,
except when a stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 5. FIXING OF RECORD DATE FOR DETERMINING STOCKHOLDERS
5.1 Meetings. For the purpose of determining stockholders
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entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, the Board 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, and
which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by
the Board, the record date for determining stockholders shall be
at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to
notice of or to vote at the meeting of stockholders shall apply
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to any adjournment of the meeting; provided, however, that the
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Board may fix a new record date for the adjourned meeting.
5.2 Dividends, Distributions and Other Rights. For the
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purpose of determining stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board 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 o n which the Board adopts the resolution
relating thereto.
SECTION 6. QUORUM
One-third of the outstanding shares of stock of the
Corporation entitled to vote, present in person or represented by
proxy, shall constitute a quorum at a meeting of the
stockholders; provided, that the quorum includes the holders of
at least one-third of the Corporation's outstanding shares of
common stock, $.0001 par value; provided, further, that where a
separate vote by a class or classes or by a series of a class is
required, one-third of the outstanding shares of such class or
classes or of such series of a class, present in person or
represented by proxy at the meeting, shall constitute a quorum
entitled to take action with respect to the vote on that matter.
Shares of stock will be counted toward a quorum if they are
either (i) present in person at the meeting or (ii) represented
at the meeting by a valid proxy, whether the instrument granting
such proxy is marked as casting a vote or abstaining, is left
blank or does not empower such proxy to vote with respect to some
or all matters to be voted upon at the meeting. If less than a
majority of the outstanding shares entitled to vote are
represented at a meeting, a majority of the shares so represented
may adjourn the meeting from time to time without further notice.
If a quorum is present or represented at a reconvened meeting
following such an adjournment, any business may be transacted
that might have been transacted at the meeting as originally
called. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 7. ORGANIZATION
At each meeting of the stockholders, the Chairman of the
Board, or in his absence the Chief Executive Officer, the
President or the Vice Chairman of the Board, or if all of the
said persons are absent, a person designated by the Board, the
Chairman of the Board, the Chief Executive Officer, the President
or the Vice Chairman of the Board, or in the absence of such
designated person, a person elected by the holders of a majority
in number of shares of stock present in person or represented by
proxy and entitled to vote, shall act as chairman of the meeting.
The Secretary, or in his absence or in the event he shall be
presiding over the meeting in accordance with the provisions of
this Section, an Assistant Secretary or, in the absence of the
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Secretary and all of the Assistant Secretaries, any person
appointed by the chairman of the meeting, shall act as secretary
of the meeting.
SECTION 8. VOTING
8.1 General Provisions. Unless otherwise provided in
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the Articles of Incorporation or a resolution of the Board
creating a series of stock, at each meeting of the stockholders,
each holder of any share of any series or class of stock entitled
to vote at such meeting shall be entitled to one vote for each
share of stock having voting power in respect of each matter upon
which a vote is to be taken, standing in his name on the stock
ledger of the Corporation on the record date fixed as provided
in these Bylaws for determining the stockholders entitled to vote
at such meeting. In all matters other than the election of
directors, if a quorum is present, the affirmative vote of the
majority of the 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 vote of a greater
number is required by these Bylaws, the Articles of Incorporation
or the General Corporation Law of the State of Maryland. In
determining the number of votes cast for or against a proposal,
shares abstaining from voting on a matter (including elections)
will not be treated as a vote for or against the proposal. A
non-vote by a broker will be treated as if the broker never
voted, but a non-vote by a stockholder will be counted as a vote
"for" the management's position. Where a separate vote by a class
or classes or by a series of a class is required, if a quorum
is present, the affirmative vote of the majority of shares of
such class or classes or series of a class present in person or
represented by proxy at the meeting shall be the act of such
class or classes or series of a class. The provisions of this
Section will govern with respect to all votes of stockholders
except as otherwise provided for in these Bylaws, the Articles
of Incorporation or the General Corporation Law of the State of
Maryland.
8.2 Voting For Directors. At each election of directors
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the voting shall be by written ballot. 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 on the
election of directors.
8.3 Shares Held or Controlled by the Corporation. Shares
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of its own capital stock belonging to the Corporation, or to another
corporation if a majority of the shares entitled to vote in the
election of directors of such other corporation is held by the
Corporation, shall neither be entitled to vote nor counted for
quorum purposes.
8.4 Proxies. A stockholder may vote by a proxy that is
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in writing or is transmitted electronically, including but not
limited to, via telegram, cablegram, internet, interactive voice
response system or other means of electronic transmission
executed or authorized by the stockholder or by his attorney-in-fact.
Any electronic transmission must set forth information from which it
can be determined by the Corporation or the inspector that such
electronic transmission was authorized by the stockholder. A
stockholder may revoke any proxy that is not irrevocable by attending
the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date
with the Secretary of the Corporation. A proxy shall become invalid
11 months after the date of its execution, unless otherwise provided
in the proxy. A proxy with respect to a specified meeting shall
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entitle the holder thereof to vote at any reconvened meeting
following adjournment of such meeting but shall not be valid after
the final adjournment thereof.
SECTION 9. INSPECTORS
Prior to each meeting of stockholders, the Board shall
appoint at least one inspector who is not a director, candidate
for director or officer of the Corporation, who shall receive and
determine the validity of proxies and the qualifications of
voters, and receive, inspect, count and report to the meeting in
writing the votes cast on all matters submitted to a vote at such
meeting. In case of failure of the Board to make such
appointments or in case of failure of any Inspector so appointed
to act, the Chairman of the Board shall make such appointment or
fill such vacancies. Each Inspector, immediately before entering
upon his duties, shall subscribe to an oath or affirmation
faithfully to execute the duties of Inspector at such meeting
with strict impartiality and according to the best of his
ability.
SECTION 10. LIST OF STOCKHOLDERS
The Secretary or other officer or agent having charge of the
stock ledger of the Corporation shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in
alphabetical order and showing the address of each stockholder
and the number of shares of each class and series registered in
the name of each such 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. Such 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. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by this section, or the books of
the Corporation, or to vote in person or by proxy at any such
meeting.
SECTION 11. STOCKHOLDER PROPOSALS
At an annual meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon,
as shall have been properly brought before the annual meeting of
stockholders (a) by, or at the direction of, the Board; or (b) by
a stockholder of the Corporation who complies with the procedures
set forth in this Section 11. For business or a proposal to be
properly brought before an annual meeting of stockholders by a
stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be received by the Secretary
at the principal executive offices of the Corporation not earlier
than 120 days nor later than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be
received by the Secretary not earlier than the 120th day prior to
such annual meeting and not later than the 90th day prior to such
annual meeting, or if later, the 10th day following the day on
which public announcement of the date of such meeting is first
made. In no event shall the public announcement of an
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adjournment of an annual meeting commence a new time period for
the giving of a stockholder's notice as described above.
A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before an annual
meeting of stockholders (i) a description, in 500 words or less,
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, as they appear on the
Corporation's books, of the stockholders known by such
stockholder to be supporting such proposal; (iii) the class and
number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's notice and
by any other stockholders known by such stockholder to be
supporting such proposal on the date of such stockholder's
notice; (iv) a description, in 500 words or less, of any interest
of the stockholder in such proposal; and (v) a representation
that the stockholder is a holder of record of stock of the
Corporation and intends to appear in person or by proxy at the
meeting to present the proposal specified in the notice.
Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at a meeting of stockholders except
in accordance with the procedures set forth in this Section 11.
The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that the business was not
properly brought before the meeting in accordance with the
procedures prescribed by this Section 11, and if he should so
determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing, nothing in this
Section 11 shall be interpreted or construed to require the
inclusion of information about any such proposal in any proxy
statement distributed by, at the direction of, or on behalf of,
the Board.
SECTION 12. CONDUCT OF MEETING
The Board may adopt by resolution such rules and regulations
for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules
and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate
for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board or prescribed by the
chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the
meeting to only stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as
the chairman of the meeting shall determine; (iv) restrictions on
entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by
the Board or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure.
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SECTION 13. WRITTEN CONSENT OF STOCKHOLDERS
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 setting
forth the action is given in writing by each stockholder entitled
to vote on the matter and is filed with the records of
stockholder meetings. Unless the Articles of Incorporation
provide otherwise, the holders of any class of the Corporation's
stock, including holders of the Corporation's common stock,
entitled to vote generally in the election of directors, may take
action or consent to any action concerning election of directors
by delivering a consent in writing 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 10 days after the
effective time of the action.
SECTION 14. CONTROL SHARE ACQUISITION ACT
Notwithstanding any other provision of the Articles of
Incorporation or these Bylaws, Title 3, Subtitle 7 of the General
Corporation Law of the State of Maryland (or any successor
statute) shall not apply to any acquisition by any person of
shares of stock of the Corporation. This Section 14 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 General Corporation Law of the State of Maryland
(or any successor provision)) and, upon such repeal, may, to the
extent provision by any successor bylaw, apply to any prior or
subsequent Control Share Acquisition (as defined in Section 3-
701(d) of the General Corporation Law of the State of Maryland
(or any successor provision)).
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER, QUALIFICATION AND TERM OF OFFICE
The business, property and affairs of the Corporation shall
be managed by a Board consisting of not less than one director.
The Board shall from time to time by a vote of a majority of the
directors then in office fix the specific number of directors to
constitute the Board. Unless otherwise provided in the Articles
of Incorporation, at each annual meeting of stockholders, the
Board shall be elected by the stockholders for a term of one
year. Each director shall serve until his successor is duly
elected and shall qualify.
SECTION 2. VACANCIES
Unless otherwise provided in the Articles of Incorporation,
vacancies in the Board and newly created directorships resulting
from any increase in the authorized number of directors may be
filled by a vote of the majority of the directors then in office,
although less than a quorum, or by a sole remaining director, at
any regular or special meeting of the Board.
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SECTION 3. NOMINATIONS OF DIRECTORS
Subject to the rights, if any, of the holders of any series
of preferred stock then outstanding, only persons nominated in
accordance with the procedures set forth in this Section 3 shall
be eligible for election as directors. Nominations of persons
for election to the Board may be made at an annual meeting of
stockholders or special meeting of stockholders called by the
Board for the purpose of electing directors (i) by or at the
direction of the Board or (ii) by any stockholder of the
Corporation entitled to vote for the election of directors at
such meeting who complies with the notice procedure set forth in
this Section 3. Such nominations, other than those made by or at
the direction of the Board, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be received by the Secretary
at the principal executive offices of the Corporation not earlier
than 120 days nor later than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be
received by the Secretary not earlier than the 120th day prior to
such annual meeting and not later than the 90th day prior to such
annual meeting, or if later, the 10th day following the day on
which public announcement of the date of such meeting is first
made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for
the giving of a stockholder's notice as described above.
A stockholder's notice to the Secretary shall set forth (i)
as to each person whom the stockholder proposes to nominate for
election or reelection as a director (a) the name, age, business
address and residence address of such person, (b) the principal
occupation or employment of such person, (c) the class and number
of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other
information relating to such person that is required to be
disclosed in 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, or any
successor statute thereto (the "Exchange Act") (including without
limitation such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if
elected); (ii) as to the stockholder giving the notice (a) the
name and address, as they appear on the Corporation's (or its
agent's) books, of such stockholder and any other stockholders
known by such stockholder to be supporting such nominee(s), (b)
the class and number of shares of the Corporation beneficially
owned by such stockholder on the date of such stockholder's
notice and by any other stockholders known by such stockholder to
be supporting such nominee(s) on the date of such stockholder's
notice, (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the
notice; and (iii) a description of all arrangements or
understandings between the stockholder and each nominee and other
person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the
stockholder. No person shall be eligible for election as a
director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 3. The chairman of the
meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the
procedures prescribed by this Section and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
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SECTION 4. RESIGNATIONS
Any director may resign at any time upon written notice to
the Board, the Chairman of the Board, the Chief Executive
Officer, the President, the Vice Chairman of the Board or the
Secretary of the Corporation. Such resignation shall take effect
on the date of receipt of such notice or at any later time
specified therein; and the acceptance of such resignation, unless
otherwise required by the terms thereof, shall not be necessary
to make it effective.
SECTION 5. REMOVALS
Unless otherwise provided in the Articles of Incorporation,
any director may be removed, with or without cause, at any
special meeting of the stockholders called for that purpose, by
the affirmative vote of the holders of a majority in number of
shares of the Corporation entitled to vote for the election of
such director.
SECTION 6. PLACE OF MEETINGS; BOOKS AND RECORDS
The Board may hold its meetings and have an office or
offices at such place or places within or without the State of
Maryland as the Board from time to time may determine.
The Board, subject to the provisions of applicable statutes,
may authorize the books and records of the Corporation, and
offices or agencies for the issue, transfer and registration of
the capital stock of the Corporation, to be kept at such place or
places outside of the State of Maryland as, from time to time,
may be designated by the Board.
SECTION 7. ANNUAL MEETING OF THE BOARD
The first meeting of each newly elected Board, to be known
as the Annual Meeting of the Board, for the purpose of electing
officers, designating committees and the transaction of such
other business as may come before the Board, shall be held as
soon as practicable on the same date as, and after the
adjournment of, the annual meeting of stockholders, and no notice
of such meeting shall be necessary to the newly elected
directors, provided a quorum shall be present. In the event the
first meeting of the newly elected Board is not held on the same
date as and after the Annual Meeting of Stockholders, the meeting
may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the
Board, or as shall be specified in a written waiver signed by all
of the newly elected directors.
SECTION 8. REGULAR MEETINGS
The Board shall provide for regular meetings of the Board at
such times and at such places as it deems desirable. Notice of
regular meetings need not be given.
SECTION 9. SPECIAL MEETINGS
Special meetings of the Board may be called by the Chairman
of the Board, the Chief Executive Officer, the President or the
Vice Chairman of the Board and shall be called by the Secretary
on the written request of three directors on such notice as the
person or persons calling the meeting shall deem appropriate in
the circumstances. Notice of each such special meeting shall be
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mailed to each director or delivered to him by telephone,
facsimile, telegraph, internet or any other means of electronic
communication, in each case addressed to his residence or usual
place of business, or delivered to him in person or given to him
orally. The notice of meeting shall state the time and place of
the meeting but need not state the purpose thereof. Whenever any
notice is required to be given to any director under the
provisions of these Bylaws, the Articles of Incorporation or the
General Corporation Law of the State of Maryland, a waiver
thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board or any committee appointed by the
Board need be specified in the waiver of notice of such meeting.
Attendance of a director at any meeting shall constitute a waiver
of notice of such meeting except when a director attends a
meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called or
convened.
SECTION 10. QUORUM AND MANNER OF ACTING
Except as otherwise provided by statute, the Articles of
Incorporation or these Bylaws, the presence of a majority of the
total number of directors shall constitute a quorum for the
transaction of business at any regular or special meeting of the
Board, and the act of a majority of the directors present at any
such meeting at which a quorum is present shall be the act of the
Board. In the absence of a quorum, a majority of the directors
present may adjourn the meeting, from time to time, until a
quorum is present. Notice of any such adjourned meeting need not
be given.
SECTION 11. ORGANIZATION
At every meeting of the Board, the Chairman of the Board, or
in his absence, the Chief Executive Officer, the President or the
Vice Chairman of the Board, or if all of the said persons are
absent, a chairman chosen by a majority of the directors present
shall act as chairman of the meeting. The Secretary, or in his
absence, an Assistant Secretary, or in the absence of the
Secretary and all the Assistant Secretaries, any person appointed
by the chairman of the meeting, shall act as secretary of the
meeting.
SECTION 12. CONSENT OF DIRECTORS IN LIEU OF MEETING
Unless otherwise restricted by the Articles of Incorporation
or by these Bylaws, any action required or permitted to be taken
at any meeting of the Board, or any committee designated by the
Board, may be taken without a meeting if all members of the Board
or committee consent thereto in writing, and such written consent
is filed with the minutes of the proceedings of the Board or
committee.
SECTION 13. TELEPHONIC MEETINGS
Members of the Board, or any committee designated by the
Board, may participate in any meeting of the Board or committee
by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting
shall constitute presence in person at such meeting.
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SECTION 14. COMPENSATION
Each director, who is not a full-time salaried officer of
the Corporation or any of its wholly owned subsidiaries, when
authorized by resolution of the Board, may receive as a director
a stated salary, an annual retainer, compensation based on the
number of meetings held or attended, and/or any other benefits as
the Board may determine, and in addition may be allowed a fixed
fee or reimbursement of his reasonable expenses for attendance at
each regular or special meeting of the Board or any committee
thereof.
SECTION 15. INTERESTED DIRECTORS
No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any other corporation, partnership, association or other
organization in which one or more of its directors or officers is
a director or officer of this Corporation, or in which one of the
directors or officers of this Corporation has a financial
interest in such contract or transaction, shall be void or
voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the
Board or committee thereof that authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose, if: (1) the material facts as to his relationship
or interest and as to the contract or transaction are disclosed
or are known to the Board or the committee, and the Board or
committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum; or (2) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by
vote of the stockholders; or (3) the contract or transaction is
fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board or
of a committee which authorizes the contract or transaction.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. COMMITTEES
The Board may designate such other committees, consisting of
such number of directors as the Board may from time to time
determine, and each such committee shall serve for such term and
shall have and may exercise, during intervals between meetings of
the Board, such duties, functions and powers as the Board may
from time to time prescribe.
SECTION 2. COMMITTEE CHAIRMAN, BOOKS AND RECORDS
Each committee shall elect a chairman to serve for such term
as it may determine, shall fix its own rules of procedure and
shall meet at such times and places and upon such call or notice
as shall be provided by such rules. It shall keep a record of
its acts and proceedings, and all action of the committee shall
be reported to the Board at the next meeting of the Board.
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SECTION 3. ALTERNATES
Alternate members of the committees prescribed by this
Article IV may be designated by the Board from among the
directors to serve as occasion may require. Whenever a quorum
cannot be secured for any meeting of any such committee from
among the regular members thereof and designated alternates, the
member or members of such committee present at such meeting and
not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of such absent or
disqualified member.
Alternate members of such committees shall receive a
reimbursement for expenses and compensation at the same rate as
regular members of such committees.
SECTION 4. QUORUM AND MANNER OF ACTING
At each meeting of any committee the presence of a majority
of the members of such committee, whether regular or alternate,
shall be necessary to constitute a quorum for the transaction of
business, and if a quorum is present the concurrence of a
majority of those present shall be necessary for the taking of
any action.
ARTICLE V
OFFICERS
SECTION 1. NUMBER
The officers of the Corporation shall consist of a Chairman
of the Board, a Chief Executive Officer or President, a
Secretary, and such other officers with such titles and powers
and/or duties as the Board shall from time to time determine.
Officers of the Corporation may simultaneously serve as officers
of subsidiaries or divisions thereof. Any number of offices may
be held by the same person.
SECTION 2. ELECTION
The officers of the Corporation, except the assistant
officers who may be appointed by the Chief Executive Officer or
the Chairman of the Board as provided in this Article V, shall be
elected or appointed as soon as practicable after the annual
meeting of stockholders in each year to hold office until the
first meeting of the Board after the annual meeting of
stockholders next succeeding his election, or until his successor
is elected and qualified or until his earlier death, resignation
or removal.
SECTION 3. RESIGNATIONS
Any elected or appointed officer may resign at any time upon
written notice to the Chairman of the Board or the Secretary of
the Corporation. Such resignation shall take effect upon the
date of its receipt or at such later time as may be specified
therein, and unless otherwise required by the terms thereof, no
acceptance of such resignation shall be necessary to make it
effective.
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SECTION 4. REMOVALS
Any elected or appointed officer may be removed, with or
without cause, by the Board at any regular or special meeting of
the Board, and in the case of an assistant officer appointed by
the Chairman of the Board or the Chief Executive Officer pursuant
to this Article V, may be so removed by the Chairman of the Board
or the Chief Executive Officer. Any such removal shall be
without prejudice to the contractual rights of such officer, if
any, with the Corporation, but the election or appointment of any
officer shall not of itself create contractual rights.
SECTION 5. VACANCIES
Any vacancy occurring in any office by death, resignation,
removal or otherwise may be filled for the unexpired portion of
the term by the Board at any regular or special meeting or as
otherwise provided in these Bylaws.
SECTION 6. CHAIRMAN OF THE BOARD
The Chairman of the Board shall, when present, preside at
all meetings of the stockholders and the Board, and shall have
authority to call special meetings of the Board. He also shall
have the power to appoint and remove assistant officers of the
Corporation with such titles and duties as he may from time to
time deem necessary or appropriate, and shall have such other
powers and duties as are expressly provided in these Bylaws.
SECTION 7. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer, if any, shall assist the
Chairman of the Board in the performance of his duties and shall
perform those duties assigned to him in other provisions of the
Bylaws and such other duties as may from time to time be assigned
to him by the Board. In the absence or disability of the
Chairman of the Board, or at his request, the Chief Executive
Officer may preside at any meeting of the stockholders or of the
Board and, in such circumstances, may exercise any of the other
powers or perform any of the other duties of the Chairman of the
Board. The Chief Executive Officer may sign or execute, in the
name of the Corporation, all stock certificates, deeds,
mortgages, bonds, contracts or other documents and instruments,
except in cases where the signing or execution thereof shall be
required by law or shall have been expressly delegated by the
Board or these Bylaws to some other officer or agent of the
Corporation. The Chief Executive Officer also shall have the
power to appoint and remove assistant officers of the Corporation
with such titles and duties as he may from time to time deem
necessary or appropriate.
The Chief Executive Officer shall have such other power and
authority as is usual, customary and desirable to perform all the
duties of the office (including, but not limited to, the approval
of payments or arrangements made in connection with the
Corporation's debt, interest, tax, contractual and regulatory
obligations) necessary to, and consistent with, the businesses of
the Corporation and its subsidiaries. The Chief Executive
Officer (and other officers of the Corporation as delegated by
the Chief Executive Officer or as authorized in these Bylaws) may
delegate the foregoing authorization to other officers, employees
and agents of the Corporation by either written authorization
(including powers of attorney) or otherwise, unless such
authorization is expressly reserved for the Chief Executive
Officer or other officer, as applicable.
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SECTION 8. PRESIDENT
The President, if any, shall have general authority over the
property, business and affairs of the Corporation, and over all
subordinate officers, agents and employees of the Corporation,
subject to the control and direction of the Board or the Chief
Executive Officer, including the power to sign and acknowledge in
the name and on behalf of the Corporation all stock certificates,
deeds, mortgages, bonds, contracts or other documents and
instruments except when the signing thereof shall be expressly
delegated to some other officer or agent by the Board or required
by law to be otherwise signed or executed and, unless otherwise
provided by law or by the Board, may delegate to any officer,
employee or agent of the Corporation authority to sign, execute
and acknowledge in his place and stead all such documents and
instruments.
SECTION 9. VICE PRESIDENTS
Each Executive Vice President, Senior Vice President and
Vice President, if any, shall have such powers and perform such
duties as may from time to time be assigned to him, directly or
indirectly, either generally or in specific instances, by the
Board or the Chief Executive Officer.
Subject to delegations by the Board or the Chief Executive
Officer pursuant to this Article V, each Executive Vice
President, Senior Vice President and Vice President shall perform
all duties incident to the office of vice president of a
corporation and shall have authority to sign or execute, in the
name of the Corporation, all stock certificates, deeds,
mortgages, bonds, contracts or other documents or instruments,
except in cases where the signing or execution thereof shall have
been expressly delegated by the Board or these Bylaws to some
other officer or agent of the Corporation.
SECTION 10. SECRETARY
The Secretary shall keep the minutes of meetings of the
stockholders and of the Board in books provided for the purpose;
he shall see that all notices are duly given in accordance with
the provisions of these Bylaws or as required by law; he shall be
custodian of the records and of the corporate seal or seals of
the Corporation; he shall see that the corporate seal is affixed
to all documents requiring same, the execution of which, on
behalf of the Corporation, under its seal, is duly authorized,
and when said seal is so affixed he may attest same; and, in
general, he shall perform all duties incident to the office of
the secretary of a corporation, and such other duties as from
time to time may be assigned to him directly or indirectly by the
Board, the Chief Executive Officer and the President, or as may
be provided by law. Any Assistant Secretary may perform any of
the duties or exercise any of the powers of the Secretary at the
request of, or in the absence or disability of, the Secretary or
otherwise as occasion may require in the administration of the
business and affairs of the Corporation.
SECTION 11. ABSENCE OR DISABILITY OF OFFICERS
In the absence or disability of the Chairman of the Board,
the Chief Executive Officer, of the President, the Board or a
committee thereof may designate individuals to perform the duties
of those absent or disabled.
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ARTICLE VI
STOCK CERTIFICATES AND TRANSFER THEREOF
SECTION 1. STOCK CERTIFICATES
Except as otherwise permitted by statute, the Articles of
Incorporation or resolution or resolutions of the Board, 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
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or any Vice President and
by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares, and the class and
series thereof, owned by him in the Corporation. Any and all of
the signatures on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent
or registrar at the date of issue. The Board or the Chief
Executive Officer shall determine the form of stock certificate
of the Corporation.
SECTION 2. TRANSFER OF STOCK
Transfer of shares of the capital stock of the Corporation
shall be made only on the books (whether physically or
electronically) of the Corporation by the holder thereof, or by
his attorney duly authorized, and on surrender of the certificate
or certificates for such shares. A person in whose name shares
of stock stand on the books of the Corporation shall be deemed
the owner thereof as regards the Corporation, and the Corporation
shall not, except as expressly required by statute, be bound to
recognize any equitable or other claim to, or interest in, such
shares on the part of any other person whether or not it shall
have express or other notice thereof.
SECTION 3. TRANSFER AGENTS AND REGISTRARS
The Board may appoint responsible companies from time to
time to act as transfer agents and registrars of the stock of the
Corporation, as may be required by and in accordance with
applicable laws, rules and regulations. If the Board appoints a
transfer agent and registrar, then, except as otherwise provided
by the Board in respect of temporary certificates, no
certificates for shares of capital stock of the Corporation shall
be valid unless countersigned by such transfer agent and
registered by such registrar.
SECTION 4. ADDITIONAL REGULATIONS
The Board may make such additional rules and regulations as
it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the capital stock of
the Corporation.
SECTION 5. LOST, STOLEN OR DESTROYED CERTIFICATES
The Board may provide for the issuance of new certificates
of stock to replace certificates of stock lost, stolen or
destroyed, or alleged to be lost, stolen or destroyed, upon such
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terms and in accordance with such procedures as the Board or the
Chief Executive Officer shall deem proper and prescribe.
ARTICLE VII
DIVIDENDS, SURPLUS, ETC.
Except as otherwise provided by statute or the Articles of
Incorporation, the Board may declare dividends upon the shares of
its capital stock either (1) out of its surplus, or (2) in case
there shall be no surplus, out of its net profits for the fiscal
year, whenever, and in such amounts as, in its opinion, the
condition of the affairs of the Corporation shall render it
advisable. Dividends may be paid in cash, in property or in
shares of the capital stock of the Corporation. No distribution
may be made if, after giving effect to the distribution, (a) the
Corporation would not be able to pay indebtedness of the
Corporation as the indebtedness becomes due in the usual course
of business; or (b) the Corporation's total assets would be less
than the sum of its total liabilities plus, unless the Articles
of Incorporation permit otherwise, the amount that would be
needed if the Corporation were to be dissolved at the time of the
distribution to satisfy the preferential rights upon dissolution
of stockholders whose preferential rights on dissolution are
superior to those receiving the distribution.
ARTICLE VIII
SEAL
The Corporation may have a corporate seal which shall have
inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Maryland." The
corporate seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first
day of April of each year, or on such other day as may be fixed
from time to time by the Board.
ARTICLE X
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to
be made a party to or is involved (including, without limitation,
as a witness) in any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact
that he is or was a director (as that term is used in this
Article X only, to include directors elected or appointed
pursuant to Article III of these Bylaws), officer or employee of
the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as such a director, officer, employee or agent,
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shall be indemnified and held harmless by the Corporation to the
full extent authorized by the General Corporation Law of the
State of Maryland, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment), or by other applicable law as
then in effect, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts to be paid in settlement) actually and
reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as
provided in Section 2 of this Article with respect to proceedings
seeking to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee seeking indemnification in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was
authorized by the Board of the Corporation. The right to
indemnification conferred in this Section shall be a contract
right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of
expenses"); further provided, however, that, if the General
Corporation Law of the State of Maryland requires, an advancement
of expenses incurred by an indemnitee in his capacity as a
director, officer or employee (and not in any other capacity in
which service was or is rendered by such indemnitee while a
director, officer or employee, including, without limitation,
service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined that such indemnitee is not entitled to
be indemnified under this Section 1, or otherwise.
SECTION 2. RIGHT OF INDEMNITEE TO BRING SUIT
If a claim under Section 1 of this Article X is not paid in
full by the Corporation within 60 days after a written claim has
been received by the Corporation, except in the case of a claim
for an advancement of expenses, in which case the applicable
period shall be 20 days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, to the extent successful in whole
or in part, the indemnitee shall be entitled to be paid the
expense of prosecuting such suit. The indemnitee shall be
presumed to be entitled to indemnification under this Article
upon submission of a written claim (and, in an action brought to
enforce a claim for an advancement of expenses, where the
required undertaking, if any is required, has been tendered to
the Corporation), and thereafter the Corporation shall have the
burden of proof to overcome the presumption and prove that the
indemnitee is not so entitled. Neither the failure of the
Corporation (including its Board, independent legal counsel or
its stockholders), to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee
is proper in the circumstances, nor an actual determination by
the Corporation (including its Board, independent legal counsel
or its stockholders) that the indemnitee is not entitled to
indemnification, shall be a defense to the suit or create a
presumption that the indemnitee is not so entitled.
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SECTION 3. NONEXCLUSIVITY OF RIGHTS
The rights to indemnification and to the advancement of
expenses conferred in this Article X shall not be exclusive of
any other right that any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation,
Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 4. INSURANCE, CONTRACTS AND FUNDING
The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Maryland. The
Corporation may enter into contracts with any indemnitee in
furtherance of the provisions of this Article and may create a
trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
SECTION 5. MAJORITY OWNED SUBSIDIARIES
Any person who is or was serving as a director of a majority
owned subsidiary of the Corporation shall be deemed, for purposes
of this Article only, to be a director, officer or employee of
the Corporation entitled to indemnification under this Article.
SECTION 6. INDEMNIFICATION OF AGENTS OF THE CORPORATION
The Corporation may, by action of the Board from time to
time, grant rights to indemnification and advancement of expenses
to agents of the Corporation with the same scope and effect as
the provisions of this Article with respect to the
indemnification and advancement of expenses of directors,
officers and employees of the Corporation.
ARTICLE XI
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. CHECKS, DRAFTS, ETC.; LOANS
All checks, drafts or other orders for the payment of money,
notes or 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,
from time to time, be determined by resolution of the Board. No
loans shall be contracted on behalf of the Corporation unless
authorized by the Board. Such authority may be general or
confined to specific circumstances.
SECTION 2. DEPOSITS
All funds of the Corporation shall be deposited, from time
to time, to the credit of the Corporation in such banks, trust
companies or other depositories as the Board may select, or as
may be selected by any officer or officers, agent or agents of
the Corporation to whom such power may, from time to time, be
18
delegated by the Board; and for the purpose of such deposit, the
appropriate officer or agent to whom such power may be delegated
by the Board, may endorse, assign and deliver checks, drafts and
other order for the payment of money which are payable to the
order of the Corporation.
ARTICLE XII
AMENDMENTS
Unless otherwise provided in the Articles of Incorporation,
these Bylaws may be altered or repealed, and new Bylaws may be
made, by the affirmative vote, at any meeting of the Board, of a
majority of the entire Board, subject to the rights of the
stockholders of the Corporation to amend or repeal Bylaws made or
amended by the Board by the affirmative vote of the holders of
record of a majority in number of shares of the outstanding stock
of the Corporation present or represented at any meeting of the
stockholders and entitled to vote thereon, provided that notice
of the proposed action be included in the notice of such meeting.
ARTICLE XIII
MISCELLANEOUS
All references and uses herein of the masculine pronouns
"he" or "his" shall have equal applicability to and shall also
mean their feminine counterpart pronouns, such as "she" or "her."
* * * * *
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