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EXHIBIT 3.4
BYLAWS
OF
ENTERBANK HOLDINGS, INC.
(A Delaware Corporation)
As used in these Bylaws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Bylaws" means the initial bylaws of the Corporation, as amended
from time to time.
1.5 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from
time to time.
1.6 "Corporation" means Enterbank Holdings, Inc.
1.7 "Directors" means directors of the Corporation.
1.8 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.9 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Stockholders" means stockholders of the Corporation.
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1.13 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law
and Section 3.2 of the Bylaws.
1.14 "Treasurer" means the Treasurer of the Corporation.
1.15 "Vice President" means a Vice President of the Corporation.
1.16 "Whole Board" means the total number of directors of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Time and Place. All meetings of the stockholders for the
election of Directors or for any other purpose shall be held at such time and
place, within or without the State of Missouri, as shall be designated by the
Board of Directors. In the absence of any such designation by the Board of
Directors, each such meeting shall be held at the principal office of the
Corporation.
2.2 Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing Directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
2.3 Deferred Meeting for Election of Directors, Etc. If the annual
meeting of stockholders for the election of directors and the transaction of
other business is not held within the month specified in Section 2.2, the
Board shall call a meeting of stockholders for the election of directors and
the transaction of other business as soon thereafter as convenient.
2.4 Other Special Meetings. A special meeting of stockholders (other
than a special meeting of the election of directors), unless otherwise
prescribed by statute, may be called at any time by the President, by a
majority of the Board or upon written request of the holders of at least
fifty percent (50%) of all of the issued and outstanding shares entitled to
vote, provided they
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shall make written application to the Secretary stating the time, place, and
purpose or purposes, and the Secretary shall thereupon call the meeting and
issue notice as herein provided. At any special meeting of stockholders,
only such business may be transacted as is related to the purpose or purposes
of such meeting set forth in the notice thereof given pursuant to Section 2.6
of the Bylaws or in any waiver of notice thereof given pursuant to Section
2.7 of the Bylaws.
2.5 Fixing Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the
Board may fix, in advance, a date as the record date for any such determination
of stockholders. Such date shall not be more than fifty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. If no such record date is fixed:
2.5.1 The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the 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;
2.5.2 The record date for determining stockholders entitled to
express consent to corporation action in writing without a meeting,
when no prior action by the Board is necessary, shall be the day on which
the first written consent is expressed;
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2.5.3 The record date for determining stockholders for any purpose
other than those specified in Sections 2.5.1 and 2.5.2 shall be at the
close of business on the day on which the Board adopts the resolution
relating thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof, unless the Board fixes
a new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 of the Bylaws, whenever under the General Corporation Law
or the Certificate of Incorporation or the Bylaws, stockholders are required
or permitted to take any action at a meeting, written notice shall be given
stating 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. A copy of
the notice of any meeting shall be given, personally or by mail, not less than
ten nor more than fifty days before the date of the meeting, to each stockholder
entitled to notice of or to vote at such meeting. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, with postage
prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice required
by this section has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken, and at the adjourned meeting any business may be transacted that might
have been transacted at the meeting as originally called. If, however, the
adjournment is for more than thirty days, or if after
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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.
2.7 Waivers of Notice. Whenever notice is required to be given to any
stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the Bylaws, a written waiver thereof, signed
by the stockholder entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a
stockholder at a meeting shall constitute a waiver of notice of such meeting,
except when the 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. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in any written waiver of notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or
cause to be prepared and made, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The 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.
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2.9 Quorum of Stockholders; Adjournment. The holders of a majority of
the shares of stock entitled to vote at any meeting of stockholders, present
in person or represented by proxy, shall constitute a quorum for the
transaction of any business at such meeting. When a quorum is once present to
organize a meeting of stockholders, it is not broken by the subsequent
withdrawal of any stockholders. The holders of a majority of the shares of
stock present in person or represented by proxy at any meeting of stockholders,
including an adjourned meeting, whether or not a quorum is present, may adjourn
such meeting to another time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share of capital stock standing in his
name on the record of stockholders determined in accordance with Section 2.5
of the Bylaws. If the Certificate of Incorporation provides for more or less
than one vote for any share, on any matter, every reference in the Bylaws
or the General Corporation Law to a majority of other proportion of stock
shall refer to such majority or other proportion of the votes of such stock.
The provisions of Sections 212 and 217 of the General Corporation Law shall
apply in determining whether any shares of capital stock may be voted and the
persons, if any, entitled to vote such shares; but the Corporation shall be
protected in treating the persons in whose names shares of capital stock stand
on the record of stockholders as owners thereof for all purposes. At any
meeting of stockholders (at which a quorum was present to organize the
meeting), all matters, except as otherwise provided by law or by the
Certificate of Incorporation or by the Bylaws, shall be decided by a majority
of the votes cast at such meeting by the holders of shares present in person
or represented by proxy and entitled to vote thereon, whether or not a quorum
is present when the vote is taken. All elections of directors shall be by
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written ballot unless otherwise provided in the Certificate of Incorporation. In
all elections for directors, each stockholder shall have as many votes as shall
equal the number of voting shares held by such stockholder in the Corporation,
multiplied by the number of directors to be elected, and such stockholder may
cast all his votes, either in person or by proxy, for one candidate or
distribute then among two or more candidates. In voting on any other question on
which a vote by ballot is required by law or is demanded by any stockholder
entitled to vote, the voting shall be by ballot. Each ballot shall be signed by
the stockholder voting or by his proxy, and shall state the number of shares
voted. On all other questions, the voting may be by viva voce. Every stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the General Corporation
Law.
2.11 Denial of Preemptive Rights. No shareholder of the Corporation shall
have any preemptive right to subscribe for or to purchase, or to have offered
to him for subscription or purchase, any additional securities of the
Corporation.
2.12 Selection and Duties of Inspectors at Meetings of Stockholders.
The Board, in advance of any meeting of stockholders, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors
are not so appointed, the person presiding at such meeting may, and on the
request of any stockholder entitled to vote thereat shall, appoint one or
more inspectors. In case any person appointed fails to appear or act, the
vacancy may be filled by appointment made by the Board in advance of the
meeting or at the meeting by the person presiding thereat. Each inspector,
before entering upon the discharge of his duties, shall
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take and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability.
The inspector or inspectors shall determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. On request
of the person presiding at the meeting or any stockholder entitled to vote
thereat, the inspector or inspectors shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them. Any report or certificate made
by the inspector or inspectors shall be prima facie evidence of the facts
stated and of the vote as certified by him or them.
2.13 Organization. At every meeting of stockholders, the President, or
in the absence of the President, a Vice President, and in case more than one
Vice President shall be present, that Vice President designated by the Board
(or in the absence of any such designation, the most senior Vice President,
based on age, present), shall act as chairman of the meeting. The Secretary,
or in his absence one of the Assistant Secretaries, shall act as secretary
of the meeting. In case none of the officers above designated to act as
chairman or secretary of the meeting, respectively, shall be present, a
chairman or a secretary of the meeting, respectively, shall be present, a
chairman or a secretary of the meeting, as the case may be, shall be chosen
by a majority of the votes cast at such meeting by the holders of shares of
capital stock present in person or represented by proxy and entitled to vote
at the meeting.
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2.14 Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting, but the
order of business to be followed at any meeting at which a quorum is present
may be changed by a majority of the votes cast at such meeting by the holders
of shares of capital stock present in person or represented by proxy and
entitled to vote at the meeting.
2.15 Written Consent of Stockholders Without a Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required by the
General Corporation Law to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
Bylaws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred
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by the Bylaws, the Board may exercise all powers and perform all acts which
are not required, by the Bylaws or the Certificate of Incorporation or by law,
to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall initially
consist of four members. Thereafter, the number of directors and the classes of
directors shall be determined from time to time by the Board of Directors of
the Corporation. Directors need not be stockholders. Each director
shall hold office until his successor is elected and qualified or until his
earlier death, resignation or removal.
3.3 Election. Directors shall, except as otherwise required by law or
by the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of stockholders by the holders of shares entitled to vote
in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided
in the Certificate of Incorporation, newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the Board
for any other reason, including the removal of directors without cause, may
be filled by vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director, or may be elected by a
plurality of the votes cast by the holders of shares of capital stock entitled
to vote in the election at a special meeting of stockholders called for that
purpose. A director elected to fill a vacancy shall be elected to hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
3.5 Resignations. Any director may resign at any time by written notice
to the Corporation. Such resignation shall take effect at the time therein
specified, and, unless
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otherwise specified, the acceptance of such resignation shall not be necessary
to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section 141(k)
of the General Corporation Law, any or all of the directors may be removed
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
3.7 Compensation. Each director, in consideration of his service as such,
shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at directors' meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his duties. Each director
who shall serve as a member of any committee of directors in consideration of
his serving as such shall be entitled to such additional amount per annum or
such fees for attendance at committee meetings, or both, as the Board may
from time to time determine, together with reimbursement for the reasonable
expenses incurred by him in the performance of his duties. Nothing contained
in this section shall preclude any director from serving the Corporation or
its subsidiaries in any other capacity and receiving proper compensation
therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board,
regular or special, may be held at any place within or without the State of
Delaware. The times and places for holding meetings of the board may be fixed
from time to time by resolution of the Board or (unless contrary to resolution
of the Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual
meeting of stockholders for the election of directors is held, and as soon as
practicable thereafter, the Board
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may hold its annual meeting, without notice of such meeting, for the purposes
of organization, the election of officers and the transaction of other business.
The annual meeting of the Board may be held at any other time and place
specified in a notice given as provided in Section 3.11 of the Bylaws for
special meetings of the Board or in a waiver of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at such
times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be
a Saturday or Sunday or a legal holiday at the place where such meeting is
to be held, then such meeting shall be held at the same hour at the same place
on the first business day thereafter which is not a Saturday, Sunday or legal
holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or the Secretary or by a majority of the
directors. Notice of such special meeting of the Board shall, if mailed, be
addressed to each director at the address designated by him for the purpose
or, if none is designated, at his last known address at least three days
before the date on which the meeting is to be held; or such notice shall be
sent to each director at such address by telegraph, cable or wireless, or be
delivered to him personally, not later than the day before the date on which
such meeting is to be held. Every such notice shall state the time and place
of the meeting but need not state the purposes of the meeting, except to the
extent required by law. If mailed, each notice shall be deemed given when
deposited, with postage thereon prepaid, in a post office or official
depository under the exclusive care and custody of the United States post
office department. Such mailing shall be by first class mail.
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3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and place. Notice
of any adjourned meeting of the Board need not be given to any director whether
or not present at the time of the adjournment. Any business may be transacted
at any adjourned meeting that might have been transacted at the meeting as
originally called.
3.13 Waiver of Notice. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or Bylaws, a
written waiver thereof, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the directors, or members of a committee of directors, need be
specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the President of the
Corporation, or in the absence of the President, a chairman chosen by a majority
of the directors present, shall preside. The Secretary shall act as secretary
at each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all
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Assistant Secretaries, the person presiding at the meeting may appoint any
person to act as secretary of the meeting.
3.15 Quorum of Directors. The lowest number of directors that constitutes
more than one half (1/2) of the elected Board of Directors shall constitute a
quorum, and the affirmative vote of not less than such number shall be required
in order to constitute the act of the Board of Directors.
3.16 Action by the Board. All corporate action taken by the Board or any
committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee. Members of the Board, or
any committee designated by the Board, may participate in a meeting of the
Board, or of such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.16 shall constitute presence in person at
such meeting. Except as otherwise provided by the Certificate of Incorporation
or by law, the vote of a majority of the directors present (including those
who participate by means of conference telephone or similar communications
equipment) at the time of the vote, if a quorum is present at such time, shall
be the act of the Board.
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ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more
of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
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ARTICLE 5
OFFICERS
5.1 Officers. The Board shall elect a President, a Secretary and a
Treasurer, and may elect or appoint a Chief Executive Officer, one or more
Vice Presidents and such other officers as it may determine. The Board may
designate one or more Vice Presidents as Executive Vice Presidents, and may
use descriptive words or phrases to designate the standing, seniority or area
of special competence of the Vice Presidents elected or appointed by it. Each
officer shall hold his office until his successor is elected and qualified or
until his earlier death, resignation or removal in the manner provided in
Section 5.2 of the Bylaws. Any two or more offices may be held by the same
person. The Board may require any officer to give a bond or other security for
the faithful performance of his duties, in such amount and with such sureties
as the Board may determine. All officers as between themselves and the
Corporation shall have such authority and perform such duties in the
management of the Corporation as may be provided in the Bylaws or as the Board
may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the Board
may be removed by the Board with or without cause. The removal of an officer
without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying the
Board, the President or the Secretary in writing. Such resignation shall take
effect at the date of receipt of such notice or at such later time as is therein
specified, and, unless otherwise specified, the
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acceptance of such resignation shall not be necessary to make it effective.
The resignation of an officer shall be without prejudice to the contract
rights of the Corporation, if any.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in the Bylaws for the regular
election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is
also a director.
5.6 Chief Executive Officer. The Chief Executive Officer of the Company
shall exercise general supervision, direction, management and control over all
the business and affairs of the Company, subject at all times to the control
of the Board of Directors. Subject to the provisions of Article 2, the Chief
Executive Officer shall act as chairman of each meeting of the shareholders.
The Chief Executive Officer shall also act as chairman of each meeting of the
Board of Directors when he is present, and in general shall perform all duties
incident to the Office of Chief Executive Office and such other duties as
from time to time may be assigned to him by the Board.
5.7 President. If there is no Chief Executive Officer elected or
appointed, then the President shall assume the duties of the Chief Executive
Officer as set forth above and as stated herein. If the Chief Executive
Officer is elected but is unable to act, then the President shall become
Acting Chairman of the Board and in that capacity perform all of the duties
of the Chief Executive Officer, unless some other officer is designated by
the Board of Directors to perform those duties. The President shall convene
meetings of the stockholders pursuant to Article 2. He
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may, with the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer, sign certificates for shares of the capital stock of the
Corporation and, in general, he shall perform all duties incident to the office
of President and such other duties as from time to time may be prescribed by
the Board of Directors or by the Chief Executive Officer.
5.8 Vice Presidents. At the request of the President, or in his absence,
at the request of the Board, the Vice President shall (in such order as may be
designated by the Board or, in the absence of any such designation, in order
of seniority based on age) perform all of the duties of the President and so
acting shall have all the powers of and be subject to all restrictions upon
the President. Any Vice President may also, with the Secretary or the Treasurer
or an Assistant Secretary or an Assistant Treasurer, sign certificates for
shares of capital stock of the Corporation; may sign and execute in the name
of the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the Bylaws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed; and shall perform such other duties as from time to time
may be assigned to him by the Board or by the President.
5.9 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given
and served; he may, with the President or a Vice President, sign certificates
for shares of capital stock of the Corporation; he shall be custodian of the
seal of the Corporation and may seal with the seal of the Corporation, or a
facsimile thereof, all certificates for shares of
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the capital stock of the Corporation and all documents the execution of which
on behalf of the Corporation under its corporate seal is authorized in
accordance with the provisions of the Bylaws; he shall have charge of the
stock ledger and also of the other books, records and papers of the
Corporation relating to its organization and management as a Corporation,
and shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any
sources whatsoever; deposit all such moneys in the name of the Corporation in
such banks, trust companies or other depositaries as shall be selected in
accordance with these Bylaws; against proper vouchers, cause such funds to be
disbursed by checks or drafts on the authorized depositaries of the Corporation
signed in such manner as shall be determined in accordance with any
provisions of the Bylaws, and be responsible for the accuracy of the amounts of
all moneys so disbursed; regularly enter or cause to be entered in books to
be kept by him or under his direction full and adequate account of all moneys
received or paid by him for the account of the Corporation; have the right to
require, from time to time, reports or statements giving such information as
he may desire with respect to any and all financial transactions of the
Corporation from the officers or agents transacting the same; render to the
President or the Board, whenever the President or the Board, respectively,
shall require him so to do, an account of the financial condition of the
Corporation and of all his transactions as Treasurer; exhibit at all
reasonable times his books of account and other records to any of the
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directors upon application at the office of the Corporation where such books
and records are kept; and, in general, perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the Board or by the President; and he may sign with the President
or a Vice President certificates for shares of capital stock of the
Corporation.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers, if any, shall perform such duties as
shall be assigned to them by the Secretary or by the Treasurer, respectively,
or by the Board or by the President. Assistant Secretaries and Assistant
Treasurers may, with the President or a Vice President, sign certificates for
shares of capital stock of the Corporation.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to enter into
any contract or execute and satisfy any instrument, and any such authority may
be general or confined to specific instances or otherwise limited.
6.2 Loans. The President or any other officer, employee or agent
authorized by the Bylaws or by the Board may effect loans and advances at any
time for the Corporation from any bank, trust company or other institutions or
from any firm, corporation or individual and for such loans and advances may
make, execute and deliver promissory notes, bonds or other certificates or
evidences of indebtedness of the Corporation, and, when authorized by the
Board so to do, may pledge and hypothecate or transfer any securities or other
property of the
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Corporation as security for any such loans or advances. Such authority
conferred by the Board may be general or confined to specific instances or
otherwise limited.
6.3 Checks, Drafts, Etc.. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall
be deposited from time to time to the order of the Corporation in such banks,
trust companies or other depositaries as the Board may select or as may be
selected by an officer, employee or agent of the Corporation to whom such
power may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of capital stock of the
Corporation shall be represented by certificates in such form (consistent
with the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificate shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and may be sealed with the seal of the Corporation
or a facsimile thereof. The signatures of the officers upon a certificate may
be facsimiles, if the certificate is countersigned by a transfer agent or
registrar other than the Corporation itself or its employee. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon any certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may, unless otherwise ordered by the
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Board, be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney
duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates representing
such shares of capital stock properly endorsed for transfer and upon payment
of all necessary transfer taxes. Every certificate exchanged, returned or
surrendered to the Corporation shall be marked "Cancelled," with the date of
cancellation, by the Secretary or an Assistant Secretary or the transfer agent
of the Corporation. A person in whose name shares of capital stock shall stand
on the books of the Corporation shall be deemed the owner thereof to receive
dividends, to vote as such owner and for all other purposes as respects the
Corporation. No transfer of shares of capital stock shall be valid as against
the Corporation, its stockholders and creditors for any purpose, except to
render the transferee liable for the debts of the Corporation to the extent
provided by law, until such transfer shall have been entered on the books of
the Corporation by an entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or agents
at such place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of
any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a
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new certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board may, in its discretion, as a condition to the
issue of any such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and
to advertise such fact in such manner as the Board may require, and to give
the Corporation and its transfer agents and registrars, or such of them as
the Board may require, a bond in such form, in such sums and with such surety
or sureties as the Board may direct, to indemnify the Corporation and its
transfer agents and registrars against any claim that may be made against any
of them on account of the continued existence of any such certificate so
alleged to have been lost, destroyed, stolen or mutilated and against any
expense in connection with such claim.
7.5 Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with the Bylaws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of
certificates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the
transfer or registration of transfer of capital stock of the Corporation, if
permitted by Section 202 of the General Corporation Law and noted conspicuously
on the certificate representing such capital stock, may be enforced against
the holder of the restricted capital stock or any successor or transferee
of the holder including an executor, administrator, trustee, guardian or
other fiduciary entrusted with like responsibility for the person or estate
of the holder. Unless noted conspicuously on the certificate representing
such capital stock, a restriction, even though permitted by Section 202 of
the General Corporation Law, shall be ineffective except against a person with
actual knowledge of the restriction. A restriction on the transfer or
registration of
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transfer of capital stock of the Corporation may be imposed either by the
Certificate of Incorporation or by an agreement among any number of stockholders
or among such stockholders and the Corporation. No restriction so imposed
shall be binding with respect to capital stock issued prior to the adoption
of the restriction unless the holders of such capital stock are parties to an
agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions on
the outstanding shares of capital stock in such amounts and at such time
or times as, in its discretion, the condition of the affairs of the
Corporation shall render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of
the Corporation in purchasing or acquiring any shares of capital stock of
the Corporation, or warrants therefore, or any of its bonds, debentures,
notes, scrip or other securities or evidences of indebtedness in
accordance with law;
7.7.3 May set aside from time to time out of such surplus or net
profits such sum or sums as, in its discretion, it may think proper,
as a reserve fund to meet contingencies, or for equalizing dividends or
for the purpose of maintaining or increasing the property or business of
the Corporation, or for any purpose it may think conducive to the best
interests of the Corporation.
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ARTICLE 8
INDEMNIFICATION
8.1 Indemnification of Officers and Directors. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
he is or was a director or any officer of the Corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding to the fullest extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be deemed
exclusive of any other rights to which such director or officer may be
entitled apart from the foregoing provisions. The foregoing provisions of
this Section 8.1 shall be deemed to be a contract between the Corporation and
each director and officer who serves in such capacity at any time while this
Article 8 and the relevant provisions of the General Corporation Law and other
applicable law, if any, are in effect, and any repeal or modification thereof
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part
upon any such state of facts.
8.2 Indemnification of Other Persons. The Corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the
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request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent and in the manner set forth in and
permitted by the General Corporation Law, and any other applicable law, as
from time to time in effect. Such right of indemnification shall not be
deemed exclusive of any other rights to which any such person may be entitled
apart from the foregoing provisions.
8.3 Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of Sections 8.1
and 8.2 of the Bylaws or under Section 145 of the General Corporation Law or
any other provision of law.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. The Corporation shall keep correct and complete
books and records of account and shall keep minutes of the proceedings of the
stockholders, the Board and any committee of the Board. The Corporation shall
keep at the office designated in the Certificate of Incorporation or at the
office of the transfer agent or registrar of the Corporation, a
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record containing the names and addresses of all stockholders, the number and
class of shares held by each and the dates when they respectively became the
owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, micro-photographs, or any other information storage device,
provided that the records so kept be converted into clearly legible written
form within a reasonable time. The Corporation shall so convert any records
so kept under the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the name of the Corporation and the word "Delaware."
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be for such period of twelve (12)
months as the Board shall determine.
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ARTICLE 12
VOTING OF SHARES HELD
Unless otherwise provided by resolution of the Board, or the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of stock or other securities of such
other corporation, or to consent in writing to any action by any such other
corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause
to be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any
such other corporation and thereat vote or exercise any or all other powers of
the Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENTS
The Bylaws may be altered, changed, added to or repealed, amended, or
new Bylaws may be adopted, as set forth in the Articles of Incorporation.
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