EXHIBIT 3.2
SONIC FOUNDRY
AMENDED AND
RESTATED BYLAWS
Article I
OFFICES
The registered office of SONIC FOUNDRY, INC. (the "Corporation") in
the State of Maryland shall be in the City of Baltimore, State of Maryland. The
Corporation shall have offices at such other places as the Board of Directors,
in its discretion, may from time to time determine.
Article II
STOCKHOLDERS
Section 1. Annual Meetings.
The annual meeting of the stockholders for the election of directors
and for the transaction of such other business as may properly come before the
meeting shall be held on such date as the Board of Directors shall each year
fix. Each such annual meeting shall be held at such place, within or without
the State of Maryland, and hour as shall be determined by the Board of
Directors. The day, place and hour of each annual meeting shall be specified in
the notice of such annual meeting. Any annual meeting of stockholders may be
adjourned from time to time and place to place until its business is completed.
Section 2. Business Conducted at Meetings.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder. For business to be properly brought before
an annual meeting 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 delivered to or mailed and received at the
principal executive offices of the Corporation, not less than thirty days nor
more than fifty days prior to the meeting; provided, however, that in the event
that less than forty days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the tenth day
following the date on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
the Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding anything
in the bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 2.
The presiding officer of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 2, 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.
Section 3. Special Meetings.
(a) Except as otherwise required by law or by the Articles of
Incorporation and subject to the rights of the holders of any class or series of
stock having a preference over the common stock as to dividends or on
liquidation, special meetings of the stockholders may be called only be the
chairman of the board, the vice chairman and chief executive officer, the
president, the board of directors pursuant to a resolution approved by a
majority of the entire board of directors or by one or more stockholders holding
shares in the aggregate representing not less than twenty-five percent (25%) of
the votes at that meeting. The term "entire board of directors", as used in
these bylaws, means the total number of directors which the Corporation would
have if there were no vacancies.
(b) If a special meeting is called by any person or persons other than
the board of directors, the request shall be in writing, specifying the time of
such meeting and the general purpose or purposes for which the meeting is
called, and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the chairman of the board of
directors, the president, any vice president, or the secretary of the
Corporation. The officer receiving the request shall cause notice to be
promptly given to the stockholders entitled to vote, in accordance with the
provisions of Sections 4 and 5 of this Article II, that a meeting will be held
at the time requested by the person or person calling the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the request.
If the notice is not given within twenty (20) days after receipt of the request,
the person or persons requesting the meeting may give the notice. Nothing
contained in this subparagraph (b) of this Section 3 shall be construed as
limiting, fixing of affecting the time when a meeting of stockholders called by
action of the board of directors may be held.
Section 4. Stockholder Action; How Taken.
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
such stockholders and may not be effected by any consent in writing by such
stockholders; provided, however, that any action required or permitted to be
taken at any annual or special meeting of stockholders of the Corporation may be
taken without a meeting, without prior notice, and without a vote, if (i) a
2
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than a majority of the votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote were present and voted and (ii) such written consent has
been approved in advance by the Corporation's board of directors. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing. Any such consent may be in counterparts and shall hear the date of
signature of each stockholder who signs the consent. No such consent shall be
effective to take any action unless, within sixty days following the date of the
earliest signature thereon, the consent or counterparts thereof, hearing the
signatures of holders of stock having not less than a majority of the votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote were present and voted to take such action, are
delivered to the Corporation by delivery to its principal place of business or
to the secretary of the Corporation. Any action taken pursuant to such consent
shall be effective as of the date of the last signature thereon needed to make
it effective unless otherwise provided in the consent. All counterparts of such
consent necessary to make it effective shall be filed with the minutes of
proceedings of the stockholders. If the action that is consented to is such as
would have required the filing of a certificate under any provisions of the
Maryland General Corporation Law if such action had been voted upon by
stockholders at a meeting, the certificate filed shall state, in lieu of nay
statement concerning a vote of stockholders, that written consent has been given
in accordance with the provisions of Maryland General Corporation Law, and that
written notice has been given as provided in that section.
Section 5. Notice of Meeting.
Written notice stating the place, date and hour of the meeting and, in
case of a special meeting, the purpose or purposes for which the meeting is
called, except as set forth in subparagraph (b) of Section 3, shall be given not
less than ten nor more than sixty days before the date of the meeting, except as
otherwise required by statute or the articles of incorporation, either
personally or by mail, prepaid telegram, telex, cablegram, or radiogram, to each
stockholder or record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, addressed to the stockholder at his address as it appears on the stock
records of the Corporation. If given personally or otherwise than by mail, such
notice shall be deemed to be given when either handed to the stockholder or
delivered to the stockholder's address as it appears on the stock records of the
Corporation.
Section 6. Waiver.
Attendance of a stockholder of the Corporation, either in person or by
proxy, at any meeting, whether annual or special, shall constitute a waiver of
notice of such meeting, except where a stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business became the meeting is not lawfully called or
convened. A written waiver of notice of any such meeting signed by a
stockholder or
3
stockholders entitled to such notice, whether before, at or after the time for
notice or the time of the meeting, shall be equivalent to notice. Neither the
business to be transacted at, nor the purposes of, any meeting need be specified
in any written waiver of notice.
Section 7. Voting List.
The secretary shall prepare and make available, 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 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 be produced and kept at the place of the meeting during the whole
time thereof and may be inspected by an stockholder who is present.
Section 8. Quorum.
Except as otherwise required by law, the articles of incorporation or
these bylaws, the holders of not less than one-third of the shares entitled to
vote at any meeting of the stockholders, present in person or by proxy, shall
consider a quorum, and the act of the majority of such quorum shall be deemed
the act of the stockholders. If a quorum shall fail to attend any meeting, the
chairman of the meeting may adjourn the meeting from time to time, without
notice if the time and place are announced at the meeting, until a quorum shall
be present. At such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty days or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then, except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of votes cast at such meeting.
Section 9. Record Date.
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting, or at any adjournment of a meeting, of
stockholders; or entitled to express consent to corporate action in writing
without a meeting; or 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 of directors may fix, in advance, a record
date, which record date shall not proceed the date upon which the resolution
fixing the record date is adopted by the
4
board of directors. The record date for determining the stockholders entitled
to notice of or to vote at any meeting of the stockholders or any adjournment
thereof shall not be more than sixty nor less than ten days before the date of
such meeting. The record date for determining the stockholders entitled to
consent to corporate action in writing without a meeting shall not be more than
ten days after the date upon which the resolution fixing the record date is
adopted by the board of directors. The record date for any other action shall
not be more than sixty days prior to such action. If no record date is fixed,
(i) the record date for determining stockholders entitled to notice of or to
vote at any meeting shall be at the close of business on the day next preceding
the day on which notice is given or, if notice is waived by all stockholders, at
the close of business on the day next preceding the day on which the meeting is
held; (ii) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is required, shall be the first date on which a signed
written consent setting forth the action taken or to be taken is delivered to
the Corporation and, when prior action by the board of directors is required,
shall be at the close of business on the day on which the board of directors
adopts the resolution taking such prior action; and (iii) the record date for
determining stockholders for any other purpose shall be at the close of business
ont he day on which the board of directors adopts the resolution relating to
such other purpose. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Section 10. Procedure.
The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the presiding officer.
Article II
DIRECTORS
Section 1. Number, Election, and Terms.
The number of directors shall be fixed from time to time exclusively
by resolutions adopted by the board of directors; provided, however, that the
number of directors shall at no time be less than three nor greater than twelve
and further provided that no decrease in the number of directors constituting
the board of directors shall shorten the term of any incumbent director. The
directors, other than those who may be elected by the holders of any class or
series of stock having a preference over the common stock as to dividends or
upon liquidation, shall be classified with respect to the time for which they
severally hold office, into five classes, as nearly equal in number as possible,
as determined by the board of directors, Class I to hold office initially for a
term expiring at the annual meeting of stockholders to be held during the fiscal
year ending in 1998, Class II to hold office initially for a term expiring at
the annual meeting of stockholders to be held during the fiscal year ending in
1999, Class III to hold office initially for a term expiring at the annual
meeting of stockholders to be held during
5
the fiscal year ending in 2000, Class IV to hold office initially for a term
expiring at the annual meeting of stockholders to be held during the fiscal year
ending in 2001, and Class V to hold office initially for a term expiring at the
annual meeting of stockholders to be held during the fiscal year ending in 2002,
with the members of each class to hold office until their successors are elected
and qualified. At each annual meeting of stockholders, the successors of the
class of directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held in the
fifth year following the year of their election.
Subject to the rights of holders of any class or series of stock
having a preference over the common stock as to dividends or upon liquidation,
nominations for the election of directors may be made by the board of directors
or a committee appointed by the board of directors or by any stockholder
entitled to vote in the election of directors generally. However, any
stockholder entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at a meeting only if written
notice of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail, postage
prepaid, to the secretary of the Corporation no later than (i) with respect to
an election to be held at an annual meeting of stockholders, ninety days prior
to the anniversary date of the immediately preceding annual meeting, and (ii)
with respect to an election to be held at a special meeting of stockholders for
the election of directors, the close of business on the tenth day following the
date on which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or person to be nominated; (b)
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; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a director of the Corporation if so
elected. The presiding officer of the meeting may refuse to acknowledge
nomination of any person not made in compliance with the foregoing procedure.
Section 2. Newly Created Directorships and Vacancies.
Except as otherwise fixed pursuant to the provisions of the
Corporation's articles of incorporation, newly created directorships resulting
from any increase in the number of directors and any vacancies on the board of
directors resulting from death, resignation, disqualification, removal or other
cause shall be filled solely by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the board
6
of directors. Any director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of directors
in which the new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified.
Section 3. Regular Meetings.
The first meeting of each newly elected board of directors elected at
the annual meeting of stockholders shall be held immediately after and at the
same place as, the annual meeting of the stockholders, provided a quorum is
present, and no notice of such meeting shall be necessary in order to legally
constitute the meeting. Regular meetings of the board of directors shall be
held at such times and places as the board of directors may from time to time
determine.
Section 4. Special Meetings.
Special meetings of the board of directors may be called at any time,
at any place and for any purpose by the chairman of the executive committee, the
chairman of the board, or the vice chairman and chief executive officer, or by
any officer of the Corporation upon the request of a majority of the entire
board of directors.
Section 5. Notice of Meetings.
Notice of regular meetings of the board of directors need not be
given.
Notice of every special meeting of the board of directors shall be
given to each directors at his usual place of business or at such other address
as shall have been furnished by him for such purpose. Such notice shall be
properly and timely given if it is (a) deposited in the United States mail not
later than the seventh calendar day preceding the date of the meeting, or (b)
personally delivered, telecopied, telegraphed, or communicated by telephone at
least twenty-four hours before the time of the meeting. Such notice need not
include a statement of the business to be transacted at, or the purpose of, any
such meeting.
Section 6. Waiver.
Attendance of a director at a meeting of the board of directors shall
constitute a waiver of notice of such meeting, except where a director 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. A written waiver of notice signed by a director or directors entitled
to such notice, whether before, at, or after the time for notice or the time of
the meeting, shall be equivalent to the giving of such notice.
7
Section 7. Quorum.
Except as may be otherwise provided by law, in the Articles of
Incorporation, or in these bylaws, the presence of a majority of the entire
board of directors shall be necessary and sufficient to constitute a quorum for
the transaction of business at any meeting of the board of directors, and the
act of a majority of such quorum shall be deemed the act of the board of
directors. Less than a quorum may adjourn any meeting of the board of directors
from time to time without notice.
Section 8. Chairman of the Board.
The chairman of the board shall be appointed by the board of directors
and shall have such general powers and duties of supervision and management as
are usually vested in the office of chairman of the board. He shall preside at
all meetings of the stockholders and directors at which he may be present and
shall have such other duties, powers and authority as may be prescribed
elsewhere in these bylaws. The board of directors may delegate such other
authority and assign such additional duties to the chairman of the board, other
than those conferred by law exclusively upon the vice chairman and chief
executive officer or the president, as it may from time to time determine. The
chairman of the board shall hold his position at the pleasure of the board of
directors and may be removed at any time by the board of directors with or
without cause.
Section 9. Participation in Meetings By Telephone.
Members of the board of directors, or of any committee thereof, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all person
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 10. Powers
The business, property and affairs of the Corporation shall be managed
by or under the direction of its board of directors, which shall have and may
exercise all the powers of the Corporation to do all such lawful acts and things
as are not be law, by the certificate of incorporation, or by these bylaws,
directed or required to be exercised or done by the stockholders.
Section 11. Compensation of Directors.
Directors shall receive such compensation for their services as shall
be determined by a majority of the entire board of directors, provided that
directors who are serving the Corporation as officers or employees and who
receive compensation for their services as such officers or employees shall not
receive any salary or other compensation for their services as directors.
8
Section 12. Action Without a Meeting.
Unless otherwise restricted by the articles of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the board
of directors or any committee thereof may be taken without a meeting if written
consent thereto is signed by all members of the board of directors or of such
committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the board or committee. Any such consent may be in
counterparts and shall be effective on the date of the last signature thereon
unless otherwise provided therein.
Article IV
COMMITTEES
Section 1. Designation of Committees.
The board of directors may establish committees for the performance of
delegated or designated functions to the extent permitted by law, each committee
to consist of one or more directors of the Corporation. 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 of
directors to act at the meeting in the place of such absent or disqualified
member.
Section 2. Committee Powers and Authority.
The board of directors may provide, by resolution or by amendment to
these bylaws, that a committee may exercise all the power and authority of the
board of directors 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; provided, however, that a committee may not
exercise the power or authority of the board of directors in reference to
amending the certificate of incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the board of directors, pursuant to Article IV of the
certificate of incorporation, fix the designations and any of the preferences or
rights of shares of preferred stock relating to dividends, redemption,
dissolution, any distribution of property or assets of the Corporation, or the
conversation into, or the exchange of shares for, shares of any other class or
classes or any other series of the same or any other class or classes of stock
of the Corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), 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 these bylaws; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
9
Section 3. Committee Procedures.
To the extent the board of directors or the committee does not
establish other procedures for the committee, each committee shall be governed
by the procedures established in Article II, Section 3 (except as they relate to
an annual meeting of the board of directors) and Article III, Sections 4, 5, 6,
7, 9, and 12 of these bylaws, as if the committee were the board of directors.
Article V
OFFICERS
Section 1. Number.
The officers of the Corporation shall be appointed or elected by the
board of directors. The officers shall be a chairman of the board of directors,
a vice chairman of the board of directors and chief executive officer, a
president, such number of vice presidents as the board of directors may form
time to time determine, a secretary, and a treasurer. Any person may hold two
or more offices, other than the secretary who may not serve as either president,
chief executive officer or chairman of the board of directors, at the same time.
Section 2. Additional Officers.
The board of directors may appoint such other officers as it shall
deem appropriate.
Section 3. Term of Office, Resignation.
All officers, agents and employees of the Corporation shall hold their
respective offices or positions at the pleasure of the board of directors and
may be removed at any time by the board of directors with or without cause. Any
officer may resign at any time by giving written notice of his resignation to
the chief executive officer, the president or to the secretary, and acceptance
of such resignation shall not be necessary to make it effective unless the
notice so provides. Any vacancy occurring in any office shall be filed by the
board of directors.
Section 4. Duties.
The officers of the Corporation shall perform the duties and exercise
the powers as may be assigned to them from time to time by the board of
directors, the chairman of the board of directors, the chief executive officer,
or the president. In the absence of such assignment, the officers shall have
the duties and powers described in Sections 5 through 9 or this Article V.
10
Section 5. Chairman of the Board.
The chairman of the board of directors (who may also hold other
offices) shall have such duties as the board of directors shall prescribe. In
the chairman's absence, such duties shall be attended by the vice chairman of
the board of directors and chief executive officer.
Section 6. Vice Chairman of the Board.
The vice chairman of the board of directors shall in the absence of
the chairman, if present, preside at meetings, of the board of directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the board of directors or prescribed by the bylaws.
Section 7. Chief Executive Officer.
Subject to the direction and control of the board of directors, the
chief executive officer shall manage the business of the Corporation, and such
other matters as from time to time assigned to him by the board of directors or
prescribed by the bylaws. The chief executive officer may execute contracts,
deeds and other instruments on behalf of the corporation. The chief executive
officer shall have full authority on behalf of the corporation to attend any
meeting, give any waiver, cast any vote, grant any discretionary or directed
proxy to any person, and exercise any other rights of ownership with respect to
any shares of capital stock or other securities held by the Corporation and
issued by any other corporation or with respect to any partnership, trust or
similar interest held by the corporation.
Section 8. President.
Subject to such supervisory powers as may be given by the board of
directors to the chairman of the board of directors, the vice chairman of the
board of directors and the chief executive officer, if any, the president shall
have general supervision, direction, and control of the business and the
officers of the corporation, subject to the discretion of the board of
directors. He shall have the general powers and duties of management usually
vested in the office of president of a corporation, and shall have such other
powers and duties as may be prescribed by the board of directors, the chairman
of the board of directors, the vice chairman of the board of directors and the
chief executive officer of the bylaws.
Section 9. Chief Operating Officer.
Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman of the board of directors, the vice chairman
of the board of directors, the chief executive officer of the president, if
there be such officers, the chief operating officer of the corporation shall be
the general manager of the corporation and shall, subject to the control of the
board of directors, the chairman of the board of directors, the vice chairman of
11
the board of directors, chief executive officer and the president, have general
supervision, direction, and control of the business and the officers of the
corporation. In the absence of the chief executive officer or president, or in
the event of their disability, inability or refusal to act, the chief operating
officer shall perform the duties and exercise the power of the chief executive
officer or the president. He shall have the general powers and duties of
management usually vested in the office of chief operating officer of a
corporation, and shall have such other powers and duties as may be prescribed by
the board of directors, the chairman of the board of directors, the vice
chairman of the board of directors, the chief executive officer and the
president or the bylaws.
Section 10. Vice President.
Each vice president, if any, shall perform such functions as may be
prescribed by the board of directors, the chief executive officer or the
president. Upon the death, disability or absence of the president or the chief
operating officer, the vice president named as executive vice president shall
perform the duties and exercise the powers of the president. Each vice
president shall perform such other duties as the board, the chief executive
officer, or the president may from time to time prescribe or delegate to him.
Section 11. Secretary.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and, upon the request of a person entitled to call a special
meeting of the board of directors, he shall give notice of any such special
meeting. He shall keep the minutes of all meetings of the stockholders, the
board of directors, or any committee established by the board of directors. The
secretary shall be responsible for the maintenance of all records of the
Corporation and may attest documents on behalf of the Corporation. The
secretary shall perform such other duties as the board, the vice chairman of the
board and chief executive officer or the president may from time to time
prescribe or delegate to him.
Section 12. Treasurer.
The treasurer shall be responsible for the control of the funds of the
Corporation and the custody of all securities owned by the Corporation. The
treasurer shall perform such other duties as the board, the chief executive
officer or the president may from time to time prescribe or delegate to him.
Section 13. Compensation.
Officers shall receive such compensation, if any, for their services
as may be authorized or ratified by the board of directors. Election or
appointment as an officer shall not of itself create a right to compensation for
services performed as such officer.
12
Article VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1. Directors and Officers.
The Corporation shall indemnify to the full extent permitted by, and
in the manner permissible under, the laws of the State of Maryland, 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 criminal, civil,
administrative, or investigative, by reason of the fact that he, is or was a
director or officer of the Corporation, or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, association, 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. The
Corporation may advance expenses (including attorneys' fees) to any such person
incurred in defending any such action, suit or proceeding upon terms and
conditions, if any, deemed appropriate by the board of directors upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized by the laws of the State of Maryland.
Section 2. Contract.
The foregoing provisions of this Article VI 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 bylaw is 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 based in whole in part upon
any such state of facts.
The foregoing rights of indemnification shall not be deemed exclusive
of any other rights to which any director or officer may be entitled apart from
the provisions of this Article VI.
Section 3. Surviving Corporation.
The board of directors may provide by resolution that references to
"the Corporation" in this Article VI shall include, in addition to this
Corporation, all constituent corporations absorbed in a merger with this
Corporation so that any person who was a director or officer of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, employee, or agent of another corporation,
partnership, joint venture, trust, association, or other entity shall stand in
the same position under the provisions of this Article VI with respect to this
Corporation as he would if he had served this Corporation in the same capacity
or is or was so serving such other entity at the request of this Corporation, as
the case may be.
13
Section 4. Inurement.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall continue as to a person who has
ceased to be a director or officer and shall insure to the benefit of the heirs,
executors, and administrators of such person.
Section 5. Employees and Agents.
To the same extent as it may do for a director or officer, the
Corporation may indemnify and advance expenses to a person who is not and was
not a director or officer of the Corporation but who is or was an employee or
agent of the Corporation or who is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, association, or other enterprise.
Article VII
CAPITAL STOCK
Section 1. Certificates.
Each stockholder of the Corporation shall be entitled to a certificate
or certificates signed by or in the name of the Corporation by any one of the
chairman, the chief executive officer, the president, the chief operating
officer or a vice president, and by any one of the treasurer, an assistant
treasurer, the secretary or an assistant secretary, certifying the number of
shares of stock of the Corporation owned by such stockholder.
Section 2. Facsimile Signatures.
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, she
or it was such officer, transfer agent or registrar at the date of issue.
Section 3. Registered Stockholders.
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock of the Corporation as the holder in fact thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it has actual or other notice thereof, except as provided by law.
14
Section 4. Cancellation of Certificates.
All certificates surrendered to the Corporation shall be cancelled
and, except in the case of lost, stolen or destroyed certificates, no new
certificates shall be issued until the former certificate or certificates for
the same number of shares of the same class of stock have been surrendered and
cancelled.
Section 5. Lost, Stolen or Destroyed Certificates.
The board of directors may direct a new certificate or certificates to
be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate or certificates
to be lost, stolen or destroyed. In its discretion, and as a condition
precedent to the issuance of any such new certificate or certificates, the board
of directors may require that the owner of such lost, stolen or destroyed
certificate or certificates, or such person's legal representative, give the
Corporation and its transfer agent or agents, registrar or registrars a bond in
such form and amount as the board of directors may direct as indemnity against
any claim that may be made against the Corporation and the transfer agent or
agents, registrar or registrars on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 6. Transfer of Shares.
Shares of stock shall be transferable on the books of the Corporation
by the holder thereof, in person or by duly authorized attorney, upon the
surrender of the certificate or certificates representing the shares to be
transferred, properly endorsed, with such proof or guarantee of the authenticity
of the signature as the Corporation or its agents may reasonably require.
Section 7. Transfer Agents and Registrars.
The Corporation may have one or more transfer agents and one or more
registrars of its stock, whose respective duties the board of directors may,
form time to time, define. No certificate of stock shall be valid until
countersigned by a transfer agent, if the Corporation shall have a transfer
agent, or until registered by the registrar, if the Corporation shall have a
registrar. The duties of transfer agent and registrar may be combined.
Article VIII
SEAL
The board of directors may adopt and provide a seal which shall be
circular in form and shall bear the name of the Corporation and the words "Seal"
and "Maryland," and which, when adopted shall constitute the corporate seal of
the Corporation.
15
Article IX
FISCAL YEAR
The board of directors, by resolution, may adopt a fiscal year for the
Corporation.
Article X
AMENDMENTS
Subject to the provisions of the articles of incorporation, these
bylaws may be altered, amended or repealed at any regular meeting of the
stockholders (or at any special meeting thereof duly called for that purpose) by
the holders of two-thirds of the voting power of the outstanding shares of stock
entitled to vote at such meeting on the election of directors; provided that in
the notice of such special meeting, notice of such purpose shall be given.
Subject to the laws of the State of Maryland, the articles of incorporation and
these bylaws, the board of directors may, by majority vote of those present at
any meeting at which a quorum is present, amend these bylaws, or enact such
other bylaws as in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
_____________________________________
Secretary
16