Exhibit 3.3
CORRECTIONS CORPORATION OF AMERICA
THIRD AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES AND FISCAL AND TAXABLE YEARS
Section 1. PRINCIPAL OFFICE. The principal office of Corrections
Corporation of America (the "Corporation") shall be located at such place
or places as the Board of Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional
offices at such places as the Board of Directors may from time to time
determine or the business of the Corporation may require.
Section 3. FISCAL AND TAXABLE YEARS. The fiscal and taxable years of
the Corporation shall begin on January 1 and end on December 31.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place within the United
States as shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for
the election of Directors and the transaction of any business within the powers
of the Corporation shall be held during the month of May of each year at a
convenient location and on proper notice, on a date at the time set by the Board
of Directors. Failure to hold an annual meeting does not invalidate the
Corporation's existence or affect any otherwise valid acts of the Corporation.
Section 3. SPECIAL MEETINGS. The President, Chairman of the Board, a
majority of the Board of Directors or a committee of the Board of Directors
which has been duly designated by the Board of Directors and whose powers and
authority, as provided in a resolution of the Board of Directors or these
Bylaws, include the power to call such meetings, may call special meetings of
the stockholders. The Secretary of the Corporation shall call a special meeting
of the stockholders on the written request of stockholders entitled to cast at
least a majority of all the votes entitled to be cast at the meeting.
Section 4. NOTICE. Not less than ten (10) nor more than ninety (90)
days before each meeting of stockholders, the Secretary shall give to each
stockholder entitled to vote at such meeting and to each stockholder not
entitled to vote who is entitled to notice of the meeting written or printed
notice stating the time and place of the meeting and, in the case of a special
meeting or as otherwise may be required by any statute, the purpose for which
the meeting is called, either by mail or by presenting it to such stockholder
personally or by leaving it at his residence or usual place of business. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the stockholder at his post office address as it
appears on the records of the Corporation, with postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Corporation may be
transacted at an annual meeting of stockholders without being specifically
designated in the notice, except such business as is required by any statute to
be stated in such notice. No business shall be transacted at a special meeting
of stockholders except as specifically designated in the notice.
Section 6. ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, if there be one, shall conduct the meeting or, in the
case of vacancy in office or absence of the Chairman of the Board, one of the
following officers present shall conduct the meeting in the order stated: the
Vice Chairman of the Board, if there be one, the President, the Vice Presidents
in their order of rank and seniority and the Secretary, or, in his absence, an
assistant secretary, or in the absence of both the Secretary and assistant
secretaries, a person appointed by the Chairman shall act as Secretary.
Section 7. QUORUM. At any meeting of stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this Section
shall not affect any requirement under any statute or the Charter for the vote
necessary for the adoption of any measure. If, however, such quorum shall not be
present at any meeting of the stockholders, the stockholders entitled to vote at
such meeting, present in person or by proxy, shall have the power to adjourn the
meeting from time to time to a date not more than 120 days after the original
record date without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 8. VOTING. A plurality of all the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to
elect a Director. Each share of stock may be voted for as many individuals as
there are Directors to be elected and for whose election the share of stock is
entitled to be voted. A majority of the votes cast at a meeting of stockholders
duly called and at which a quorum is present shall be sufficient to approve any
other matter which may properly come before the meeting, unless more than a
majority of the votes cast is required herein or by statute or by the Charter.
Unless otherwise provided in the Charter, each outstanding share of stock,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders.
2
Section 9. PROXIES. A stockholder may vote the shares of stock owned of
record by him, either in person or by proxy. Such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 10. VOTING OF SHARES OF STOCK BY CERTAIN HOLDERS. Shares of
stock of the Corporation registered in the name of a corporation, partnership,
trust or other entity, if entitled to be voted, may be voted by the president or
a vice president, a general partner or director thereof, as the case may be, or
a proxy appointed by any of the foregoing individuals, unless some other person
who has been appointed to vote such shares of stock pursuant to a bylaw or a
resolution of the governing board of such corporation or other entity or
agreement of the partners of the partnership presents a certified copy of such
bylaw, resolution or agreement, in which case such person may vote such shares
of stock. Any fiduciary may vote shares of stock registered in his name as such
fiduciary, either in person or by proxy.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors consider necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified shares of stock in place of the stockholder who makes the
certification.
Title 3, Subtitle 7 of the Maryland General Corporation Law (the
"MGCL"), or any successor statute, shall not apply to any acquisition by any
person of shares of stock of the Corporation.
Section 11. INSPECTORS. At any meeting of stockholders, the chairman of
the meeting may, or upon the request of any stockholder shall, appoint one or
more persons as inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares of stock represented at the meeting based upon their
determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and
voting with impartiality and fairness to all the stockholders.
Each report of an inspector shall be in writing and signed by him or by
a majority of them if there is more than one inspector acting at such meeting.
If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the
number of shares of stock represented at the meeting and the results of the
voting shall be prima facie evidence thereof.
3
Section 12. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board
of Directors and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders: (i) pursuant to the
Corporation's notice of meeting; (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Section 12(a),
who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 12(a).
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 12, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of business
on the later of the 60th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth: (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
Director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (ii) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (y) the name
and address of such stockholder, as they appear on the Corporation's books, and
of such beneficial owner and (z) the number of each class of shares of stock of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph (a)(2) of this Section 12 to the contrary, in the event that the
number of Directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by the Corporation
at least 70 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 12 (a) shall also be
considered timely, but only
4
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which Directors are to be elected: (i) pursuant to
the Corporation's notice of meeting; (ii) by or at the direction of the Board of
Directors; or (iii) provided that the Board of Directors has determined that
Directors shall be elected at such special meeting, by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this Section 12(b), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 12(b). In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more Directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be) for election to such
position as specified in the Corporation's notice of meeting, if the
stockholder's notice containing the information required by paragraph (a)(2) of
this Section 12 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 12 shall be eligible to serve as
Directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 12. The presiding officer of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in this Section 12 and, if any proposed nomination or
business is not in compliance with this Section 12, to declare that such
defective nomination or proposal be disregarded.
(2) For purposes of this Section 12, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 12, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 12, a stockholder shall also comply with all applicable requirements of
state law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 12. Nothing in this Section 12
shall be deemed to affect any rights of stockholders to request
5
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 13. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
BOARD OF DIRECTORS
Section 1. GENERAL POWERS; QUALIFICATIONS; DIRECTORS HOLDING OVER. The
business and affairs of the Corporation shall be managed under the direction of
its Board of Directors. A Director shall be an individual at least 21 years of
age who is not under legal disability. Unless otherwise agreed between the
Corporation and the Director, each individual Director may engage in other
business activities of the type conducted by the Corporation and is not required
to present to the Corporation investment opportunities presented to such
Director (other than those presented to such Director in his capacity as a
Director of the Corporation) even though the investment opportunities may be
within the scope of the Corporation's investment policies. In case of failure to
elect Directors at an annual meeting of the stockholders, the Directors holding
over shall continue to direct the management of the business and affairs of the
Corporation until their successors are elected and qualify.
Section 2. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Directors shall be held immediately after and at the same place as the annual
meeting of stockholders, with no notice other than this Bylaw provision being
necessary. The Directors may provide, by resolution, the time and place, either
within or without the State of Maryland, for the holding of regular meetings of
the Directors without other notice than such resolution.
Section 3. SPECIAL MEETINGS. Special meetings of the Directors may be
called by or at the request of the Chairman of the Board, the Chief Executive
Officer or the President or by a majority of the Directors then in office. The
person or persons authorized to call special meetings of the Directors may fix
any place, either within or without the State of Maryland, as the place for
holding any special meeting of the Directors called by them.
Section 4. NOTICE. Notice of any special meeting shall be given by
written notice delivered personally or by telephone or by facsimile or mail (by
regular mail or established overnight courier) to each Director at his business
or residence address. Personally delivered notices or notices delivered by
facsimile shall be given at least two days prior to the meeting. Notice by mail
shall be given at least five days prior to the meeting. Telephonic notice shall
be given at least 24 hours prior to the meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail or with the courier
service properly addressed, with postage or mailing expense thereon prepaid. If
given by facsimile, such notice shall be deemed
6
to be given when the Corporation receives confirmation by the sending facsimile
machine that the facsimile has been received. Telephone notice shall be deemed
given when the Director is personally given such notice in a telephone call to
which he is a party. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the Directors need be stated in
the notice, unless specifically required by statute or these Bylaws.
Section 5. QUORUM. Except as provided in subsection (b) of Section 6, a
majority of the entire Board of Directors shall constitute a quorum for
transaction of business at any meeting of the Board of Directors, provided that,
if less than a majority of such Directors are present at said meeting, a
majority of the Directors present may adjourn the meeting from time to time
without further notice, and provided further that if, pursuant to the Charter or
these Bylaws, the vote of a majority of a particular group of Directors is
required for action, a quorum must also include a majority of such group.
The Directors present at a meeting which has been duly called and
convened may continue to transact business until adjournment, notwithstanding
the withdrawal of enough Directors to leave less than a quorum.
Section 6. VOTING.
(a) Except as provided in subsection (b) of this Section 6,
the action of the majority of the Board of Directors present at a meeting at
which a quorum is present shall be the action of the Directors, unless the
concurrence of a greater proportion is required for such action by the Charter,
these Bylaws or applicable statute.
(b) Notwithstanding the foregoing, two-thirds (2/3) of the
Directors then in office shall be necessary to constitute a quorum to approve
the actions set forth below in clauses (1) through (3), and such action shall
not be effective unless approved by two-thirds (2/3) of the Directors then in
office. Such action includes:
(1) A Change in Control (as hereinafter defined) of
the Corporation;
(2) Any amendment to the Charter or these Bylaws; and
(3) Acquisitions, dispositions or financings of
assets by the Corporation in excess of 25% of Total Market Capitalization (as
hereinafter defined) whether by merger, purchase, sale or otherwise. The value
of the assets of the Corporation for the purpose of determining whether such
assets constitute in excess of 25% of Total Market Capitalization shall be the
book value of such assets as reflected in the Corporation's most recent fiscal
year-end consolidation balance sheet at the time the determination is being made
or, if materially different and the transaction involves (A) an acquisition or
disposition, the amount of the consideration involved in such acquisition or
disposition or (B) a financing, the value of assets being financed as reflected
in the financing transaction.
7
For purposes of this Section 6(b):
(A) The term "Change in Control" of the Corporation shall mean any
transaction or series of transactions (whether by purchase of existing Common
Stock, issuance of Common Stock, merger, consolidation or otherwise) the result
of which is that either: (i) any Person or Group becomes the Beneficial Owner,
directly or indirectly, of 20% or more of the total voting power in the
aggregate of all classes of Capital Stock of the Corporation then outstanding
normally entitled to vote in the election of Directors of the Corporation (or
any surviving entity); or (ii) the Beneficial Owners of the Capital Stock of the
Corporation normally entitled to vote in the election of Directors immediately
prior to the transaction beneficially own less than 80% of the total voting
power in the aggregate of all classes of Capital Stock of the Corporation then
outstanding normally entitled to vote in the election of Directors of the
Corporation (or any surviving entity) immediately after such transaction.
(B) The term "Person" as used herein shall have the same meaning as
such term has for purposes of Sections 13(d) and 14(d) of the Exchange Act.
(C) The term "Group" has used herein shall have the same meaning as
such term has for purposes of Sections 13(d) and 14(d) of the Exchange Act.
(D) The term "Beneficial Owner" as used herein shall have the same
meaning as such term has for purposes of Rule 13d-3 promulgated under the
Exchange Act, except that a Person shall be deemed to have beneficial ownership
of all shares of stock that a Person has the right to acquire, whether or not
such right is immediately exercisable.
(E) The term "Total Market Capitalization" shall mean the sum of: (i)
the Market Value (as hereinafter defined) of the then outstanding Common Stock
and Preferred Stock; and (ii) the total principal amount of indebtedness of the
Corporation as reflected in the Corporation's most recent fiscal year-end
consolidation balance sheet existing at the time the Board of Directors would be
required to approve a transaction set forth in subparagraph (3) of this Section
6(b).
(G) The term "Market Value" with respect to Common Stock shall mean the
average of the daily market price for the ten (10) consecutive trading days
immediately prior to the date beginning fifteen (15) days before the Directors
would be required to approve a transaction set forth in subparagraph (3) of this
Section 6(b). The market price for each such trading date shall be the last
reported sales price of such stock reported on the New York Stock Exchange on
the trading day immediately preceding the relevant date, or if such stock is not
then traded on the New York Stock Exchange, the last reported sales price of
such stock on the trading day immediately preceding the relevant date as
reported on any exchange or quotation system over which such stock may be
traded, or if such stock is not then traded over any exchange or quotation
system, then the market price of such stock on the relevant date as determined
in good faith by the Board of Directors of the Corporation.
8
Section 7. TELEPHONE MEETINGS. Directors may participate in a meeting
by means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 8. INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by each
Director and such written consent is filed with the minutes of proceedings of
the Board of Directors.
Section 9. VACANCIES. If for any reason any or all of the Directors
cease to be Directors, such event shall not terminate the Corporation or affect
these Bylaws or the powers of the remaining Directors hereunder (even if fewer
than three Directors remain). Any vacancy (including a vacancy created by an
increase in the number of Directors) shall be filled, at any regular meeting or
at any special meeting called for that purpose, by a majority of the Board of
Directors. Any individual so elected as a Director shall hold office until the
next annual meeting of stockholders and until his successor is elected and
qualifies. Notwithstanding the foregoing, the stockholders may elect a successor
to fill a vacancy which results from the removal of a Director.
Section 10. COMPENSATION. Directors shall not receive any stated salary
for their services as Directors but, by resolution of the Board of Directors,
may receive cash compensation or a fixed sum of Common Stock of the Corporation
for any service or activity they performed or engaged in as Directors. By
resolution of the Board of Directors, Directors may receive a fee for and may be
reimbursed for expenses, if any, in connection with attendance, at each annual,
regular or special meeting of the Board of Directors or of any committee
thereof; and for their expenses, if any, in connection with each property visit
and any other service or activity performed or engaged in as Directors; but
nothing herein contained shall be construed to preclude any Directors from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 11. REMOVAL OF DIRECTORS. The stockholders may, at any time,
remove any Director in the manner provided in the Charter.
Section 12. LOSS OF DEPOSITS. No Director shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or shares of stock have
been deposited.
Section 13 SURETY BONDS. Unless required by law, no Director shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 14. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors
of the Corporation shall not be less than three (3) nor more than sixteen (16),
as
9
determined from time to time by resolution adopted by a majority of the Board
of Directors. Directors need not be stockholders of the Corporation.
ARTICLE IV
COMMITTEES OF BOARD OF DIRECTORS
Section 1. GENERAL. The Board of Directors may, by resolution passed by
a majority of the whole board, designate one or more committees, each such
committee to consist of one or more of the Directors of the Corporation. The
Board of Directors 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. Any such committee, to the extent provided in the resolution
of the Board of Directors shall have and may exercise all the powers 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; but no such committee shall have the
power or authority in reference to: (i) to authorize dividends on stock; (ii) to
authorize the issuance of stock (except that, if the Board of Directors has
given general authorization for the issuance of stock providing for or
establishing a method or procedure for determining the maximum number of shares
to be issued, a committee may, in accordance with the general authorization or
any stock option or other plan or program adopted by the Board, authorize or fix
the terms of stock subject to classification or reclassification and the terms
on which any stock may be issued); (iii) to recommend to the stockholders any
action which requires stockholder approval; (iv) to amend the Bylaws; or (v) to
approve any merger or share exchange which does not require stockholder
approval.
Section 2. COMMITTEES. The Board of Directors shall appoint such
committees as it may deem advisable and as may be required pursuant to such
rules and regulations as are applicable to the Corporation, including, but not
limited to, the rules and regulations of the Securities and Exchange Commission
and the rules of the New York Stock Exchange (or such other exchange as the
Corporation's securities may then be listed), and as are otherwise permitted by
law. The specific authority and members of any such committees shall be
designated by the resolution of the Board of Directors, provided that the
authority granted and the qualifications of members appointed are consistent
with and comply with the provisions of all rules and regulations applicable to
the Corporation, including, but not limited to, the rules and regulations of the
Securities and Exchange Commission and the rules of the New York Stock Exchange
(or such other exchange as the Corporation's securities may then be listed).
Section 3. RECORDS OF COMMITTEE MEETINGS. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required. The presence of a majority of the total membership of any
committee shall constitute a quorum for the transaction of business at any
meeting of such committee and the act of a majority of those present shall be
necessary and sufficient for the taking of any action at such meeting.
10
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation may
consist of a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a President, one or more Vice Presidents, a Treasurer, one or
more assistant treasurers, a Secretary, and one or more assistant secretaries.
In addition, the Board of Directors may from time to time appoint such other
officers with such powers and duties as they shall deem necessary or desirable.
The officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of stockholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as may be convenient.
Each officer shall hold office until his successor is elected and qualifies or
until his death, resignation or removal in the manner hereinafter provided. Any
two or more offices except President and Vice President may be held by the same
person. In their discretion, the Board of Directors may leave unfilled any
office except that of President, Secretary and Treasurer. Election of an officer
or agent shall not of itself create contract rights between the Corporation and
such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Corporation may be removed by the Board of Directors if in their judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Any officer of the Corporation may resign at any time by giving written
notice of his resignation to the Board of Directors, the Chairman of the Board,
the President or the Secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall become
effective is not specified therein, immediately upon its receipt. The acceptance
of a resignation shall not be necessary to make it effective unless otherwise
stated in the resignation. Such resignation shall be without prejudice to the
contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the
Board of Directors for the balance of the term.
Section 4. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The Chairman of the
Board shall preside over the meetings of the Board of Directors and of the
stockholders at which he shall be present and shall in general oversee all of
the business and affairs of the Corporation. In the absence of the Chairman of
the Board, the Vice Chairman of the Board shall preside at such meetings at
which he shall be present. The Chairman and the Vice Chairman of the Board may
execute any deed, mortgage, bond, contract or other instrument, except in cases
where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed. The Chairman of the Board
and the Vice Chairman of the Board shall perform such other duties as may be
assigned to him or them by the Board of Directors.
11
Section 5. CHIEF EXECUTIVE OFFICER. The Board of Directors may
designate a Chief Executive Officer from among the elected officers. The Chief
Executive Officer shall have responsibility for implementation of the policies
of the Corporation, as determined by the Board of Directors, and for the
administration of the business affairs of the Corporation. In the absence of
both the Chairman and Vice Chairman of the Board, the Chief Executive Officer
shall preside over the meetings of the Board of Directors and of the
stockholders at which he shall be present.
Section 6. CHIEF OPERATING OFFICER. The Board of Directors may
designate a Chief Operating Officer from among the elected officers. Said
officer will have the responsibilities and duties as set forth by the Board of
Directors or the Chief Executive Officer.
Section 7. CHIEF DEVELOPMENT OFFICER. The Board of Directors may
designate a Chief Development Officer from among the elected officers. Said
officer will have the responsibilities and duties as set forth by the Board of
Directors or the Chief Executive Officer.
Section 8. CHIEF FINANCIAL OFFICER. The Board of Directors may
designate a Chief Financial Officer from among the elected officers. Said
officer will have the responsibilities and duties as set forth by the Board of
Directors or the Chief Executive Officer.
Section 9. PRESIDENT. In the absence of the Chairman, the Vice Chairman
of the Board and the Chief Executive Officer, the President shall preside over
the meetings of the Board of Directors and of the stockholders at which he shall
be present. In the absence of a designation of a Chief Executive Officer by the
Board of Directors, the President shall be the Chief Executive Officer and shall
be ex officio a member of all committees that may, from time to time, be
constituted by the Board of Directors. The President may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Board of Directors or by
these Bylaws to some other officer or agent of the Corporation or shall be
required by law to be otherwise executed; and in general shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 10. VICE PRESIDENTS. In the absence of the President or in the
event of a vacancy in such office, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order designated at the
time of their election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the President and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President; and shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors. The Board of
Directors may designate one or more Vice Presidents as Executive Vice President
or as Vice President for particular areas of responsibility.
12
Section 11. SECRETARY. The Secretary shall: (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Corporation; (d) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (e)
have general charge of the stock transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by
the Chief Executive Officer, the President or by the Board of Directors.
Section 12. TREASURER. The Treasurer shall have the custody of the
funds and securities of the Corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board of Directors or whenever they may require it, an account
of all his transactions as Treasurer and of the financial condition of the
Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 13. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the Secretary or Treasurer, respectively,
or by the President or the Board of Directors. The assistant treasurers shall,
if required by the Board of Directors, give bonds for the faithful performance
of their duties in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors.
Section 14. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director.
13
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer
or agent to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Corporation and such authority may be general
or confined to specific instances. Any agreement, deed, mortgage, lease or other
document executed by one or more of the Board of Directors or by an authorized
person shall be valid and binding upon the Board of Directors and upon the
Corporation when authorized or ratified by action of the Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation in such manner as shall from time to time be
determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Each stockholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of stock held by him in the Corporation. Each certificate
shall be signed by the President, a Vice President or the Chairman of the Board
and countersigned by the Secretary or an assistant secretary or the Treasurer or
an assistant treasurer and may be sealed with the seal, if any, of the
Corporation. The signatures may be either manual or facsimile. Certificates
shall be consecutively numbered; and if the Corporation shall, from time to
time, issue several classes of shares of stock, each class may have its own
number series. A certificate is valid and may be issued whether or not an
officer who signed it is still an officer when it is issued. Each certificate
shall contain on its face or back a full statement or summary of such
information with respect to the stock of the Corporation as is required by the
MGCL. In lieu of such statement or summary, the Corporation may set forth upon
the face or back of the certificate a statement that the Corporation will
furnish to any stockholder, upon request and without charge, a full statement of
such information.
Section 2. TRANSFERS. Certificates shall be treated as negotiable, and
title thereto and to the shares of stock they represent shall be transferred by
delivery thereof. No transfers of shares of stock of the Corporation shall be
made if: (i) void ab initio pursuant to any provision of the Charter; or (ii)
the Board of Directors, pursuant to any provision of the Charter, shall have
refused to permit the transfer of such shares of stock. Permitted transfers of
shares of stock of
14
the Corporation shall be made on the stock records of the Corporation only upon
the instruction of the registered holder thereof, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary or
with a transfer agent or transfer clerk, and upon surrender of the certificate
or certificates, if issued, for such shares of stock properly endorsed or
accompanied by a duly executed stock transfer power and the payment of all taxes
thereon. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares of stock duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, as to any
transfers not prohibited by any provision of the Charter or by action of the
Board of Directors thereunder, it shall be the duty of the Corporation to issue
a new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board
of Directors may direct a new certificate to be issued in place of any
certificate previously issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, the officer designated by the Board of Directors
may, in his discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or the owner's
legal representative to advertise the same in such manner as he shall require
and/or to give bond, with sufficient surety, to the Corporation to indemnify it
against any loss or claim which may arise as a result of the issuance of a new
certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other purpose. Such date, in any case,
shall not be prior to the close of business on the day the record date is fixed
and shall be not more than 90 days, and in the case of a meeting of stockholders
not less than ten days, before the date on which the meeting or particular
action requiring such determination of stockholders of record is to be held or
taken.
In lieu of fixing a record date, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not longer
than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not closed
for the determination of stockholders, (a) the record date for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting, and (b) the record date for the determination of stockholders entitled
to receive
15
payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the Board of
Directors declaring the dividend or allotment of rights is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when: (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired; or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its
principal office or at the office of its counsel, accountants or transfer agent,
an original or duplicate stock ledger containing the name and address of each
stockholder and the number of shares of each class of stock held by such
stockholder.
Section 6. FRACTIONAL SHARES OF STOCK; ISSUANCE OF UNITS. The Board of
Directors may issue fractional shares of stock or provide for the issuance of
scrip, all on such terms and under such conditions as they may determine.
Notwithstanding any other provision of the Charter or these Bylaws, the Board of
Directors may issue units consisting of different securities of the Corporation.
Any security issued in a unit shall have the same characteristics as any
identical securities issued by the Corporation, except that the Board of
Directors may provide that for a specified period securities of the Corporation
issued in such unit may be transferred on the books of the Corporation only in
such unit.
ARTICLE VIII
DIVIDENDS AND DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the
shares of stock of the Corporation may be authorized and declared by the Board
of Directors, subject to the provisions of law and the Charter. Dividends may be
paid in cash, property or shares of stock of the Corporation, subject to the
provisions of law and the Charter.
Section 2. CONTINGENCIES. Before payment of any dividends, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors may from time to time, in their absolute
discretion, think proper as a reserve fund for contingencies, for equalizing
dividends, for repairing or maintaining any property of the Corporation or for
such other purpose as the Board of Directors shall determine to be in the best
interest of the Corporation; and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
16
ARTICLE IX
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a
seal by the Corporation. The seal shall have inscribed thereon the name of the
Corporation and the year of its formation. The Board of Directors may authorize
one or more duplicate seals and provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is required to place
its seal to a document, it shall be sufficient to meet the requirements of any
law, rule or regulation relating to a seal to place the word "(SEAL)" adjacent
to the signature of the person authorized to execute the document on behalf of
the Corporation.
ARTICLE X
INDEMNIFICATION AND ADVANCES FOR EXPENSES
To the maximum extent permitted by Maryland law in effect from time to
time, the Corporation, without requiring a preliminary determination of the
ultimate entitlement to indemnification, shall indemnify (a) any Director or
officer or any former Director or officer (including among the foregoing, for
all purposes of this Article X and without limitation, any individual who, while
a Director or officer and at the express request of the Corporation, serves or
has served another corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise as a director, officer or partner of such
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise) who has been successful, on the merits or otherwise, in the defense
of a proceeding to which he was made a party by reason of service in such
capacity, against reasonable expenses incurred by him in connection with the
proceeding and (b) any Director or officer or any former Director or officer
against any claim or liability to which he may become subject by reason of such
status unless it is established that: (i) his act or omission was material to
the matter giving rise to the proceeding and was committed in bad faith or was
the result of active and deliberate dishonesty; (ii) he actually received an
improper personal benefit in money, property or services; or (iii) in the case
of a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful. In addition, the Corporation shall pay or reimburse, in
advance of final disposition of a proceeding, reasonable expenses incurred by a
Director or officer or former Director or officer made a party to a proceeding
by reason of such status, provided that, in the case of a Director or officer,
the Corporation shall have received: (i) a written affirmation by the Director
or officer of his good faith belief that he has met the applicable standard of
conduct necessary for indemnification by the Corporation as authorized by these
Bylaws; and (ii) a written undertaking by or on the Director's or officer's
behalf to repay the amount paid or reimbursed by the Corporation if it shall
ultimately be determined that the applicable standard of conduct was not met.
The Corporation may, with the approval of its Directors, provide such
indemnification or payment or
17
reimbursement of expenses to any Director or officer or any former Director or
officer who served a predecessor of the Corporation and to any employee or agent
of the Corporation or a predecessor of the Corporation. Neither the amendment
nor repeal of this Article, nor the adoption or amendment of any other provision
of the Charter or these Bylaws inconsistent with this Article, shall apply to or
affect in any respect the applicability of this Article with respect to any act
or failure to act which occurred prior to such amendment, repeal or adoption.
Any indemnification or payment or reimbursement of the expenses
permitted by these Bylaws shall be furnished in accordance with the procedures
provided for indemnification or payment or reimbursement of expenses, as the
case may be, under Section 2-418 of the MGCL for directors of Maryland
corporations. The Corporation may provide to Directors or officers such other
and further indemnification or payment or reimbursement of expenses, as the case
may be, to the fullest extent permitted by the MGCL, as in effect from time to
time, for directors of Maryland corporations.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter or
Bylaws or pursuant to applicable law, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice. Neither
the business to be transacted at, nor the purpose of, any meeting need be set
forth in the waiver of notice, unless specifically required by statute. The
attendance of any person at any meeting shall constitute a waiver of notice of
such meeting, except where such person attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
ARTICLE XII
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter
or repeal any provision of these Bylaws and to make new Bylaws in accordance
with Article III hereof.
18