EXHIBIT 3.5
M&T BANK CORPORATION
BYLAWS
(AS ADOPTED ON OCTOBER 15, 2002 AND EFFECTIVE AS OF APRIL 1, 2003)
AMENDED AND RESTATED
BYLAWS
OF
M&T BANK CORPORATION
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING: The annual meeting of the stockholders of
the Corporation, for the election of directors and for the transaction of such
other business as may be set forth in the notice of the meeting, shall be held
each year at the principal office of the Corporation or at such other place
within or without the State of New York as the board of directors shall
determine and the notice of the meeting shall specify the hour of day on the
third Tuesday in April in each year or at such other date within the period of
60 days next succeeding such date as the board of directors shall determine. If
that day be a legal holiday in any year, the meeting shall be held on the next
following that is not a legal holiday.
SECTION 2. SPECIAL MEETINGS: Special meetings of the stockholders may
be called by the board of directors or by the Chief Executive Officer, and shall
be called by the Secretary or an Assistant Secretary at the request in writing
of the holders of record of at least 25% of the outstanding shares of the
Corporation entitled to vote. Such request shall state the purpose or purposes
for which the meeting is to be called. Each special meeting of the stockholders
shall be held at such time as the board of directors or the person calling the
meeting (the Chief Executive Officer, Secretary or Assistant Secretary, as the
case may be) shall
determine and the notice of the meeting shall specify, and shall be held at the
principal office of the Corporation or at such other place within or without the
State of New York as the board of directors shall determine or the notice of
meeting shall specify.
SECTION 3. NOTICE OF MEETINGS: Written notice of each meeting of the
stockholders shall be given, personally or by mail, not less than 10 nor more
than 60 days before the date of the meeting, to each stockholder entitled to
vote at such meeting. If mailed, such notice shall be deposited in the United
States mail, with first-class postage thereon prepaid, directed to the
stockholder at his address as it appears on the record of stockholders, or, if
he shall have filed with the Secretary of the Corporation a written request that
notices to him be mailed to some other address, then directed to him at such
other address. The notice shall state the place, date and hour of the meeting,
the purpose or purposes for which the meeting is called and, unless it is the
annual meeting, indicate that the notice is being issued by or at the direction
of the person calling the meeting. The notice need not refer to the approval of
minutes or to other matters normally incident to the conduct of the meeting.
Except for such matters, the business which may be transacted at the meeting
shall be confined to business which is related to the purpose or purposes set
forth in the notice. If, at any meeting, action is proposed to be taken which
would, if taken, entitle dissenting stockholders to receive payment for their
shares, the notice of such meeting shall include a statement of that purpose and
to that effect.
SECTION 4. WAIVER OF NOTICE: Whenever under any provision of these
Bylaws, the certificate of incorporation, the terms of any agreement or
instrument, or law, the Corporation or the board of directors or any committee
thereof is authorized to take any action after notice to
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any person or persons or after the lapse of a prescribed period of time, such
action may be taken without notice and without the lapse of such period of time,
if at any time before or after such action is completed the person or persons
entitled to such notice or entitled to participate in the action to be taken or,
in the case of a stockholder, by his duly authorized attorney-in-fact, submit a
signed waiver of notice of such requirements. The attendance of any stockholder
at a meeting, in person or by proxy, without protesting prior to the conclusion
of the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
SECTION 5. PROCEDURE: At each meeting of stockholders the order of
business and all other matters of procedure may be determined by the person
presiding at the meeting.
SECTION 6. LIST OF STOCKHOLDERS: A list of stockholders as of the
record date, certified by the corporate officer responsible for its preparation
or by a transfer agent, shall be produced at any meeting of stockholders upon
the request thereat or prior thereto of any stockholder. If the right to vote at
any meeting is challenged, the inspectors of election, or person presiding
thereat, shall require such list of stockholders to be produced as evidence of
the right of the persons challenged to vote at such meeting, and all persons who
appear from such list to be stockholders entitled to vote thereat may vote at
such meeting.
SECTION 7. QUORUM: At each meeting of stockholders for the transaction
of any business, a quorum shall be present to organize such meeting. Except as
otherwise provided by law, a quorum shall consist of the holders of record of
not less than a majority of the outstanding shares of the Corporation entitled
to vote at such meeting, present either in person or by proxy.
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When a quorum is once present to organize a meeting of the stockholders, it is
not broken by the subsequent withdrawal of any stockholders.
SECTION 8. ADJOURNMENTS: The stockholders entitled to vote who are
present in person or by proxy at any meeting of stockholders, whether or not a
quorum shall be present at the meeting, shall have power by a majority vote to
adjourn the meeting from time to time without notice other than announcement at
the meeting of the time and place to which the meeting is adjourned. At any
adjourned meeting at which a quorum shall be present any business may be
transacted that might have been transacted on the original date of the meeting
and the stockholders entitled to vote at the meeting on the original date
(whether or not they were present thereat), and no others, shall be entitled to
vote at such adjourned meeting.
SECTION 9. VOTING; PROXIES: Each stockholder of record shall be
entitled at every meeting of stockholders to one vote for each share having
voting power standing in his name on the record of stockholders of the
Corporation on the record date fixed pursuant to Section 3 of Article VI of
these Bylaws. Each stockholder entitled to vote at a meeting of stockholders may
vote in person, or may authorize another person or persons to act for him by
proxy. Any proxy may be signed by such stockholder or his duly authorized
attorney-in-fact, including by facsimile signature, and shall be delivered to
the Secretary of the meeting, or may be authorized by telegram, cablegram or
other electronic transmission provided that it can be reasonably determined from
such telegram, cablegram or other electronic transmission that such proxy was
authorized by the stockholder. The signature of a stockholder on any proxy,
including without limitation a telegram, cablegram or other electronic
transmission, may be printed, stamped or
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written, or provided by other reliable reproduction, provided such signature is
executed or adopted by the stockholder with intention to authenticate the proxy.
No proxy shall be valid after the expiration of 11 months from the date of its
execution unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the stockholder executing it, except as otherwise provided by
law.
Directors elected at any meeting of the stockholders shall, except as
otherwise provided by law or the certificate of incorporation, be elected by a
plurality of the votes cast in favor or against such action. All other corporate
action to be taken by vote of the stockholders shall, except as otherwise
provided by law, the certificate of incorporation or these Bylaws, be authorized
by a majority of the votes cast in favor or against such action. The vote for
directors, or upon any question before a meeting of stockholders, shall not be
by ballot unless the person presiding at such meeting shall so direct or any
stockholder, present in person or by proxy and entitled to vote thereon, shall
so demand.
SECTION 10. APPOINTMENT OF INSPECTORS OF ELECTION: The board of
directors shall appoint one or more inspectors to act at the meeting or any
adjournment thereof, and may appoint one or more persons as alternate inspectors
to replace any inspector who fails to appear or act. If no inspector or
alternate has been appointed, or in case any inspector or alternate inspector
appointed fails to appear or act, the vacancy shall be filled by appointment
made by the person presiding thereat. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to
the best of his ability. No person who is a candidate for the office
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of director of the Corporation shall act as an inspector at any meeting of the
stockholders at which directors are elected.
SECTION 11. DUTIES OF INSPECTORS OF ELECTION: Whenever one or more
inspectors of election may be appointed as provided in these Bylaws, he or they
shall determine the number of shares outstanding and entitled to vote, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders.
SECTION 12. ADVANCE NOTICE OF PROPOSALS: At an annual or special
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 the meeting, (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 of
stockholders pursuant to clause (c) above, the stockholder must have given
timely notice thereof to the Corporate Secretary of the Corporation and such
business must be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Corporate Secretary at the
principal executive offices of the Corporation not later than the following
dates: (1) at the close of business on the 120th day prior to the date on which
the Corporation first
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mailed its proxy materials for the preceding year's annual meeting of
stockholders if the date of the annual meeting is not changed more than 30 days
from the date of the preceding year's annual meeting, and (2) with respect to
any other annual meeting or special meeting of stockholders, the close of
business on the tenth day following the date of public disclosure of the date of
such meeting is first made. In no event shall the announcement of an adjournment
of an annual meeting or special meeting of stockholders commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to the stockholder giving the notice
(i) the names and business addresses of the stockholder and all Persons (as such
term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as
amended, through the date of adoption of these Bylaws) acting in concert with
the stockholder; (ii) the names and addresses of the stockholder and the Persons
identified in clause (i), as they appear on the Corporation's books (if they so
appear); and (iii) the class and number of shares of the Corporation
beneficially owned by the stockholder and the Persons identified in clause (i),
(b) as to the business being proposed, (i) a brief description of the business
desired to be brought before the meeting; (ii) the reasons for conducting such
business at the meeting; and (iii) any material interest of the stockholder in
such business; and (c) such other information as the Board of Directors
reasonably determines is necessary or appropriate to enable the Board of
Directors and stockholders of the Corporation to consider the proposal. The
person presiding at the annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this section and, if he or she
shall so determine, he or she shall declare to the meeting that any business not
properly brought before the meeting shall not be transacted.
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ARTICLE II
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATIONS: The number of directors
constituting the entire board shall not be less than three, except that where
all the shares of the Corporation are owned beneficially and of record by less
than three stockholders, the number of directors may be less than three, but not
less than the number of stockholders. Subject to any provision as to the number
of directors contained in the certificate of incorporation or these Bylaws, the
exact number of directors shall be fixed from time to time by action of the
stockholders or by vote of a majority of the entire board of directors, provided
that no decrease in the number of directors shall shorten the term of any
incumbent director; and provided, further, that, until the Sunset Date (as
defined in Article XII hereof), without the consent of the Significant
Stockholder (as defined in Article XII hereof), the number of directors shall
not exceed 28. If the number of directors be increased at any time, the vacancy
or vacancies in the board arising from such increase shall be filled as provided
in Section 6 of this Article II. All of the directors shall be at least
twenty-one years of age.
SECTION 2. ELECTION AND TERM OF OFFICE: Except as otherwise specified
by law or these Bylaws, each director of the Corporation shall be elected at an
annual meeting of stockholders or at any meeting of the stockholders held in
lieu of such annual meeting, which meeting, for the purposes of these Bylaws,
shall be deemed the annual meeting, and shall hold office until the next annual
meeting of stockholders and until his successor has been elected and qualified.
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SECTION 3. NOMINATION AND RECOMMENDATION OF SIGNIFICANT STOCKHOLDER
DESIGNEES:
(a) For so long as the Significant Stockholder holds at least
fifteen percent (15%) of the outstanding shares of common stock of the
Corporation, the Board of Directors, acting through the Nomination and
Compensation Committee, shall nominate and recommend for election as directors
of the Corporation at least four (4) persons designated by the Significant
Stockholder, each of whom is reasonably acceptable to the Corporation.
(b) For so long as the Significant Stockholder holds at least ten
percent (10%), but less than fifteen percent (15%), of the outstanding shares of
common stock of the Corporation, the Board of Directors, acting through the
Nomination and Compensation Committee, shall nominate and recommend for election
as directors of the Corporation at least two (2) persons designated by the
Significant Stockholder, each of whom is reasonably acceptable to the
Corporation.
(c) For so long as the Significant Stockholder holds at least five
percent (5%), but less than ten percent (10%), of the outstanding shares of
common stock of the Corporation, the Board of Directors, acting through the
Nomination and Compensation Committee, shall nominate and recommend for election
as a director of the Corporation at least one (1) person designated by the
Significant Stockholder, who is reasonably acceptable to the Corporation.
(d) For purposes of determining the number of outstanding shares
of common stock of this Corporation for purposes of this Article II, Section 3,
Article X, Section 3 and Article XII, Section 1(h), there shall be used the
number of shares of common stock of the Corporation disclosed as outstanding on
the cover page of the Corporation's most recently filed Annual Report on Form
10-K or Report on Form 10-Q, as the case may be, or the number of
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shares of common stock of the Corporation actually outstanding as of a later
date, if requested by the Corporation or the Significant Stockholder, determined
on the same basis as the number of shares disclosed on such Reports. Any share
held by any direct or indirect subsidiary of the Significant Stockholder of
which the Significant Stockholder holds 80% or more of the outstanding equity
capital or voting shares shall be deemed held by the Significant Stockholder. In
the event that the transaction that would result in the Significant
Stockholder's holdings being below any threshold set forth herein is a
transaction that gives rise to an Issuance Event (as defined in Article XII
hereof), no diminution in the percentage of the outstanding shares of common
stock of the Corporation held by the Significant Stockholder shall be deemed to
have occurred until the earlier of such time as the Significant Stockholder
gives written notice that it shall not exercise its Maintenance Rights (as
defined in Article XII hereof) or the deadline for exercise of such Maintenance
Rights has passed without the Significant Stockholder having provided notice
that it shall exercise the same. No diminution in the percentage of outstanding
shares of common stock held by the Significant Stockholder shall be deemed to
have occurred as a result of any issuance of shares that is subject to the
Corporation's repurchase obligations under Section 7.2(c) or Section 7.2(e) of
the Reorganization Agreement. In the event that the Significant Stockholder's
holdings decrease to less than fifteen percent (15%), but not less than twelve
percent (12%), of the outstanding common stock, the Significant Stockholder's
holdings shall be deemed to be equal to fifteen percent (15%) for all purposes
of the definition of Sunset Date and of this Article II, Section 3, unless, not
later than one year from the date on which the Significant Stockholder's
holdings decreased to less than fifteen percent (15%), the Significant
Stockholder's holdings have not been restored to at least fifteen percent (15%)
of the outstanding shares of common stock of the Corporation.
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(e) In the event that the Corporation objects to any designee for
board or committee service on the grounds that such designee is not "reasonably
acceptable" under any provision of this Article II, Section 3, the Corporation
shall fully cooperate and shall use best efforts to work with the Significant
Stockholder to promptly resolve any such objection so that such designee may as
promptly as practicable serve in the capacity for which he or she has been
designated or, in the alternative, to promptly identify a substitute candidate
that is reasonably acceptable, in order to give effect to the intention of the
Corporation and the Significant Stockholder regarding board and committee
representation, as applicable, contemplated by this Article II, Section 3.
SECTION 4. RESIGNATION: Any director of the Corporation may resign at
any time by giving his resignation to the President or any Vice President or the
Secretary. Such resignation shall take effect at the time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 5. REMOVAL OF DIRECTORS: Any director may be removed for cause,
at any meeting of stockholders notice of which shall have referred to the
proposed action, by vote of the stockholders. Any director may be removed
without cause, at any meeting of stockholders notice of which shall have
referred to the proposed action, by the vote of the holders of a majority of the
shares of the Corporation entitled to vote. Any director may be removed for
cause, at any meeting of the directors notice of which shall have referred to
the proposed action, by vote of three-fourths of the entire board of directors.
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SECTION 6. VACANCIES: Newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the board of
directors for any reason except the removal of directors may be filled by vote
of a majority of the directors then in office, although less than a quorum
exists. Subject to Article III, Section 4, any vacancy occurring in the board of
directors by reason of the removal of a director by stockholders may be filled
by vote of the stockholders at the meeting at which such action is taken or at
any meeting of stockholders notice of which shall have referred to the proposed
election. Subject to Article III, Section 4, if any such newly created
directorships or vacancies occurring in the board of directors for any reason
shall not be filled prior to the next annual meeting of stockholders, they shall
be filled by vote of the stockholders at such annual meeting. Any director
elected to fill a vacancy shall be elected to hold office for the unexpired term
of his predecessor.
SECTION 7. DIRECTORS' FEES: Directors, except salaried officers who are
directors, may receive a fee for their services as directors and traveling and
other out-of-pocket expenses incurred in attending any regular or special
meeting of the board. The fee may be a fixed sum to be paid for attending each
meeting of the board of directors and/or a fixed sum to be paid monthly,
quarterly, or semiannually, irrespective of the number of meetings attended or
not attended. The amount of the fee and the basis on which it shall be paid
shall be determined by the board of directors. Nothing herein contained shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation for such service.
SECTION 8. FIRST MEETING OF NEWLY ELECTED DIRECTORS: The first meeting
of the newly elected board of directors may be held immediately after the annual
meeting of
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stockholders, and at the same place as such annual meeting of stockholders,
provided a quorum be present, and no notice of such meeting shall be necessary.
In the event such first meeting of the newly elected board of directors is not
held at said time and place, the same shall be held as provided in Section 9 of
this Article II.
SECTION 9. MEETINGS OF DIRECTORS: Regular and special meetings of the
board of directors shall be held at such times and at such place, within or
without the State of New York, as the board of directors may determine. Special
meetings may also be called by the Chief Executive Officer or by any four
members of the board, and shall be held at such time and at such place as the
person or persons calling the meeting shall determine.
SECTION 10. NOTICE OF MEETINGS: Notice of each regular or special
meeting of the board of directors, stating the time and place thereof shall be
given by the Secretary, any Assistant Secretary or any member of the board to
each member of the board not less than three days before the meeting by
depositing the same in the United States mail, with first-class postage thereon
prepaid, directed to each member of the board at the address designated by him
for such purpose (or, if none is designated, at his last known address), or not
less than two days before the meeting by either delivering the same to each
member of the board personally, or sending the same by electronic mail,
facsimile or telegraph, or delivering it, to the address designated by him for
such purpose (or, if none is designated, to his last known address). Notice of a
meeting need not be given to any director who submits a signed waiver of notice
whether before or after the meeting. The notice of any meeting of the board of
directors need not specify the purposes for
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which the meeting is called, except as provided in Section 5 of this Article II
and as provided in Article X of these Bylaws.
SECTION 11. QUORUM AND ACTION BY THE BOARD: At all meetings of the
board of directors, except as otherwise provided by law, the certificate of
incorporation or these Bylaws, a quorum shall be required for the transaction of
business and shall consist of not less than one-third of the entire board, and
the vote of a majority of the directors present shall decide any question that
may come before the meeting. A majority of the directors present, whether or not
a quorum is present, may adjourn any meeting to another time or place without
notice other than announcement at the meeting of the time and place to which the
meeting is adjourned.
SECTION 12. CERTAIN ACTIONS:
Notwithstanding any other provision of these Bylaws to the contrary:
(a) Until the Sunset Date, unless the Executive Committee shall
have, by the appropriate affirmative vote of members which shall include the
affirmative vote of the Significant Stockholder Designee (as defined in Article
XII hereof) on the Executive Committee, previously approved and recommended such
action or recommendation to the board of directors, the board of directors shall
not take, or make any recommendation to the stockholders of the Corporation with
respect to, any of the following actions:
(i) Any amendment of the certificate of incorporation or
Bylaws that would be inconsistent with this Article II, Section 12 or would
otherwise have an adverse effect on the board representation, committee
representation or other rights of the Significant Stockholder contemplated by
these Bylaws or by the Reorganization Agreement (as defined in
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Article XII hereof);
(ii) Authorizing the Corporation or any of its
subsidiaries to engage in any activity not permissible for a U.S. bank holding
company;
(iii) The adoption of any stockholder rights plan or other
measures having the purpose or effect of preventing or materially delaying
completion of any transaction involving a Change in Control (as defined in
Article XII hereof); or
(iv) Any public announcement by the Corporation or any
affiliate of the Corporation disclosing the Corporation's desire or intention to
take any of the foregoing actions prior to obtaining the requisite Committee
approval.
(b) Until the Sunset Date, unless the Executive Committee (in the
case of items (i) through (iv) and (vi) below) or the Nomination and
Compensation Committee (in the case of item (v) below) shall have, by the
requisite affirmative vote of the members of such Committee such that the
members not voting in favor of such matter do not include both the Significant
Stockholder Designee on such Committee and at least one other member thereof,
previously approved and recommended such action or recommendation to the board
of directors, the board of directors shall not take, or make any recommendation
to the stockholders of the Corporation with respect to, any of the following
actions:
(i) Any change in the Corporation's cash dividend policy
such that the ratio of cash dividends to net income is not at least fifteen
percent (15%), or any extraordinary dividends or distributions to holders of
common stock of the Corporation;
(ii) Any acquisition (in one transaction or a series of
related transactions), directly or indirectly, by the Corporation or any
subsidiary of the Corporation (except from the Corporation or a wholly owned
subsidiary of the Corporation) of any assets or
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businesses, in one transaction or a series of related transactions (whether by
merger, tender or exchange offer, asset purchase or otherwise) in which the
consideration paid by the Corporation (A) if in shares of common stock of the
Corporation, will exceed ten percent (10%) of the aggregate voting power of the
outstanding voting securities of the Corporation as of the date that the
Corporation or any such subsidiary enters into a definitive agreement to effect
such transaction or, in the case of a series of related transactions, as of the
date that the Corporation or any such subsidiary enters into a definitive
agreement to effect the last of such related transactions, or (B) if in cash,
property or common stock of the Corporation or other securities of the
Corporation, has a fair market value at the time of the execution by the
Corporation or such subsidiary of a definitive agreement to effect such
transaction which will exceed ten percent (10%) of the aggregate Fair Market
Value of the outstanding common stock of the Corporation as of the date that the
Corporation or any such subsidiary enters into a definitive agreement to effect
such transaction or, in the case of a series of related transactions, at the
time of the execution by the Corporation or such subsidiary of a definitive
agreement to effect the last of such related transactions, which will exceed ten
percent (10%) of the aggregate Fair Market Value of the outstanding common stock
of the Corporation as of the date that the Corporation or any such subsidiary
enters into a definitive agreement to effect the last of such related
transactions;
(iii) Any disposition (in one transaction or a series of
related transactions), directly or indirectly, by the Corporation or any
subsidiary of the Corporation (except to the Corporation or an 80% or more owned
subsidiary of the Corporation) of any assets or businesses, in one transaction
or a series of related transactions (whether by merger, tender or exchange
offer, asset purchase or otherwise) in which the value of the aggregate
consideration to
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be received in respect of the assets disposed of exceeds ten percent (10%) of
the aggregate Fair Market Value of the outstanding common stock of the
Corporation as of the date that the Corporation or any such subsidiary enters
into a definitive agreement to effect such transaction or, in the case of a
series of related transactions, as of the date that the Corporation or any such
subsidiary enters into a definitive agreement to effect the last of such related
transactions;
(iv) Any voluntary liquidation or dissolution of the
Corporation or the submission of any proposal to the stockholders of the
Corporation to liquidate or dissolve the Corporation;
(v) The appointment or election of the Chairman of the
Board of Directors or the Chief Executive Officer of the Corporation; or
(vi) Any public announcement by the Corporation or any
affiliate of the Corporation disclosing the Corporation's desire or intention to
take any of the foregoing actions prior to obtaining the requisite Committee
approval.
SECTION 13. PROCEDURES: The order of business and all other matters of
procedure at every meeting of directors may be determined by the person
presiding at the meeting.
SECTION 14. MEETINGS BY CONFERENCE TELEPHONE: Any one or more members
of the board of directors or any committee thereof may participate in a meeting
of such board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at the meeting.
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ARTICLE III
COMMITTEES OF DIRECTORS
SECTION 1. DESIGNATION OF COMMITTEES: The board of directors, by
resolution or resolutions adopted by a majority of the entire board, may
designate from among its members an Executive Committee and other committees,
each consisting of two or more directors, and may designate one or more
directors as alternate members of such committee, who may replace any absent or
disqualified member or members at any meeting of such committee (provided that
alternate committee members with respect to any Significant Stockholder Designee
serving on any such committee shall be designated by the Significant Stockholder
Designees). In the interim between meetings of the board of directors, the
Executive Committee shall have all the authority of the board of directors
except as otherwise provided by law. Subject to Article II, Section 12 and
Article III, Section 4 hereof, the Executive Committee shall serve at the
pleasure of the board of directors. Subject to Article III, Section 4 below,
each other committee so designated shall have such name as may be provided from
time to time in the resolution or resolutions, shall serve at the pleasure of
the board of directors and shall have, to the extent provided in such resolution
or resolutions, all the authority of the board of directors except as otherwise
provided by law.
SECTION 2. ACTS AND PROCEEDINGS: All acts done and power and authority
conferred by the Executive Committee from time to time within the scope of its
authority shall be, and may be deemed to be, and may be specified as being, the
act and under the authority of
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the board of directors. The Executive Committee shall meet at such time and
place and upon such notice as the Committee may from time to time determine.
Meetings may also be called by the Chief Executive Officer and shall be held at
such time and place as he shall determine. The Executive Committee and each
other committee shall keep regular minutes of its proceedings and report its
actions to the board of directors when required.
SECTION 3. COMPENSATION: Members of the Executive Committee or of any
other committee, except salaried officers who are directors, may receive such
compensation for their services as the board of directors shall from time to
time determine.
SECTION 4. COMPOSITION: Until the Sunset Date, one among the
Significant Stockholder Designees shall be a member of each of the Executive
Committee, Nomination and Compensation Committee and Audit Committee (or any
committee or committees performing comparable functions); provided, that any
such committee members shall meet the requisite independence and expertise
requirements under applicable law or stock exchange rules. The Significant
Stockholder may, and shall have the sole right to, remove any Significant
Stockholder Designee from any committee upon which such Significant Stockholder
Designee is serving and appoint a director to fill any vacancy, regardless of
the cause of such vacancy, on any such committee or the board of directors
caused by the departure of any such Significant Stockholder Designee (other than
a vacancy caused by the occurrence of the Sunset Date or one of the thresholds
contemplated by Article II, Section 3 hereof being triggered); provided that any
replacement committee members shall meet the requisite independence and
expertise requirements prescribed under applicable law or stock exchange rules.
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ARTICLE IV
OFFICERS
SECTION 1. OFFICERS: The board of directors shall annually, at the
first meeting of the board after the annual meeting of stockholders, appoint or
elect a President, and a Secretary, and may at each meeting and from time to
time elect or appoint such additional officers as it may determine. Such
additional officers shall have such authority and perform such duties as the
board of directors may from time to time prescribe.
SECTION 2. TERM OF OFFICE: The President and the Secretary shall,
unless otherwise determined by the board of directors, hold office until the
first meeting of the board following the next annual meeting of stockholders and
until their successors have been elected or appointed and qualified. Each
additional officer appointed or elected by the board of directors shall hold
office for such term as shall be determined from time to time by the board of
directors and until his successor has been elected or appointed and qualified.
Any officer, however, may be removed or have his authority suspended by the
board of directors at any time, with or without cause. If the office of any
officer becomes vacant for any reason, the board of directors shall have the
power to fill such vacancy.
SECTION 3. THE CHIEF EXECUTIVE OFFICER: The board of directors may from
time to time designate one of the officers of the Corporation as Chief Executive
Officer. The Chief Executive Officer shall, under the control of the board of
directors and the Executive Committee,
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have the general management of the Corporation's business affairs and property
and shall exercise general supervision over all activities of the Corporation
and the other officers. The Chief Executive Officer shall have the power to
appoint or hire, to remove, and to determine the compensation of, all employees
of the Corporation who are not officers, and to delegate the foregoing powers
from time to time in whole or in part. The Chief Executive Officer shall preside
at all meetings of the stockholders and of the board of directors.
In the absence or incapacity of the Chief Executive Officer the powers
and duties of that office shall be vested in such other officer as may from time
to time be designated by the board of directors or the Executive Committee, or,
in the absence of any such designation, by the Chief Executive Officer.
SECTION 4. THE PRESIDENT: If the board of directors has not designated
another officer as Chief Executive Officer, the President shall be the Chief
Executive Officer of the Corporation.
SECTION 5. THE SECRETARY: The Secretary shall issue notices of all
meetings of stockholders and directors where notices of such meetings are
required by law or these Bylaws. He shall attend all meetings of stockholders
and of the board of directors and keep the minutes thereof. He shall affix the
corporate seal to and sign such instruments as require the seal and his
signature and shall perform such other duties as usually pertain to his office
or as are properly required of him by the board of directors.
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SECTION 6. OFFICERS HOLDING TWO OR MORE OFFICES: Any two or more
offices may be held by the same person, except the office of President and
Secretary, but no officer shall execute or verify any instrument in more than
one capacity if such instrument be required by law or otherwise to be executed
or verified by two or more officers.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED: In case of the absence
or disability of any officer of the Corporation, or in case of a vacancy in any
office or for any other reason that the board of directors may deem sufficient,
the board of directors, except as otherwise provided by law, may temporarily
delegate the powers or duties of any officer to any other officer or to any
director.
SECTION 8. COMPENSATION: The board of directors shall determine the
compensation to be paid to the Chief Executive Officer and it may also determine
the compensation to be paid to any or all of the other officers of the
Corporation. In the event and to the extent that the board of directors shall
not hereafter exercise such discretionary power, the compensation to be paid to
the other officers shall be determined by the Chief Executive Officer.
SECTION 9. SECURITY: The board of directors may require any officer,
agent or employee of the Corporation to give security for the faithful
performance of his duties, in such amount as may be satisfactory to the board.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. RIGHT OF INDEMNIFICATION: Each director and officer of the
Corporation, whether or not then in office, and any person whose testator or
intestate was such a director or officer, shall be indemnified by the
Corporation for the defense of, or in connection with, any threatened, pending
or completed actions or proceedings and appeals therein, whether civil,
criminal, governmental, administrative or investigative, in accordance with and
to the fullest extent permitted by the Business Corporation Law of the State of
New York or other applicable law, as such law now exists or may hereafter be
amended; provided, however, that the Corporation shall provide indemnification
in connection with an action or proceeding (or part thereof) initiated by such a
director or officer only if such action or proceeding (or part thereof) was
authorized by the board of directors.
SECTION 2. ADVANCEMENT OF EXPENSES: Expenses incurred by a director or
officer in connection with any action or proceeding as to which indemnification
may be given under Section 1 of this Article V may be paid by the Corporation in
advance of the final disposition of such action or proceeding upon (a) receipt
of an undertaking by or on behalf of such director or officer to repay such
advancement in the event that such director or officer is ultimately found not
to be entitled to indemnification as authorized by this Article V and (b)
approval by the board of directors acting by a quorum consisting of directors
who are not parties to such action or proceeding or, if such a quorum is not
obtainable, then approval by stockholders. To the extent permitted by law, the
board of directors or, if applicable, the
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stockholders, shall not be required under this Section 2, to find that the
director or officer has met the applicable standard of conduct provided by law
for indemnification in connection with such action or proceeding.
SECTION 3. AVAILABILITY AND INTERPRETATION: To the extent permitted
under applicable law, the rights of indemnification and to the advancement of
expenses provided in this Article V (a) shall be available with respect to
events occurring prior to the adoption of this Article V, (b) shall continue to
exist after any recision or restrictive amendment of this Article V with respect
to events occurring prior to such recision or amendment, (c) may be interpreted
on the basis of applicable law in effect at the time of the occurrence of the
event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the
nature of contract rights which may be enforced in any court of competent
jurisdiction as if the Corporation and the director or officer for whom such
rights are sought were parties to a separate written agreement.
SECTION 4. OTHER RIGHTS: The rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any other rights to which any such director, officer or other person may now
or hereafter be otherwise entitled whether contained in the certificate of
incorporation, these Bylaws, a resolution of stockholders, a resolution of the
board of directors, or an agreement providing such indemnification, the creation
of such other rights being hereby expressly authorized. Without limiting the
generality of the foregoing, the rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any rights, pursuant to statute or otherwise, of any
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such director, officer or other person in any such action or proceeding to have
assessed or allowed in his or her favor, against the Corporation or otherwise,
his or her costs and expenses incurred therein or in connection therewith or any
part thereof.
SECTION 5. SEVERABILITY: If this Article V or any part hereof shall be
held unenforceable in any respect by a court of competent jurisdiction, it shall
be deemed modified to the minimum extent necessary to make it enforceable, and
the remainder of this Article V shall remain fully enforceable.
ARTICLE VI
SHARES
SECTION 1. CERTIFICATE OF SHARES: The shares of the Corporation shall
be represented by certificates which shall be numbered and shall be entered in
the records of the Corporation as they are issued. Each share certificate shall
when issued state upon the face thereof that the Corporation is formed under the
laws of the State of New York, the name of the person or persons to whom issued,
and the number and class of shares and the designation of the series, if any,
which such certificate represents and shall be signed by the Chief Executive
Officer or President and by the Secretary and shall be sealed with the seal of
the Corporation or a facsimile thereof. The signatures of the officers upon a
certificate may be a facsimile if the certificate is countersigned by a transfer
agent or registered by a registrar other than the Corporation itself or its
employee. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
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certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue. No certificate shall be valid
until countersigned by a transfer agent if the Corporation has a transfer agent,
or until registered by a registrar if the Corporation has a registrar.
SECTION 2. TRANSFER OF SHARES: Shares of the Corporation 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 representing
the shares to be transferred, properly endorsed. Except as otherwise provided by
law, the Corporation shall be entitled to treat the holder of record of any
share as the owner thereof and shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other person whether
or not it shall have express or other notice thereof. The board of directors, to
the extent permitted by law, shall have power and authority to make all rules
and regulations as it may deem expedient concerning the issue, transfer and
registration of share certificates and may appoint one or more transfer agents
and registrars of the shares of the Corporation.
SECTION 3. FIXING OF RECORD TIME: The board of directors may fix, in
advance, a day and hour not more than 60 days nor less than 10 days before the
date on which any meeting of the stockholders is to be held, as the time as of
which stockholders entitled to notice of and to vote at such meeting and at all
adjournments thereof shall be determined; and, in the event such record date and
time are fixed by the board of directors, no one other than the holders of
record on such date and time of shares entitled to notice of and to vote at such
meeting shall be entitled to notice of or to vote at such meeting or any
adjournment thereof. If a record date and time shall
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not be fixed by the board of directors for the determination of stockholders
entitled to notice of and to vote at any meeting of the stockholders,
stockholders of record at the close of business on the day next preceding the
day on which notice of such meeting is given, and no others, shall be entitled
to notice of and to vote at such meeting or any adjournment thereof; provided,
however, that if no notice of such meeting is given, stockholders of record at
the close of business on the day next preceding the day on which such meeting is
held, and no others, shall be entitled to vote at such meeting or any
adjournment thereof.
The board of directors may fix, in advance, a day and hour, not more
than 60 days nor less than 10 days before the date fixed for the payment of a
dividend of any kind or the allotment of any rights, as the record time for the
determination of stockholders entitled to receive such dividend or rights, and
in such case only stockholders of record at the date and time so fixed shall be
entitled to receive such dividend or rights; provided, however, that if no
record date and time for the determination of stockholders entitled to receive
such dividend or rights are fixed, stockholders of record at the close of
business on the day on which the resolution of the board of directors
authorizing the payment of such dividend or the allotment of such rights is
adopted shall be entitled to receive such dividend or rights.
SECTION 4. RECORD OF STOCKHOLDERS: The Corporation shall keep at its
office in the State of New York, or at the office of its transfer agent or
registrar in this State, a record containing the names and addresses of all
stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
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SECTION 5. LOST SHARE CERTIFICATES: The board of directors may in its
discretion cause a new certificate for shares to be issued by the Corporation in
place of any certificate theretofore issued by it, alleged to have been lost or
destroyed, and the board may require the owner of the lost or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such certificate
or the issuance of any such new certificate; but the board of directors may in
its discretion refuse to issue such new certificate save upon the order of the
court having jurisdiction in such matters.
ARTICLE VII
FINANCES
SECTION 1. CORPORATE FUNDS: The funds of the Corporation shall be
deposited in its name with such banks, trust companies or other depositories as
the board of directors may from time to time designate. All checks, notes,
drafts and other negotiable instruments of the Corporation shall be signed by
such officer or officers, employee or employees, agent or agents as the board of
directors may from time to time designate. No officers, employees or agents of
the Corporation, alone or with others, shall have power to make any checks,
notes, drafts or other negotiable instruments in the name of the Corporation or
to bind the Corporation thereby, except as provided in this Section.
SECTION 2. FISCAL YEAR: The fiscal year of the Corporation shall be the
calendar year unless otherwise provided by the board of directors.
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ARTICLE VIII
CORPORATE SEAL
SECTION 1. FORM OF SEAL: The seal of the Corporation shall be in such
form as may be determined from time to time by the board of directors. The seal
on any corporate obligation for the payment of money may be facsimile.
ARTICLE IX
EMERGENCY BYLAW PROVISIONS
SECTION 1. TAKING EFFECT: The provisions of this Article IX may be
declared effective by the New York State Defense Council as constituted under
the New York State Defense Emergency Act, as amended, in the event of attack and
shall cease to be effective when the Defense Council declares the end of the
period of attack.
SECTION 2. QUORUM AND FILLING OF VACANCIES: Upon the effectiveness of
this Article IX and until the Defense Council declares the end of the period of
attack, the affairs of the Corporation shall be managed by such directors
theretofore elected pursuant to Article II of these Bylaws as are available to
act, and a majority of such directors available to act shall constitute a
quorum. In the event, however, that there are less than three such directors
available to act, the director or directors available to act shall appoint a
sufficient number of emergency directors to make a board of three directors.
Each emergency director shall serve until the
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vacancy he was appointed to fill can again be filled by the previously elected
director, except, however, that the period of his service shall end at such time
as his appointment is terminated pursuant to Section 3 of this Article IX, or at
such time as the New York State Defense Council declares the end of the period
of attack and his successor shall be elected and qualified pursuant to Article
II of these Bylaws. If, in the event of attack, there are no directors available
to act, then the three highest paid officers of the Corporation available to act
shall constitute the emergency board of directors until one or more of the
previously elected directors are again available to act, except, however, that
the period of their service as emergency directors shall end at such time as
their service is terminated pursuant to Section 3 of this Article IX, or at such
time as the New York State Defense Council declares the end of the period of
attack and their successors shall be elected and qualified pursuant to Article
II of these Bylaws.
SECTION 3. TERMINATION OF PERIOD OF SERVICE: The stockholders of the
Corporation or the previously elected director or directors who are available to
act may, pursuant to the provisions of Article II of these Bylaws, terminate the
appointment or the period of service of any emergency director at any time and
fill any vacancy created thereby.
ARTICLE X
AMENDMENTS AND AUTOMATIC TERMINATION
SECTION 1. PROCEDURE FOR AMENDING BYLAWS: Subject to Section 2 of this
Article X, Bylaws of the Corporation may be adopted, amended or repealed at any
meeting of stockholders notice of which shall have referred to the proposed
action, by the vote of the holders
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of a majority of the shares of the Corporation at the time entitled to vote in
the election of any directors, or at any meeting of the board of directors
notice of which shall have referred to the proposed action, by the vote of a
majority of the entire board of directors; provided, however, that no amendment
of the Bylaws pertaining to the election of directors or the procedures for the
calling and conduct of a meeting of stockholders shall affect the election of
directors or the procedures for the calling or conduct in respect of any meeting
of stockholders unless adequate notice thereof is given to the stockholders in a
manner reasonably calculated to provide stockholders with sufficient time to
respond thereto prior to such meeting.
SECTION 2. AMENDMENT OF CERTAIN PROVISIONS: Notwithstanding anything
herein to the contrary, none of the following provisions of these Bylaws may be
amended, modified or repealed, nor may any Bylaw provisions be adopted that are
inconsistent with such provisions, without either (i) the unanimous approval of
the entire board of directors or (ii) the affirmative vote of holders of not
less than eighty percent (80%) of the outstanding shares of common stock of the
Corporation:
- the last proviso of the second sentence of Article II, Section 1,
- Article II, Section 3,
- Article II, Section 12,
- the proviso to the first sentence of Article III, Section 1,
- Article III, Section 4,
- this Article X, Sections 2 and 3,
- Article XII, and
- any references to the foregoing provisions elsewhere in these Bylaws.
SECTION 3. TERMINATION OF CERTAIN PROVISIONS: Each of the provisions of
these Bylaws listed in Article X, Section 2 hereof shall automatically terminate
without any action on the part of the Corporation, the board of directors or the
stockholders on the first date following
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the date upon which the Significant Stockholder ceases to be the beneficial
owner of at least five percent (5%) of the outstanding shares of common stock of
the Corporation.
ARTICLE XI
ELECTION UNDER SECTION 912 OF THE
NEW YORK BUSINESS CORPORATION LAW
SECTION 1. ELECTION: The Corporation has expressly elected not to be
governed by the provisions of Section 912 of the Business Corporation Law of New
York. Until this bylaw is amended or repealed in the manner provided by law,
none of the business combination provisions of Section 912 of the Business
Corporation Law of New York shall apply to the Corporation.
ARTICLE XII
CERTAIN DEFINITIONS
SECTION 1. DEFINITIONS: For purposes of Articles II and III of these
Bylaws:
(a) "Change in Control" shall mean a "Purchaser Change in Control"
defined in Section 1.57 of the Reorganization Agreement.
(b) "Fair Market Value" shall mean the "Fair Market Value" defined
in Section 1.31 of the Reorganization Agreement.
(c) "Issuance Event" shall mean an "Issuance Event" defined in
Section 1.42 of the Reorganization Agreement.
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(d) "Maintenance Rights" shall mean the "Seller Maintenance
Rights" defined in Section 1.75 of the Reorganization Agreement.
(e) "Reorganization Agreement" shall mean the Agreement and Plan
of Reorganization, dated September 26, 2002, by and among the Significant
Stockholder, Allfirst Financial Inc. and the Corporation, as amended or
supplemented from time to time.
(f) "Significant Stockholder" shall mean Allied Irish Banks,
p.l.c., a limited liability company incorporated under the laws of Ireland
having its registered office at Bankcentre, Ballsbridge, Dublin 4, Ireland and
any successor thereto not prohibited by the Reorganization Agreement.
(g) "Significant Stockholder Designees" shall mean the directors
of the Corporation who have been designated by the Significant Stockholder
pursuant to paragraphs (a) through (c) of Article II, Section 3 hereof.
(h) "Sunset Date" shall mean the first date following the date
upon which the Significant Stockholder ceases to be the beneficial owner of at
least 15% of the outstanding shares of common stock of the Corporation,
determined in accordance with, and subject to, the paragraph (d) of Article II,
Section 3 hereof.
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