EXHIBIT 3.5
M&T BANK CORPORATION
BYLAWS
(EFFECTIVE AS OF OCTOBER 21, 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 Corporate 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
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stockholders shall be held at such time as the board of directors or the person
calling the meeting (the Chief Executive Officer, Corporate 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 or her address as it appears on the record of stockholders,
or, if he or she shall have filed with the Corporate Secretary of the
Corporation a written request that notices to him or her be mailed to some other
address, then directed to him or her 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.
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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 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 or her 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 or her.
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.
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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. 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 or her 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 or her
by proxy. Any proxy may be signed by such stockholder or his or her duly
authorized attorney-in-fact, including by facsimile signature, and shall be
delivered to the secretary of the meeting, or
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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
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
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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 or her 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 or her ability. No person who is a
candidate for the office 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,
she 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
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Corporate Secretary 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 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
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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 or her
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, Compensation
and Governance 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, Compensation and Governance 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, Compensation and Governance 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
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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 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
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Stockholder's holdings have not been restored to at least fifteen percent (15%)
of the outstanding shares of common stock of the Corporation.
(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 or her resignation to the President or any Vice
President or the Corporate 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
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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.
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 or her 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.
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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 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 Corporate 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 or her for such purpose (or, if none is designated, at his or
her 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 or her for such purpose (or, if none is designated, to his or
her last known address). Notice of a meeting need not be given to any director
who submits a signed
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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 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
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Stockholder contemplated by these Bylaws or by the Reorganization Agreement (as
defined in 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,
Compensation and Governance 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
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(except from the Corporation or a wholly 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 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
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exchange offer, asset purchase or otherwise) in which the value of the aggregate
consideration to 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. PROCEDURE: 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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SECTION 15. THE CHAIRMAN OF THE BOARD: The board of directors
shall annually, at the first meeting of the board after the annual meeting of
stockholders, appoint or elect a Chairman of the Board who shall have such
authority and perform such duties as the board of directors or the Executive
Committee may from time to time prescribe. The Chairman of the Board 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 his or her successor has been elected or appointed and qualified.
SECTION 16. THE VICE CHAIRMEN OF THE BOARD: The board of
directors shall annually, at the first meeting of the board after the annual
meeting of stockholders, appoint or elect one or more Vice Chairmen of the Board
who shall have such authority and perform such duties as the board of directors
or the Executive Committee may from time to time prescribe. The Vice Chairmen of
the Board 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. The board of directors shall elect a non-executive Vice Chairman of
the Board who will perform the duties of "lead outside director."
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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, shall
designate from among its members an Executive Committee, a Nomination,
Compensation and Governance Committee and an Audit Committee, each consisting of
three or more directors, and may designate from among its members other
committees, each consisting of such number of directors as the board may
determine, and may designate one or more directors as alternate members of such
committees, who may replace any absent or disqualified member or members at any
meeting of such committees (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, the Nomination, Compensation and
Governance
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Committee, and the Audit Committee, and each other committee from time to time
within the scope of its respective authority shall be, and may be deemed to be,
and may be specified as being, the act and under the authority of the board of
directors. The Executive Committee, the Nomination, Compensation and Governance
Committee, and the Audit Committee shall meet at such time and place and upon
such notice as the respective committee may from time to time determine.
Meetings of the Executive Committee may also be called by the Chief Executive
Officer, and meetings of the Nomination, Compensation and Governance Committee,
the Audit Committee, and each other committee may also be called the Chair of
each such committee, and such meetings shall be held at such time and place as
the Chief Executive Officer or Chair, as the case may be, shall determine. The
Executive Committee, the Nomination, Compensation and Governance Committee, and
the Audit 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 any committee of the board
of directors, 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, Compensation and Governance 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
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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.
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, one or more Vice Presidents, a Corporate Secretary and a
Treasurer, and such other officers as it may determine, and may at any other
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, the Vice Presidents,
the Corporate Secretary and the Treasurer 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
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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
or her successor has been elected or appointed and qualified. Any officer,
however, may be removed or have his or her 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, 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.
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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 CORPORATE SECRETARY: The Corporate Secretary
shall issue notices of all meetings of stockholders and directors where notices
of such meetings are required by law or these Bylaws. He or she shall attend all
meetings of stockholders and of the board of directors and keep the minutes
thereof. He or she shall affix the corporate seal to and sign such instruments
as require the seal and his or her signature and shall perform such other duties
as usually pertain to his or her office or as are properly required of him or
her by the board of directors.
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
Corporate 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.
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SECTION 8. COMPENSATION: The Nomination, Compensation and
Governance Committee shall, through appropriate consultation with the board of
directors, determine the compensation and benefits of the Chief Executive
Officer and other executive officers of the Corporation. In the event and to the
extent that the Nomination, Compensation and Governance Committee shall not
hereafter exercise its discretionary power in respect of all other officers, the
compensation to be paid to all 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 or her 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 Corporate
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
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signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she 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
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to notice of or to vote at such meeting or any adjournment thereof. If a record
date and time shall 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 or her 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.
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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 or she was appointed to fill can again be filled by the previously
elected director, except, however, that the period of his or her service shall
end at such time as his or her 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 or her 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.
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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 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,
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- 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 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.
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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.
(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.
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(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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