AMENDED AND RESTATED
BYLAWS
OF
MERRILL MERCHANTS BANCSHARES, INC.
[adopted ______________, 1998]
ARTICLE I
Articles of Incorporation, Office, Location,
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Seal and Section Headings
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Section 1. Articles of Incorporation. The name of this corporation
(hereinafter the "Corporation") shall be Merrill Merchants Bancshares, Inc.
Reference in these Amended and Restated Bylaws (hereinafter the "Bylaws") to the
Articles of Incorporation shall mean the Corporation's Restated Articles of
Incorporation as may be amended from time to time. References in these Bylaws to
the Maine Business Corporation Act and to particular sections of said Act are to
said Act and said sections as from time to time in effect.
Section 2. Office and Location. The registered office shall be located at
23 Water Street, Bangor, Maine. The Corporation shall be located in Bangor,
County of Penobscot, State of Maine. The principal office and place of business
of the Corporation shall be at such place as the Board of Directors shall fix,
and the Corporation may have such other offices and places of business, within
the State of Maine as the Board of Directors may from time to time fix, or as
the business of the Corporation may from time to time require.
Section 3. Seal. The seal of the Corporation shall be circular in form with
the name of the Corporation, the word "Maine" and the year of its incorporation
so engraved on its face that it may be embossed on paper by pressure, provided
that the Board of Directors may adopt a wafer
seal in any form in respect of any particular document or instrument, in which
case such wafer seal affixed to such document or instrument shall be the
corporate seal of the Corporation thereon for all purposes provided by law.
Section 4. Section Headings. The headings of Articles and Sections in these
Bylaws are for convenience only, and shall not be taken into account in
construing these Bylaws.
ARTICLE II
Annual Meeting of Shareholders
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Section 1. Place. All meetings of shareholders for the election of
Directors shall be held at the Corporation's principal office unless the Board
of Directors shall fix some other place within the State of Maine, or outside of
the State of Maine, for such meetings.
Section 2. Date. An annual meeting of shareholders (the "Annual Meeting")
shall be held no earlier than April 1 of each calendar year, on such date as the
Board of Directors may determine, at such hour as may be fixed by the President
or Board of Directors. At such meeting the shareholders shall elect individuals
to fill vacancies on the Board of Directors resulting from expired terms or
resulting from increases in the number of Directors, and transact such other
business as may be brought before the meeting. If for any reason such annual
meeting is not held on the date specified herein, a substitute annual meeting
may be held at any time following such date in lieu thereof, and any business
transacted or elections held at such substitute annual meeting shall be as valid
as if transacted or held at the annual meeting. Such substitute annual meeting
may be called in the same manner and by the person or persons prescribed for
calling special meetings of shareholders.
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Section 3. Notice. Written notice of the annual meeting or substitute
annual meeting stating the place, day and hour thereof, shall be delivered not
less than 10 nor more than 60 days before the date of the meeting, either
personally or by first-class mail, by or at the direction of the President, the
Secretary, the Clerk, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed delivered when deposited with postage prepaid in the United
States mail, addressed to the shareholder at the address appearing on the stock
transfer books of the Corporation.
Notice of a meeting of shareholders need not be given to any shareholder
who signs a waiver of notice, in person or by proxy, either before or after the
meeting. Such signed waiver of notice shall also constitute a waiver of formal
call of the meeting. Attendance of a shareholder at a meeting, in person or by
proxy, shall of itself constitute waiver of notice and call, and of any defects
therein, except when the shareholder attends a meeting solely for the purpose of
stating his objection, at the beginning of the meeting, to the transaction of
any business on the ground that the meeting is not lawfully called or convened,
or that insufficient notice thereof was given. In the case of specific items of
business which are required to be specifically mentioned in the notice of
meeting, attendance of a shareholder at a meeting shall also constitute a waiver
of such special notice, and of any defect or deficiency therein, unless the
shareholder (1) states his objection to the transaction of that item of
business, on the ground of insufficiency of notice thereof, when the item of
business is first brought before the meeting, and (2) refrains from voting on
such item of business.
Section 4. Manner of Bringing Business Before Annual Meeting. To be
properly brought before the annual meeting, business must be of a nature that is
appropriate for consideration at an
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annual meeting and must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (ii)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before the meeting by a
shareholder. In addition to any other applicable requirements, for business to
be properly brought before the annual meeting by a shareholder, the shareholder
must have given timely notice thereof in writing to the Clerk of the
Corporation. To be timely, each such notice must be given either by personal
delivery or by United States mail, postage prepaid, to the Clerk of the
Corporation not later than ninety (90) days prior to the date set for the Annual
Meeting. The notice shall set forth (i) information concerning the shareholder,
including his or her name and address, (ii) a representation that the
shareholder is entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to present the matter specified in the notice, and
(iii) such other information as would be required to be included in a proxy
statement soliciting proxies for the presentation of such matter to the meeting.
ARTICLE III
Special Meetings of Shareholders
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Section 1. Place and Date. Special meetings of shareholders for any purpose
or purposes may be held at such time and place, within the State of Maine or
outside the State of Maine as shall be stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
Section 2. Call. Special meetings of the shareholders, for any purpose or
purposes may be called by the Chairman of the Board, the President, the Clerk, a
majority of the Board of Directors or by the holders of at least thirty percent
(30%) of the capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting.
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Section 3. Shareholder Requested Meetings. In requesting a special meeting,
shareholders holding at least thirty percent (30%) of the capital stock entitled
to vote at the meeting must give timely notice thereof in writing to the Clerk
of the Corporation. The shareholders' notice to the Clerk shall set forth as to
each matter the shareholders propose to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) information concerning
the shareholders, including their names and addresses, (iii) a representation
that the shareholders are entitled to vote at such meeting and intend to appear
in person or by proxy at the meeting to present the matter specified in the
notice; (iv) such other information as would be required to be included in a
proxy statement soliciting proxies for the presentation of such matter to the
meeting and (v) any material interest of any of the shareholders in such
business. The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that such business was not properly brought before the
meeting in accordance with these provisions, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
Section 4. Notice. Written notice of a special meeting of shareholders,
stating the place, day, hour of the meeting, and the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the date of the meeting, either personally or by first-class
mail, by or at the direction of the President, the Secretary, the Clerk, or the
officer or persons calling the meeting, to each shareholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed delivered when
deposited with postage prepaid in the United States mail, addressed to the
shareholder at the address appearing on the stock
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transfer books of the Corporation. If notice of the meeting is not given within
15 days after transmission of a proper request therefor to the President or
Clerk or Secretary, the person or persons calling the meeting may fix the time
of meeting and give or cause to be given notice thereof in the manner set forth
above.
Notice of a meeting of shareholders need not be given to any shareholder
who signs a waiver of notice, in person or by proxy, either before or after the
meeting. Such signed waiver of notice shall also constitute a waiver of formal
call of the meeting. Attendance of a shareholder at a meeting in person or by
proxy, shall of itself constitute waiver of notice and call, and of any defects
therein, except when the shareholder attends a meeting solely for the purpose of
stating his objection, at th beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened, or
that insufficient notice thereof was given. In the case of specific items of
business which are required to be specifically mentioned in the notice of
meeting, attendance of a shareholder at a meeting shall also constitute a waiver
of such special notice, and of any defect or deficiency therein, unless the
shareholder (1) states his objection to the transaction of that item o business,
on the ground of insufficiency of notice thereof, when the item of business is
first brought before the meeting, and (2) refrains from voting on such item of
business.
ARTICLE IV
Quorum and Voting of Shares
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Section 1. Quorum. Except as otherwise provided by the Maine Business
Corporation Act, at each meeting of shareholders of the Corporation the holders
of shares sufficient to cast
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a majority of the votes represented by all voting shares of the Corporation
issued and outstanding and entitled to vote at such meeting, present in person
or by proxy, shall constitute a quorum.
Section 2. Adjournments. Whether or not a quorum is present at any annual
or special meeting of shareholders, a majority in interest of those present in
person or by proxy and entitled to vote may adjourn the meeting from time to
time to another time or place, at which time, if a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called. Notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken, unless the adjournment is for more than thirty (30) days or a new record
date is fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each shareholder of record entitled to vote
at the meeting.
Section 3. Organization. Each meeting of the shareholders shall be presided
over by the Chairman of the Board, or in his or her absence by the President, or
if neither the Chairman nor the President is present, by the Executive
Vice-President. The Clerk, or in his or her absence the Secretary or a temporary
Clerk, shall act as secretary of each meeting of the shareholders. In the
absence of the Clerk and the Secretary, the presiding officer of the meeting may
appoint any person present to act as temporary Clerk of the meeting. The
presiding officer of any meeting of the shareholders, unless prescribed by law
or regulation or unless the Chairman of the Board has otherwise determined,
shall determine the order of the business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of discussions
as seem to him or her to be in order.
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Section 4. Transfer Agents and Registrars; Further Regulations. The Board
of Directors may appoint one or more banks, trust companies or corporations
doing a corporate trust business, in good standing under the laws of the United
States or any state therein, to act as the Corporation's transfer agent and/or
registrar for shares of capital stock, and the Board may make such other and
further regulations, not inconsistent with applicable law, as it may deem
expedient concerning the issue, transfe and registration of capital stock and
stock certificates of the Corporation.
Section 5. Record Date. The Directors may fix in advance a time, which
shall not be more than sixty (60) days before the date of any meeting of
stockholders or the date for the payment of any dividend or the making of any
distribution to stockholders, or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at,
such meeting and any adjournment thereof, or the right to receive such dividend
or distribution, or the right to give such consent or dissent, and in such case,
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date; provided, however, in the case of a meeting of shareholders, such
record date shall not be less than ten (10) full days prior to the date of the
meeting; or, without fixing such record date, the Directors may, for any such
purposes, close the transfer books for all or any part of such period.
Section 6. Voting List. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make, at least ten (10) days
before each meeting of the shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in
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alphabetical order, with the address of and the number of shares held by each,
which list shall be kept on file at the registered office of the Corporation. It
shall be subject to inspection by any shareholder at any time during usual
business hours, for a period of not less than ten (10) days prior to such
meeting. The original stock transfer books shall be prima facie evidence as to
who are the shareholders entitled to examine such list or transfer books or to
vote at any meeting of shareholders.
Section 7. Voting. Each share of common stock shall be entitled to one vote
per share, and there shall be no cumulative voting in elections of Directors.
Except as permitted by law, shares of its own stock belonging to the Corporation
shall not be voted directly or indirectly. Every shareholder entitled to vote at
any meeting of shareholders may cast such vote in person or by proxy appointed
by an instrument in writing, signed by such shareholder or his or her duly
authorized attorney delivere to the secretary of the meeting; provided, however,
that no proxy shall be voted after eleven (11) months from its date, unless the
proxy expressly provides for a longer duration. At all meetings of the
shareholders all matters (except where other provision is made by law or by the
Articles of Incorporation or these Bylaws) shall be decided by a majority of the
votes cast by the shareholders present in person or by proxy and entitled to
vote thereon, provided that a quorum is present, and further provide that in
elections of Directors, those candidates who receive the greatest number of
votes cast at the meeting by the holders of shares entitled to vote to elect
Directors, even though not receiving a majority of the votes cast, shall be
deemed elected.
Section 7. Action by Consent. Any action required or permitted by law to be
taken at any annual or special meeting of shareholders may be taken without a
meeting if written consents,
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setting forth the action so taken, are signed by the holders of all outstanding
shares entitled to vote on such action and are filed with the Clerk of the
Corporation as part of the corporate records. Such written consents may contain
statements in the form of, and in any case shall have the same effect as,
unanimous vote or votes of the shareholders and may be stated as such in any
certificate or document required or permitted to be filed with the Secretary of
the State of Maine, and in any certificate or document prepared or certified by
any officer of the Corporation for any purposes.
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ARTICLE V
Capital Stock Provisions
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The authorized amount of the capital stock and the par value, if any, of
the shares shall be as fixed in the Articles of Incorporation. At all times when
there are two or more classes of stock, the several classes of stock shall
conform to the description and terms, and have the respective preferences,
voting powers, restrictions and qualifications set forth in the Articles of
Incorporation.
ARTICLE VI
Directors
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Section 1. Number of Directors. There shall be nine (9) Directors. The
Directors may increase or decrease the number of Directors by the affirmative
vote of at least sixty-seven percent (67%) of the Directors in office at the
time of such vote. The Board of Directors is authorized to increase or decrease
the number of Directors. The minimum number shall be three (3) Directors, and
the maximum number shall be twenty-five (25) Directors. The Board of Directors
shall be divided into three classes of Directors as specified in Article VI
below.
Section 2. Classification of Directors. The Board of Directors of the
Corporation shall be divided into three classes, initially consisting of three
Directors each: Class I, Class II and Class III. Each class shall consist, as
nearly as may be practicable, of one-third of the whole number of the Board of
Directors. If the number of Directors is not evenly divisible by three, the
Board of Directors shall determine the number of Directors to be elected
initially into each class. The initial members of Class I shall hold office for
a term to
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expire at the annual meeting of the stockholders to be held in 1999; the initial
members of Class II shall hold office for a term to expire at the annual meeting
of the stockholders to be held in 2000; and the initial members of Class III
shall hold office for a term to expire at the annual meeting of the stockholders
to be held in 2001, and in the case of each class, until their respective
successors are duly elected and qualified. At each annual election held
commencing with the annual election in 1999, the Directors elected to succeed
those whose terms expire shall be identified as being of the same class as the
Directors they succeed and shall be elected to hold office for a term to expire
at the third Annual Meeting of the stockholders after their election, and until
their respective successors are duly elected and qualified. If the number of
Directors changes, any increase or decrease in Directors shall be apportioned
among the classes so as to maintain all classes as equal in number as possible,
and any additional Director elected to any class shall hold office for a term
which shall coincide with the terms of the other Directors in such class and
until his successor is duly elected and qualified.
Section 3. Amendment of Article VI. Notwithstanding any other provisions of
the Articles of Incorporation or the Bylaws of the Corporation or the fact that
a lesser percentage may be specified by law, the affirmative vote of the holders
of at least eighty (80%) percent of the combined voting power of the outstanding
stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required to amend, alter,
or adopt any provision inconsistent with or to repeal this Article VI.
Section 4. Vacancies, Resignation and Removal. Any vacancy in the Board of
Directors, including newly created Directorships created by increase in the
number of Directors, may be filled by vote of the majority of the remaining
Directors. Any Director may resign his office by delivering a written
resignation to the President or Clerk. Directors may be removed from office
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at a special meeting of the shareholders called expressly for that purpose, in
the manner prescribed by these Bylaws and the Maine Business Corporation Act, as
amended from time to time. Any Director or the entire Board of Directors of the
Corporation may be removed at such meeting with or without cause by the
affirmative vote of the holders of at least sixty-seven percent (67%) of the
shares then entitled to vote in an election of Directors. Additionally,
Directors may be removed in the manner specified in the Maine Business
Corporation Act, as amended from time to time.
Section 5. Powers. The Board of Directors shall manage and control the
business, property and affairs of the Corporation. In the management and control
of the business, property and affairs of the Corporation, the Board of Directors
is hereby vested with all of the powers and authority of the Corporation itself,
so far as not inconsistent with the Maine Business Corporation Act or other laws
of the State of Maine, the Articles of Incorporation or these Bylaws.
Section 6. Qualification. At least two-thirds (2/3) of the Directors
comprising the Board of Directors shall be residents of the State of Maine and
any Director removing himself or herself from the State of Maine shall
immediately be replaced if such removal results in a reduction of the number of
resident Directors below two-thirds (2/3) of the total number of Directors then
in office.
Section 7. Compensation. The Board of Directors, by the affirmative vote of
a majority of the Directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all Directors for services to the Corporation as Directors,
officers, committee members or otherwise.
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Section 8. Nomination of Directors. Subject to the rights of holders of any
class or series of stock having a preference over the common stock as to
dividends or upon liquidation, nominations for the election of Directors shall
be made by the nominating and directors committee appointed by the Board
pursuant to Article VIII of these Bylaws or by any shareholder entitled to vote
generally in an election of Directors. However, any shareholder entitled to vote
generally in an election of Director may nominate one or more persons for
election as Directors at a meeting only if written notice of such shareholder's
intent to make such nomination or nominations has been given, either by personal
delivery or by United States mail, postage prepaid to the Clerk of the
Corporation not later than (i) ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting, and (ii) with respect to an election
to be held at a special meeting of shareholders for the election of Directors,
th close of business on the tenth day following the date on which notice of such
meeting is first given to shareholders. Each such notice shall set forth: (a)
the name and address of the shareholder who intends to make the nomination and
of the person or persons to be nominated; (b) a representation that the
shareholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (d) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission; and (e) the consent of each nominee
to serve as a Director of the Corporation if so elected The presiding officer of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedures.
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ARTICLE VII
Meetings of the Board of Directors
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Section 1. Annual Meeting. The first meeting of each newly elected Board of
Directors shall be held at such time and place as shall be fixed by the
shareholders at their meeting electing them, or if no such time and place are so
fixed, said first meeting shall be held at the place of and immediately
following such meeting of shareholders. In either event, no notice of such
meeting shall be necessary. Such meeting of the Directors may also convene at
such place and time as shall be fixed by the consent in writing of all the
Directors.
Section 2. Regular Meetings. Regular meetings of the Board of Directors may
be held upon such notice, or without notice, and at such time and place as shall
from time to time be fixed by the Board.
Section 3. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman of the Board, President, Clerk, Secretary or any other
person or persons authorized by the Maine Business Corporation Act to call such
meetings. The person or persons calling the special meeting shall fix the time
and place thereof.
Notice of each special meeting of the Board of Directors shall be given to
each Director by the Clerk, Secretary or the person or persons calling the
special meeting. It shall be sufficient notice to a Director of a special
meeting to give notice by first-class mail, postage prepaid, addressed to such
Director, or by delivering such notice to an overnight courier service addressed
to such Director, in either case at the Director's address as it appears on the
records of the Corporation, with postage or delivery charges thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail or with said
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overnight courier. Notice to Directors may also be given by facsimile
transmission or by electronic mail, with receipt electronically acknowledged, in
which case such notice shall be deemed to be given at the time when the notice
is transmitted. If notice is given by first-class mail, such notice shall be
given not less than three business days before the meeting; if notice is given
by overnight courier, such notice shall be given not less than three days before
the meeting; if notice is given by facsimile transmission or electronic mail,
such notice shall be given not less than two days before the meeting. Neither
the business to be transacted at nor the purpose of any special meeting of the
Board of Directors need be specified in the notice of the meeting, except that
any notice of a meeting at which these Bylaws are to be amended or repealed
shall include notice of such proposed action and shall either set out the text
of the proposed new bylaw, amendment or bylaw to be repealed, or shall summarize
the changes to be effected by adoption, amendment or repeal. The giving of
notice of a special meeting of the Board of Directors by the person or persons
authorized to call the same shall constitute the call thereof. Notice of a
meeting of directors need not be given to any director who signs a waiver of
notice, either before or after the meeting.
Section 4. Attendance as Waiver of Notice. Attendance of a Director at any
meeting shall constitute a waiver of notice of such meeting, except where a
Director attends for the express purpose, stated at the commencement of the
meeting, of objecting to the transaction of any business because the meeting is
not lawfully called, noticed or convened.
Section 5. Quorum and Vote Required. At any meeting of the Directors, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business. The Directors present at a duly called or held meeting
at which a quorum was once present may continue to do
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business and take action at the meeting notwithstanding the withdrawal of enough
Directors to leave less than a quorum. Any meeting may be adjourned from time to
time by a majority of the votes cast upon the question, whether or not a quorum
is present, and the meeting may be held as adjourned without further notice if
the time and place to which it is adjourned is fixed and announced at such
meeting. The vote of a majority of the Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors unless the vote of
a greater number is required by these Bylaws, the Articles of Incorporation, or
the Maine Business Corporation Act.
Section 6. Action by Consent. Any action required or permitted to be taken
at a meeting of the Directors, or of a committee of the Directors, may be taken
without a meeting if all of the Directors, or all of the members of the
committee, as the case may be, sign written consents setting forth the action
taken or to be taken, at any time before or after the intended effective date of
such action. Such consents shall be filed with the minutes of Directors'
meetings or committee meetings, as the case may be, and shall have, and may be
stated by any officer of the Corporation to have, the same effect as a unanimous
vote or resolution of the Board of Directors at a legal meeting thereof. Any
such action taken by unanimous written consents may, but need not be, set forth
in such consents in the form of resolutions or votes.
Section 7. Telephone Meetings. Members of the Board of Directors or of any
committee designated thereby may participate in a meeting of the Board or of
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
communicate with each other, and participating in a meeting in such manner by
any member who does not object at the beginning of such meeting to the holding
thereof in such manner shall constitute presence in person at such meeting.
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ARTICLE VIII
Committees
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The Corporation shall have four standing committees: the executive
committee, the nominating and Directors committee, the audit committee and the
compensation committee.
Section 1. Executive Committee. The Board of Directors by a resolution
adopted by a majority of the full Board of Directors then in office may
designate from among its members an executive committee consisting of two or
more Directors, and may delegate to such executive committee all the authority
of the Board of Directors in the management of the Corporation's business and
affairs, except as limited by the Maine Business Corporation Act, including
without limitation Section 713 thereof or the resolution establishing the
executive committee or any other resolution thereafter adopted by the Board of
Directors. Vacancies in the membership of the executive committee shall be
filled by resolution adopted by a majority of the full Board of Directors then
in office. The executive committee shall keep regular minutes of its proceedings
and report the same to the Board of Directors. Members of the executive
committee may be removed from the executive committee, with or without cause, by
resolution adopted by a majority of the full Board of Directors then in office.
So far as practicable, the provisions of these Bylaws relating to the calling,
noticing and conduct of meetings of the Board of Directors shall govern the
calling, noticing and conduct of meetings of the executive committee.
Section 2. Nominating and Directors Committee. The nominating and Directors
committee shall have the following exclusive powers and authority: (i)
evaluating and recommending Director candidates to the Board of Directors, (ii)
assessing Board of Directors performance not less frequently than every three
years, (iii) recommending Director
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compensation and benefits philosophy for the Corporation, (iv) reviewing
individual Director performance as issues arise and (v) periodically reviewing
the Corporation's corporate governance profile. None of the members of the
nominating and Directors committee shall be a member of the executive committee
or an officer or full-time employee of the Corporation or of any subsidiary or
affiliate of the Corporation.
Section 3. Audit Committee. The audit committee shall have the following
powers and authority: (i) employing independent public accountants to audit the
books of account, accounting procedures, and financial statements of the
Corporation and to perform such other duties from time to time as the audit
committee may prescribe, (ii) receiving the reports and comments of the
Corporation's internal auditors and of the independent public accountants
employed by the committee and to take such action with respect thereto as may
seem appropriate, (iii) requesting the Corporation's consolidated subsidiaries
and affiliated companies to employ independent public accountants to audit their
respective books of account, accounting procedures, and financial statements,
(iv) requesting the independent public accountants to furnish to the
compensation committee any certifications required under any present or future
stock option, incentive compensation or employee benefit plan of the
Corporation, (v) reviewing the adequacy of internal financial controls, (vi)
approving the accounting principles employed in financial reporting, (vii)
approving the appointment or removal of the Corporation's general auditor and
any outside internal auditing firm, and (viii) reviewing the accounting
principles employed in financial reporting. None of the members of the audit
committee shall be a member of the executive committee or an officer or
full-time employee of the Corporation or of any subsidiary or affiliate of the
Corporation.
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Section 4. Compensation Committee. The compensation committee shall have
the following powers and authority: (i) determining and fixing the compensation
for all senior officers of the Corporation and those of its subsidiaries that
the compensation committee shall from time to time consider appropriate, as well
as all employees of the Corporation and its subsidiaries compensated at a rate
in excess of such amount per annum as may be fixed or determined from time to
time by the Board of Directors (ii) performing the duties of the committees of
the Board of Directors provided for in any present or future stock option,
incentive compensation or employee benefit plan of the Corporation or, if the
compensation committee shall so determine, any such plan of any Subsidiary and
(iii) reviewing the operations of and policies pertaining to any present or
future stock option, incentive compensation or employee benefit plan of the
Corporation or any subsidiary that the compensation committee shall from time to
time consider appropriate. None of the members of the compensation committee
shall be a member of the executive committee or an officer or full-time employee
of the Corporation or of any subsidiary or affiliate of the Corporation.
Section 5. Additional Committees. In addition, the Board of Directors may,
by resolution passed by a majority vote of the entire Board of Directors,
designate one or more additional committees, with each such committee consisting
of two or more Directors of the Corporation and having such powers and authority
as the Board of Directors shall designate by such resolutions.
Section 6. Powers and Authority. Any modification to the powers and
authority of any committee shall require the adoption of a resolution by a
majority vote of the entire Board of Directors. All acts done by any committee
within the scope of its powers and authority pursuant
20
to these Bylaws and the resolutions adopted by the Board of Directors in
accordance with the terms hereof shall be deemed to be, and may be certified as
being, done or conferred under authority of the Board of Directors. The Clerk is
empowered to certify that any resolution duly adopted by any such committee is
binding upon the Corporation and to execute and deliver such certifications from
time to time as may be necessary or proper to the conduct of the business of the
Corporation.
Section 7. Committee Meetings. Regular meetings of committees shall be held
at such times as determined by resolution of the Board of Directors or the
committee in question and no notice shall be required for any regular meeting
other than such resolution. A special meeting of any committee shall be called
by resolution of the Board of Directors, or by the Clerk upon the request of the
Chairman, or a majority of the members of any committee. Notice of special
meetings shall be given to each member of the committee in the same manner as
that provided for in Section 3 of Article VIII of these Bylaws.
Section 8. Committee Members. (a) Each member of any committee of the Board
of Directors shall hold office until such member's successor is elected and has
qualified, unless such member sooner dies, resigns or is removed. The number of
Directors which shall constitute any committee shall be at least 2 and shall be
determined by resolution adopted by a majority vote of the entire Board of
Directors.
(b) The Board of Directors may remove a Director from a committee or change
the chairmanship of a committee only by resolution adopted by a majority vote of
the entire Board of Directors.
21
(c) The Board of Directors may designate one or more Directors as alternate
members of any committee to fill any vacancy on a committee and to fill a vacant
chairmanship of a committee, occurring as a result of a member or chairman
leaving the committee, whether through death, resignation, removal or otherwise;
provided that any such designation may only be amended by a majority vote of the
entire Board of Directors.
Section 9. Committee Secretary. The Board of Directors may elect a
secretary of any such committee. If the Board of Directors does not elect such a
secretary, the committee shall do so. The secretary of any committee need not be
a member of the committee, but shall be selected from a member of the staff of
the office of the Secretary of the Corporation, unless otherwise provided by the
Board of Directors or the committee, as applicable.
ARTICLE IX
Officers
--------
Section 1. Number. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, a Chairman of the Board, a Clerk
who shall be a resident of Maine, a Secretary and Treasurer. The Board of
Directors may also elect one or more Vice-Presidents (one of whom may be
designated by the Board of Directors as the Executive Vice-President), and one
or more Assistant Secretaries and Assistant Treasurers.
Section 2. When Chosen. The Board of Directors at its initial meeting after
the incorporation of the Corporation and at each regular meeting held after each
annual meeting of shareholders shall choose such officers, none of whom need be
a member of the Board; but the Clerk need not be elected annually and shall hold
office until the Corporation changes its Clerk in the manner provided by the
Maine Business Corporation Act.
22
Section 3. Additional Officers. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 4. Compensation of Officers. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 5. Vacancies, Term and Removal. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed by the Board of Directors may be removed at any time by the
Board of Directors, with or without cause. Any vacancy occurring in any office
of the Corporation may be filled by the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board shall be a
member of the Board of Directors and shall preside at its meetings and at the
meetings of the stockholders. He shall advise and counsel with the President.
Section 7. President. The President shall be the chief executive officer of
the Corporation, shall in the absence of the Chairman of the Board preside at
all meetings of the shareholders and of the Board of Directors, shall have the
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect.
Section 8. Vice-President. The Vice-President, if any, or if there shall be
more than one, the Vice-Presidents in the order determined by the Board of
Directors, shall, in the absence of or in the case of the disability of the
President, perform the duties and exercise the powers of the President and shall
perform such other duties and have such other powers as the Board of
23
Directors may from time to time prescribe. If the Board of Directors shall
appoint or elect an Executive Vice-President, i shall be presumed that he is the
Vice-President determined by the Board of Directors to act in case of the
absence or disability of the President.
Section 9. Clerk. The Clerk shall keep, in a book kept for such purpose,
the records of all shareholders' meetings, and shall perform such duties and
have such powers as are prescribed by the Maine Business Corporation Act,
including without limitation Sub-Section 11 of Section 714 thereof. The Clerk
shall have custody of the corporate seal and may affix the same to documents
requiring it, and attest the same. The Clerk may permit the President or
Secretary to keep a duplicate of the corporate seal.
Section 10. Secretary. The Secretary or the Clerk shall attend all meetings
of the Board of Directors and record all the proceedings of the Board of
Directors in a book kept for that purpose, and shall give notice of special
meetings of the Board of Directors, and shall perform like duties for the
executive committee. The Secretary shall perform such other duties as may be
prescribed by the Board of Directors or President, under whose supervision he
shall be. He, or an Assistant Secretary, shall have authority to affix the
corporate seal to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary or by
the Clerk. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the same. The
Secretary shall have such other powers and duties as are prescribed by law or by
the Board of Directors. In case of the absence of or disability of the
Secretary, or if the Corporation shall have no Secretary, all of the powers of
the Secretary may be exercised by the Clerk.
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Section 11. Assistant Secretaries. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries, in the order determined by the Board
of Directors, shall, in case of the absence or disability of the Secretary,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
Section 12. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
Section 13. Assistant Treasurers. The Assistant Treasurer, or, if there
shall be more than one, the Assistant Treasurers, in the order determined by the
Board of Directors, shall, in the absence of or in case of the disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
ARTICLE X
Voting Shares of Other Corporations
-----------------------------------
The Chairman of the Board, if any, President, and Vice-President, Secretary
and Treasurer of this corporation, in that order, shall have authority to vote
shares of other
25
corporations standing in the name of this Corporation, and the President,
Secretary or Clerk is authorized to execute in the name and on behalf of this
Corporation proxies appointing any one or more of the officers first above
named, in the order above named, as the proxy agents.
ARTICLE XI
Certificates of Stock and Lost Certificates
-------------------------------------------
Each stockholder shall be entitled to a certificate of the capital stock of
the Corporation owned by him, in such form as shall, in conformity to law, be
prescribed from time to time by the Board of Directors. Such certificate shall
be signed by either the President or a Vice President, and by either the
Treasurer or an Assistant Treasurer, and may, but need not be, sealed with the
corporate seal; but when any such certificate is signed by a transfer agent or
by a registrar other than a Director officer, or employee of the Corporation,
the signature of the President or a Vice President and of the Treasurer or an
Assistant Treasurer of the Corporation, or either or both such signatures and
such seal upon such certificate, may be facsimile. If any officer who has
signed, or whose facsimile signature has been placed on, any such certificate
shall have ceased to be such officer before such certificate is issued, the
certificate may be issued by the Corporation with the same effect as if he were
such officer at the time of issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to law, the Articles of Organization, these By-Laws or any
agreement to which the Corporation is a party shall have the restriction noted
conspicuously on the certificate, and shall also set forth, on the face or back,
either the full text of the restriction or a statement of the existence of such
restriction and (except if such restriction is imposed by law) a statement that
the Corporation will furnish a copy thereof to the holder of such certificate
upon written request
26
and without charge. Every certificate issued when the Corporation is authorized
to issue more than one class or series of stock shall set forth on its face or
back either the full text of the preferences, voting powers, qualifications and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
The Board of Directors may direct a replacement or duplicate certificate
for shares of this Corporation to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, destroyed or
mutilated. When authorizing such issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may prescribe such terms and conditions as it deems expedient, and may
require such indemnities as it deems adequate, to protect the Corporation and
its officers and agents from any claim that may be made against it with respect
to any such certificate alleged to have been lost, destroyed or mutilated. The
powers and duties of the Board prescribed in this ARTICLE XI may be delegated in
whole or in part to any registrar or transfer agent.
ARTICLE XII
Transfers of Shares
-------------------
Subject to the restrictions, if any, stated or noted on the stock
certificates, shares of stock may be transferred on the books of the Corporation
only by the surrender to the Corporation, or its transfer agent, of the
certificate therefor properly endorsed or accompanied by a written assignment or
power of attorney properly executed, with all requisite stock transfer stamps
affixed, and with such proof of the authenticity and effectiveness of the
signature as the
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Corporation or its transfer agen shall reasonably require. Except as may
otherwise be required by law, the Articles of Organization, or these Bylaws, the
Corporation shall have the right to treat the person registered on the stock
transfer books as the owner of any shares of the Corporation's stock as the
owner-in-fact thereof for all purposes, including the payment of dividends,
liability for assessments, the right to vote with respect thereto and otherwise,
and accordingly shall not be bound to recognize any attempted transfer, pledge
or other disposition thereof, or any equitable or other claim with respect
thereto, whether or not it shall have actual or other notice thereof, until such
shares shall have been transferred on the Corporation's books in accordance with
these Bylaws. It shall be the duty of each stockholder to notify the Corporation
of his post office address.
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ARTICLE XIII
Indemnification of Officers, Directors, Employees and Agents, Etc.; Insurance
-----------------------------------------------------------------------------
Section 1. General. The Corporation shall in all cases indemnify any person
who is or was a director or officer of the Corporation, and may (subject to
Section 4 of this Article) indemnify any other person, who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, partner, fiduciary, employee or agent of
another corporation, partnership, joint venture, trust, pension or other
employee benefit plan or other enterprise, against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement to the extent
actually and reasonably incurred by that person in connection with such action,
suit or proceeding; provided that no indemnification may be provided for any
person with respect to any matter as to which that person shall have been
finally adjudicated:
A. Not to have acted honestly or in the reasonable belief that such
person's action was in or not opposed to the best interests of the Corporation
or its shareholders or, in the case of a person serving as a fiduciary of an
employee benefit plan or trust, in or not opposed to the best interests of that
plan or trust, or its participants or beneficiaries; or
B. With respect to any criminal action or proceeding, to have had
reasonable cause to believe that such person's conduct was unlawful.
29
The termination of any action, suit or proceeding by judgment, order or
conviction adverse to that person, or by settlement or plea of nolo contendere
or its equivalent, shall not of itself create a presumption that such person did
not act honestly or in the reasonable belief that such person's action was in or
not opposed to the best interests of the Corporation or its shareholders or, in
the case of a person serving as a fiduciary of an employee benefit plan or
trust, in or not opposed to the best interests of that plan or trust or its
participants or beneficiaries and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
Section 2. Derivative Actions. Notwithstanding any provision of Section 1
or 4, the Corporation shall not indemnify any person with respect to any claim,
issue or matter asserted by or in the right of the Corporation as to which that
person is finally adjudicated to be liable to the Corporation unless the court
in which the action, suit or proceeding was brought shall determine that, in
view of all the circumstances of the case, that person is fairly and reasonably
entitled to indemnity for suc amounts as the court shall deem reasonable.
Section 3. Special Right to Indemnification in Certain Cases. Any
provisions of Sections 1, 2 or 4 to the contrary notwithstanding, to the extent
that a director, officer, employee or agent of the Corporation, or any other
person whom the Corporation has authority to indemnify under Section 1, has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2, or in defense of any claim, issue or
matter therein, that person shall be indemnified against expenses, including
attorneys' fees, actually and reasonably incurred in connection therewith. The
right to indemnification granted by this section may be enforced by a separate
action against the Corporation, if an order for indemnification is not entered
by a court in the action, suit or proceeding wherein that director, officer,
employee, agent or other person was successful on the merits or otherwise.
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Section 4. Mandatory Indemnification for Directors and Officers;
Determinations in Specific Cases for Others. Any indemnification under Section
1, unless ordered by a court or required by the Articles of Incorporation or
these Bylaws of the Corporation, shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of any
employee, agent or other person is proper in the circumstances and in the best
interests of the Corporation; provided that no such determination shall be
required with respect to any person who is or was a director or officer of the
Corporation and indemnification of any such person under Section 1 shall be
required in all cases, regardless of the capacity in which such director or
officer is or was made or threatened to be made a party to the action, suit or
proceeding. Where such a case specific determination is required, that
determination shall be made by the Board of Directors by a majority vote of a
quorum consisting o directors who were not parties to that action, suit or
proceeding, or if such a quorum is not obtainable, or even if obtainable, if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders. Such a determination once made may not
be revoked and, upon the making of that determination, the officer, employee,
agent or other person may enforce the indemnification against the Corporation by
a separate action notwithstanding any attempted or actua subsequent action by
the Board of Directors.
Section 5. Advancement of Expenses. Except in the case of any person who is
or was a director or officer of the Corporation, expenses incurred in defending
a civil, criminal, administrative or investigative action, suit or proceeding
may be authorized and paid by the
31
Corporation in advance of the final disposition of that action, suit or
proceeding upon a determination made in accordance with the procedure
established in Section 4 that, based solely on the facts then known to those
making the determination and without further investigation, the person seeking
indemnification satisfied the standard of conduct prescribed by Section 1, and
upon receipt by the Corporation of:
A. A written undertaking by or on behalf of the person to repay that
amount if that person is finally adjudicated:
(1) Not to have acted honestly or in the reasonable belief that
such person's action was in or not opposed to the best interests of
the Corporation or its shareholders or, in the case of a person
serving as a fiduciary of an employee benefit plan or trust, in or not
opposed to the best interests of such plan or trust or its
participants or beneficiaries;
(2) With respect to any criminal action or proceeding, to have
had reasonable cause to believe that the person's conduct was
unlawful; or
(3) With respect to any claim, issue or matter asserted in any
action, suit or proceeding brought by or in the right of the
Corporation, to be liable to the Corporation, unless the court in
which that action, suit or proceeding was brought permits
indemnification in accordance with Section 2; and
32
B. A written affirmation by the person that such person has met the
standard of conduct necessary for indemnification by the Corporation as
authorized in this Section.
The undertaking required by Paragraph A shall be an unlimited general obligation
of the person seeking the advance, but need not be secured and may be accepted
without reference to financial ability to make the repayment. With respect to
any person who is or was a director or officer of the Corporation, such expenses
shall in all cases be advanced by the Corporation, as reasonably requested from
time to time, upon receipt by the Corporation, at the time of the initial
advance of the undertaking described in clause (A) and the affirmation described
in clause (B) above.
Section 6. Indemnification Rights Not Exclusive; Enforceable by Separate
Action. The indemnification and entitlement to advances of expenses provided by
this Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in that person's
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who ha ceased to be a director,
officer, employee, agent, trustee, partner or fiduciary and shall inure to the
benefit of the heirs, executors and administrators of such a person. A right to
indemnification required by this Article may be enforced by a separate action
against the Corporation, if an order for indemnification has not been entered by
a court in any action, suit or proceeding in respect to which indemnification is
sought.
Section 7. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, trustee,
33
partner, fiduciary, employee or agent of another corporation, partnership, joint
venture, trust, pension or other employee benefit plan or other enterprise
against any liability asserted against that person and incurred by that person
in any such capacity, or arising out of that person's status as such, whether or
not the Corporation would have the power to indemnify that person against such
liability under this Article.
Section 8. Miscellaneous. For purposes of this Article, references to the
"Corporation" shall include, in addition to the surviving corporation or new
corporation, any participating corporation in a consolidation or merger. For
purposes of this Article, the Corporation shall be deemed to have requested a
person to serve an employee benefit plan, but not necessarily as a fiduciary of
that plan, whenever the performance of such person's duties to the Corporation
also imposes duties on, or otherwise involves services by, such person to the
plan or participants or beneficiaries of the plan; excise taxes assessed on a
person seeking indemnification with respect to an employee benefit plan in the
performance of such person's duties for a purpose reasonably believed by such
person to be in the interests of the participants or beneficiaries of the plan
shall be deemed to be for a purpose which is in the best interests of the
Corporation.
Section 9. Amendment. Any amendment, modification or repeal of this Article
XIII shall not deny, diminish or otherwise limit the rights of any person to
indemnification or advance hereunder with respect to any action, suit or
proceeding arising out of any conduct, action or omission occurring or allegedly
occurring at any time prior to the date of such amendment, modification or
repeal.
ARTICLE XIV
Fiscal Year
-----------
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
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ARTICLE XV
Execution of Documents
----------------------
Unless the Board of Directors, executive committee or shareholders shall
otherwise generally or in any specific instance provide: (a) any bill, note,
check, or negotiable instrument may be executed or endorsed in the name and on
behalf of the Corporation by the President or Treasurer, acting singly, and (b)
any other instrument, document, deed, bill of sale or other writing of whatever
nature shall be executed in the name and on behalf of the Corporation by the
President or the Treasurer, acting singly, and either officer may seal,
acknowledge and deliver the same.
ARTICLE XVI
Amendments
----------
Except as otherwise expressly provided in these Bylaws, the Board of
Directors shall have the power to alter, amend or repeal these Bylaws, and to
adopt new Bylaws, provided that the notice of any regular or special meeting at
which such action is to be taken shall either set out the text of the proposed
new bylaw, amendment or bylaw to be repealed, or shall summarize the changes to
be effected by such adoption, amendment or repeal, and provided further the
affirmative vote of at least sixty-seve percent (67%) of the Directors in office
at the time of such vote shall be required to effectuate such amendment. In
addition, the shareholders may amend or repeal a bylaw provision adopted by the
Board of Directors and in such case the Board of Directors may not, for two
years thereafter, amend or readopt the bylaw provision thus amended or repealed
by the shareholders.
35