Exhibit 3.3
BYLAWS
OF
IMTEK ACQUISITION CORPORATION
TABLE OF CONTENTS
PAGE NO.
--------
ARTICLE I MEETINGS OF STOCKHOLDERS
1.1 PLACE ................................................... 1
1.2 ORGANIZATION MEETING; ANNUAL MEETING .................... 1
1.3 MATTERS TO BE CONSIDERED AT ANNUAL MEETING .............. 1
1.4 SPECIAL MEETINGS ........................................ 1
1.5 NOTICE .................................................. 1
1.6 SCOPE OF NOTICE ......................................... 1
1.7 QUORUM .................................................. 1
1.8 VOTING .................................................. 2
1.9 PROXIES ................................................. 2
1.10 CONDUCT OF MEETINGS ..................................... 2
1.11 TABULATION OF VOTES ..................................... 2
1.12 INFORMAL ACTION BY STOCKHOLDERS ......................... 3
1.13 VOTING BY BALLOT ........................................ 3
ARTICLE II DIRECTORS
2.1 GENERAL POWERS .......................................... 3
2.2 OUTSIDE ACTIVITIES ...................................... 3
2.3 NUMBER, TENURE AND QUALIFICATION ........................ 4
2.4 NOMINATION OF DIRECTORS ................................. 4
2.5 ANNUAL AND REGULAR MEETINGS ............................. 4
2.6 SPECIAL MEETINGS ........................................ 4
2.7 NOTICE .................................................. 4
2.8 QUORUM .................................................. 4
2.9 VOTING .................................................. 5
2.10 CHAIRMAN OF THE BOARD ................................... 5
2.11 CONDUCT OF MEETINGS ..................................... 5
2.12 RESIGNATIONS ............................................ 5
2.13 REMOVAL OF DIRECTORS .................................... 5
2.14 VACANCIES ............................................... 5
2.15 INFORMAL ACTION BY DIRECTORS ............................ 6
2.16 COMPENSATION ............................................ 6
2.17 TELEPHONE CONFERENCE .................................... 6
2.18 INFORMAL ACTION BY BOARD OF DIRECTORS ................... 6
ARTICLE III COMMITTEES
3.1 NUMBER, TENURE AND QUALIFICATION .......................... 6
3.2 DELEGATION OF POWER ....................................... 6
3.3 QUORUM AND VOTING ......................................... 7
3.4 CONDUCT OF MEETINGS ....................................... 7
3.5 INFORMAL ACTION BY COMMITTEES ............................. 7
ARTICLE IV OFFICERS
4.1 TITLES AND ELECTION ....................................... 7
4.2 REMOVAL ................................................... 7
4.3 OUTSIDE ACTIVITIES ........................................ 8
4.4 VACANCIES ................................................. 8
4.5 PRESIDENT ................................................. 8
4.6 CHIEF OPERATING OFFICER ................................... 8
4.7 CHIEF FINANCIAL OFFICER ................................... 9
4.8 VICE PRESIDENTS ........................................... 9
4.9 SECRETARY ................................................. 9
4.10 TREASURER ................................................. 9
4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS ............ 9
4.12 OTHER OFFICERS ............................................ 10
4.13 SALARIES .................................................. 10
ARTICLE V SHARES OF STOCK
5.1 NO CERTIFICATES FOR STOCK ................................. 10
5.2 ELECTION TO ISSUE CERTIFICATES ............................ 10
5.3 STOCK LEDGER .............................................. 10
5.4 RECORDING TRANSFERS OF STOCK .............................. 11
5.5 LOST CERTIFICATES ......................................... 11
5.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE ........ 11
ARTICLE VI DIVIDENDS AND DISTRIBUTIONS
6.1 DECLARATION ............................................... 12
6.2 CONTINGENCIES ............................................. 12
ARTICLE VII INDEMNIFICATION
7.1 INDEMNIFICATION TO THE EXTENT PERMITTED BY LAW ............ 12
7.2 INSURANCE ................................................. 13
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY: HEIRS AND
PERSONAL REPRESENTATIVES .................................. 13
7.4 NO LIMITATION ............................................. 13
ARTICLE VIII NOTICES
8.1 NOTICES ................................................... 13
8.2 SECRETARY TO GIVE NOTICE .................................. 13
8.3 WAIVER OF NOTICE .......................................... 13
ARTICLE IX MISCELLANEOUS
9.1 BOOKS AND RECORDS ......................................... 14
9.2 INSPECTION OF BYLAWS AND CORPORATE RECORDS ................ 14
9.3 CONTRACTS ................................................. 14
9.4 CHECKS, DRAFTS, ETC........................................ 14
9.5 LOANS ..................................................... 14
9.6 FISCAL YEAR ............................................... 15
9.7 BYLAWS SEVERABLE .......................................... 15
ARTICLE X AMENDMENT OF BYLAWS
10.1 BY DIRECTORS .............................................. 15
10.2 BY STOCKHOLDERS ........................................... 15
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1 PLACE. All meetings of the holders of the issued and outstanding
capital stock of the Corporation (the "Stockholders") shall be held at the
principal executive office of the Corporation or such other place within the
United States as shall be stated in the notice of the meeting.
1.2 ORGANIZATION MEETING; ANNUAL MEETING. An annual meeting of the
Stockholders for the election of Directors and the transaction of such other
business as properly may be brought before the meeting shall be held on the last
Wednesday in January of each year or at such other date and time as may be fixed
by the Board of Directors. If the date fixed for the annual meeting shall be a
legal holiday, such meeting shall be held on the next succeeding business day.
If no annual meeting is held on the date designated, a special meeting in lieu
thereof may be held, and such special meeting shall have, for purposes of these
Bylaws or otherwise, all the force and effect of an annual meeting. Any and all
references hereinafter in these Bylaws to an annual meeting or to annual
meetings shall be deemed to refer also to any special meeting(s) in lieu
thereof.
1.3 MATTERS TO BE CONSIDERED AT ANNUAL MEETING. Except as provided by
Title 2, Subtitle 5, of the Maryland General Corporation Law, as amended from
time to time, any business may be conducted and any proposals may be acted upon
at an annual meeting of Stockholders. The purpose of the annual meeting of
Stockholders need not be specified in the notice of the annual meeting of
Stockholders.
1.4 SPECIAL MEETINGS. The Chairman of the Board, the President or a
majority of the Board of Directors may call special meetings of the
Stockholders. Special meetings of Stockholders shall also be called by the
Secretary upon the written request of the holders of shares entitled to cast 25%
or more of the votes entitled to be cast at such meeting. Such request shall
state the purpose or purposes of such meeting and the matters proposed to be
acted on thereat.
1.5 NOTICE. Not less than ton (10) nor more than ninety (90) days
before the date of every meeting of Stockholders, written or printed notice of
such meeting shall be given, in accordance with Article VIII, to each
Stockholder entitled to vote or entitled to notice by statute, stating the time
and place of the meeting and, in the case of a special meeting or as otherwise
may be required by statute, the purpose or purposes for which the meeting to
called.
1.6 SCOPE OF NOTICE. No business shall be transacted at a special
meeting of Stockholders except that specifically designated in the notice of the
meeting. Any business of the Corporation may be transacted at the annual meeting
without being specifically designated in the notice, except such business as is
required by statute to be stated in such notice.
1.7 QUORUM. At any meeting of stockholders, the presence in person or
by proxy of Stockholders entitled to cast a majority of the votes shall
constitute a quorum; but this Section shall not affect any requirement under any
statute or the Articles of Incorporation of the Corporation, as amended
from time-to-time (the "Charter"), for the vote necessary for the adoption of
any measure. If, however, a quorum is not present at any meeting of the
Stockholders, the Stockholders present in person or by proxy shall have the
power to adjourn the meeting from time to time without notice other than by
announcement at the meeting until a quorum is present, and the meeting so
adjourned may be reconvened without further notice. At any adjourned meeting at
which a quorum is present, any business may be transacted that might have been
transacted at the meeting as originally notified. The Stockholders present at a
meeting which has been duly called and convened and at which a quorum is present
at the time counted may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Stockholders to leave less than a
quorum.
1.8 VOTING. A majority of the votes cast at a meeting of Stockholders
duly called and at which a quorum is present shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is specifically required by
statute, the Charter or the Bylaws. Unless otherwise provided by statute, the
Charter or these Bylaws, each outstanding share (a "Share") of capital stock of
the Corporation (the "Stock"), regardless of class, shall be entitled to one
vote upon each matter submitted to a vote at a meeting of Stockholders. Pursuant
to Section 3-702 of the Maryland General Corporation Law, any and all
acquisitions of Shares of Stock are hereby exempted from the provisions of Title
3, Subtitle 7 of the Maryland General Corporation Law, which relates to voting
rights of certain control shares. Shares of its own Stock directly or indirectly
owned by the Corporation shall not be voted in any meeting and shall not be
counted in determining the total number of outstanding Shares entitled to vote
at any given time, but Shares of its own voting Stock held by it in a fiduciary
capacity may be voted and shall be counted in determining the total number of
outstanding Shares at any given time.
1.9 PROXIES. A Stockholder may vote the Shares owned of record by him
or her, either in person or by proxy executed in writing by the Stockholder or
by his or her duly authorized attorney in fact. Such proxy shall be filed with
the Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution, unless
otherwise expressly provided in the proxy.
1.10 CONDUCT OF MEETINGS. The Chairman of the Board or, in the absence
of the Chairman, the President, or, in the absence of the Chairman, President
and Vice Presidents, a presiding Officer elected at the meeting, shall preside
over meetings of Stockholders. The Secretary of the Corporation, or, in the
absence of the Secretary and Assistant Secretaries, the person appointed by the
presiding Officer of the meeting, shall act as secretary of such meeting.
1.11 TABULATION OF VOTES. At any annual or special meeting of
Stockholders, the presiding Officer shall be authorized to appoint a teller for
such meeting (the "Teller"). The Teller may, but need not, be an Officer or
employee of the Corporation. The Teller shall be responsible for tabulating, or
causing to be tabulated Shares voted at the meeting and reviewing or causing to
be reviewed all proxies. In tabulating votes, the Teller shall be entitled to
rely in whole or in part on tabulations and analyses made by personnel of the
Corporation, its counsel, its transfer
agent, its registrar or such other organizations that are customarily employed
to provide such services. The Teller shall be authorized to determine the
legality and sufficiency of all votes cast and proxies delivered under the
Corporation's Charter, Bylaws and applicable law. The presiding Officer may
review all determinations made by the Teller hereunder and, in doing so, the
presiding Officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
Teller.
1.12 INFORMAL ACTION BY STOCKHOLDERS. An action required or permitted
to be taken at a meeting of Stockholders may be taken without a meeting if a
consent in writing, setting forth such action, is signed by all the Stockholders
entitled to vote on the subject matter thereof and any other Stockholders
entitled to notice of a meeting of Stockholders (but not to vote thereat) have
waived in writing any rights which they may have to dissent from such action,
and such consents and waivers are filed with the minutes of proceedings of the
Stockholders. Such consents and waivers may be signed by different Stockholders
on separate counterparts, and facsimile signatures appearing thereon may be
accepted for all purposes in lieu of original signatures.
1.13 VOTING BY BALLOT. Voting an any question or in any election may
be viva voce unless the presiding Officer shall order or any Stockholder shall
demand that voting be by ballot.
ARTICLE II
DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the Corporation shall
be managed by its Board of Directors. All powers of the Corporation may be
exercised by or under the authority of the Board of Directors, except as
conferred on or reserved to the Stockholders by statute, the Charter or these
Bylaws.
2.2 OUTSIDE ACTIVITIES. The Board of Directors and its members are
required to spend only such time managing the business and affairs of the
Corporation as is necessary to carry out their duties in accordance with Section
2-405.1 of the Maryland General Corporation Law. The Board of Directors, each
Director, and the agents, officers and employees of the Corporation or of the
Board of Directors or of any Director may engage with or for others in business
activities of the types conducted by the Corporation. Except as set forth in the
Charter or by separate agreement, none of such individuals has an obligation to
notify or present to the Corporation or each other any investment opportunity
that may come to such person's attention even though such investment might be
within the scope of the Corporation's purposes or various investment objectives.
Any interest (including any interest as defined in Section 2-419(a) of the
Maryland General Corporation Law) that a Director has in any investment
opportunity presented to the Corporation must be disclosed by such Director to
the Board of Directors (and, if voting thereon, to the Stockholders or to any
committee of the Board of Directors) within ten (10) days after the later of the
date upon which such Director becomes aware of such interest or the date upon
which such Director becomes aware that the Corporation is considering such
investment opportunity. If such interest comes to the interested Director's
attention after a vote to take such investment opportunity, the voting body
shall be notified of such interest and shall reconsider such investment
opportunity if nor already consummated or implemented.
2.3 NUMBER, TENURE AND QUALIFICATION. The number of Directors of the
Corporation shall be that number set forth in the Charter or such other number
as may be designated from time to time by resolution of a majority of the entire
Board of Directors; provided, however, that the number of Directors shall never
be more than nine (9) nor less than the number required by Section 2-402 of the
Maryland General Corporation Law, as amended from time to time, and further
provided that the tenure of office of a Director shall not be affected by any
decrease in the number of Directors. Each Director shall serve for the term set
forth in the Charter and until his or her successor is elected and qualified.
2.4 NOMINATION OF DIRECTORS. Nominations of candidates for election as
Directors of the Corporation at any annual meeting of Stockholders may be made
(i) by, or at the direction of, a majority of the Board of Directors or (ii) by
any holder of record (both as of the time of notice and as of the record date
for the annual meeting in question) of any shares of the Corporation's capital
stock entitled to vote at such meeting. Nominations of candidates for election
as Directors of the corporation need not be made in advance of the annual
meeting in question.
2.5 ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of
Directors may be held immediately after and at the same place as the annual
meeting of Stockholders, or at such other time and place, either within or
without the State of Maryland, as is selected by resolution of the Board of
Directors, and no notice other than this Bylaw of such resolution shall be
necessary. The Board of Directors may provide, by resolution, the time and
place, either within or without the State of Maryland, for the holding of
regular meetings of the Board of Directors without other notice than such
resolution.
2.6 SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President or a
majority of the Directors then in office. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the state of Maryland, as the place for holding any special meeting
of the Board of Directors called by them.
2.7 NOTICE. Notice of any special meeting to be provided herein shall
be given, in accordance with Article VIII by written notice delivered
personally, telegraphed or telecopied to each director at his or her business or
residence at least twenty-four (24) hours, or by mail at least five (5) days,
prior to the meeting. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the Board of Directors need be
specified in the notice,unless specially required by statute, the Charter or
these Bylaws.
2.8 QUORUM. A majority of the Board of Directors then in office shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors. If less than a majority of the Board of Directors is present at
said meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice.
2.9 VOTING. The act 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 concurrence of a greater proportion is required for such action by
applicable statute, the Charter or these Bylaws; provided, however, that no act
relating to any matter in which a Director (or affiliate of such Director) has
any interest shall be the act of the Board of Directors unless such act has been
approved by a majority of the Board of Directors that includes a majority of the
disinterested Directors.
2.10 CHAIRMAN OF THE BOARD. The Board of Directors may appoint a
Chairman of the Board, who may sign and execute all authorized bonds, contracts
or other obligations in the name of the Corporation, except in cases where the
execution thereof shall be expressly delegated by the Board of Directors or by
these Bylaws to some other Officer or agent of the Corporation or shall be
required by law to be otherwise signed or executed.
2.11 CONDUCT OF MEETINGS. All meetings of the Board of Directors shall
be called to order and presided over by the Chairman of the Board or, in the
absence of the Chairman of the Board, by the President (if a member of the Board
of Directors) or, in the absence of the Chairman of the Board and the President,
by a member of the Board of Directors selected by the members present. The
Secretary of the Corporation, or in the absence of the Secretary, any Assistant
Secretary, shall act as secretary at all meetings of the Board of Directors, and
in the absence of the Secretary and Assistant Secretaries, the presiding Officer
of the meeting shall designate any person to act as secretary of the meeting.
Members of the Board of Directors may participate in meetings of the Board of
Directors by conference telephone or similar communications equipment by means
of which all Directors participating in the meeting can hear each other at the
same time, and participation in a meeting in accordance herewith shall
constitute presence in person at such meeting for all purposes of these Bylaws.
2.12 RESIGNATIONS. Any Director may resign from the Board of Directors
or any committee thereof at any time. Such resignation shall be made in writing
and shall take effect at the time specified therein, or if no time be specified,
at the time of the receipt of notice of such resignation by the President or the
Secretary.
2.13 REMOVAL OF DIRECTORS. The Stockholders may, at any time, remove
any Director, with or without cause, by the affirmative vote of a majority of
all the votes entitled to be cast on such matter, and may elect a successor to
fill any resulting vacancy for the balance of the term of the removed Director.
2.14 VACANCIES. The Stockholders may elect a successor to fill a
vacancy on the Board of Directors which results from the removal of a Director.
Furthermore, any vacancy occurring on the Board of Directors for any cause other
than by reason of an increase in the number of Directors may be filled by a
majority vote of the remaining Directors, although such majority is less than a
quorum. Any vacancy occurring on the Board of Directors by reason of an increase
in the number of Directors may be filled by a majority vote of the entire Board
of Directors. A Director elected by the Board of Directors to fill a vacancy
shall hold office until the next
annual meeting of Stockholders and until his or her successor is elected and
qualifies.
2.15 INFORMAL ACTION BY DIRECTORS. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a
meeting, if a consent in writing to such action is signed by all of the
Directors and such written consent is filed with the minutes of the Board of
Directors. Consents may be signed by different Directors on separate
counterparts.
2.16 COMPENSATION. An annual fee for services and payment for expenses
of attendance at each meeting of the Board of Directors, or of any committee
thereof, may be allowed to any Director by resolution of the Board of Directors.
2.17 TELEPHONE CONFERENCE. Members of the Board of Directors may
participate in meetings of the Board of Directors by conference telephone or
similar communications equipment by means of which all Directors participating
in the meeting can hear each other at the same time, and participation in a
meeting in accordance herewith shall constitute presence in person at such
meeting for all purposes of these Bylaws.
2.18 INFORMAL ACTION BY BOARD OF DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a written consent to such action is signed by all members
of the Board of Directors and such written consent is filed with the minutes of
proceedings of the Board of Directors. Consents may be signed by different
Directors on separate counterparts, and facsimile signatures appearing thereon
may be accepted for all purposes in lieu of original signatures.
ARTICLE III
COMMITTEES
3.1 NUMBER, TENURE AND QUALIFICATION. The Board of Directors may
appoint from among it members an Executive Committee and other committees,
composed of two or more Directors, to serve at the pleasure of the Board of
Directors.
3.2 DELEGATION OF POWER. The Board of Directors may delegate to these
committees in the intervals between meetings the Board of Directors any of the
powers of the Board of Directors to manage the business and affairs of the
Corporation, except those powers which the Board of Directors is specifically
prohibited from delegating pursuant to Section 2-411(a)(2) of the Maryland
General Corporation Law or by the Charter.
3.3 QUORUM AND VOTING. A majority of the members of any committee
shall constitute a quorum for the transaction of business by such committee, and
the act of a majority of the quorum shall constitute the act of the committee.
3.4 CONDUCT OF MEETINGS. Each committee shall designate a presiding
Officer of such committee, and if such Officer is not present at a particular
meeting, the committee shall elect a presiding Officer for such meeting.
Members of any committee may participate in meetings of such committee by
conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other at the same time, and
participation in a meeting in accordance herewith shall constitute presence in
person at such meeting for all purposes of these Bylaws. Each committee shall
keep minutes of its meetings, and report the results of any proceedings at the
next succeeding annual or regular meeting of the Board of Directors.
3.5 INFORMAL ACTION BY COMMITTEES. Any action required or permitted to
be taken any meeting of a committee of the Board of Directors may be taken
without a meeting, if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of
proceedings of such committee. Consents may be signed by different members on
separate counterparts.
ARTICLE IV
OFFICERS
4.1 TITLES AND ELECTION. The Corporation shall have a President,
Secretary and Treasurer to comply with MGCL Section 2-412(a), and such
subordinate Officers as the Board of Directors, or any committee or officer
appointed by the Board of Directors for such purpose, may from time to time
elect. The officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each annual
meeting of Stockholders. If the election of Officers shall not be held at such
meeting, such election shall be held as soon thereafter as may be convenient.
Each Officer shall hold office until his or her successor is duly elected and
qualified or until his or her death, resignation or removal in the manner
hereinafter provided. Any two or more offices except President and Vice
President may be held by the same person. Election or appointment of an Officer
or agent shall not of itself create contract rights between the Corporation and
such Officer or agent.
4.2 REMOVAL. Any Officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person
removed. The fact that a person is elected to an office, whether or not for a
specified term, shall not by itself constitute any undertaking or evidence of
any employment obligation of the Corporation to that person.
4.3 OUTSIDE ACTIVITIES. The Officers and agents of the Corporation are
required to spend only such time managing the business and affairs of the
Corporation as is necessary to carry out their duties in accordance with the law
and these Bylaws. The Officers and agents of the Corporation may engage with or
for others in business activities of the types conducted by the Corporation.
Except as set forth in the Charter or by separate agreement, none of such
individuals has an obligation to notify or present to the Corporation or each
other any investment opportunity that may come to such person's attention even
though such investment might be within the scope of the Corporation's purposes
or various investment objectives. Any interest (including any interest within
the meaning of Section 2-419(a) of the
Maryland General Corporation Law as if the officer or agent were a Director of
the Corporation) that an Officer or an agent has in any investment opportunity
presented to the Corporation must be disclosed by such Officer or agent to the
Board of Directors (and, if voting thereon, to the Stockholders or to any
committee of the Board of Directors) within ten (10) days after the later of the
date upon which such Officer or agent becomes aware of such interest or the date
upon which such Officer or agent becomes aware that the Corporation is
considering such investment opportunity. If such interest comes to the attention
of the interested Officer or agent after a vote to take such investment
opportunity, the voting body shall be notified of such interest and shall
reconsider such investment opportunity if not already consummated or
implemented.
4.4 VACANCIES. A vacancy in any office may be filled by the Board of
Directors for the unexpired portion of the term.
4.5 PRESIDENT. Unless the Board of Directors shall otherwise
determine, the President shall be the Chief Executive Officer and general
manager of the Corporation and shall in general supervise and control all of the
business and affairs of the Corporation. In the absence of the Chairman of the
Board, the President shall preside at all meetings of the Stockholders and of
the Board of Directors (if a member of the Board of Directors). The President
may sign any deed, mortgage, bond, contract or other instruments on behalf of
the Corporation except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other Officer or
agent of the Corporation or shall be required by law to be otherwise signed or
executed. In general, the President shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors from time to time.
4.6 CHIEF OPERATING OFFICER. The Board of Directors may appoint a
Chief Operating Officer in the absence of the President. In the event of a
vacancy in such office, the Chief Operating officer shall perform the duties of
the President and when so acting shall have all the powers of and be subject to
all the restrictions upon the President. The Chief Operating Officer may sign
any deed, mortgage, bond, contract or other instruments on behalf of the
Corporation except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other Officer or
agent of the Corporation or shall be required by law to be otherwise signed or
executed. In general, the Chief Operating Officer shall perform all duties
incident to the office of Chief Operating Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
4.7 CHIEF FINANCIAL OFFICER. The Board of Directors may appoint a
Chief Financial Officer. In general, the Chief Financial Officer shall perform
all duties incident to the office of Chief Financial Officer and such other
duties as may be prescribed by the Board of Directors from time to time.
4.8 VICE PRESIDENTS. The Board of Directors may appoint one or more
Vice Presidents. In the absence of both the President and the Chief Operating
Officer or in the event of a vacancy in both such offices, the Vice President
(or in the event there be more than one Vice President, the Vice Presidents in
the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall
perform the duties of the President and when so acting shall have all the powers
of and be subject to all the restrictions upon the President. Every Vice
President shall perform such other duties as from time to time may be assigned
to him or her by the President or the Board of Directors.
4.9 SECRETARY. The Secretary shall (i) keep the minutes of the
proceedings of the Stockholders and Board of Directors in one or more books
provided for that purpose; (ii) see that all notices are duly given in
accordance with the provisions of these Bylaws or an required by law; (iii) be
custodian of the corporate records of the Corporation; (iv) unless a transfer
agent is appointed, keep a register of the post office address of each
Stockholder that shall be furnished to the Secretary by such Stockholder and
have general charge of the Stock Ledger of the Corporation; (v) when authorized
by the Board of Directors or the President, attest to or witness all documents
requiring the same; (vi) perform all duties as from time to time may be assigned
to him or her by the President or by the Board of Directors; and (vii) perform
all the duties generally incident to the office of secretary of a corporation.
4.10 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. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at the regular meetings of the Board
of Directors or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation. The
Board of Directors may engage a custodian to perform some or all of the duties
of the Treasurer, and if a custodian is so engaged then the Treasurer shall be
relieved of the responsibilities set forth herein to the extent delegated to
such custodian and, unless the Board of Directors otherwise determines, shall
have general supervision over the activities of such custodian. The custodian
shall not be an Officer of the Corporation.
4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Board of
Directors may appoint one or more Assistant Secretaries or Assistant Treasurers.
The Assistant Secretaries (i) when authorized by the Board of Directors or the
President, shall have the power to attest to or witness all documents requiring
the same and (ii) shall perform such duties as shall be assigned to them by the
Secretary or by the President or the Board of Directors. The Assistant
Treasurers shall perform such duties as shall be assigned to them by the
Treasurer or by the President or the Board of Directors.
4.12 OTHER OFFICERS. The Corporation shall have such other Officers as
the Board of Directors may from time to time elect. Each such Officer shall hold
office for such period and perform such duties as the Board of Directors, the
President or any designated committee or Officer may prescribe.
4.13 SALARIES. The salaries, if any, of the Officers shall be fixed
from time to time by the Board of Directors. No Officer shall be prevented
from receiving such salary, if any, by reason of the fact that he or she is also
a Director of the Corporation.
ARTICLE V
SHARES OF STOCK
5.1 NO CERTIFICATES FOR STOCK. Unless the Board of Directors
authorizes the issuance of certificates pursuant to Section 5.2, none of the
Stock shall be represented by certificates.
5.2 ELECTION TO ISSUE CERTIFICATES. The Board of Directors may
authorize the issuance of certificates representing some or all of the Shares of
any or all of the classes or series of Stock. If the Board of Directors so
authorizes certificates, such certificates shall be of such form, not
inconsistent with the Charter, as shall be approved by the Board of Directors.
All certificates, if issued, shall be signed by the President or a Vice
President and countersigned by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary. Any signature or counter-signature may be
either a manual or facsimile signature. All certificates, if issued, for each
class of stock shall be consecutively numbered.
5.3 STOCK LEDGER. The Corporation shall maintain at its principal
executive office, at the office of its counsel, accountants or transfer agent or
at such other place designated by the Board of Directors an original or
duplicate Stock Ledger containing the names and addresses of all the
Stockholders and the number of shares of each class hold by each Stockholder.
The Stock Ledger shall be maintained pursuant to a system that the Corporation
shall adopt allowing for the issuance, recordation and transfer of its Stock by
electronic or other means that can be readily converted into written form for
visual inspection and not involving any issuance of certificates. Such system
shall include provisions for notice to acquirers of Stock (whether upon issuance
or transfer of Stock) in accordance with Sections 2-210 and 2-211 of the
Maryland General Corporation Law. The Corporation shall be entitled to treat the
holder of record of any Share or Shares as the holder in fact thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Share on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Maryland. Until a transfer is duly effected on the Stock Ledger,
the Corporation shall nor be affected by any notice of such transfer, either
actual or constructive. Nothing herein shall impose upon the Corporation, the
Board of Directors or Officers or their agents and representatives a duty or
limit their rights to inquire as to the actual ownership of Shares.
5.4 RECORDING TRANSFERS OF STOCK. If transferred in accordance with
any restrictions on transfer contained in the Charter, these Bylaws or
otherwise, Shares shall be recorded as transferred in the Stock Ledger upon
provision to the Corporation or the transfer agent of the Corporation of an
executed stock power duly guaranteed and any other documents reasonably
requested by the Corporation and the surrender of the certificate or
certificates, if any, representing such Shares. Upon receipt of such documents,
the Corporation shall issue the statements required by Sections 2-210 and 2-211
of the Maryland General Corporation Law, issue as needed a new certificate or
certificates (if the transferred Shares were certificated) to
the persons entitled thereto, cancel any old certificates and record the
transaction upon its books.
5.5 LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in the place of any certificate theretofore issued
by the Corporation alleged to have been stolen, lost or destroyed upon the
making of an affidavit of that fact by the person claiming the certificate of
Stock to be stolen, lost or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such stolen, lost or
destroyed certificate or his legal representative to advertise the same in
such manner as it shall require and/or to give bond, with sufficient surety,
to the Corporation to indemnify it against any lose or claim which may arise
by reason of the issuance of a new certificate.
5.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
5.6.1 The Board of Directors may fix, in advance, a date as the
record date for the purpose of determining Stockholders entitled to notice
of, or to vote at, any meeting of Stockholders, or Stockholders entitled to
receive payment of any dividend or the allotment of any rights, or in order
to make a determination of Stockholders for any other proper purpose. Such
date, in any case, shall not be prior to the close of business on the day the
record date in fixed and shall be not more than sixty (60) days, and in case
of a meeting of Stockholders not less than ten (10) days, prior to the date
on which the meeting or particular action requiring such determination of
Stockholders is to be held or taken.
5.6.2 If, in lieu of fixing a record date, the stock transfer
books are closed by the Board of Directors in accordance with Section 2-511
of the Maryland General Corporation Law for the purpose of determining
Stockholders entitled to notice of or to vote at a meeting of Stockholders,
such books shall be closed for at least ten (10) days, but not more than
twenty (20) days, immediately preceding such meeting.
5.6.3 If no record date is fixed and the stock transfer books
are not closed for the determination of Stockholders, (a) the record date for
the determination of Stockholders entitled to notice of, or to vote at, a
meeting of Stockholders shall be at the close of business on the day on which
the notice of meeting is mailed or the 30th day before the meeting, whichever
is the closer date to the meeting and (b) the record date for the
determination of Stockholders entitled to receive payment of a dividend or an
allotment of any rights shall be at the close of business on the day on which
the resolution of the Board of Directors declaring the dividend or allotment
of rights in adopted.
5.6.4 When a determination of Stockholders entitled to vote at
any meeting of Stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the stock transfer books
and the stated period of closing has expired.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
6.1 DECLARATION. Dividends and other distributions upon the Stock may
be declared by the Board of Directors as set forth in the applicable provisions
of the Charter and any applicable law, at any meeting, limited only to the
extent of Section 2-311 of the Maryland General Corporation Law. Dividends and
other distributions upon the stock may be paid in cash, property or Stock of the
Corporation, subject to the provisions of law and of the Charter.
6.2 CONTINGENCIES. Before payment of any dividends or other
distributions upon the Stock, there may be set aside (but there is no duty to
set aside) out of any funds of the Corporation available for dividends or other
distributions such sum or sums an the Board of Directors may from time to time,
in its absolute discretion, think proper as a reserve fund to meet
contingencies, for repairing or maintaining any property of the Corporation or
for such other purpose an the Board of Directors shall determine to be in the
best interests of the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION TO THE EXTENT PERMITTED BY LAW. Unless the Board
of Directors otherwise determines prospectively in the case of any one or more
specified individuals, the Corporation shall indemnify, to the full extent
permitted by the Maryland General Corporation Law, any person who is or was a
Director or Officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust, or other enterprise (an AIndemnified Person@), including
the advancement of expenses under procedures provided under such law; provided,
however, that no indemnification shall be provided for expenses relating to any
willful or grossly negligent failure to make disclosures required by the next to
last sentence of Section 2.2 or Section 4.3 hereof as applied to Directors and
Officers respectively.
7.2 INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any Indemnified Person against any liability,
whether or not the Corporation would have the power to indemnify him or her
against such liability.
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY: HEIRS AND PERSONAL
REPRESENTATIVES. The rights to indemnification set forth in this Article VII
are in addition to all rights to which any Indemnified Person may be entitled as
a matter of law, pursuant to a resolution of the Stockholders or disinterested
Directors, as agreed or otherwise, and shall inure to the benefit of the heirs
and personal representatives of each Indemnified Person.
7.4 NO LIMITATION. In addition to any indemnification permitted by
these Bylaws, the Board of Directors shall, in its sole discretion, have the
power to grant such indemnification as it deems to be in the interest of the
Corporation to the full extent permitted by law. This Article shall not limit
the Corporation's power to indemnify against liabilities other than those
arising from a person's serving the Corporation as a Director or Officer.
ARTICLE VIII
NOTICES
8.1 NOTICES. Whenever notice is required to be given pursuant to these
Bylaws, it shall be construed to mean either written notice personally served
against written receipt or notice in writing transmitted by mail, by depositing
the same in a Post Office or letter box, in a post-paid sealed wrapper,
addressed, if to the Corporation, at 2111 Van Deman Street, Baltimore, Maryland
21224 (or any subsequent address selected by the Board of Directors), attention
President, or if to a Stockholder, Director or Officer, at the address of such
person as it appears on the books of the Corporation or in default of any other
address at the general post office situated in the city or county of his or her
residence. Unless otherwise specified, notice sent by mail shall be deemed to be
given at the time mailed.
8.2 SECRETARY TO GIVE NOTICE. All notices required by law or these
Bylaws to be given by the Corporation shall be given by the Secretary or any
other Officer of the Corporation designated by the President. If the Secretary
and Assistant Secretary are absent or refuse or neglect to act, the notice may
be given by any person directed to do so by the President, or with respect to
any meeting called pursuant to these Bylaws upon the request of any Stockholders
or Directors, or by any person directed to do so by the Stockholders or
Directors upon whose request the meeting is called.
8.3 WAIVER OF NOTICE. Whenever any notice is required to be given
pursuant to the Charter or these Bylaws or pursuant to applicable law, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted nor the purpose
of any meeting need be set forth in the waiver of notice, unless specifically
required by statute. The attendance of any person at any meeting shall
Constitute a waiver of notice of such meeting, except where such person attends
a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE IX
MISCELLANEOUS
9.1 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of its account and transactions and minutes of the proceedings
of its Stockholders and Board of Directors and of its executive or other
committees when exercising any of the powers or authority of the Board of
Directors. The books and records of the Corporation may be in written form or in
any other form that may be converted within a reasonable time into written form
for visual inspection. minutes shall be recorded in written form, but may be
maintained in the form of a reproduction.
9.2 INSPECTION OF BYLAWS AND CORPORATE RECORDS. These Bylaws, the
accounting books and records of the Corporation, the minutes of proceedings of
the Stockholders, the Board of Directors and committees thereof, annual
statements of affairs and voting trust agreements on record shall be open to
inspection upon written demand delivered to the Corporation by any
Stockholder or holder of a voting trust certificate at any reasonable time
during usual business hours, for a purpose reasonably related to such holders
interests as a Stockholder or as the holder of such voting trust certificate.
9.3 CONTRACTS. The Board of Directors may authorize any Officer(s) or
agent(s) to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
9.4 CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for
payment Of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such Officers or agents of the Corporation
and in such manner as shall from time to time be determined by resolution of the
Board of Directors.
9.5 LOANS.
9.5.1 Such Officers or agents of the Corporation as from time
to time have been designated by the Board of Directors shall have authority
(i) to effect loans, advances or other forms of credit are any time or times
for the Corporation, from such banks, trust companies, institutions
corporations, firms or persons, in such amounts and subject to such terms and
conditions, as the Board of Directors from time to time has designated; (ii)
as security for the repayment of any loans, advance or other forms of credit
so authorized, to assign, transfer, endorse and deliver, either originally or
in addition or substitution, any or all personal property, real property,
stocks, bonds, deposits, accounts, documents, bills, accounts receivable and
other commercial paper and evidence of debt or other securities, or any
rights or interests at any time hold by the Corporation; (iii) in connection
with any loans, advances or other forms of credit so authorized, to make,
execute and deliver one or more notes, mortgages, deeds of trust, financing
statements, security agreements, acceptances or written obligations of the
Corporation, on such terms and with such provisions as to the security or
sale or disposition of them as those Officers or agents deem proper; and (iv)
to sell to, or discount or rediscount with, the banks, trust companies,
institutions, corporations, firms or persons making those loans, advances or
other forms of credit any and all commercial paper, bills, accounts
receivable, acceptances and other instruments and evidences of debt at any
time hold by the Corporation, and, to that end, to endorse, transfer and
deliver the same.
9.5.2 From time to time the Corporation shall certify to each
bank, trust company, institution, corporation, firm or person so designated
the signatures of the Officers or agents so authorized. Each bank, trust
company, institution, corporation, firm or person no designated is authorized
to rely upon such certification until it has received written notice that the
Board of Directors has revoked the authority of those Officers or agents.
9.6 FISCAL YEAR. The Board of Directors shall have the power, from
time to time, to fix the fiscal year of the Corporation by a duly adopted
resolution.
9.7 BYLAWS SEVERABLE. The provisions of these Bylaws are severable,
and if any provision shall be held invalid or unenforceable, that invalidity or
unenforceability shall attach only to that provision and shall not in any
manner affect or render invalid or unenforceable any other provision of these
Bylaws, and these Bylaws shall be carried out as if the invalid or unenforceable
provision were nor contained herein.
ARTICLE X
AMENDMENT OF BYLAWS
10.1 BY DIRECTORS. The Board of Directors shall have the power, at any
annual or regular meeting, or at any special meeting if notice thereof is
included in the notice of such special meeting, to alter or repeal any Bylaws of
the Corporation and to make new Bylaws; provided, that no alteration or repeal
of Section 7.1 may affect the right of any indemnified persons to
indemnification arising, and in connection with conduct, prior to such
amendment; and, provided, further, that the Board of Directors shall not alter
or repeal this Section 10.1 or Section 10.2.
10.2 BY STOCKHOLDERS. The Stockholders, by, affirmative vote of a
majority of the shares of common stock of the Corporation, shall have the power,
at any annual meeting or at any special meeting if notice thereof if included in
the notice of such special meeting, to alter or repeal any Bylaws of the
Corporation and to make new Bylaws; provided, that no alteration or repeal of
Section 7.1 may affect the rights of any Indemnified Person to indemnification
arising, and in connection with conduct, prior to such amendment; and, provided,
further, that the Stockholders shall not alter or repeal Section 10.1 or this
Section 10.2.
The foregoing are certified as the Bylaws of the Corporation.