Exhibit 3.1
COACH, INC.
BYLAWS
(AS AMENDED ON FEBRUARY 7, 2008)
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation
in the State of Maryland shall be located at such place as the Board of
Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional
offices, including a principal executive office, at such places as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal executive office of the Corporation or at such other place as shall be
set by the Board of Directors and stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for
the election of directors and the transaction of any business within the powers
of the Corporation shall be held on a date and at the time set by the Board of
Directors during the 31-day period beginning on the 15th day of October and
ending on the 14th day of November in each year.
Section 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, president, chief executive
officer or Board of Directors may call a special meeting of the stockholders.
Subject to subsection (b) of this Section 3, a special meeting of stockholders
shall also be called by the secretary of the Corporation upon the written
request of stockholders entitled to cast not less than a majority of all the
votes entitled to be cast at such meeting.
(b) Stockholder Requested Special Meetings. (1) Any stockholder of
record seeking to have stockholders request a special meeting shall, by sending
written notice to the secretary (the "Record Date Request Notice") by registered
mail, return receipt requested, request the Board of Directors to fix a record
date to determine the stockholders entitled to request a special meeting (the
"Request Record Date"). The Record Date Request Notice shall set forth the
purpose of the meeting and the matters proposed to be acted on at it, shall be
signed by one or more stockholders of record as of the date of signature (or
their agents duly authorized in a writing accompanying the Record Date Request
Notice), shall bear the date of signature of each such stockholder (or such
agent) and shall set forth all information relating to each such stockholder
that must be disclosed in solicitations of proxies for election of directors in
an election contest (even if an election contest is not involved), or is
otherwise required, in each case pursuant to Regulation 14A (or any successor
provision) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Upon receiving the Record Date Request Notice, the Board of Directors may
fix a Request Record Date. The Request Record Date shall not precede and shall
not be more than ten days after the close of business on the date on which the
resolution fixing the Request Record Date is adopted by the Board of Directors.
If the Board of Directors, within ten days after the date on which a valid
Record Date Request Notice is received, fails to adopt a resolution fixing the
Request Record Date, the Request Record Date shall be the close of business on
the tenth day after the first date on which the Record Date Request Notice is
received by the secretary.
(2) In order for any stockholder to request a special meeting, one or
more written requests for a special meeting (the "Special Meeting Request")
signed by stockholders of record (or their agents duly authorized in a writing
accompanying the request) as of the Request Record Date entitled to cast not
less than a majority of all of the votes entitled to be cast at such meeting
(the "Special Meeting Percentage") shall be delivered to the secretary. In
addition, the Special Meeting Request (a) shall set forth the purpose of the
meeting and the matters proposed to be acted on at it (which shall be limited to
those lawful matters set forth in the Record Date Request Notice received by the
secretary), (b) shall bear the date of signature of each such stockholder (or
such agent) signing the Special Meeting Request, (c) shall set forth the name
and address, as they appear in the Corporation's books, of each stockholder
signing such request (or on whose behalf the Special Meeting Request is signed),
the class, series and number of all shares of stock of the Corporation which are
owned by each such stockholder, and the nominee holder for, and the number of,
shares owned by such stockholder beneficially but not of record, (d) shall be
sent to the secretary by registered mail, return receipt requested, and (e)
shall be received by the secretary within 60 days after the Request Record Date.
Any requesting stockholder (or agent duly authorized in a writing accompanying
the revocation or the Special Meeting Request) may revoke his, her or its
request for a special meeting at any time by written revocation delivered to the
secretary.
(3) The secretary shall inform the requesting stockholders of the
reasonably estimated cost of preparing and mailing the notice of meeting
(including the Corporation's proxy materials) (the "Special Meeting Costs"). The
secretary shall not be required to call a special meeting upon stockholder
request and such meeting shall not be held unless, in addition to the documents
required by paragraph (2) of this Section 3(b), the secretary receives payment
of the Special Meeting Costs prior to the mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special meeting shall
be held at such place, date and time as may be designated by the president,
chief executive officer or Board of Directors, whoever has called the meeting.
In the case of any special meeting called by the secretary upon the request of
stockholders (a "Stockholder Requested Meeting"), such meeting shall be held at
such place, date and time as may be designated by the Board of Directors;
provided, however, that the date of any Stockholder Requested Meeting shall be
not more than 90 days after the record date for such meeting (the "Meeting
Record Date"); and provided further that if the Board of Directors fails to
designate, within ten days after the date that a valid Special Meeting Request
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is actually received by the secretary (the "Delivery Date"), a date and time for
a Stockholder Requested Meeting, then such meeting shall be held at 2:00 p.m.
local time on the 90th day after the Meeting Record Date or, if such 90th day is
not a Business Day (as defined below), on the first preceding Business Day; and
provided further that in the event that the Board of Directors fails to
designate a place for a Stockholder Requested Meeting within ten days after the
Delivery Date, then such meeting shall be held at the principal executive office
of the Corporation. In fixing a date for any special meeting, the president,
chief executive officer or Board of Directors may consider such factors as he,
she or it deems relevant within the good faith exercise of business judgment,
including, without limitation, the nature of the matters to be considered, the
facts and circumstances surrounding any request for the meeting and any plan of
the Board of Directors to call an annual meeting or a special meeting. In the
case of any Stockholder Requested Special Meeting, if the Board of Directors
fails to fix a Meeting Record Date that is a date within 30 days after the
Delivery Date, then the close of business on the 30th day after the Delivery
Date shall be the Meeting Record Date. The Board of Directors may revoke the
notice for any Stockholder Requested Meeting in the event that the requesting
stockholders fail to comply with the provisions of paragraph (3) of this Section
3(b).
(5) If at any time as a result of written revocations of the Special
Meeting Request, stockholders of record, as of the Request Record Date, entitled
to cast less than the Special Meeting Percentage shall have delivered and not
revoked requests for a special meeting, the secretary shall refrain from mailing
the notice of the meeting or, if the notice of the meeting has been mailed, the
secretary shall revoke the notice of the meeting at any time before ten days
before the meeting if the secretary has first sent to all other requesting
stockholders written notice of such revocation and of the secretary's intention
to revoke the notice of the meeting. Any request for a special meeting received
after a revocation by the secretary of a notice of a meeting shall be considered
a request for a new special meeting.
(6) The chairman of the Board of Directors, chief executive officer,
president or Board of Directors may appoint regionally or nationally recognized
independent inspectors of elections to act as the agent of the Corporation for
the purpose of promptly performing a ministerial review of the validity of any
purported Special Meeting Request received by the secretary. For the purpose of
permitting the inspectors to perform such review, no such purported request
shall be deemed to have been delivered to the secretary until the earlier of (i)
five Business Days after receipt by the secretary of such purported request and
(ii) such date as the independent inspectors certify to the Corporation that the
valid requests received by the secretary represent, as of the Request Record
Date, stockholders of record entitled to cast not less than a majority of the
votes that would be entitled to be cast at such meeting. Nothing contained in
this paragraph (6) shall in any way be construed to suggest or imply that the
Corporation or any stockholder shall not be entitled to contest the validity of
any request, whether during or after such five Business Day period, or to take
any other action (including, without limitation, the commencement, prosecution
or defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
(7) For purposes of these Bylaws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
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Section 4. NOTICE. Not less than ten nor more than 90 days before
each meeting of stockholders, the secretary shall give to each stockholder
entitled to vote at such meeting and to each stockholder not entitled to vote
who is entitled to notice of the meeting written or printed notice stating the
time and place of the meeting and, in the case of a special meeting or as
otherwise may be required by any statute, the purpose for which the meeting is
called, either by mail, by presenting it to such stockholder personally, by
leaving it at the stockholder's residence or usual place of business or by any
other means permitted by Maryland law. If mailed, such notice shall be deemed to
be given when deposited in the United States mail addressed to the stockholder
at the stockholder's address as it appears on the records of the Corporation,
with postage thereon prepaid. Failure to give notice of any meeting to one or
more stockholders, or any irregularity in such notice, shall not affect the
validity of any meeting fixed in accordance with this Article II, or the
validity of any proceedings at any such meeting.
Section 5. SCOPE OF NOTICE. Subject to Section 12(a) of this Article
II, any business of the Corporation may be transacted at an annual meeting of
stockholders without being specifically designated in the notice, except such
business as is required by any statute to be stated in such notice. No business
shall be transacted at a special meeting of stockholders except as specifically
designated in the notice. The Corporation may postpone or cancel a meeting of
stockholders by making a "public announcement" (as defined in Section 12(c)(3))
of such postponement or cancellation prior to the meeting.
Section 6. ORGANIZATION AND CONDUCT. Every meeting of stockholders
shall be conducted by an individual appointed by the Board of Directors to be
chairman of the meeting or, in the absence of such appointment, by the chairman
of the board or, in the case of a vacancy in the office or absence of the
chairman of the board, by one of the following officers present at the meeting:
the vice chairman of the board, if there is one, the president, the vice
presidents in their order of rank and seniority, or, in the absence of such
officers, a chairman chosen by the stockholders by the vote of a majority of the
votes cast by stockholders present in person or by proxy. The secretary, or, in
the secretary's absence, an assistant secretary, or in the absence of both the
secretary and assistant secretaries, a person appointed by the Board of
Directors or, in the absence of such appointment, a person appointed by the
chairman of the meeting shall act as secretary of the meeting. In the event that
the secretary presides at a meeting of the stockholders, an assistant secretary,
or in the absence of assistant secretaries, an individual appointed by the Board
of Directors or the chairman of the meeting, shall record the minutes of the
meeting. The order of business and all other matters of procedure at any meeting
of stockholders shall be determined by the chairman of the meeting. The chairman
of the meeting may prescribe such rules, regulations and procedures and take
such action as, in the discretion of such chairman, are appropriate for the
proper conduct of the meeting, including, without limitation, (a) restricting
admission to the time set for the commencement of the meeting; (b) limiting
attendance at the meeting to stockholders of record of the Corporation, their
duly authorized proxies or other such persons as the chairman of the meeting may
determine; (c) limiting participation at the meeting on any matter to
stockholders of record of the Corporation entitled to vote on such matter, their
duly authorized proxies or other such persons as the chairman of the meeting may
determine; (d) limiting the time allotted to questions or comments by
participants; (e) determining when the polls should be opened and closed; (f)
maintaining order and security at the meeting; (g) removing any stockholder or
any other person who refuses to comply with meeting procedures, rules or
guidelines as set forth by the chairman of the meeting; (h) concluding a meeting
or recessing or adjourning the meeting to a later date and time and at a place
announced at the meeting; and (i) complying with any state and local laws and
regulations concerning safety and security. Unless otherwise determined by the
chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
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Section 7. QUORUM. At any meeting of stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the charter of the
Corporation for the vote necessary for the adoption of any measure. If, however,
such quorum shall not be present at any meeting of the stockholders, the
chairman of the meeting shall have the power to adjourn the meeting from time to
time to a date not more than 120 days after the original record date without
notice other than announcement at the meeting. At such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have
been transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting
which has been duly called and convened, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 8. VOTING. A plurality of all the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to
elect a director. Each share may be voted for as many individuals as there are
directors to be elected and for whose election the share is entitled to be
voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter
which may properly come before the meeting, unless more than a majority of the
votes cast is required by statute or by the charter of the Corporation. Unless
otherwise provided by statute or by the charter, each outstanding share of
stock, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders.
Section 9. PROXIES. A stockholder may cast the votes entitled to be
cast by the holder of the shares of stock owned of record by the stockholder in
person or by proxy executed by the stockholder or by the stockholder's duly
authorized agent in any manner permitted by law. Such proxy or evidence of
authorization of such proxy shall be filed with the secretary of the Corporation
before or at the time of the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.
Section 10. VOTING OF STOCK BY CERTAIN HOLDERS. Shares of stock of
the Corporation registered in the name of a corporation, partnership, trust or
other entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or a proxy
appointed by any of the foregoing individuals, unless some other person who has
been appointed to vote such shares of stock pursuant to a bylaw or a resolution
of the governing body of such corporation or other entity or agreement of the
partners of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such shares of stock. Any director
or other fiduciary may vote shares of stock registered in his or her name as
such fiduciary, either in person or by proxy.
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Shares of stock of the Corporation directly or indirectly owned by it
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Section 11. INSPECTORS. The Board of Directors, the chairman of the
board or the chairman of any meeting of stockholders, before or at the meeting,
may, but need not, appoint one or more inspectors for the meeting and any
successor thereto. The inspectors, if any, shall (i) determine the number of
shares of stock represented at the meeting in person or by proxy and the
validity and effect of proxies, (ii) receive and tabulate all votes, ballots or
consents, (iii) report such tabulation to the chairman of the meeting, (iv) hear
and determine all challenges and questions arising in connection with the right
to vote, and (v) do such acts as are proper to conduct the election or vote with
fairness to all stockholders. Each such report shall be in writing and signed by
him or her or by a majority of them if there is more than one inspector acting
at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors
on the number of shares represented at the meeting and the results of the voting
shall be prima facie evidence thereof.
Section 12. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND
OTHER STOCKHOLDER PROPOSALS.
(a) Annual Meetings of Stockholders. (1) Nominations of individuals
for election to the Board of Directors and the proposal of other business to be
considered by the stockholders may be made at an annual meeting of stockholders
(i) pursuant to the Corporation's notice of meeting, (ii) by or at the direction
of the Board of Directors, or (iii) by any stockholder of the Corporation who
was a stockholder of record both at the time of giving of notice by the
stockholder as provided for in this Section 12(a) and at the time of the annual
meeting, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Section 12(a).
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(2) For nominations for election to the Board of Directors or other
business to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of paragraph (a)(1) of this Section 12, the stockholder
must have given timely notice thereof in writing to the secretary of the
Corporation and such other business must otherwise be a proper matter for action
by the stockholders. To be timely, a stockholder's notice shall set forth all
information required under this Section 12 and shall be delivered to the
secretary at the principal executive office of the Corporation not earlier than
the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior to
the first anniversary of the date of the proxy statement for the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced or delayed by more than 30 days from the first
anniversary of the date of the preceding year's annual meeting, notice by the
stockholder to be timely must be so delivered not earlier than the 150th day
prior to the date of such annual meeting and not later than 5:00 p.m., Eastern
Time, on the later of the 120th day prior to the date of such annual meeting or
the tenth day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of a postponement of such annual meeting or of an adjournment or
postponement of an annual meeting to a later date or time commence a new time
period for the giving of a stockholder's notice as described above. A
stockholder's notice to be proper must set forth (i) as to each individual whom
the stockholder proposes to nominate for election or reelection as a director
(A) the name, age, business address and residence address of such individual,
(B) the class, series and number of any shares of stock of the Corporation that
are beneficially owned or owned of record by such individual, (C) the date such
shares were acquired and the investment intent of such acquisition and (D) all
other information relating to such individual that is required to be disclosed
in solicitations of proxies for election of directors in an election contest
(even if an election contest is not involved), or is otherwise required, in each
case pursuant to Regulation 14A (or any successor provision) under the Exchange
Act and the rules thereunder (including such individual's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the stockholder proposes to bring
before the meeting, a description of the business desired to be brought before
the meeting, the reasons for proposing such business at the meeting and any
material interest in such business of such stockholder and any Stockholder
Associated Person (as defined below), individually or in the aggregate,
including any anticipated benefit to the stockholder or the Stockholder
Associated Person therefrom; (iii) as to the stockholder giving the notice and
any Stockholder Associated Person, (A) the class, series and number of all
shares of stock of the Corporation which are owned by such stockholder and by
such Stockholder Associated Person, if any, (B) the nominee holder for, and the
number of, shares owned beneficially but not of record by such stockholder and
by any such Stockholder Associated Person, and (C) whether and the extent to
which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding (including any short position or any borrowing or lending of
shares of stock) has been made, the effect or intent of which is to mitigate
loss to or manage risk of stock price changes for, or to increase the voting
power of, such stockholder or any such Stockholder Associated Person with
respect to any share of stock of the Corporation; (iv) as to the stockholder
giving notice and any Stockholder Associated Person covered by clauses (ii) and
(iii) of this paragraph (2) of this Section 12(a), the name and address of such
stockholder, as they appear on the Corporation's stock ledger and current name
and address, if different, and of such Stockholder Associated Person; and (v) to
the extent known by the stockholder giving the notice, the name and address of
any other stockholder supporting the nominee for election or reelection as a
director or the proposal of other business on the date of such stockholder's
notice.
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(3) Notwithstanding anything in the second sentence of paragraph (a)(2)
of this Section 12 to the contrary, in the event that the number of directors to
be elected to the Board of Directors is increased and there is no public
announcement by the Corporation of such action or specifying the size of the
increased Board of Directors at least 130 days prior to the first anniversary of
the date of the proxy statement for the preceding year's annual meeting, a
stockholder's notice required by this Section 12(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if the notice is delivered to the secretary at the principal executive
office of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth
day immediately following the day on which such public announcement is first
made by the Corporation.
(4) For purposes of this Section 12, "Stockholder Associated Person" of
any stockholder shall mean (i) any person controlling, directly or indirectly,
or acting in concert with, such stockholder, (ii) any beneficial owner of shares
of stock of the Corporation owned of record or beneficially by such stockholder
and (iii) any person controlling, controlled by or under common control with
such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
individuals for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors, or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record both at the time of giving of notice
provided for in this Section 12(b) and at the time of the special meeting, who
is entitled to vote at the meeting and who has complied with the notice
procedures set forth in this Section 12(b). In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate an
individual or individuals (as the case may be) for election as a director as
specified in the Corporation's notice of meeting, if the stockholder's notice
containing the information required by paragraph (a)(2) of this Section 12 shall
have been delivered to the secretary at the principal executive office of the
Corporation not earlier than the 120th day prior to such special meeting and not
later than 5:00 p.m., Eastern Time, on the later of the 90th day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and the nominees proposed by
the Board of Directors to be elected at such meeting. In no event shall the
public announcement of a postponement or adjournment of a special meeting to a
later date or time commence a new time period for the giving of a stockholder's
notice as described above.
(c) General. (1) If information submitted pursuant to this Section
12 by any stockholder proposing a nominee for election as a director or any
proposal for other business at a meeting of stockholders shall be inaccurate to
a material extent, such information may be deemed not to have been provided in
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accordance with this Section 12. Upon written request by the secretary or the
Board of Directors, any stockholder proposing a nominee for election as a
director or any proposal for other business at a meeting of stockholders shall
provide, within five Business Days of delivery of such request (or such other
period as may be specified in such request), (A) written verification,
satisfactory, in the discretion of the Board of Directors or any authorized
officer of the Corporation, to demonstrate the accuracy of any information
submitted by the stockholder pursuant to this Section 12 and (B) a written
update of any information previously submitted by the stockholder pursuant to
this Section12 as of an earlier date. If a stockholder fails to provide such
written verification or written update within such period, the information as to
which written verification or a written update was requested may be deemed not
to have been provided in accordance with this Section 12.
(2) Only such individuals who are nominated in accordance with the
procedures set forth in this Section 12 shall be eligible for election by
stockholders as directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 12. The chairman of the
meeting shall have the power to determine whether a nomination or any other
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with this Section 12 and, if any proposed nomination
or other business is not in compliance with this Section 12, to declare that
such nomination or proposal shall be disregarded.
(3) "Public announcement" shall mean disclosure (i) in a press release
reported by the Dow Jones News Service, Associated Press, Business Wire, PR
Newswire or other widely circulated news or wire service or (ii) in a document
publicly filed by the Corporation with the United States Securities and Exchange
Commission pursuant to the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 12, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 12. Nothing in this Section 12 shall be deemed
to affect any right of a stockholder to request inclusion of a proposal in, nor
the right of the Corporation to omit a proposal from, the Corporation's proxy
statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
Section 13. VOTING BY BALLOT. Voting on any question or in any
election may be viva voce unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
Section 14. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other
provision of the charter of the Corporation or these Bylaws, Title 3, Subtitle 7
of the Maryland General Corporation Law (the "MGCL") (or any successor statute)
shall not apply to any acquisition by any person of shares of stock of the
Corporation. This section may be repealed, in whole or in part, at any time,
whether before or after an acquisition of control shares and, upon such repeal,
may, to the extent provided by any successor bylaw, apply to any prior or
subsequent control share acquisition.
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ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting
or at any special meeting called for that purpose, a majority of the entire
Board of Directors may establish, increase or decrease the number of directors,
provided that the number thereof shall never be less than the minimum number
required by the Maryland General Corporation Law and further provided that the
tenure of office of a director shall not be affected by any decrease in the
number of directors.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Board of Directors shall be held immediately after and at the same place as the
annual meeting of stockholders, no notice other than this Bylaw being necessary.
In the event such meeting is not so held, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors. The Board of Directors may provide,
by resolution, the time and place for the holding of regular meetings of the
Board of Directors without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the chairman of the board, the
chief executive officer, the president or by 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 as the place for holding any special meeting of
the Board of Directors called by them. The Board of Directors may provide, by
resolution, the time and place for the holding of special meetings of the Board
of Directors without other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of
Directors shall be delivered personally or by telephone, electronic mail,
facsimile transmission, United States mail or courier to each director at his or
her business or residence address. Notice by personal delivery, telephone,
electronic mail or facsimile transmission shall be given at least 24 hours prior
to the meeting. Notice by United States mail shall be given at least three days
prior to the meeting. Notice by courier shall be given at least two days prior
to the meeting. Telephone notice shall be deemed to be given when the director
or his or her agent is personally given such notice in a telephone call to which
the director or his or her agent is a party. Electronic mail notice shall be
deemed to be given upon transmission of the message to the electronic mail
address given to the Corporation by the director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of the message
to the number given to the Corporation by the director and receipt of a
completed answer-back indicating receipt. Notice by United States mail shall be
deemed to be given when deposited in the United States mail properly addressed,
with postage thereon prepaid. Notice by courier shall be deemed to be given when
deposited with or delivered to a courier properly addressed. Neither the
business to be transacted at, nor the purpose of, any annual, regular or special
meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these Bylaws.
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Section 6. QUORUM. The presence of a majority of the directors shall
constitute a quorum for transaction of business at any meeting of the Board of
Directors, provided that, if less than a majority of such directors is present
at such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice, and provided further that if, pursuant
to applicable law, the charter of the Corporation or these Bylaws, the vote of a
majority or other percentage of a particular group of directors is required for
action, a quorum must also include a majority of such group.
The directors present at a meeting which has been duly called and
convened may continue to transact business until adjournment, notwithstanding
the withdrawal of enough directors to leave less than a quorum.
Section 7. VOTING. The action of the majority of the directors
present at a meeting at which a quorum is present shall be the action of the
Board of Directors, unless the concurrence of a greater proportion is required
for such action by applicable law, the charter or these Bylaws. If enough
directors have withdrawn from a meeting to leave less than a quorum but the
meeting is not adjourned, the action of the majority of that number of directors
necessary to constitute a quorum at such meeting shall be the action of the
Board of Directors, unless the concurrence of a greater proportion is required
for such action by applicable law, the charter or these Bylaws.
Section 8. ORGANIZATION. At each meeting of the Board of Directors,
the chairman of the board or, in the absence of the chairman, the vice chairman
of the board, if any, shall act as chairman of the meeting. In the absence of
both the chairman and vice chairman of the board, the chief executive officer or
in the absence of the chief executive officer, the president or in the absence
of the president, a director chosen by a majority of the directors present,
shall act as chairman of the meeting. The secretary or, in his or her absence,
an assistant secretary of the Corporation, or in the absence of the secretary
and all assistant secretaries, a person appointed by the chairman of the
meeting, shall act as secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a
meeting by means of a conference telephone or other communications equipment if
all persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 10. WRITTEN CONSENT 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 or by electronic transmission to such
action is given by each director and is filed with the minutes of proceedings of
the Board of Directors.
Section 11. VACANCIES. If for any reason any or all the directors
cease to be directors, such event shall not terminate the Corporation or affect
these Bylaws or the powers of the remaining directors hereunder. Except as may
be provided by the Board of Directors in setting the terms of any class or
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series of preferred stock, any and all vacancies on the Board of Directors may
be filled only by the affirmative vote of a majority of the remaining directors
in office, even if the remaining directors do not constitute a quorum and any
director elected to fill a vacancy shall serve for the remainder of the full
term of the directorship in which such vacancy occurred and until a successor is
elected and qualifies.
Section 12. COMPENSATION. Directors shall not receive any stated
compensation for their services as directors but, by resolution of the Board of
Directors, may receive compensation per year and/or per meeting and/or per visit
to real property or other facilities owned or leased by the Corporation and for
any service or activity they performed or engaged in as directors. Directors may
be reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Board of Directors or of any committee thereof and for
their expenses, if any, in connection with each property visit and any other
service or activity they performed or engaged in as directors; but nothing
herein contained shall be construed to preclude any directors from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 13. LOSS OF DEPOSITS. No director shall be liable for any
loss which may occur by reason of the failure of the bank, trust company,
savings and loan association, or other institution with whom moneys or stock
have been deposited.
Section 14. SURETY BONDS. Unless required by law, no director shall
be obligated to give any bond or surety or other security for the performance of
any of his or her duties.
Section 15. RELIANCE. Each director of the Corporation shall, in the
performance of his or her duties with respect to the Corporation, be entitled to
rely on any information, opinion, report or statement, including any financial
statement or other financial data, prepared or presented by (a) an officer or
employee of the Corporation whom the director reasonably believes to be reliable
and competent in the matters presented, (b) a lawyer, certified public
accountant or other person, as to a matter which the director reasonably
believes to be within the person's professional or expert competence or (c) a
committee of the Board of Directors on which the director does not serve, as to
a matter within its designated authority, if the director reasonably believes
the committee to merit confidence.
Section 16. RATIFICATION. The Board of Directors or the stockholders
may ratify and make binding on the Corporation any action or inaction by the
Corporation or its officers to the extent that the Board of Directors or the
stockholders could have originally authorized the matter. Moreover, any action
or inaction questioned in any stockholders' derivative proceeding or any other
proceeding on the ground of lack of authority, defective or irregular execution,
adverse interest of a director, officer or stockholder, non-disclosure,
miscomputation, the application of improper principles or practices of
accounting, or otherwise, may be ratified, before or after judgment, by the
Board of Directors or by the stockholders, if so ratified, shall have the same
force and effect as if the questioned action or inaction had been originally
duly authorized, and such ratification shall be binding upon the Corporation and
its stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned action or inaction.
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Section 17. EMERGENCY PROVISIONS. Notwithstanding any other provision
in the charter or these Bylaws, this Section 17 shall apply during the existence
of any catastrophe, or other similar emergency condition, as a result of which a
quorum of the Board of Directors under Article III of these Bylaws cannot
readily be obtained (an "Emergency"). During any Emergency, unless otherwise
provided by the Board, (i) a meeting of the Board of Directors or a committee
thereof may be called by any director or officer by any means feasible under the
circumstances; (ii) notice of any meeting of the Board of Directors during such
an Emergency may be given less than 24 hours prior to the meeting to as many
directors and by such means as may be feasible at the time, including
publication, television or radio, and (iii) the number of directors necessary to
constitute a quorum shall be one-third of the entire Board of Directors.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors
may appoint from among its members an Executive Committee, an Audit Committee, a
Compensation and Employee Benefits Committee and other committees, composed of
one or more directors, to serve at the pleasure of the Board of Directors.
Section 2. POWERS. The Board of Directors may delegate to committees
appointed under Section 1 of this Article any of the powers of the Board of
Directors, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be given in
the same manner as notice for special meetings of the Board of Directors. A
majority of the members of the committee shall constitute a quorum for the
transaction of business at any meeting of the committee. The act of a majority
of the committee members present at a meeting shall be the act of such
committee. The Board of Directors may designate a chairman of any committee, and
such chairman or, in the absence of a chairman, any two members of any committee
(if there are at least two members of the Committee) may fix the time and place
of its meeting unless the Board shall otherwise provide. In the absence of any
member of any such committee, the members thereof present at any meeting,
whether or not they constitute a quorum, may appoint another director to act in
the place of such absent member. Each committee shall keep minutes of its
proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board
of Directors may participate in a meeting by means of a conference telephone or
other communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 5. WRITTEN CONSENT BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing or by electronic
transmission to such action is given by each member of the committee and is
filed with the minutes of proceedings of such committee.
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Section 6. VACANCIES. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the membership of any
committee, to fill any vacancy, to designate an alternate member to replace any
absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall
include a president, a secretary and a treasurer and may include a chairman of
the board, a vice chairman of the board, a chief executive officer, one or more
vice presidents, a chief operating officer, a chief financial officer, one or
more assistant secretaries and one or more assistant treasurers. In addition,
the Board of Directors may from time to time elect such other officers with such
powers and duties as they shall deem necessary or desirable. The officers of the
Corporation shall be elected annually by the Board of Directors, except that the
chief executive officer or president may from time to time appoint one or more
vice presidents, assistant secretaries and assistant treasurers or other
officers. Each officer shall serve until his or her successor is elected and
qualifies or until his or her death, or his or her resignation or removal in the
manner hereinafter provided. Any two or more offices except president and vice
president may be held by the same person. In its discretion, the Board of
Directors may leave unfilled any office except that of president, treasurer and
secretary. Election of an officer or agent shall not of itself create contract
rights between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Corporation may be removed, with or without cause, by the Board of Directors if
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 so removed. Any officer of the Corporation may resign at any time by
giving written notice of his or her resignation to the Board of Directors, the
chairman of the board, the president or the secretary. Any resignation shall
take effect immediately upon its receipt or at such later time specified in the
notice of resignation. The acceptance of a resignation shall not be necessary to
make it effective unless otherwise stated in the resignation. Such resignation
shall be without prejudice to the contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the
Board of Directors for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may
designate a chief executive officer. In the absence of such designation, the
chairman of the board, or if there is none, the president, shall be the chief
executive officer of the Corporation. The chief executive officer shall have
general responsibility for implementation of the policies of the Corporation, as
determined by the Board of Directors, and for the management of the business and
affairs of the Corporation.
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Section 5. CHIEF OPERATING OFFICER. The Board of Directors may
designate a chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The Board of Directors may
designate a chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 7. CHAIRMAN OF THE BOARD. The Board of Directors shall
designate a chairman of the board. The chairman of the board shall preside over
the meetings of the Board of Directors and of the stockholders at which he shall
be present. The chairman of the board shall perform such other duties as may be
assigned to him or her by the Board of Directors.
Section 8. PRESIDENT. In the absence of a chief executive officer,
the president shall in general supervise and control all of the business and
affairs of the Corporation. In the absence of a designation of a chief operating
officer by the Board of Directors, the president shall be the chief operating
officer. He may execute any deed, mortgage, bond, contract or other instrument,
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the
Corporation or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Board of Directors from time to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in
the event of a vacancy in such office, the vice president (or in the event there
be more than one vice president, the vice presidents in the order designated at
the time of their election or, in the absence of any designation, then in the
order of their election) shall perform the duties of the president and when so
acting shall have all the powers of and be subject to all the restrictions upon
the president; and shall perform such other duties as from time to time may be
assigned to such vice president by the president or by the Board of Directors.
The Board of Directors may designate one or more vice presidents as executive
vice president or as vice president for particular areas of responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of
the proceedings of the stockholders, the Board of Directors and committees of
the Board of Directors in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation; (d) keep a register of the post office address of
each stockholder which shall be furnished to the secretary by such stockholder;
(e) have general charge of the stock transfer books of the Corporation; and (f)
in general perform such other duties as from time to time may be assigned to the
secretary by the chief executive officer, the president or by the Board of
Directors.
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Section 11. TREASURER. The treasurer shall have the custody of the
funds and securities of the Corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. In the absence of a designation of a chief financial officer by
the Board of Directors, the treasurer shall be the chief financial officer of
the Corporation.
The treasurer shall disburse the funds of the Corporation and shall
render to the president and Board of Directors, at the regular meetings of the
Board of Directors or whenever it may so require, an account of all his or her
actions as treasurer and of the financial condition of the Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the secretary or treasurer, respectively,
or by the president or the Board of Directors.
Section 13. COMPENSATION. The compensation of the officers shall be
fixed from time to time by or under the authority of the Board of Directors and
no officer shall be prevented from receiving such compensation by reason of the
fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any
officer or agent to execute and deliver any contract or other instrument in the
name of and on behalf of the Corporation and such authority may be general or
confined to specific instances. Any agreement, deed, mortgage, lease or other
document shall be valid and binding upon the Corporation when duly authorized or
ratified by action of the Board of Directors and executed by an authorized
person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or agent of the
Corporation in such manner as shall from time to time be determined by the Board
of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may designate.
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ARTICLE VII
STOCK
Section 1. CERTIFICATES. The Corporation may issue some or all of
the shares of any or all of the Corporation's classes or series of stock without
certificates if authorized by the Board of Directors. In the event that the
Corporation issues shares of stock represented by certificates, such
certificates shall be signed by the officers of the Corporation in the manner
permitted by the MGCL and contain the statements and information required by the
MGCL. In the event that the Corporation issues shares of stock without
certificates, the Corporation shall provide to holders of such shares a written
statement of the information required by the MGCL to be included on stock
certificates. There shall be no differences in the rights and obligations or
stockholders based on whether or not their shares of stock are represented by
certificates. If a class or series of stock is authorized by the Board of
Directors to be issued without certificates, no stockholder shall be entitled to
a certificate or certificates representing any shares of such class or series of
stock held by such stockholder unless otherwise determined by the Board of
Directors and then only upon written request by such stockholder to the
secretary of the Corporation.
Section 2. TRANSFERS. All transfers of shares of stock shall be made
on the books of the Corporation, by the holder of the shares, in person or by
his or her attorney, in such manner as the Board of Directors or any officer of
the Corporation may prescribe and, if such shares are certificated, upon
surrender of certificates duly endorsed. The issuance of a new certificate upon
the transfer of certificated shares is subject to the determination of the Board
of Directors that such shares shall no longer be represented by certificates.
Upon the transfer of uncertificated shares, to the extent then required by the
MGCL, the Corporation shall provide to record holders of such shares a written
statement of the information required by the MGCL to be included on stock
certificates.
The Corporation shall be entitled to treat the holder of record of any
share of stock 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 or
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.
Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the charter of the Corporation and all
of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the
Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed upon the making of an affidavit
of that fact by the person claiming the certificate to be lost, stolen or
destroyed; provided, however, if such shares of stock have ceased to be
certificated, no new certificate shall be issued unless requested in writing by
such stockholder and the Board of Directors has determined such certificates may
be issued. Unless otherwise determined by an officer of the Corporation, the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, shall be required, as a condition precedent to the issuance of a
new certificate, to give the Corporation a bond in such sums as it may direct as
indemnity against any claim that may be made against the Corporation.
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Section 4. FIXING OF RECORD DATE. The Board of Directors may set, in
advance, a record date for the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or determining stockholders
entitled to receive payment of any dividend or the allotment of any other
rights, or in order to make a determination of stockholders for any other proper
purpose. Such date, in any case, shall not be prior to the close of business on
the day the record date is fixed and shall be not more than 90 days and, in the
case of a meeting of stockholders, not less than ten days, before the date on
which the meeting or particular action requiring such determination of
stockholders of record is to be held or taken.
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 or postponement thereof, except when the meeting is
adjourned or postponed to a date more than 120 days after the record date fixed
for the original meeting, in which case a new record date shall be determined as
set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its
principal office or at the office of its counsel, accountants or transfer agent,
an original or duplicate share ledger containing the name and address of each
stockholder and the number of shares of each class held by such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of
Directors may authorize the Corporation to issue fractional stock or provide for
the issuance of scrip, all on such terms and under such conditions as the Board
may determine. Notwithstanding any other provision of the charter or these
Bylaws, the Board of Directors may authorize the Corporation to issue units
consisting of different securities of the Corporation. Any security issued in a
unit shall have the same characteristics as any identical securities issued by
the Corporation, except that the Board of Directors may provide that for a
specified period securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING 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.
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ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the
stock of the Corporation may be authorized by the Board of Directors, subject to
the provisions of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the Corporation, subject
to the provisions of law and the charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
available for dividends or other distributions such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve.
ARTICLE X
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption
of a seal by the Corporation. The seal shall contain the name of the Corporation
and the year of its incorporation and the words "Incorporated Maryland." The
Board of Directors may authorize one or more duplicate seals and provide for the
custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or
required to affix its seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a seal to place the word
"(SEAL)" adjacent to the signature of the person authorized to execute the
document on behalf of the Corporation.
ARTICLE XI
INDEMNIFICATION AND ADVANCE OF EXPENSES
Section 1. Each person who was or is made a party or is threatened
to be made a party to or is involved in or called as a witness in any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
and any appeal therefrom (hereinafter, collectively a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is, was or had agreed to become a director of the Corporation or
is, was or had agreed to become an officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
under the MGCL, as the same now exists or may hereafter be amended (but, in the
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case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the MGCL permitted
the Corporation to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, excise
taxes or penalties pursuant to the Employee Retirement Income Security Act of
1974, as amended, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, that
except as explicitly provided herein, prior to a Change in Control, as defined
herein, a person seeking indemnity in connection with a proceeding (or part
thereof) initiated by such person against the Corporation or any director,
officer, employee or agent of the Corporation shall not be entitled thereto
unless the Corporation has joined in or consented to such proceeding (or part
thereof). For purposes of this Article, a "Change in Control of the Corporation"
shall be deemed to have occurred if (a) any Person is or becomes (except in a
transaction approved in advance by the Board of Directors of the Corporation)
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities or (b)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Corporation cease for any
reason to constitute at least a majority thereof unless the election of each
director who was not a director at the beginning of the period was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
Section 2. Any indemnification under this Article XI (unless ordered by
a court) shall be paid by the Corporation within 60 days of such request for
indemnification unless prior to such time a determination is made (a) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such proceeding, (b) if such quorum is not obtainable, or
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel (who may be the regular counsel to the Corporation) in
a written opinion or (c) by the stockholders, by the affirmative vote of a
majority of the votes cast on such matter (not including shares held by persons
who are parties to the proceeding), that indemnification of such person is not
proper under the circumstances because such person has not met the necessary
standard of conduct under Maryland law; provided, however, that following a
Change in Control of the Corporation, with respect to all matters thereafter
arising out of acts, omissions or events prior to the Change in Control
concerning the rights of any person seeking indemnification under this Section
2, such determination shall be made by special independent counsel selected by
such person and approved by the Corporation (which approval shall not be
unreasonably withheld), which counsel has not otherwise performed services
(other than in connection with similar matters) within the five years preceding
its engagement to render such opinion for such person or for the Corporation or
any affiliates (as such term is defined in Rule 405 under the Securities Act of
1933, as amended) of the Corporation (whether or not they were affiliates when
services were so performed) ("Independent Counsel"). Unless such person has
theretofore selected Independent Counsel pursuant to this Section 2 and such
Independent Counsel has been approved by the Corporation, legal counsel approved
by a resolution or resolutions of the Board of Directors prior to a Change in
Control shall be deemed to have been approved by the Corporation as required.
Such Independent Counsel shall determine as promptly as practicable whether and
to what extent such person would be permitted to be indemnified under applicable
law and shall render its written opinion to the Corporation and such person to
such effect. The Corporation shall pay the reasonable fees of the Independent
Counsel referred to above and shall fully indemnify such Independent Counsel
against any and all expenses, claims, liabilities and damages arising out of or
relating to this Article or its engagement pursuant hereto.
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Section 3. EXPENSES. Expenses, including attorneys' fees, incurred
by a person referred to in this Article XI in defending or otherwise being
involved in a proceeding shall be paid by the Corporation in advance of the
final disposition of such proceeding, including any appeal therefrom, and
without requiring a preliminary determination of the ultimate entitlement to
indemnification, upon receipt of a written affirmation by such person of his or
her good faith belief that such person has met the standard of conduct necessary
for indemnification and an undertaking (the "Undertaking") by or on behalf of
such person to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the Corporation.
Section 4. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section
1 hereof is not paid in full by the Corporation within 60 days after a written
claim has been received by the Corporation or if expenses pursuant to Section 3
of this Article XI have not been advanced within 10 days after a written request
for such advancement accompanied by the Undertaking has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim or the advancement of
expenses. If the claimant is successful, in whole or in part, in such suit or
any other suit to enforce a right for expenses or indemnification against the
Corporation or any other party under any other agreement, such claimant shall
also be entitled to be paid the reasonable expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required Undertaking has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it permissible
under the MGCL for the Corporation to indemnify the claimant for the amount
claimed. After a Change in Control, the burden of proving such defense shall be
on the Corporation, and any determination by the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the
claimant had not met the applicable standard of conduct required under the MGCL
shall not be a defense to the action nor create a presumption that claimant had
not met such applicable standard of conduct.
Section 5. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
charter, Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise. The Board of Directors shall have the authority, by resolution, to
provide for such other indemnification of directors, officers, employees or
agents of the Corporation, or any predecessor of the Corporation, as it shall
deem appropriate.
Section 6. INSURANCE. The Corporation may purchase and maintain
insurance to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expenses, liabilities or losses, whether or not the
Corporation would have the power to indemnify such person against such expenses,
liabilities or losses under the MGCL.
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Section 7. ENFORCEABILITY. The provisions of this Article shall be
applicable to all proceedings commenced after its adoption, whether such arise
out of events, acts, omissions or circumstances which occurred or existed prior
or subsequent to such adoption, and shall continue as to a person who has ceased
to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such person. This Article shall be deemed to
grant each person who, at any time that this Article is in effect, serves or
agrees to serve in any capacity which entitles him to indemnification hereunder
rights against the Corporation to enforce the provisions of this Article, and
any repeal or other modification of this Article or any repeal or modification
of the MGCL or any other applicable law shall not limit any rights of
indemnification then existing or arising out of events, acts, omissions,
circumstances occurring or existing prior to such repeal or modification,
including, without limitation, the right to indemnification for proceedings
commenced after such repeal or modification to enforce this Article with regard
to acts, omissions, events or circumstances occurring or existing prior to such
repeal or modification.
Section 8. SEVERABILITY. If this Article or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer of the
Corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated and to
the full extent permitted by applicable law.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of
the Corporation 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 at nor the purpose
of any meeting need be set forth in the waiver of notice, unless specifically
required by statute. The attendance of any person at any meeting shall
constitute a waiver of notice of such meeting, except where such person attends
a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
ARTICLE XIII
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter
or repeal any provision of these Bylaws and to make new Bylaws.
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