EXHIBIT 3.2
OC FINANANCIAL, INC.
BYLAWS
ARTICLE 1. Stockholders
SECTION 1.01 ANNUAL MEETING. An annual meeting of the stockholders
for the election of Directors and the transaction of any other business within
the powers of the Corporation shall be held each year on a date and at the time
and place set by the Board of Directors.
SECTION 1.02 SPECIAL MEETINGS.
(a) CALLING OF SPECIAL MEETINGS. Subject to the rights of the
holders of any class or series of preferred stock of the Corporation, special
meetings of stockholders of the Corporation may be called by the Chief Executive
Officer, the President, or the Board of Directors pursuant to a resolution
approved by majority of the Whole Board. For the purposes of these Bylaws, the
term "Whole Board" shall mean the total number of Directors that the Corporation
would have if there were no vacancies on the Board of Directors at the time any
such resolution is presented to the Board of Directors for adoption. Subject to
the requirements of this Section 1.02, special meetings of the stockholders
shall be called by the Secretary only upon the written request of stockholders
entitled to cast not less than a majority of all the votes entitled to be cast
at the meeting.
(b) NOTICE AND PROCEDURAL REQUIREMENTS FOR SPECIAL MEETINGS.
(1) Any stockholder of record seeking to have stockholders
request a special meeting shall, by sending written notice to
the Secretary at the principal executive office of the
Corporation (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 Board of Directors adopts a resolution fixing the Request
Record Date. If the Board of Directors, within 10 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 10th
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
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
(the "Special Meeting Percentage") of all of the votes entitled
to be cast at such meeting (the "Special Meeting Request") shall
be delivered to the Secretary. In addition, the Special Meeting
Request: (i) 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); (ii) shall bear the date of
signature of each such stockholder (or such agent) signing the
Special Meeting Request; (iii) 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 number of, shares
owned by such stockholder beneficially but not of record; (iv)
shall be sent to the Secretary at the Corporation's principal
executive office by registered mail, return receipt requested;
and (v) 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 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 1.02(b), the Secretary receives payment of such
reasonably estimated cost 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 in a resolution approved by a majority of the Whole
Board. 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 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
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office of the Corporation. In fixing a date for any special
meeting, the Board of Directors may consider such factors as 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 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 Section 1.02(b)(3).
(5) If written revocations of requests for a special meeting
have been delivered to the Secretary and the result is that
stockholders of record (or their agents duly authorized in
writing), as of the Request Record Date, entitled to cast less
than the Special Meeting Percentage have delivered, and have not
been revoked, requests for a special meeting to the Secretary,
the Secretary shall: (i) if the notice of meeting has not
already been mailed, refrain from mailing the notice of the
meeting and send to all requesting stockholders who have not
revoked such requests written notice of any revocation of a
request for the special meeting; or (ii) if the notice of
meeting has been mailed and if the Secretary first sends to all
requesting stockholders who have not revoked requests for a
special meeting written notice of any revocation of a request
for the special meeting and written notice of the Secretary's
intention to revoke the notice of the meeting, revoke the notice
of the meeting at any time before 10 days before the
commencement 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 Board of Directors may, but shall not be obligated
to, 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 at least a majority of the
issued and outstanding shares of stock that would be entitled to
vote at such meeting. Nothing contained in this Section
1.02(b)(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).
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(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 Ohio are authorized or
obligated by law or executive order to close.
SECTION 1.03 NOTICE OF MEETINGS. Not less than 10 nor more than 90
days before each stockholders' meeting, the Secretary shall give notice of the
meeting in writing or by electronic transmission to each stockholder entitled to
vote at the meeting and to each other stockholder entitled to notice of the
meeting. The notice shall state: (a) the time and place of the meeting; (b) the
purpose of the meeting, but only if the meeting is a special meeting or notice
of the purpose of the meeting is otherwise required by the General Corporation
Law of the State of Maryland, as now or hereafter in force (referred to herein
as the "MGCL") or other applicable law; and (c) the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and may vote at the meeting. Notice is given to a
stockholder when it is personally delivered to the stockholder, left at the
stockholder's usual place of business, mailed to the stockholder at his or her
address as it appears on the records of the Corporation, or, subject to the
requirements of the MGCL, transmitted to the stockholder by electronic
transmission to any address or number of the stockholder at which the
stockholder receives electronic transmissions. If two or more stockholders share
an address, notice to such stockholders may be given by a single notice to the
fullest extent permitted by the MGCL. Each person who is entitled to notice
waives notice if such person, before or after the meeting, delivers a written
waiver or a waiver by electronic transmission that is filed with the records of
the stockholders' meeting, or is present at the meeting in person or by proxy.
SECTION 1.04 ADJOURNMENT. A meeting of stockholders convened on the
date for which it was called may be adjourned from time to time by the chairman
of the meeting, whether or not a quorum is present, to a time and date not more
than 120 days after the original record date without notice other than
announcement at the meeting. At an adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally notified.
SECTION 1.05 QUORUM. At any meeting of the stockholders, the presence
in person or by proxy of stockholders entitled to cast a majority of all the
votes entitled to be cast at the meeting on any matter (after giving due effect
to the provisions of Article 6, Section F of the Articles of Incorporation of
the Corporation) constitutes a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by the Articles of
Incorporation of the Corporation. Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter. The stockholders present either in person
or by proxy at a meeting that 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 1.06 VOTING; PROXIES.
(a) VOTING. Subject to the limitations set forth in Article 6,
Section F of the Articles of Incorporation of the Corporation, and any other
provisions of the Articles of Incorporation of the Corporation that provide for
a greater or lesser number of votes per share or limit or deny voting
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rights, each outstanding share of stock, regardless of class, is entitled to one
vote on each matter submitted to a vote at a meeting of stockholders, subject to
the provisions of Article 6, Section F of the Articles of Incorporation. A
plurality of all the votes cast (after giving due effect to the provisions of
Article 6, Section F of the Articles of Incorporation) 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 (after giving due effect to the
provisions of Article 6, Section F of the Articles of Incorporation) 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 (after giving due
effect to the provisions of Article 6, Section F of the Articles of
Incorporation) 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 the Articles of Incorporation of the Corporation for a specific
action.
(b) PROXIES. A stockholder may cast the votes entitled to be cast by
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. A stockholder may authorize another person to act as
proxy by signing a writing authorizing such person to act as proxy. Signing may
be accomplished by the stockholder or the stockholder's authorized agent signing
the writing or causing the stockholder's signature to be affixed to the writing
by any reasonable means, including facsimile signature. A stockholder may also
authorize another person to act as proxy by transmitting or authorizing the
transmission of a facsimile or other means of electronic transmission to the
person authorized to act as proxy or to a proxy solicitation firm, proxy support
service organization, or other person authorized by the person who will act as
proxy to receive the transmission. Such proxy or evidence of authorization of
such proxy shall be filed with the Secretary of the Corporation before or at the
meeting. No proxy shall be valid more than eleven months after its date unless
otherwise provided in the proxy. A proxy may be made irrevocable if the proxy so
states, but only for so long as it is coupled with an interest.
SECTION 1.07 CONDUCT OF BUSINESS.
(a) CONDUCT OF MEETING. Every meeting of stockholders shall be
conducted by an individual appointed by the Board of Directors to be chairman of
the meeting. In the absence of such appointment, the Chairman of the Board or,
in the case of a vacancy in the office or the absence of the Chairman of the
Board, one of the following officers present at the meeting in the order of
their rank: the Chief Executive Officer, the President, the Secretary, and the
Chief Financial Officer/Treasurer, shall serve as chairman of the meeting. The
Secretary, or, in the Secretary's absence, an Assistant Secretary, or in the
absence of both the Secretary and an Assistant Secretary, a person appointed by
the Board of Directors or 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.
(b) ORDER OF BUSINESS; RULES AND REGULATIONS. 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
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take such action as, in the discretion of such chairman, are appropriate for the
proper conduct of the meeting, including, without limitation: (i) restricting
admission to the time set for the commencement of the meeting; (ii) limiting
attendance at the meeting to stockholders of record of the Corporation, their
duly authorized proxies and other such individuals as the chairman of the
meeting may determine; (iii) 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 and other such individuals as the chairman of the
meeting may determine; (iv) limiting the time allotted to questions or comments
by participants; (v) determining when the polls should be opened and closed;
(vi) maintaining order and security at the meeting; (vii) removing any
stockholder or any other individual who refuses to comply with meeting
procedures, rules or guidelines as set forth by the chairman of the meeting; and
(viii) concluding a meeting or recessing or adjourning the meeting to a later
date and time and at a place announced at the meeting. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders are not
required to be held in accordance with Roberts Rules of Order or other rules of
parliamentary procedure.
SECTION 1.08 CONDUCT OF VOTING.
(a) INSPECTORS OF ELECTION. The Board of Directors shall appoint one
or more persons as inspectors of election, to act at the meeting or any
adjournment thereof and make a written report thereof, in accordance with these
Bylaws and applicable law. If an inspector or inspectors are not appointed, the
chairman of the meeting shall appoint one or more inspectors. If a person who
has been appointed as an inspector fails to appear or act, the Board of
Directors or the chairman of the meeting may fill the vacancy. The inspectors
shall determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the
qualifications of voters, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. 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.
(b) MANNER OF VOTING. All voting, except where otherwise required by
applicable law, may be by a voice vote; provided, however, that upon demand
therefor by a stockholder entitled to vote or his or her proxy, a stock vote
shall be taken. Every stock vote shall be taken by ballot, each of which shall
state the name of the stockholder or proxy voting and such other information as
may be required under the procedure established for the meeting. Every vote
taken by ballot shall be counted by an inspector or inspectors appointed by the
chairman of the meeting. No candidate for election as a Director at a meeting
shall serve as an inspector at such meeting.
(c) VOTING BY CERTAIN HOLDERS. 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
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to vote such 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 stock. Any Director or other fiduciary may vote stock
registered in his or her name as such fiduciary, either in person or by proxy.
(d) STOCK OWNED BY THE CORPORATION. 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.
SECTION 1.09 STOCKHOLDER NOMINATIONS OF DIRECTORS AND PROPOSALS.
(a) Nominations and Proposals for 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 1.09(a) and at
the time of the annual meeting, who is entitled to vote at the
meeting and who has complied with the requirements of this
Section 1.09(a).
(2) For nominations 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 1.09, 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 1.09(a)(2) 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., Dublin, Ohio Time, on the 120th day prior to the
first anniversary of the date of mailing of the notice 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., Dublin, Ohio 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. The public announcement of a postponement or
adjournment of an annual meeting shall not commence a new time
period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall 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
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of any shares of stock of the Corporation that are beneficially
owned 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 such business, 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
and the Stockholder Associated Person therefrom; (iii) as to the
stockholder giving the notice and any Stockholder Associated
Person, 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, and the nominee holder
for, and number of, shares owned beneficially but not of record
by such stockholder and by any such Stockholder Associated
Person; (iv) as to the stockholder giving the notice and any
Stockholder Associated Person covered by clauses (ii) or (iii)
of this paragraph (2) of this Section 1.09(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.
(3) Notwithstanding anything in this Section 1.09(a) to the
contrary, in the event the Board of Directors increases or
decreases the maximum or minimum number of Directors in
accordance with these Bylaws, and there is no public
announcement of such action at least 130 days prior to the first
anniversary of the date of mailing of the notice of the
preceding year's annual meeting, a stockholder's notice required
by this Section 1.09(a) shall also be considered timely, but
only with respect to nominees for such newly created
Directorships for which the term of office will expire at the
next annual meeting, if it shall be delivered to the Secretary
at the principal executive office of the Corporation not later
than 5:00 p.m., Dublin, Ohio Time, on the tenth day following
the day on which such public announcement is first made by the
Corporation.
(4) For purposes of this Section 1.09, "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.
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(b) NOMINATIONS AND PROPOSALS FOR SPECIAL MEETINGS OF STOCKHOLDERS.
(1) 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.
(2) 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 Section 1.09(a) and at the time of the special
meeting, who is entitled to vote at the meeting and who complied
with the notice procedures and other requirements set forth in
this Section 1.09.
(3) In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more individuals
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 required by Section 1.09(a)(2) shall be
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., Dublin, Ohio 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 of the
nominees proposed by the Board of Directors to be elected at
such meeting. The public announcement of a postponement or
adjournment of a special meeting shall not commence a new time
period for the giving of a stockholder's notice as described
above.
(c) ADDITIONAL REQUIREMENTS FOR STOCKHOLDER NOMINATIONS AND
PROPOSALS.
(1) Upon written request by the Secretary or the Board of
Directors or any committee thereof, 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), written verification,
satisfactory, in the discretion of the Board of Directors or any
committee thereof or any authorized officer of the Corporation,
to demonstrate the accuracy of any information submitted by the
stockholder pursuant to this Section 1.09. If a stockholder
fails to provide such written verification within such period,
the information as to which written verification was requested
may be deemed not to have been provided in accordance with this
Section 1.09.
(2) Only such individuals who are nominated in accordance
with this Section 1.09 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
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brought before the meeting in accordance with this Section 1.09.
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 1.09.
(3) For purposes of this Section 1.09, (a) the "date of
mailing of the notice" shall mean the date of the proxy
statement for the solicitation of proxies for election of
Directors and (b) "public announcement" shall mean disclosure
(i) in a press release reported by the Dow Jones News Service,
Associated Press, Business Wire, PR Newswire or comparable news
service or (ii) in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to the
Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section
1.09, 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 1.09. Nothing in this Section 1.09 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 1.10 PARTICIPATION VIA CONFERENCE COMMUNICATIONS. The Board
of Directors may, but shall not be obligated to, allow stockholders to
participate in any annual or special meeting of stockholders by MEANS of a
conference telephone or other communications equipment to the fullest extent
permitted by the MGCL.
SECTION 1.11 PLACE OF MEETINGS. All meetings of stockholders shall be
held at the place determined by the Board of Directors, and if the Board of
Directors determines to hold a meeting solely by remote communication, the
meeting need not be held at any place.
SECTION 1.12 INFORMAL ACTION BY STOCKHOLDERS. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if there is filed with the records of the stockholders' meetings a
unanimous written consent which sets forth the action and is signed by each
stockholder entitled to vote on the matter and a written waiver of any right to
dissent signed by each stockholder entitled to notice of the meeting but not
entitled to vote at the meeting.
ARTICLE 2. Board of Directors
SECTION 2.01 GENERAL POWERS, NUMBER, TENURE AND QUALIFICATIONS.
(a) GENERAL POWERS. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors. The Board of
Directors may, to the fullest extent permitted by the Articles of Incorporation
of the Corporation, the MGCL and any other applicable law, exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation. Without limiting the generality of the foregoing, the Board of
Directors shall have the unqualified power: (i) to authorize dividends and other
distributions from time to time in accordance with law; (ii) to purchase or
otherwise acquire any property,
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rights or privileges on such terms as it shall determine; (iii) to authorize the
creation, making and issuance, in such form as it may determine, of written
obligations of every kind, negotiable or non-negotiable, secured or unsecured,
and to do all things necessary in connection therewith; (iv) to remove any
officer of the Corporation with or without cause, and from time to time to
devolve the powers and duties of any officer upon any other person for the time
being; (v) to confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents; (vi) to adopt
from time to time such stock, option, stock purchase, bonus or other
compensation plans for Directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; (vii) to adopt from time
to time such insurance, retirement, and other benefit plans for Directors,
officers, employees and agents of the Corporation and its subsidiaries as it may
determine; and (viii) to adopt from time to time regulations or policies, not
inconsistent with these Bylaws, for the management of the Corporation's business
and affairs.
(b) NUMBER OF DIRECTORS. NUMBER OF DIRECTORS. The initial number of
Directors shall be the number provided in the Articles of Incorporation. The
Board of Directors may alter the number of Directors provided in the Articles of
Incorporation at any time by establishing, increasing or decreasing the number
of Directors pursuant to a resolution approved by a majority of the Whole Board
(rounded up to the nearest whole number), provided that the number of Directors
shall never be less than the minimum number of Directors required by the MGCL,
and provided further that the tenure of office of a Director shall not be
affected by any increase or decrease in the number of Directors. The tenure of
office of any Director elected to fill a vacancy resulting from an increase in
the number of Directors shall be determined as provided in Section 2.02.
(c) CLASSES OF DIRECTORS; INITIAL TENURE. The Directors, other than
those who may be elected by the holders of any class or series of stock, shall
initially be divided into three classes, as nearly equal in number as reasonably
possible, to be known as Class 1, Class 2 and Class 3, respectively. The initial
term of office of the members of Class 1 shall expire at the conclusion of the
first annual meeting of stockholders held in 2006; the initial term of office of
the members of Class 2 shall expire at the conclusion of the annual meeting of
stockholders held in 2007; and the initial term of office of the members of
Class 3 shall expire at the conclusion of the annual meeting of stockholders
held in 2008. The Board of Directors may establish new classes of Directors or
otherwise change the number of classes of Directors at any time and to the
fullest extent permitted by the MGCL pursuant to a resolution approved by a
majority of the Whole Board (rounded up to the nearest whole number). Each
Director shall hold office until his or her successor shall have been duly
elected and qualified, including upon the delay of or the failure to hold any
annual meeting of stockholders.
(d) TERMS OF OFFICE AFTER INITIAL TERM. At each annual meeting of
stockholders, commencing with the first annual meeting, Directors elected to
succeed those Directors whose terms of office will expire at the conclusion of
such annual meeting shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election, with each
Director to hold office and until his or her successor shall have been duly
elected and qualified, unless the Board of Directors shall by resolution
establish a different term of office for such Directors.
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(e) QUALIFICATIONS; AGE LIMIT. Each Director shall be a stockholder
of the Corporation. No person more than 75 years of age shall be eligible for
election, reelection, appointment, or reappointment to the Board of the
Corporation, but upon attaining age 75, a Director may serve for the remainder
of the full term for which he or she was elected or chosen and shall hold office
until his or her successor shall have been duly elected and qualified.
SECTION 2.02 CHAIRMAN OF THE BOARD. The Board of Directors shall
annually elect a Chairman of the Board from among its members. The Chairman of
the Board shall preside at all meetings of the Board of Directors and shall have
such other duties as are provided in these Bylaws and as from time to time may
be assigned by the Board of Directors. In the absence of the Chairman of the
Board or if one is not elected, the Board of Directors shall designate another
Director to perform such duties and functions.
SECTION 2.03 VACANCIES, INCLUDING NEWLY CREATED DIRECTORSHIPS. Except
as may be provided by the Board of Directors in setting the terms of any class
or series of stock, any and all vacancies on the Board of Directors, however
arising, including, without limitation, vacancies arising from the death,
resignation, removal or disqualification of one or more Directors and from newly
created or established Directorships, may be filled only by Board of Directors
pursuant to a resolution approved by a majority of the remaining Directors then
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 class in which such vacancy occurred. No decrease in the number of
Directors constituting the Board of Directors shall shorten the tenure of any
Director then in office. 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 (even if fewer than the
minimum number of Directors required by the MGCL remain in office).
SECTION 2.04 REMOVAL. A Director may be removed only in accordance
with the provisions of the Articles of Incorporation of the Corporation.
SECTION 2.05 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all Directors. A written notice of each regular meeting of the
Board of Directors shall not be required.
SECTION 2.06 SPECIAL MEETINGS.
(a) CALLING OF SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, by the Chief Executive
Officer, or by one-third (1/3) of the Directors then in office (rounded up to
the nearest whole number), and shall be held at such place, on such date, and at
such time as the Board of Directors or the person calling the meeting shall fix.
(b) NOTICE OF SPECIAL MEETINGS. Notice of the place, date, and time
of each such special meeting of the Board of directors shall be given to each
Director who has not waived notice, except that the Board of Directors may adopt
a resolution setting the place, date and time for holding one or more special
meetings without giving notice other than such resolution. In the
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absence of such a resolution, notice of any special meeting of the Board of
Directors shall be given by telephone, electronic mail, facsimile transmission,
United States mail, personal delivery or courier to each Director at his or her
business or residence address and/or telephone or facsimile number. The notice
shall inform the recipient of the purpose and general business to be transacted
at the special meeting.
(c) TIME OF NOTICE. Notice of a special meeting of the Board of
Directors given by telephone, electronic mail or facsimile transmission or
personal delivery 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. It
shall not be necessary to give notice of any special meeting to any Director who
attends the meeting except when a Director attends the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting was not lawfully called or convened, or to any Director who, in a
writing executed and filed with the records of the meeting either before or
after the meeting, waives such notice.
(d) WHEN NOTICE IS DEEMED GIVEN. Notice of a special Meeting of the
Board of Directors shall be deemed to be given: (i) by telephone, 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; (ii) by electronic mail
notice, upon transmission of the message to the electronic mail address given to
the Corporation by the Director; (iii) by facsimile transmission, 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; (iv) by United States mail, when deposited in the United States mail
properly addressed, with postage thereon prepaid; and (v) by courier, when
deposited with or delivered to a courier properly addressed to the intended
recipient.
SECTION 2.07 QUORUM. A majority of the Directors then in office shall
constitute a quorum for all purposes, provided that if there is only one
Director, the one Director will constitute a quorum, and if there are two or
three Directors, two Directors shall constitute quorum. If a quorum shall fail
to be present at any meeting, a majority of the Directors present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof other than an announcement made prior to or at the time of adjournment.
The Directors present at a meeting that has been duly called and convened but
which has not been adjourned may continue to transact business until
adjournment, notwithstanding the withdrawal of a sufficient number of Directors
from the meeting to leave less than a quorum present, and in such case, the
action of the majority of Directors present shall constitute the action of the
Board of Directors unless the concurrence of a greater proportion is required
for such action by the MGCL or other applicable law, the Articles of
Incorporation of the Corporation or these Bylaws.
SECTION 2.08 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. A Director's
participation in a meeting by these means shall constitute his or her presence
at the meeting.
SECTION 2.09 CONDUCT OF BUSINESS; BOARD ACTION. At any regular or
special meeting of the Board of Directors, business shall be transacted in such
order and manner as the Chairman
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of the Board may from time to time determine. The action of a majority of the
Directors at a meeting at which a quorum is present shall constitute the action
of the Board of Directors unless the concurrence of a greater proportion is
required for such action by the MGCL or other applicable law, the Articles of
Incorporation of the Corporation or these Bylaws.
SECTION 2.10 ACTION WITHOUT A MEETING. Any action permitted or
required to be taken at a meeting of the Board of Directors may be taken if a
unanimous consent that sets forth the action is given in writing by each
Director and filed in paper or electronic form with the minutes of the
proceedings of the Board of Directors.
SECTION 2.11 ADJOURNMENT. Any regular of special meeting of the Board
of Directors may be adjourned from time to time by the Chairman of the Board or
by the Board of Directors pursuant to a resolution approved by a majority of the
Directors present to reconvene at the same or some other place, and no notice
need be given of any such adjourned meeting other than an announcement made at
or prior to the time of adjournment.
SECTION 2.12 COMPENSATION OF DIRECTORS. Pursuant to a resolution of
the Board of Directors, the Corporation may compensate Directors for their
services as Directors, including, without limitation, compensation for services
as a member of the Board of Directors and as a member or the chairman of a
committee of the Board of Directors, and may reimburse Directors for expenses
incurred in performing such services as Directors, including expenses incurred
in attending meetings of the Board of Directors and committees of the Board of
Directors. Nothing in this Section 2.12 shall preclude any Director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 2.13 PRESUMPTION OF ASSENT. A Director who is present at a
meeting of the Board of Directors at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless such
Director: (a) announces his or her dissent to such action at the meeting, and
(b) such dissent is (i) entered in the minutes of the meeting; (ii) filed in
writing with the person acting as the secretary of the meeting before the
meeting is adjourned; or (iii) forwarded in writing by such Director to the
secretary of the meeting within 24 hours after the meeting is adjourned, by
certified mail, return receipt requested, bearing a postmark from the United
States Postal Service. A Director who votes in favor of an action or fails to
make his or her dissent to such action known at the meeting at which such action
is taken shall have no right to dissent to such action.
SECTION 2.14 RELIANCE UPON BOOKS, REPORTS AND RECORDS. In performing
his or her duties, a Director shall be entitled to rely on any opinion, report
or statement, including a financial statement of 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 maters presented; (b) a
lawyer, certified public accountant, appraiser, financial advisor, consultant,
expert or other person as to a matter which the Director reasonably believes to
be within such 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. A Director who performs his or her duties in
reliance on such an opinion, report or statement shall have immunities and
protections to the fullest extent afforded by the MGCL and other applicable law.
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ARTICLE 3. Committees
SECTION 3.01 COMMITTEES OF THE BOARD OF DIRECTORS.
(a) GENERAL PROVISIONS. The Board of Directors may appoint from
among its members an Executive Committee, an Audit Committee, a Compensation
Committee, a Nominating Committee, and such other committees as the Board of
Directors deems necessary or desirable. The membership of the Audit Committee,
the Compensation Committee and the Nominating Committee shall consist of
independent directors to the extent required by the applicable rules of the
Securities and Exchange Commission and the NASDAQ Stock Market. The Board of
Directors may delegate to any committee so appointed any of the powers and
authorities of the Board of Directors to the fullest extent permitted by the
MGCL and any other applicable law.
(b) COMPOSITION. Each committee shall be composed of one or more
Directors or any other number of members specified in these Bylaws. The Chairman
of the Board may recommend committees, committee memberships, and committee
chairmanships to the Board of Directors. The Board of Directors shall have the
power at any time to appoint the chairman and the members of any committee,
change the membership of any committee, to fill all vacancies on committees, to
designate alternate members to replace or act in the place of any absent or
disqualified member of a committee, or to dissolve any committee.
(c) NOMINATING COMMITTEE. The Nominating Committee, if appointed,
shall consist of not less than three members who meet the applicable
independence requirements referenced in Section 3.01(a), and shall have
authority: (i) to review any nominations for election to the Board of Directors
made by a stockholder of the Corporation pursuant to Section 1.09 of these
Bylaws in order to determine compliance with such Bylaw provision; and (ii) to
recommend to the Board of Directors nominees for election to the Board of
Directors to replace those Directors whose terms expire at the annual meeting of
stockholders next ensuing. No Director shall serve on the Nominating Committee
at a meeting at which he or she has been or is seeking to be proposed as a
nominee.
(d) ISSUANCE OF STOCK. If the Board of Directors has given general
authorization for the issuance of stock providing for or establishing a method
or procedure for determining the maximum number of shares to be issued, a
committee of the Board of Directors, in accordance with that general
authorization or any stock option or other plan or program adopted by the Board
of Directors, may authorize or fix the terms of stock subject to classification
or reclassification and the terms on which any stock may be issued, including
all terms and conditions required or permitted to be established or authorized
by the Board of Directors. Any committee so designated may exercise the power
and authority of the Board of Directors if the resolution that designated the
committee or a supplemental resolution of the Board of Directors shall so
provide.
SECTION 3.02 CONDUCT OF BUSINESS.
(a) PROCEDURES. The chairman of each committee shall determine the
procedural rules for meeting and conducting the business of the committee,
except as otherwise required by these Bylaws, applicable law or a resolution of
the Board of Directors.
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(b) QUORUM; COMMITTEE ACTION. A majority of the members of a
committee shall constitute a quorum unless the committee shall consist of one or
two members, in which case one member of the committee shall constitute a
quorum. If a quorum is present, the action of the majority of committee members
present shall constitute the action of the committee unless the concurrence of a
greater proportion is required for such action by the MGCL or other applicable
law, the Articles of Incorporation of the Corporation, these Bylaws or the Board
of Directors.
(c) COMMITTEE MEETINGS. Regular meetings of committees shall be held
at such place or places, on such date or dates, and at such time or times as
shall have been established by the Board of Directors or the committee and
publicized among all members of the committee. A written notice of a regular
committee meeting shall not be required. The chairman of a committee or any two
members of the committee (if there are at least two members of the committee)
may call and fix the time and place of any special meeting of a committee.
Notice of special meetings of a committee shall be given in the same manner as
notice for special meetings of the Board of Directors.
(d) PARTICIPATION IN COMMITTEE MEETINGS BY CONFERENCE TELEPHONE.
Members of a committee of the Board of Directors may participate in a meeting of
the committee by means of conference telephone or other communications equipment
if all persons participating in the meeting can hear each other at the same
time. A Director's participation in a meeting by these means shall constitute
his or her presence at the meeting.
(e) ACTION WITHOUT A MEETING. Any action that is required or
permitted to be taken at any meeting of a committee 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.
(f) ADJOURNMENT. Any regular or special meeting of a committee the
Board of Directors may be adjourned from time to time by the chairman of the
committee or a resolution approved by a majority of the members of the committee
to reconvene at the same or some other place, and no notice need be given of any
such adjourned meeting other than an announcement made at or prior to the time
of adjournment.
ARTICLE 4. Officers
SECTION 4.01 GENERALLY.
(a) OFFICES; ELECTION AND APPOINTMENT. The officers of the
Corporation shall include a Chief Executive Officer, a President, a Secretary, a
Chief Financial Officer/Treasurer, one or more Vice-Presidents, and such other
officers as the Board may deem necessary or desirable. The officers of the
Corporation shall be elected annually by the Board of Directors, except that the
Chief Executive Officer may from time to time appoint one or more Senior
Vice-Presidents, Vice-Presidents, Assistant Vice-Presidents, Assistant
Secretaries or Assistant Treasurers, in each case subject to the ratification of
such appointments by the Board of Directors no less frequently than annually.
Any two or more offices except President and Vice-President may be held by the
same individual.
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(b) TENURE. Each officer shall hold office 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.
(c) REMOVAL. Any officer 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 Corporation and the person so
removed. The Board of Directors may authorize any officer to remove subordinate
officers.
(d) RESIGNATION. 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
as is required by any contract between the officer and the Corporation, or if no
such contract exists, as is 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 officer and the Corporation.
(e) INTERIM APPOINTMENTS; VACANCIES. In the event of a vacancy in
any office, the Board of Directors may fill such vacancy for the balance of the
term. In the absence or incapacity of any officer, the Board of Directors may
designate another person to fill such office on an acting basis.
(f) POWERS AND DUTIES. All officers shall each have such powers and
duties as are specified in or assigned pursuant to this Article 4.
SECTION 4.02 CHIEF EXECUTIVE OFFICER. Subject to the control of the
Board of Directors, the Chief Executive Officer shall have general supervisory
power and authority over the policies and affairs of the Corporation, the
management and oversight of the administration and operation of the
Corporation's business, and such other duties, powers and authorities as are
provided in these Bylaws, or as are from time to time assigned by the Board of
Directors, or as are usually incident to the office of Chief Executive Officer.
The Chief Executive Officer shall also see that all orders and resolutions of
the Board of Directors and of any committee thereof are carried into effect, and
shall preside over each meeting of the stockholders unless the Board of
Directors has designated another person to perform such functions. The person
who is Chief Executive Officer may also serve as the Chairman of the Board
and/or the President.
SECTION 4.03 PRESIDENT. The President shall have such duties as are
provided in these Bylaws or as are from time to time may be assigned by the
Board of Directors or the Chief Executive Officer. In the absence of the Chief
Executive Officer or if one is not elected, the President shall perform the
duties and exercise the functions of the Chief Executive Officer unless the
Board of Directors has designated another person to perform such duties and
exercise such duties and functions.
SECTION 4.04 SECRETARY. The Secretary shall issue notices of
meetings, shall keep the minutes of the Corporation, shall have charge of the
seal and the corporate books, shall sign or
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countersign such instruments as require his or her signature, shall maintain and
preserve the Articles of Incorporation and Bylaws of the Corporation and the
proceedings of regular and special meetings of the stockholders and the Board of
Directors, and shall have such other duties, powers and authorities as are
provided in these Bylaws, or as are from time to time assigned by the Board of
Directors or the Chief Executive Officer, or as are usually incident to the
office of Secretary. The Secretary, when present, shall act as Secretary of each
regular and special meeting of the Board of Directors and of the stockholders
unless the Board of Directors or the Chief Executive Officer designates another
person to perform such duties and functions.
SECTION 4.05 CHIEF FINANCIAL OFFICER/TREASURER. The Chief Financial
Officer/Treasurer shall have charge of all monies and securities of the
Corporation, other than monies and securities of any division of the Corporation
which has a treasurer or chief financial officer appointed by the Board of
Directors, and shall keep regular books of account. The Chief Financial
Officer/Treasurer shall deposit the funds of the Corporation in the name of the
Corporation with such banks or trust companies or other entities as the Board of
Directors from time to time shall designate or otherwise approve. The Chief
Financial Officer/Treasurer shall sign or countersign such instruments as
require his or her signature, and shall have such other duties, powers and
authorities as are provided in these Bylaws, or as are from time to time
assigned by the Board of Directors or the Chief Executive Officer, or as are
usually incident to the office of Chief Financial Officer/Treasurer.
SECTION 4.06 VICE-PRESIDENTS. The Corporation may have one or more
classes of Vice-Presidents, including Executive Vice-Presidents, Senior
Vice-Presidents, Vice-Presidents and Assistant Vice-Presidents. All
Vice-Presidents shall have such duties as are provided in these Bylaws and as
from time to time may be assigned by the Board of Directors or the Chief
Executive Officer.
SECTION 4.07 OTHER OFFICERS. The Board of Directors may designate and
fill such other offices in its discretion and the persons holding such other
offices shall have such powers and shall perform such duties as the Board of
Directors or Chief Executive Officer may from time to time assign.
SECTION 4.08 ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Unless otherwise directed by the Board of Directors, the Chief Executive
Officer, or any officer of the Corporation authorized by the Chief Executive
Officer, shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting or otherwise with respect to
any action of stockholders of any other corporation in which the Corporation may
hold securities and otherwise to exercise any and all rights and powers which
the Corporation may possess by reason of its ownership of securities in such
other Corporation.
ARTICLE 5. Stock
SECTION 5.01 CERTIFICATES OF STOCK. Except as may be otherwise
provided by the Board of Directors, stockholders of the Corporation are not
entitled to certificates representing the shares of stock held by them. 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
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the event that the Corporation issues shares of stock without certificates, 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.
SECTION 5.02 TRANSFERS OF STOCK. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with Section
5.06, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
SECTION 5.03 RECORD DATES OR CLOSING OF TRANSFER BOOKS. 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 10 days, before the date on which the meeting or particular action
requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that the
stock transfer books shall be closed for a stated period but not longer than 20
days. If the stock transfer books are closed 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 10 days before the date of such meeting. 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 other rights shall be the
close of business on the day on which the resolution of the Directors, declaring
the dividend or allotment of rights, is adopted. 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 when the determination has been made through the closing of the
transfer books and the stated period of closing has expired, or when the meeting
is adjourned to a date more than 120 days after the record date fixed for the
original meeting, in either of which case a new record date shall be determined
as set forth herein.
SECTION 5.04 STOCK LEDGER. The Corporation shall maintain a stock
ledger that contains the name and address of each stockholder and the number of
shares of stock of each class that the stockholder holds. The stock ledger may
be in written form or in any other form which can be converted within a
reasonable time into written form for visual inspection. The original or a
duplicate of the stock ledger shall be kept at the offices of a transfer agent
for the particular class of stock or, if none, at the principal executive
offices of the Corporation.
SECTION 5.05 CERTIFICATION OF BENEFICIAL OWNERS. The Board of
Directors may adopt by resolution a procedure by which a stockholder of the
Corporation 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
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of stockholders who may certify; 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 a certification that complies
with the procedure adopted by the Board of Directors in accordance with this
Section, the person specified in the certification is, for the purpose set forth
in the certification, the holder of record of the specified stock in place of
the stockholder who makes the certification.
SECTION 5.06 LOST STOCK CERTIFICATES. The Board of Directors of the
Corporation may determine the conditions for issuing a new stock certificate in
place of one that is alleged to have been lost, stolen, or destroyed, or the
Board of Directors may delegate such power to any officer or officers of the
Corporation. Any officer designated by the Board of Directors may direct a new
certificate to be issued in place of any certificate previously 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. When authorizing the issuance of a new certificate, an officer
designated by the Board of Directors may, in his or her discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or the owner's legal representative to advertise
the same in such manner as he shall require and/or to give bond, with sufficient
surety, to the Corporation to indemnify it against any loss or claim which may
arise as a result of the issuance of a new certificate.
SECTION 5.07 REGULATIONS. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE 6. Finance
SECTION 6.01 CHECKS, DRAFTS AND OTHER INSTRUMENTS. All checks, drafts
and orders for the payment of money, notes and other evidences of indebtedness,
issued in the name of the Corporation, shall be signed by such officer of the
Corporation as shall from time to time be determined by the Board of Directors.
In the absence of such a determination by the Board of Directors, all such
checks, drafts and orders for the payment of money, notes and other evidences of
indebtedness, of the Corporation shall be signed by any two of the following
officers: the Chief Executive Officer, the President, the Chief Financial
Officer/Treasurer, or an Assistant Treasurer.
SECTION 6.02 ANNUAL STATEMENT OF AFFAIRS. The Chief Executive Officer
or the Chief Financial Officer/Treasurer shall prepare annually a full and
correct statement of the affairs of the Corporation, which shall include a
balance sheet and a financial statement of operations for the preceding fiscal
year. The statement of affairs shall be submitted at the annual meeting of the
stockholders, and within 20 days after the meeting, placed on file at the
Corporation's principal office.
SECTION 6.03 FISCAL YEAR. The fiscal year of the Corporation shall be
the 12 calendar month period ending on September 30th of each year.
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SECTION 6.04 DIVIDENDS. Distributions upon the stock of the
Corporation, including dividends, may be authorized by the Board of Directors
and may be paid in money, property or stock, subject to the provisions of the
MGCL, any other applicable law and the Articles of Incorporation of the
Corporation. If a stock dividend or stock split is not considered a distribution
under the MGCL, it may be authorized by the Board of Directors in accordance
with the provisions of the MGCL.
SECTION 6.05 LOANS. No loans constituting borrowed money shall be
contracted on behalf of the Corporation and no evidence of indebtedness for
borrowed money shall be issued in its name unless authorized by the Board of
Directors. Such authority may be general or confined to specific instances.
SECTION 6.06 DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in any of depositories as the Board of Directors may designate or approve.
ARTICLE 7. Miscellaneous
SECTION 7.01 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 7.02 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. The principal executive office of the Corporation shall be 6033
Perimeter Drive, Dublin, Ohio 43017, unless the Board of Directors designates a
different principal executive office.
SECTION 7.03 FACSIMILE SIGNATURES. In addition to the provisions for
use of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
SECTION 7.04 CORPORATE 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. 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.
SECTION 7.05 NOTICES.
(a) NOTICES TO THE CORPORATION. All notices required to be given to
the Corporation shall be given as provided in these Bylaws or as required by
applicable law. If applicable law or these Bylaws do not specify the manner of
giving notice to the Corporation in a specific situation, such notice shall be
in writing and shall sent by United States mail, personal delivery or private
courier to the Corporation at its principal executive office, in each case
addressed to the Chief
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Executive Officer and the Secretary of the Corporation. Unless these Bylaws or
applicable law require otherwise, notices given to the Corporation by personal
delivery, private courier or United States mail and addressed in the manner
specified above shall be effective only upon actual receipt by the Corporation,
and notices given to the Corporation by telephone, facsimile transmission,
electronic mail or any other means shall be ineffective, whether or not actually
received by the Corporation.
(b) OTHER NOTICES. All notices required to be given to any
stockholder, director, officer, employee or agent of the Corporation may be
effectively given by personal delivery, private courier or United States mail
unless a different manner of notice is required by these Bylaws, the MGCL, any
other applicable law or contract. The Corporation may also effectively give
notice to a stockholder, director, officer, employee or agent of the Corporation
by electronic mail or facsimile transmission provided that promptly after the
transmission of such notice the Corporation sends a paper copy of such notice to
the recipient by personal delivery, private courier or United States mail. All
notices to any stockholder, director, officer, employee or agent shall be
addressed to him, her or it at his, her or its last known address as the same
appears on the books of the Corporation. All notices sent to any such
stockholder, director, officer, employee or agent shall be deemed to be given if
sent: (i) by personal delivery when personally delivered to the intended
recipient; (ii) by United States mail, when deposited in the United States mail,
properly addressed to the intended recipient, with postage thereon prepaid;
(iii) by courier, when deposited with or delivered to a courier properly
addressed to the intended recipient; (iv) by electronic mail, upon transmission
of the message to the electronic mail address given by the intended recipient to
the Corporation or appearing on its books and records, provided that a
documentary copy of such notice is also sent to the recipient as provided
herein; and (v) by facsimile transmission, upon completion of the transmission
of the message to the number given by the intended recipient to the Corporation
or appearing on its books and records and receipt of a completed answer-back
indicating receipt, provided that a documentary copy of such notice is also sent
to the recipient as provided herein.
SECTION 7.06 WAIVER OF NOTICE. A written waiver of any notice, signed
by the corporation or a stockholder, director, officer, employee or agent,
whether before or after the time of the event for which notice is to be given,
shall be deemed equivalent to the notice required to be given to the Corporation
or such stockholder, director, officer, employee or agent. Neither the business
nor the purpose of any meeting need be specified in such a waiver. 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
was not lawfully called or convened.
SECTION 7.07 TIME PERIODS. In applying any provision of these Bylaws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded and the day of the event shall be included.
SECTION 7.08 CONTROL SHARE ACQUISITION OPT-OUT. Notwithstanding any
other provision of the Articles of Incorporation of the Corporation or these
Bylaws, Title 3, Subtitle 7 of 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
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time, whether before or after an acquisition of control shares and, upon such
repeal, shall, to the extent provided by any successor Bylaw, apply to any prior
or subsequent control share acquisition.
ARTICLE 8. Amendments
SECTION 8.01. AMENDMENTS. The Board of Directors shall have the
exclusive power to adopt, alter, amend, restate or repeal the Bylaws of the
Corporation. Any adoption, alteration, amendment, restatement or repeal of the
Bylaws of the Corporation by the Board of Directors shall be pursuant to a
resolution approved by 2/3 of the Whole Board (rounded up to the nearest whole
number).
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