EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
AMERICASBANK CORP.
ARTICLE I
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Stockholders
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SECTION 1. Annual Meeting. The annual meeting of the stockholders of
AmericasBank Corp. (the "Corporation") shall be held on a day duly designated by
the Board of Directors in May of each year, for the purpose of electing
Directors to succeed those whose terms shall have expired as of the date of such
annual meeting, and for the transaction of such other corporate business as may
properly come before the meeting.
SECTION 2. Special Meeting. Special meetings of the stockholders may be
called at any time for any purpose or purposes by the Chairman of the Board, the
President, by a Vice President, or by two-thirds of the members of the Board of
Directors, and shall be called forthwith by the Chairman of the Board, the
President, by a Vice President, the Secretary or any Director of the Corporation
upon the request in writing of the holders of fifty percent (50%) of all the
shares outstanding and entitled to vote on the business to be transacted at such
meeting. Such request shall state the purpose or purposes of the meeting and the
matters proposed to be acted on thereat. The Secretary shall inform such
requesting stockholders of the reasonably estimated cost of preparing and
mailing the notice of the meeting, and upon payment to the Corporation of such
cost, the Secretary shall give the required notice. Business transacted at all
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice of the meeting.
SECTION 3. Place of Holding Meetings. All meetings of stockholders shall
be held at the principal office of the Corporation or elsewhere in the United
States as designated by the Board of Directors in the notice of the meeting.
SECTION 4. Notice of Meetings. Not less than ten (10) nor more than ninety
(90) days before the date of a stockholders' meeting, the Secretary shall give
each stockholder entitled to vote at or to receive notice of each stockholders'
meeting, notice stating the date, hour and place of the meeting and, in the case
of a special meeting or a meeting at which an action proposed to be taken
requires advance notice of the purpose of such action, the purpose or purposes
for which the meeting is called. Notice is given to a stockholder when it is (i)
personally delivered to the stockholder, (ii) left at the stockholder's
residence or usual place of business, (iii) mailed to the stockholder, postage
prepaid, at the stockholder's address as it appears on the records of
the Corporation, or (iv) transmitted to the stockholder by electronic mail to
any electronic mail address of the stockholder or by any other electronic means.
SECTION 5. Quorum. The presence in person or by proxy of the holders of
record of a majority of the shares of the capital stock of the Corporation
issued and outstanding and entitled to vote thereat shall constitute a quorum at
all meetings of the stockholders, except as otherwise provided by law, by the
Charter or by these Bylaws. If less than a quorum shall be in attendance at the
time for which the meeting shall have been called, the meeting may be adjourned
from time to time as provided in Section 6 of this Article I by a majority vote
of the stockholders present or represented, without any notice other than by
announcement at the meeting.
The stockholders who are entitled to vote and are present at any duly
organized meeting may continue to do business for which the particular meeting
was called until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. The absence from any meeting in person
or by proxy of holders of the number of shares of stock of the Corporation
required for action upon any given matter shall not prevent action at the
meeting on any other matter or matters that may properly come before the
meeting, so long as there are present, in person or by proxy, holders of the
number of shares of stock of the Corporation required for action upon the other
matter or matters.
SECTION 6. Adjournment. Any meeting of the stockholders of the Corporation
may be adjourned from time to time without notice other than announcement at the
meeting at which the adjournment is taken. At any adjourned meeting at which a
quorum shall be present any action may be taken that could have been taken at
the meeting originally called. A meeting may not be adjourned to a date more
than 120 (one hundred twenty) days after the original record date without
further notice of the adjourned meeting date.
SECTION 7. Conduct of Meetings. Meetings of stockholders shall be presided
over by the Chairman of the Board of Directors, or, in his absence or inability
to act, by the President of the Corporation or if none of said persons is
present or able to act, by a chairman to be elected at the meeting. The
Secretary of the Corporation, or if he is not present, any Assistant Secretary
shall act as secretary of such meetings; in the absence of the Secretary and any
Assistant Secretary, the presiding officer may appoint a person to act as
secretary of the meeting.
SECTION 8. Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedures to be
taken at the meeting, including such regulation of the manner of voting and the
conduct of discussion as he determines to be appropriate.
SECTION 9. Advance Notice of Matters to be Presented at an Annual Meeting
of Stockholders. At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting as set
forth below. To be properly brought before an annual meeting, such business must
(1) be specified in the notice of the meeting (or any supplement thereto) given
by the Corporation pursuant to Section 4 of Article I of these Bylaws, or (2) be
brought before the meeting by or under the direction of the Board of Directors
(or the Chairman or Vice Chairman of the Board or the President), or (3) be
properly brought before the meeting by a stockholder. In addition to any other
applicable requirements,
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for business to be properly brought before an annual meeting by a stockholder
(i.e., the business must related to a proper subject matter for stockholder
action), the stockholder must have given timely notice thereof in writing to the
Secretary. To be timely, such stockholder's notice must be delivered to or
mailed and received by the Secretary at the principal executive offices of the
Corporation, not later than 90 days nor earlier than 120 days prior to the
anniversary date of the mailing of proxy materials by the Corporation in
connection with the immediately preceding annual meeting of stockholders of the
Corporation (or, with respect to a proposal required to be included in the
Corporation's proxy statement pursuant to Rule 14a-8 of the Securities Exchange
Act of 1934, or any successor provision to Rule 14a-8, provided that the
Corporation is subject to the Securities Exchange Act of 1934, the earlier date
such proposal was received); provided, however, that if less than 100 days'
prior public disclosure of the date of the meeting is made by the Corporation or
with respect to the Corporation's first annual meeting, any such notice by a
stockholder must be so received not later than the tenth (10/th/) day following
the day on which such prior public disclosure of the date of the meeting is
first made by the Corporation. Public disclosure by the Corporation of a meeting
date or other matter contemplated by this section shall be deemed to have been
made if communicated by notice to stockholders pursuant to Section 4 of Article
I of these Bylaws, or by any filing with the Securities and Exchange Commission,
or by any general mailing to stockholders of record, or by public announcement
or by other means reasonably calculated to constitute public disclosure.
A stockholder's notice to the Secretary shall set forth as to each matter
such stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business and, to the extent known, any other stockholders known
by such stockholder to be supporting such proposal, (iii) the class and number
of shares of the Corporation's capital stock that are beneficially owned (as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) by
such stockholder on the date of such stockholder notice and, to the extent
known, by any other stockholders known by such stockholders to be supporting
such proposal on the date of such stockholder notice, (d) the identification of
any person retained or to be compensated by the stockholder submitting the
proposal, or any person acting on his or her behalf, to make solicitations or
recommendations to stockholders for the purpose of assisting in the passage of
such proposal and a brief description of the terms of such employment, retainer
or arrangement for compensation, and (e) any material interest of the
stockholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 9 of Article I; provided, however, that nothing in this
Section 9 of Article I shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting in accordance with
such procedures.
The presiding officer at the meeting shall have the authority, if the facts
warrant, to determine that business was not properly brought before the meeting
in accordance with the provisions of this Section 9 of Article I, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
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SECTION 10. Advance Notice of Nominees for Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors at any meeting of stockholders. Nominations of persons for
election to the Board of Directors of the Corporation may be made at an annual
meeting of stockholders or at a special meeting of stockholders as to which the
notice of meeting provides for election of directors, by or under the direction
of the Board of Directors, or by any nominating committee or person appointed by
the Board of Directors, or by any stockholder of the Corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 10 of Article I. Such nominations, other
than those made by or under the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary. To be timely, such
stockholder's notice shall be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation (i) with respect
to an election to be held at an annual meeting, not later than 90 days nor
earlier than 120 days prior to the anniversary date of the mailing of proxy
materials by the Corporation in connection with the immediately preceding annual
meeting of stockholders of the Corporation; provided, however, that if less than
100 days' prior public disclosure (as "public disclosure" is contemplated by
Section 9 of Article I) of the date of the meeting is made by the Corporation or
with respect to the Corporation's first annual meeting, any such notice by a
stockholder must be so received not later than the tenth (10/th/) day following
the day on which such prior public disclosure of the date of the meeting is
first made by the Corporation and (ii) with respect to an election to be held at
a special meeting of stockholders for the election of directors, not later than
the tenth (10/th/) day following the day on which such prior public disclosure
of the date of the meeting is first made by the Corporation.
Such stockholder's notice shall set forth: (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director and
as to the stockholder giving the notice, (i) the name, age, business address and
residence address of the person (and as the address appears on the Corporation's
books, if different), (ii) the principal occupation or employment of the person,
(iii) the class and number of shares of stock of the Corporation which are
beneficially owned (as defined in Rule 13d-3 of the Securities Exchange Act of
1934, as amended) by the person on the date of such stockholder notice, and (iv)
any other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to the proxy rules
under the Securities Exchange Act of 1934 or any successor rule thereto (to the
extent such rules are applicable to the Corporation); (b) as to any person known
by the stockholder giving the notice to be supporting any such nominee (i) the
name and address, as they appear on the Corporation's books, of such persons and
(ii) the class and number of shares of stock of the Corporation which are
beneficially owned (as defined in Rule 13d-3 of the Securities Exchange Act of
1934, as amended) by such persons; (c) a representation that the stockholder
giving the notice intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (d) a description of all
arrangements or understandings between the stockholder giving the notice and
each nominee and any arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; and (e) the consent of each nominee to serve as a director of the
Corporation if so elected.
The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed
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nominee to serve as a director of the Corporation. No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth herein.
The presiding officer at the meeting shall have the authority, if the facts
warrant, to determine that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
SECTION 11. Voting. At all meetings of stockholders, every stockholder
entitled to vote thereat shall have one (1) vote for each share of stock
standing in his name on the books of the Corporation on the date for the
determination of stockholders entitled to vote at such meeting, except as
otherwise provided by law, by the Charter or by these Bylaws.
Each stockholder entitled to vote at any meeting of stockholders of the
Corporation may authorize another person or persons to act for him as proxy by
(i) signing a writing authorizing the other person to act as proxy in the manner
permitted by Maryland law or (ii) transmitting, or authorizing the transmission
of, an authorization for the person to act as proxy to (a) the person authorized
to act as proxy or (b) any other person authorized to receive the proxy
authorization on behalf of the person authorized to act as the proxy, including
a proxy solicitation or proxy support service organization. The authorization
may be transmitted by a telegram, cablegram, datagram, electronic mail, or any
other electronic or telephonic means. Further, to the extent permitted by
Maryland law, the placing of a stockholder's name on a proxy pursuant to
telephonic or electronically transmitted instructions obtained pursuant to
procedures reasonably designed to verify that such instructions have been
authorized by such stockholder shall constitute execution of such proxy by or on
behalf of such stockholder. No proxy shall be valid after the expiration of
eleven months from the date thereof, unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the stockholder authorizing
it, except in those cases in which the proxy states that it is irrevocable and
where an irrevocable proxy is permitted by law. A proxy purporting to be by or
on behalf of the stockholder authorizing it shall be deemed valid unless
challenged at or prior to its exercise.
All matters presented to a vote of the stockholders of the Corporation
shall be decided by the holders of a majority of the shares represented in
person or by proxy at the meeting and entitled to vote, except with respect to
the election of directors, which shall be decided by a plurality of the votes
cast and except as otherwise provided by the Charter or applicable law.
SECTION 12. Fixing of Record Date. The Board of Directors may set a record
date for the purpose of determining stockholders entitled to notice of and to
vote at any meeting of the stockholders of the Corporation. The record date may
not be prior to the close of business on the day the record date is fixed and
may not be more than ninety (90) days prior to the date of the notice or the
date of the meeting (except as permitted by Article I, Section 6), nor fewer
than ten (10) days before the date of the meeting. If no record date has been
fixed, the record date for the determination of stockholders entitled to notice
of or to vote at a meeting of stockholders of the Corporation shall be the later
of the close of business on the day on which notice of the meeting is mailed or
the thirtieth (30/th/) day before the meeting.
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SECTION 13. Inspectors. The Board of Directors may, in advance of any
meeting of stockholders of the Corporation, appoint one or more inspectors to
act at the meeting or at any adjournment of the meeting. If the inspectors shall
not be so appointed or if any of them shall fail to appear or act, the chairman
of the meeting may appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall, if required by the Board of Directors or the
chairman, as the case may be, take and sign an oath to execute faithfully the
duties of inspector at the meeting with strict impartiality and according to the
best of his ability. The inspectors shall determine the number of shares
outstanding and the voting power of each share, the number of shares represented
at the meeting, the existence of a quorum and 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 those acts
as are proper to conduct the election or vote with fairness to all stockholders.
On request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall execute
a certificate of any fact found by them. No Director or candidate for the office
of Director shall act as inspector of an election of Directors. Inspectors need
not be stockholders of the Corporation.
SECTION 14. Consent of Stockholders in Lieu of Meeting. Except as otherwise
provided by statute or the Corporation's Charter, any action required to be
taken at any meeting of stockholders of the Corporation, or any action that may
be taken at any meeting of the stockholders of the Corporation, may be taken
without a meeting, without prior notice and without a vote, if the following are
filed with the records of stockholders' meetings: (i) a unanimous written
consent that sets forth the action and is signed by each stockholder entitled to
vote on the matter and (ii) 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.
SECTION 15. Telephone Conference. The stockholders of the Corporation may
participate in any meeting by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time. Participation by such means shall
constitute presence in person at the meeting.
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ARTICLE II
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Board Of Directors
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SECTION 1. General Powers. The property, business and affairs of the
Corporation shall be managed under the direction of the Board of Directors of
the Corporation. All powers of the Corporation may be exercised by or under
authority of the Board of Directors except as conferred on or reserved to the
stockholders by law, by the Corporation's Charter, or by these Bylaws. All acts
done at any meeting of the Directors or by any person acting as a Director, so
long as his successor shall not have been duly elected or appointed, shall,
notwithstanding that it be afterwards discovered that there was some defect in
the election of the Directors or of such person acting as aforesaid or that they
or any of them were disqualified, be as valid as if the Directors or such other
person, as the case may be, had been duly elected and were or was qualified to
be Directors or a Director of the Corporation.
SECTION 2. Number and Term of Office. The Corporation shall have thirteen
directors, which number may be increased or decreased from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by
two-thirds of the entire Board of Directors. The stockholders shall not be
entitled to fix the number of members of the Board of Directors. The directors
shall be divided into three classes, with the term of office of the first class
("Class 1") to expire at the first annual meeting of stockholders, the term of
office of the second class ("Class 2") to expire at the annual meeting of
stockholders one year after the first annual meeting of stockholders and the
term of office of the third class ("Class 3") to expire at the annual meeting of
stockholders two years after the first annual meeting of stockholders with each
director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire 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 until his or her successor shall have been duly elected
and qualified. The number of directorships within each class of director shall
be as nearly equal in number as possible.
SECTION 3. Vacancies. Newly created directorships resulting from any
increase in the number of Directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the remaining
Directors, and the Directors so chosen shall hold office for a term expiring at
the next annual meeting of stockholders at which successors shall be elected and
shall qualify. Newly created directorships resulting from an increase in the
number of Directors shall be apportioned by the Board of Directors among the
three (3) classes so as to maintain the number of Directors in each class as
nearly equal in number as possible.
SECTION 4. Removal of Directors. At any meeting of stockholders, duly
called and at which a quorum is present, the stockholders may, by the
affirmative vote of a majority of all the votes entitled to be cast for the
election of directors, remove any Director from office, but only for cause.
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SECTION 5. Resignation. A Director of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors, the
Chairman of the Board, the President or the Secretary of the Corporation. A
resignation shall take effect on the date specified in the notice of resignation
or, should an effective date not be specified, immediately upon receipt of the
notice of resignation. Unless otherwise specified therein, such resignation
shall take effect upon delivery.
SECTION 6. Place of Meeting. The Board of Directors may hold their
meetings and have one or more offices, and keep the books of the Corporation,
either within or outside the State of Maryland, at such place or places as they
may from time to time determine. The Board of Directors may hold their meetings
by conference telephone or other similar electronic communications equipment in
accordance with the provisions of the Maryland General Corporation Law.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by resolution of the Board, provided that notice of every resolution
of the Board fixing or changing the time or place for the holding of regular
meetings of the Board shall be sent promptly to each Director not present at the
meeting at which such change was made. Such notice shall be in the manner
provided for notice of special meetings of Directors. The annual meeting of the
Board of Directors shall be held immediately following the annual stockholders'
meeting at which members of a Class of Directors are elected. Any business may
be transacted at any regular meeting of the Board.
SECTION 8. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by direction of the Chairman of the Board or the
President and must be called by the Chairman of the Board, the President or the
Secretary upon written request of two-thirds of the members of the Board of
Directors. Notice of each special meeting of the Board of Directors shall be
given by the Secretary as hereinafter provided. Each notice shall state the
date, time and place of the meeting (and the purposes of the meeting when
expressly required by law, the Charter or these Bylaws) and shall be delivered
or transmitted to each Director, either personally or by telephone or other
standard form of telecommunication or by electronic mail to any electronic mail
address of the Director, at least forty-eight (48) hours before the time at
which the meeting is to be held, or by first-class mail, postage prepaid,
addressed to the Director at his residence or usual place of business, and
mailed at least three (3) days before the day on which the meeting is to be
held, or transmitted by telegraph, cable or other communication leaving a visual
record at least two (2) days before the meeting.
Notice, when required, of any meeting of the Board of Directors or a
committee of the Board need not be given to any Director who shall, either
before or after the meeting, sign a written waiver of notice that is filed with
the records of the meeting or who shall attend the meeting.
SECTION 9. Quorum. A majority of the entire number of Directors shall
constitute a quorum for the transaction of business at all meetings of the Board
of Directors, and the act of a majority of the Directors present at any meeting
at which there is a quorum shall be the act of the
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Board of Directors, except as may be otherwise specifically provided by law or
by the Charter or by these Bylaws.
In the absence of a quorum at any meeting of the Board, a majority of the
Directors present may adjourn the meeting to another date, time and place until
a quorum shall be present. Notice of the date, time and place of any adjourned
meeting shall be given to the Directors who were not present at the time of the
adjournment and, unless the date, time and place were announced at the meeting
at which the adjournment was taken, to the other Directors. At any adjourned
meeting at which a quorum is present, any business may be transacted that might
have been transacted at the meeting as originally called.
SECTION 10. Conduct of Meetings. Meetings of Directors shall be presided
over by the Chairman of the Board of Directors, or, in his absence or inability
to act, the President, if also a Director, or, in the absence or inability of
the President to act, another Director chosen by a majority of the Directors
present, shall act as chairman of the meeting and preside at the meeting. The
Secretary of the Corporation, or if he is not present, any Assistant Secretary
shall act as secretary of such meetings; in the absence of the Secretary and any
Assistant Secretary, the presiding officer may appoint a person to act as
secretary of the meeting.
SECTION 11. Action by Written Consent. Any action required or permitted to
be taken at a meeting of the Board of Directors may be taken without a meeting,
if an unanimous written consent which sets forth the action is signed by each
member of the Board and filed with the minutes of proceedings of the Board.
SECTION 12. Compensation of Directors. Each Director shall be entitled to
receive compensation, if any, as may from time to time be fixed by the Board of
Directors, including a fee for each meeting of the Board or any committee
thereof, regular or special, he attends. At the discretion of the Board of
Directors, Directors may also be reimbursed by the Corporation for all
reasonable expenses incurred in traveling to and from the place of a Board or
committee meeting.
SECTION 13. Committees. The Board of Directors may, by resolution passed by
a majority of the entire Board, designate an executive and one or more other
committees. Each committee shall consist of one or more of the Directors of the
Corporation, which, to the extent provided in the resolution and as permitted by
law, shall have and may exercise the powers of the Board of Directors. Such
committee or committees shall have such names as may be determined from time to
time by resolution adopted by the Board of Directors.
Notice of committee meetings shall be given in the same manner as notice
for special meetings of directors. A majority of the members of a committee, if
there are three (3) or more members of the committee, or all of the members of
the committee, if there are less than three (3) members, shall constitute a
quorum for the transaction of any business at any meeting of the committee. The
act of a majority of the committee members, if there are three (3) or more
committee members present, or all of the committee members, if there are less
than three (3) committee members present, shall be the act of the committee. The
Board of Directors may designate a chairman of any committee, and such chairman
or any two (2) members of the committee, if the committee has at least two (2)
members, or the sole member of the committee,
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if the committee has one (1) member, may fix the time and place of its meeting
unless the Board shall otherwise provide. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required. The members of a committee present at any meeting, whether or not they
constitute a quorum, may appoint a Director to act in the place of an absent
member.
SECTION 14. Honorary Directors; Directors Emeritus. The Board of Directors
may from time to time designate and appoint one or more qualified persons to the
position of "Honorary Director" or "Director Emeritus." Each Honorary Director
or Director Emeritus shall serve for such term as shall be specified in the
resolution of the Board of Directors appointing him or until his earlier death,
resignation or removal. An Honorary Director or Director Emeritus may be removed
from such position with or without cause by the vote of a majority of the Board
of Directors given at any regular or special meeting. An Honorary Director or
Director Emeritus may be invited to attend all meetings of the Board of
Directors but shall not be present at any portion of a meeting from which the
Honorary Director or Director Emeritus shall have been excluded by vote of the
Directors. An Honorary Director or Director Emeritus shall not be a "Director"
or "Officer" within the meaning of the Corporation's Charter, or of these
Bylaws; shall not be deemed to be a member of the Board of Directors for
purposes of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended; shall not hold himself out as any of the foregoing; and
shall not be liable to any person for any act of the Corporation. Notice of
regular or special meetings may be given to an Honorary Director or Director
Emeritus but the failure to give such notice shall not affect the validity of
any meeting or the action taken thereat. An Honorary Director or Director
Emeritus shall not have the powers of a Director, may not vote at meetings of
the Board of Directors and shall not take part in the operation or governance of
the Corporation. An Honorary Director or Director Emeritus shall be entitled to
receive compensation, if any, as may from time to time be fixed by the Board of
Directors, and may also be reimbursed for expenses incurred in attending
meetings of the Board of Directors or otherwise.
ARTICLE III
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Officers
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SECTION 1. Election, Tenure and Compensation. The officers of the
Corporation shall be a President, a Secretary and a Treasurer, and also such
other officers including a Chairman of the Board, a Vice Chairman of the Board
and/or one or more Vice Presidents and/or one (1) or more assistants to the
foregoing officers as the Board of Directors from time to time may consider
necessary for the proper conduct of the business of the Corporation. The
officers shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of the stockholders except where a longer
term is expressly provided in an employment contract duly authorized and
approved by the Board of Directors. The President, Chairman of the Board and
Vice Chairman of the Board shall be Directors and the other officers may, but
need not be, Directors.
Any two (2) or more of the above offices, except those of President and
Vice President, may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity if such
instrument is required by law or by these Bylaws to
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be executed, acknowledged or verified by any two (2) or more officers. The
compensation or salary paid all officers of the Corporation shall be fixed by
resolutions adopted by the Board of Directors or a committee thereof, but this
power may be delegated to any officer with respect to other officers under his
control.
In the event that any office other than an office required by law shall not
be filled by the Board of Directors, or, once filled, subsequently becomes
vacant, then such office and all references thereto in these Bylaws shall be
deemed inoperative unless and until such office is filled in accordance with the
provisions of these Bylaws. A vacancy in any office whether arising from death,
resignation, removal or any other cause may be filled in the manner prescribed
in these Bylaws for the regular election or appointment to the office.
Any officer, agent or employee of the Corporation may be removed by the
Board of Directors whenever in the Board's judgment the best interests of the
Corporation will be served thereby, and the Board may delegate the power of
removal as to agents and employees not elected or appointed by the Board of
Directors. Removal shall be without prejudice to the person's contract rights,
if any, but the appointment of any person as an officer, agent or employee of
the Corporation shall not of itself create contract rights.
Any officer of the Corporation may resign at any time by giving written
notice of his resignation to the Board of Directors, the Chairman of the Board,
the President or the Secretary. Any resignation shall take effect at the time
specified therein or, if the time when it shall become effective is not
specified therein, immediately upon its receipt. Acceptance of a resignation
shall not be necessary to make it effective unless the resignation states
otherwise.
SECTION 2. Powers and Duties of the Chairman of the Board. The Chairman of
the Board, if one is elected, shall preside at all meetings of the Board of
Directors and of the stockholders unless the Board of Directors shall by a
majority vote of a quorum thereof elect a chairman other than the Chairman of
the Board to preside at such meetings. The Chairman of the Board shall have such
other powers and perform such other duties as may be assigned to him from time
to time by the Board of Directors.
SECTION 3. Powers and Duties of the Vice Chairman of the Board. In the
absence of the Chairman of the Board, the Vice Chairman of the Board, if one is
elected, shall act in the place of the Chairman of the Board and shall assume
his duties and shall be vested with all of his powers and authorities. The Vice
Chairman of the Board shall have such other powers and perform such other duties
as may be assigned to him from time to time by the Board of Directors.
SECTION 4. Powers and Duties of the President. The President shall be the
chief executive officer of the Corporation and, subject to the supervision of
the Board of Directors, shall have the general direction over the business,
affairs and property of the Corporation and of its officers, employees and
agents. In the absence of the Chairman of the Board and Vice Chairman of the
Board, or if no Chairman of the Board or Vice Chairman of the Board has been
chosen, the President shall preside at all meetings of the stockholders and of
the Board of Directors and exercise the powers and perform the duties of the
Chairman of the Board. The
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President also shall exercise such other powers and perform such other duties as
from time to time may be assigned to him by the Board of Directors.
SECTION 5. Powers and Duties of the Vice Presidents. The Board of
Directors may appoint one or more Vice Presidents, including one or more
Executive Vice Presidents and Senior Vice Presidents. Each Vice President shall
have such powers and duties as may be assigned by the President or the Board of
Directors. The Executive Vice President, if one is appointed, or if not, a Vice
President, shall be designated by the Board of Directors, in the absence of the
President, to perform all the duties of the President.
SECTION 6. Secretary; Assistant Secretary. The Secretary shall give, or
cause to be given, notice of all meetings of stockholders and Directors and all
other notices required by law or by these Bylaws, and in case of his absence or
refusal or neglect to do so, any such notice may be given by any person
thereunto directed by the President, or by the Directors or stockholders upon
whose written request the meeting is called as provided in these Bylaws. The
Secretary shall record all the proceedings of the meetings of the stockholders
and of the Directors in books provided for that purpose, and he shall perform
such other duties as may be assigned to him by the Directors or the President.
He shall have custody of the seal of the Corporation and shall affix the same to
all instruments requiring it, when authorized by the Board of Directors or the
President, and attest to the same. In general, the Secretary shall perform all
the duties generally incident to the office of Secretary, subject to the control
of the Board of Directors and the President.
The Board of Directors may appoint an Assistant Secretary or more than one
(1) Assistant Secretary. Each Assistant Secretary shall (except as otherwise
provided by resolution of the Board of Directors) have power to perform all
duties of the Secretary in the absence or inability to act of the Secretary and
shall have such other powers and shall perform such other duties as may be
assigned to him by the Board of Directors, the President or the Secretary.
SECTION 7. Treasurer; Assistant Treasurer. The Treasurer shall have
custody of all the funds and securities of the Corporation, and he shall keep
full and accurate account of receipts and disbursements in books belonging to
the Corporation. He shall deposit all moneys and other valuables in the name and
to the credit of the Corporation in such depository or depositories as may be
designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors or the President, taking proper vouchers for such
disbursements. He shall render to the President and the Board of Directors,
whenever either of them so requests, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall perform all the duties generally incident to the office
of the Treasurer, subject to the control of the Board of Directors and the
President.
The Board of Directors may appoint an Assistant Treasurer or more than one
(1) Assistant Treasurer. Each Assistant Treasurer shall (except as otherwise
provided by resolution of the Board of Directors) have power to perform all
duties of the Treasurer in the absence or
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inability to act of the Treasurer and shall have such other powers and shall
perform such other duties as may be assigned to him by the Board of Directors,
the President or the Treasurer.
SECTION 8. Chief Financial Officer. The Board of Directors shall appoint a
Chief Financial Officer. The Chief Financial Officer shall have and may exercise
any and all powers and duties pertaining by law, regulation or practice, to the
office of Chief Financial Officer, or imposed by these Bylaws; and shall also
perform such other duties as may be assigned from time to time, by the President
or the Board of Directors.
SECTION 9. Bonds. The Board of Directors may require any officer or agent
of the Corporation to execute a bond to the Corporation in such sum and with
such surety or sureties as the Board of Directors may determine.
ARTICLE IV
----------
Capital Stock
-------------
SECTION 1. Issuance of Certificates of Stock. Unless the Board of
Directors authorizes the issuance of certificateless shares and such issuance is
not otherwise prohibited by the Corporation's Charter, each stockholder shall be
entitled to a certificate or certificates that shall represent and certify the
number of shares of any class of stock owned by him in the Corporation. No
certificate shall be issued for any share of stock of any class until such share
is fully paid in accordance with the Maryland General Corporation Law.
Stock certificates of each class shall be in such form as shall be prepared
or approved by the Board of Directors. Each certificate shall be signed by the
President or a Vice President or the Chairman of the Board, and countersigned by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer. The signatures may be either manual or facsimile signatures. Such a
certificate shall be valid and may be issued whether or not an officer who
signed it is still an officer when it is issued. The name of the Corporation and
of the person owning the shares represented thereby, with the number and class
of such shares and the date of issue, shall be on the face of the certificate
and entered on the Corporation's books at the time of issuance.
SECTION 2. Regulations. The Board of Directors shall have the power and
authority to make such rules and regulations as it may deem expedient concerning
the issuance, transfer and registration of certificates for shares of stock of
any class of the Corporation.
SECTION 3. Fixing of Record Date for Dividends, Distributions, etc. The
Board may fix, in advance, a date not more than ninety (90) days preceding the
date fixed for the payment of any dividend or the making of any distribution
with respect to, or the allotment of other rights, as the record date for the
determination of the stockholders entitled to receive any such dividend,
distribution or allotment, and in such case only the stockholders of record at
the time so fixed shall be entitled to receive such dividend, distribution or
allotment. If no record date has been fixed, the record date for determining
stockholders entitled to receive dividends or an allotment of any rights shall
be the close of business on the day on which the resolution of the Board of
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Directors declaring the dividend or allotment of rights is adopted, but the
payment or allotment shall not be made more than sixty (60) days after the date
on which the resolution is adopted.
SECTION 4. Transfer of Shares.
(a) Transfers of shares of the stock of the Corporation shall be
made on the books of the Corporation by the holder of record thereof (in person
or by his attorney thereunto duly authorized by a power of attorney duly
executed in writing and filed with the Secretary of the Corporation) (i) if a
certificate or certificates have been issued, upon the surrender of the
certificate or certificates, properly endorsed or accompanied by proper
instruments of transfer, representing such shares; or (ii) as otherwise
prescribed by the Board of Directors.
(b) The Corporation shall be entitled to treat the holder of record
of any share of stock as the absolute owner thereof for all purposes, including,
without limitation, the rights to receive dividends or other distributions and
to vote as the owner, and the Corporation shall not be bound to recognize any
legal, equitable or other claim or interest in such share on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise expressly provided by the laws of the State of Maryland.
(c) Notwithstanding anything to the contrary contained in these
Bylaws, 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 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 considers necessary or desirable. On receipt of a
certification which complies with the requirements established by the Board's
resolution, the person specified in the certification shall be, 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. Transfer Agent and Registrar. The Board of Directors may
appoint a transfer agent and/or registrar of transfers and may require that all
stock certificates representing shares of any class to bear the signatures of
such transfer agent or registrar of transfers, or the signatures of both.
SECTION 6. Lost, Stolen or Destroyed Certificates. Before issuing a new
certificate for stock of the Corporation alleged to have been lost, stolen or
destroyed, the Board of Directors or any officer authorized by the Board of
Directors may, in its discretion, require the owner of the lost, stolen or
destroyed certificate (or his legal representative) to give the Corporation a
bond or other indemnity, in such form and in such amount as the Board of
Directors or any such officer may direct and with such surety or sureties as may
be satisfactory to the Board of Directors or any such officer, sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
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SECTION 7. 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 registered in the name of each stockholder. The stock
ledger may be in written form or in any other form that 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, within or without the State of Maryland, or,
if none, at the principal office or the principal executive offices of the
Corporation in the State of Maryland.
ARTICLE V
---------
Seal
----
In the event that the President shall direct the Secretary to obtain a
corporate seal, the corporate seal shall be circular in form and shall have
inscribed thereon the name of the Corporation, the year of its organization and
the word "Maryland". Duplicate copies of the corporate seal may be provided for
use in the different offices of the Corporation but each copy thereof shall be
in the custody of the Secretary of the Corporation or of an Assistant Secretary
of the Corporation nominated by the Secretary.
ARTICLE VI
----------
Finance
-------
SECTION 1. Bank Accounts. Such officers or agents of the Corporation as
from time to time shall be designated by the Board of Directors shall have
authority to deposit any funds of the Corporation in such banks or trust
companies as shall from time to time be designated by the Board of Directors and
such officers or agents as from time to time shall be authorized by the Board of
Directors may withdraw any or all of the funds of the Corporation so deposited
in any such bank or trust company, upon checks, drafts or other instruments or
orders for the payment of money drawn against the account or in the name or
behalf of this Corporation, and made or signed by such officers or agents; and
each bank or trust company with which funds of the Corporation are so deposited
is authorized to accept, honor, cash and pay, without limit as to amount, all
checks, drafts or other instruments or orders for the payment of money, when
drawn, made or signed by officers or agents so designated by the Board of
Directors until written notice of the revocation of the authority of such
officers or agents by the Board of Directors shall have been received by such
bank or trust company. There may from time to time be certified to the banks or
trust companies in which funds of the Corporation are deposited, the signature
of the officers or agents of the Corporation so authorized to draw against the
same. In the event that the Board of Directors shall fail to designate the
persons by whom checks, drafts and other instruments or orders for the payment
of money shall be signed, as hereinabove provided in this Section, all of such
checks, drafts and other instruments or orders for the payment of money shall be
signed by the President or a Vice President and countersigned by the Secretary
or Treasurer or an Assistant Secretary or an Assistant Treasurer of the
Corporation.
SECTION 2. Annual Statement of Affairs. There shall be prepared annually a
full and correct statement of the affairs of the Corporation, to include a
balance sheet and a financial statement of operations for the preceding fiscal
year. The statement of affairs shall be submitted
15
at the annual meeting of the stockholders and, within twenty (20) days after the
meeting, placed on file at the Corporation's principal office. Such statement
shall be prepared or caused to be prepared by such executive officer of the
Corporation as may be designated in an additional or supplementary bylaw adopted
by the Board of Directors. If no other executive officer is so designated, it
shall be the duty of the President to prepare or cause to be prepared such
statement.
ARTICLE VII
-----------
Indemnification
---------------
As used in this Article VII, any word or words that are defined in Section
2-418 of the Maryland General Corporation Law, as amended from time to time (the
"Indemnification Section"), shall have the same meaning as provided in the
Indemnification Section.
The Corporation shall indemnify and advance expenses to a director or
officer of the Corporation in connection with a proceeding to the fullest extent
permitted by and in accordance with the Indemnification Section.
With respect to an employee or agent, other than a director or officer of
the Corporation, the Corporation may, as determined by the Board of Directors of
the Corporation, indemnify and advance expenses to such employee or agent in
connection with a proceeding to the fullest extent permitted by and in
accordance with the Indemnification Section.
The indemnification and advancement of expenses provided by this Article
VII or provided in the Corporation's Charter shall not be deemed exclusive of
any other right, in respect of indemnification or otherwise, to which those
seeking such indemnification or advancement of expenses may be entitled under
any insurance or other agreement, vote of stockholders or disinterested
Directors or otherwise.
The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation, or
while a director, officer, employee or agent of the Corporation is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan, against any liability asserted against and
incurred by such person in any such capacity or arising out of such person's
position, whether or not the Corporation would have the power to indemnify such
person under Maryland law.
ARTICLE VIII
------------
Miscellaneous Provisions
------------------------
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall end on
the date determined by the Board of Directors. In the absence of any such
determination, the accounts of the Corporation shall be kept on a calendar year
basis.
SECTION 2. Waiver of Notice. Whenever any notice of the date, hour, place
and/or purpose of any meeting of stockholders, Directors or a committee is
required to be given under
16
the provisions of the Maryland General Corporation Law or under the provisions
of the Corporation's Charter or by these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to such notice and filed with the
records of the meeting, whether before or after the holding thereof, or actual
attendance at the meeting in person or, in the case of a meeting of
stockholders, by proxy, shall be deemed equivalent to the giving of such notice
to such person.
SECTION 3. Offices. The principal office of the Corporation shall be
located in the State of Maryland. The address of the principal office may be
changed from time to time pursuant to the Maryland General Corporation Law. The
Corporation may have such other offices and places of business at such places
within or without the State of Maryland as the Board of Directors may determine
from time to time.
SECTION 4. Voting Stock in Other Corporations. The President shall have
full power and authority on behalf of the Corporation to attend and vote at any
meeting of the stockholders of any corporation in which the Corporation may hold
stock, and at any such meeting shall possess and may exercise (in person or by
proxy), any and all rights, powers and privileges incident to the ownership of
such stock, and which, as the owner thereof, this Corporation might have
possessed and exercised if present. The President may grant proxies on behalf of
the Corporation to any person or persons to act in his stead at such meetings.
Notwithstanding the foregoing, the Board of Directors by resolution may appoint
some other person to vote such shares, in which case such person and not the
President or his proxy shall be entitled to vote such shares upon production of
a certified copy of such resolution.
SECTION 5. Books and Records. The Corporation shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its stockholders and Board of Directors and of any committee
thereof.
ARTICLE IX
----------
Amendments
----------
The Board of Directors shall have the exclusive power and authority to
amend, alter, change or repeal these Bylaws or any provision thereof, and to
make from time to time any additional Bylaws; by resolution adopted by a
majority of all of the Directors, at any regular or special meeting of the
Board, provided, however, that a resolution adopted by two-thirds of the members
of the Directors, at any regular or special meeting of the Board, shall be
required to amend, alter, change or repeal, or to adopt any provision
inconsistent with, the provisions of Article I, Section 2, 9 or 10, or Article
II, Sections 2, 4 or 8 of these Bylaws; and further provided that no such action
by the Board of Directors shall be inconsistent with any of the terms of the
Charter of the Corporation.
The stockholders shall have no power or authority to amend, alter, change
or repeal these Bylaws or any provision thereof, or to make additional Bylaws.
17