SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-A/A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
Creditrust Corporation
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(Exact name of registrant as specified in its charter)
Maryland 52-1754916
(State of incorporation or organization) IRS Employer Identification No.
7000 Security Boulevard, Baltimore, Maryland 21244-2543
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(Address of principal executive offices) (Zip code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following. |_|
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. |_|
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. |_|
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. |X|
Securities Act registration statement file number to which this Form relates:
333-50103
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value per share
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(Title of class)
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Item 1: Description of Registrant's Securities to be Registered.
The description under the heading "Description of Capital Stock" relating
to the Registrant's Common Stock, $.01 par value per share, in the final
Prospectus filed pursuant to Rule 424(b) on July 30, 1998 (File No. 333-50103)
(the "Registration Statement on Form S-1"), is incorporated herein by reference.
Item 2: Exhibits.
The following exhibits are filed herewith (or incorporated by reference as
indicated below):
1. Amended and Restated Articles of Incorporation of the Registrant, as
amended and filed with the Maryland State Department of Assessments
and Taxation on July 29, 1998 are filed herewith.
2. By-Laws of the Registrant, as amended on July 27, 1998 are filed
herewith.
3. Specimen Common Stock Certificate, incorporated herein by reference,
to Exhibit 4.1 of the Registration Statement on Form S-1.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
CREDITRUST CORPORATION
By: /s/ Joseph K. Rensin
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Joseph K. Rensin
Chairman and Chief Executive Officer
Date: August 3, 1998
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EXHIBIT 1
CREDITRUST CORPORATION
ARTICLES OF AMENDMENT AND RESTATEMENT
CREDITRUST CORPORATION, a Maryland corporation, having its principal office in
Baltimore County, Maryland (the "Corporation"), desires to amend and restate its
Charter as currently in effect and hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST: The Charter of the Corporation is hereby amended by:
Changing and reclassifying each of the shares of Common Stock (without par
value) of the Corporation which is issued and outstanding as of the close of
business on the effective date of this amendment into one share of Common Stock
(par value $0.01 per share) and by transferring from the account designated
"Common Stock" to an account designated "Capital Surplus" $.99 for each share of
Common Stock outstanding immediately after the change and reclassification.
SECOND: The Charter of the Corporation is hereby further amended and
restated in its entirety to read as follows:
FIRST: The name of the corporation (the "Corporation") is:
Creditrust Corporation
SECOND: (a) The purposes for which the Corporation is formed and the
business and objects to be carried on and promoted by it are:
(1) To purchase or otherwise acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance, service and otherwise deal with account
receivables (including, but not limited to consumer receivables generated
on credit card accounts and installment accounts and medical receivables) ;
and
(2) To engage in any one or more businesses or transactions, or to
acquire all or any portion of any entity engaged in any one or more
businesses or transactions which the Board of Directors (or a committee of
the Board of Directors duly appointed by the Board of Directors for such
purpose) may from time to time authorize or approve, whether or not related
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to the business described elsewhere in this Article or to any other
business at the time or theretofore engaged in by the Corporation.
(b) The foregoing enumerated purposes and objects shall be in no way
limited or restricted by reference to, or inference from, the terms of any other
clause of this or any other Article of the Charter of the Corporation, and each
shall be regarded as independent and they are intended to be and shall be
construed as powers as well as purposes and objects of the Corporation and shall
be in addition to and not in limitation of the general powers of corporations
under the general laws of the State of Maryland.
THIRD: The address of the principal office of the Corporation in this State
is 7000 Security Boulevard, Baltimore, Maryland 21244.
FOURTH: The name and address of the resident agent of the Corporation in
this State are Joseph K. Rensin, 7000 Security Boulevard, Baltimore, Maryland
21244. Said resident agent is a citizen of the State of Maryland who resides
therein.
FIFTH: (a) The total number of shares of stock of all classes which the
Corporation has authority to issue is 25,000,000 shares of capital stock,
divided into 5,000,000 shares of Series Preferred Stock, par value $0.01 per
share, and 20,000,000 shares of Common Stock, par value $0.01 per share. The
aggregate par value of all shares of capital stock is $250,000.00.
(b) The following is a description of the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of the Common Stock of the Corporation:
(1) Each share of Common Stock shall have one vote, and, except as
otherwise provided in respect of any class of Series Preferred Stock
hereafter classified or reclassified, the exclusive voting power for all
purposes shall be vested in the holders of the Common Stock.
(2) Subject to the provisions of law and any preferences of any class
of Series Preferred Stock hereafter classified or reclassified, dividends,
including dividends payable in shares of another class of the Corporation's
stock, may be paid on the Common Stock of the Corporation at such time and
in such amounts as the Board of Directors may deem advisable, but subject
to availability of funds and provisions for reasonable reserves as
determined by the Board of Directors in any calendar year in which the
Board of Directors determines to pay dividends on the Common Stock of the
Corporation.
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(3) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common
Stock shall be entitled, after payment or provision for payment of the
debts and other liabilities of the Corporation and the amount to which the
holders of any class of Series Preferred Stock hereafter classified or
reclassified having a preference on distributions in the liquidation,
dissolution or winding up of the Corporation shall be entitled together
with the holders of any other class of stock hereafter classified or
reclassified not leaving a preference on distributions in the liquidation,
dissolution or winding up of the Corporation, to share ratably in the
remaining net assets of the Corporation.
(c) The Board of Directors shall have the power from time to time (a) to
classify or reclassify, in one or more series, any unissued shares of Series
Preferred Stock and (b) to reclassify any unissued shares of Series Preferred
Stock, in the case of either (a) or (b) by determining, fixing, or altering one
or more of the following:
(1) The distinctive designation of such class or series and the number
of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such or any other class or series, the
number of shares of any class or series may be decreased by the Board of
Directors in connection with any classification or reclassification of
unissued shares and the number of shares of such class or series may be
increased by the Board of Directors in connection with any such
classification or reclassification, and any shares of any class or series
which have been redeemed, purchased, otherwise acquired or converted into
shares of Common Stock or any other class or series shall become part of
the authorized capital stock of the Corporation and be subject to
classification and reclassification as provided in this sub-paragraph.
(2) Whether or not and, if so, the rates, amounts and times at which,
and the conditions under which, dividends shall be payable on shares of
such class or series, whether any such dividends shall rank senior or
junior to or on a parity with the dividends payable on any other class or
series of stock, and the status of any such dividends as cumulative,
cumulative to a limited extent or noncumulative and as participating or
nonparticipating.
(3) Whether or not shares of such class or series shall have voting
rights, in addition to any voting rights provided by law and, if so, the
terms of such voting rights.
(4) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions
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thereof, including provision for adjustment of the conversion or exchange
rate in such events or at such times as the Board of Directors shall
determine.
(5) Whether or not shares of such class or series shall be subject to
redemption and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which shares shall be redeemable
and the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates; and
whether or not there shall be any sinking fund or purchase account in
respect thereof, and if so, the terms thereof.
(6) The rights of the holders of shares of such class or series upon
the liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation, which rights may vary
depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on a parity with
such rights of any other class or series of stock.
(7) Whether or not there shall be any limitations applicable, while
shares of such class or series are outstanding, upon the payment of
dividends or making of distributions on, or the acquisition of, or the use
of monies for purchase or redemption of, any stock of the Corporation, or
upon any other action of the Corporation, including action under this
subparagraph, and, if so, the terms and conditions thereof.
(8) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class
or series, not inconsistent with law and the Charter of the Corporation.
(d) For the purposes hereof and of any articles supplementary to the
Charter providing for the classification or reclassification of any shares of
Series Preferred Stock or of any other Charter document of the Corporation
(unless otherwise provided in any such articles or document), any class or
series of stock of the Corporation shall be deemed to rank:
(1) prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to
the receipt of dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in preference or priority to
holders of such other class or series;
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(2) on a parity with another class or series either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation price per share thereof be different from
those of such others, if the holders of such class or series of stock shall
be entitled to receipt of dividends or amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion
to their respective dividend rates or redemption or liquidation prices,
without preference or priority over the holders of such other class of
series; and
(3) junior to another class or series either as to dividends or upon
liquidation, if the rights of the holders of such class or series shall be
subject or subordinate to the rights of the holders of such other class or
series in respect of the receipt of dividends or the amounts distributable
upon liquidation, dissolution or winding up, as the case may be.
SIXTH: (a) The number of directors of the Corporation shall be five, which
number may be increased or decreased pursuant to the Bylaws of the Corporation,
but shall never be less than the minimum number permitted by the General Laws of
the State of Maryland now or hereafter in force. The names of the Directors who
shall act until the 1999 annual meeting or until their successors are duly
chosen and qualified are Joseph K. Rensin, Frederick W. Glassberg, John G.
Moran, Harry G. Pappas, Jr. and Michael S. Witlin.
(b) Subject to the rights of the holders of any class of Series Preferred
Stock then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies on the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office, or other cause may be filled by a majority vote of the remaining members
of the Board of Directors. A director so chosen by the Board of Directors shall
hold office for the balance of the term then remaining. No decrease in the
number of directors constituting, the Board of Directors shall affect the tenure
of office of any director.
(c) Subject to the rights of the holders of any class separately entitled
to elect one or more directors, any director, or the entire Board of Directors,
may be removed from office at any time, with or without cause, by the
affirmative vote of the holders of at least a majority of the combined voting
power of all classes of shares of capital stock entitled to vote in the election
for directors voting together as a single class at any duly called meeting of
stockholders at which a quorum is present (in person or by proxy).
SEVENTH: (a) The following provisions are hereby adopted for the purpose of
defining, limiting and regulating the powers of the Corporation and of the
directors and stockholders:
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(1) The Board of Directors is hereby empowered to approve the issuance
from time to time of shares of any class of the Corporation' s stock,
whether now or hereafter authorized, or securities convertible into shares
of its stock of any class or classes, whether now or hereafter authorized,
for such consideration as may be deemed advisable by the Board of Directors
and without any action by the stockholders.
(2) No holder of any stock or any other securities of the Corporation,
whether now or hereafter authorized, shall have any preemptive right to
subscribe for or purchase any stock or any other securities of the
Corporation other than such, if any, as the Board of Directors, in its sole
discretion, may determine and at such price or prices and upon such other
terms as the Board of Directors, in its sole discretion, may fix; and any
stock or other securities which the Board of Directors may determine to
offer for subscription may, as the Board of Directors in its sole
discretion shall determine, be offered to the holders of any class, series
or type of stock or other securities at the time outstanding to the
exclusion of the holders of any or all other classes, series or types of
stock or other securities at the time outstanding.
(3) To the extent permitted by applicable law, the Board of Directors
of the Corporation shall have power, in its sole discretion, (i) to
determine from time to time in accordance with sound accounting practice or
other reasonable valuation methods what constitutes annual or other net
profits, earnings, surplus, or net assets in excess of capital; (ii) to fix
and vary from time to time the amount to be reserved as working capital, or
determine that retained earnings or surplus shall remain in the
Corporation; (iii) to set apart out of any funds of the Corporation such
reserve or reserves in such amount or amounts and for such proper purpose
or purposes as it shall determine and to abolish any such reserve or any
part thereof, to distribute and pay distributions or dividends in stock,
cash or other securities or property, out of surplus or any other kinds or
amounts legally available therefor, at such times and to the stockholders
of record on such dates as it may, from time to time, determine; and (iv)
to determine whether and to what extent and at what times and places and
under what conditions and regulations the books, accounts and documents of
the Corporation, or any of them, shall be open to the inspection of
stockholders, except as otherwise provided by statute or by the Bylaws,
and, except as so provided, no stockholder shall have any right to inspect
any book, account or document of the Corporation unless authorized so to do
by resolution of the Board of Directors.
(4) Notwithstanding any provision of law requiring the authorization
of any action by a greater proportion than a majority of the total number
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of shares of all classes of capital stock or of the total number of shares
of any class of capital stock, such action shall be valid and effective if
authorized by the affirmative vote of the holders of a majority of the
total number of shares of all classes outstanding and entitled to vote
thereon, except as otherwise provided in the Charter.
(5) The Corporation shall indemnify (A) its directors and officers,
whether serving the Corporation or at its request any other entity, to the
full extent required or permitted by the Maryland General Corporation Law,
now or hereafter in force, including the advance of expenses under the
procedures and to the full extent permitted by law and (B) other employees
and agents to such extent as shall be authorized by the Board of Directors
or the Corporation's Bylaws and as shall be indemnification shall not be
exclusive of any other rights to which those seeking indemnification may be
entitled. The Board of Directors may take such action as is necessary to
carry out these indemnification provisions and is expressly empowered to
adopt, approve and amend from time to time such bylaws, resolutions or
contracts implementing such provisions or such further indemnification
arrangements as may be permitted by law. No amendment of the Charter of the
Corporation or repeal of any of its provisions shall limit or eliminate the
right to indemnification provided hereunder with respect to acts or
omissions occurring prior to such amendment or repeal.
(6) To the fullest extent permitted by Maryland law, as amended or
interpreted, no director or officer of the Corporation shall be personally
liable to the Corporation or its stockholders for money damages. No
amendment of the Charter of the Corporation or repeal of any of its
provisions shall limit or eliminate the limitation on liability provided to
directors and officers hereunder with respect to any act or omission
occurring prior to such amendment or repeal.
(7) (A) Nominations for the election of directors and proposals for
any new business to be considered at any annual or special meeting of
stockholders may be made by the Board of Directors of the Corporation or by
any stockholder of the Corporation entitled to vote generally in the
election of directors. In order for a stockholder of the Corporation to
make any such nominations and/or proposals, he or she shall give notice
thereof in writing, delivered or mailed by first class United States
Certified mail, postage prepaid, to the Secretary of the Corporation not
less than 30 days nor more than 60 days prior to any such meeting;
provided, however, that if less than 31 days notice of the meeting is given
to stockholders, such written notice; shall be delivered or mailed, as
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prescribed, to the Secretary of the Corporation not later than the close of
the tenth day following the day on which notice of the meeting was mailed
to stockholders. Each such notice given by a stockholder with respect to
nominations for the election of directors shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
each such nominee, (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee, (iv) such other
information as would be required to be included in a proxy statement
soliciting proxies for the election of the proposed nominee pursuant to
Regulation 14A of the Securities Exchange Act of 1934, as amended,
including, without limitation, such person's written consent to being named
in the proxy statement as a nominee and to serving as a director, if
elected, and (v) as to the stockholder giving such notice, his name and
address as they appear on the Corporation's books and the class and number
of shares of the Corporation which are beneficially owned by such
stockholder. In addition, the stockholder making such nomination shall
promptly provide any other information reasonably requested by the
Corporation.
(B) Each notice given by a stockholder to the Secretary with respect
to business proposals to be brought before a meeting of stockholders shall
set forth in writing as to each matter: (i) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting; (ii) the name and address, as they
appear on the Corporation's books, of the stockholder proposing such
business; (iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder; and (iv) any material interest of
the stockholder in such business. Notwithstanding anything in this Charter
to the contrary, no business shall be conducted at the meeting except in
accordance with the procedures set forth in this sub-paragraph (7).
(C) The Chairman of the annual or special meeting of stockholders may,
if the facts warrant, determine and declare to such meeting that a
nomination or proposal was not made in accordance with the foregoing
procedure, and, if so determined, shall so declare to the meeting and the
defective nomination or proposal shall be disregarded.
(8) The Board of Directors may, in connection with the exercise of its
business judgment involving a Business Combination (as defined in Section
3601 of the Corporations and Associations Article of the Annotated Code of
Maryland) or any actual or proposed transaction which would or may involve
a change in control of the Corporation (whether by purchases of shares of
stock or any other securities of the Corporation in the open market, or
otherwise, tender offer, merger, consolidation, dissolution, liquidation,
sale of all or substantially all of the assets of the Corporation, proxy
solicitation or otherwise), in determining what is in the best interests of
the Corporation and its stockholders and in making any recommendation to
its stockholders, give due consideration to all relevant factors,
including, but not limited to (A) the economic effect, both immediate and
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long-term, upon the Corporation's stockholders, including stockholders, if
any, not to participate in the transaction; (B) the social and economic
effect on the employees of, and others dealing with, the Corporation and
its subsidiaries and on the communities in which the Corporation and its
subsidiaries operate or are located; (C) whether the proposal is acceptable
based on the historical and current operating results or financial
condition of the Corporation; (D) whether a more favorable price could be
obtained for the Corporation's stock or other securities in the future; (E)
the reputation and business practices of the offeror and its management and
affiliates as they would affect the employees of the Corporation and its
subsidiaries; (F) the future value of the stock or any other securities of
the Corporation; (G) any antitrust or other legal and regulatory issues
that are raised by the proposal; and (H) the business and financial
condition and earnings prospects of the acquiring person or entity,
including, but not limited to, debts service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition, and other likely financial obligations of the acquiring person
or entity. If the Board of Directors determines that any proposed Business,
Combination (as defined in Section 3-601 of the Corporations and
Associations Article of the Annotated Code of Maryland) or actual or
proposed transaction which would or may involve a change in control of the
Corporation should be rejected, it may take any lawful action to defeat
such transaction, including, but not limited to, any or all of the
following: advising stockholders not to accept the proposal; instituting
litigation against the party making the proposal; filing complaints with
governmental and regulatory authorities; acquiring the stock or any of the
securities of the Corporation; selling or otherwise issuing authorized but
unissued stock, other securities or treasury stock or granting options with
respect thereto; acquiring a company to create an antitrust or other
regulatory problem for the party making the proposal; and obtaining a more
favorable offer from another individual or entity.
(9) In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized
to make, repeal, alter, amend and rescind the Bylaws of the Corporation.
Notwithstanding any other provision of this Charter or the Bylaws of the
Corporation (and notwithstanding the fact that some lesser percentage may
be specified by law), the Bylaws shall not be made, repealed, altered,
amended or rescinded by the stockholders of the Corporation except by the
vote of the holders of not less than a majority of the outstanding shares
of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose (provided that notice
of such proposed adoption, repeal, alteration, amendment or rescission is
included in the notice of such meeting), or, as set forth above, by the
Board of Directors.
(10) The provisions of Subsection 6 of Title 3 of the Corporations and
Associations Article of the Annotated Code of Maryland shall not apply to
any "business combination" (as defined therein) with the Corporation and
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Joseph K. Rensin, or any existing or future associates or affiliates of
Joseph K. Rensin and any other person acting in concert or as a group with
any of the foregoing.
(b) The Corporation reserves the right from time to time to make any
amendments of its Charter which may now or hereafter be authorized by law,
including any amendments changing the terms or contract rights, as expressly set
forth in its Charter, of any of its outstanding stock by classification,
reclassification or otherwise, but no such amendment which changes such terms or
contract rights of any of its outstanding stock shall be valid unless such
amendment shall have been authorized by not less than a majority of the
aggregate number of the votes entitled to be cast thereon, by a vote at a
meeting or in writing with or without a meeting; provided, however, that any
amendment to, repeal of or adoption of any provision inconsistent with Article
SIXTH or Article SEVENTH shall have been authorized by not less than 80% of the
aggregate votes entitled to be cast thereon (considered for this purpose as a
single class) by vote at a meeting or in writing with or without a meeting.
(c) The enumeration and definition of particular powers of the Board of
Directors included in the foregoing shall in no way be limited or restricted by
reference to or inference from the terms of any other clause of this or any
other Article of the Charter of the Corporation, or construed as or deemed by
inference or otherwise in any manner to exclude or limit any powers conferred
upon the Board of Directors under the Maryland General Corporation Law now or
hereafter in force.
EIGHTH: The duration of the Corporation shall be perpetual.
THIRD: The foregoing amendment and restatement to the Charter of the
Corporation has been advised by the Board of Directors and approved by the sole
stockholder of the Corporation.
FOURTH: The foregoing amendment and restatement to the Charter of the
Corporation does not increase the authorized stock of the Corporation.
FIFTH: The provisions set forth in the foregoing amendment and restatement
of the Charter are all the provisions of the Charter currently in effect.
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IN WITNESS WHEREOF, Creditrust Corporation has caused these presents to be
signed in its name and on its behalf by its President and witnessed by its
Secretary on July 27, 1998.
WITNESS: CREDITRUST CORPORATION
/s/ John L. Davis By: /s/ Joseph K. Rensin
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John L. Davis, Secretary Joseph K. Rensin, President
THE UNDERSIGNED, President of Creditrust Corporation who executed on behalf
of the Corporation the foregoing Articles of Amendment and Restatement of which
this certificate is made a part, hereby acknowledges in the name and on behalf
of said Corporation the foregoing Articles of Amendment and Restatement to be
the corporate act of said Corporation and hereby certifies that to the best of
his knowledge, information, and belief the matters and facts set forth therein
with respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
/s/ Joseph K. Rensin
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Joseph K. Rensin, President
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EXHIBIT 2
CREDITRUST CORPORATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETING. The Corporation shall hold an annual meeting of
its stockholders to elect directors and transact any other business within its
powers, either at 10:00 a.m. on the last Thursday of May in each year if not a
legal holiday, or at such other time on such other day as shall be set by the
Board of Directors. Except as the Charter or statute provides otherwise, any
business may be considered at an annual meeting without the purpose of the
meeting having been specified in the notice. Failure to hold an annual meeting
does not invalidate the Corporation's existence or affect any otherwise valid
corporate acts.
SECTION 1.2 SPECIAL MEETING. At any time in the interval between annual
meetings, a special meeting of the stockholders may be called by the Chairman of
the Board or the President or by a majority of the Board of Directors by vote at
a meeting or in writing (addressed to the Secretary of the Corporation) with or
without a meeting. Special meetings of the stockholders shall be called by the
Secretary at the request of stockholders only on the written request of
stockholders entitled to cast at least a majority of all the votes entitled to
be cast at the meeting. A request for a special meeting shall state the purpose
of the meeting and the matters proposed to be acted on at it. The Secretary
shall inform the stockholders who make the request of the reasonably estimated
costs of preparing and mailing a notice of the meeting and, on payment of these
costs to the Corporation, notify each stockholder entitled to notice of the
meeting. Unless requested by stockholders entitled to cast a majority of all the
votes entitled to be cast at the meeting, a special meeting need not be called
to consider any matter which is substantially the same as a matter voted on at
any meeting of stockholders held in the preceding 12 months.
SECTION 1.3 PLACE OF MEETINGS. Meetings of stockholders shall be held at
such place in the United States as is set from time to time by the Board of
Directors.
SECTION 1.4 NOTICE OF MEETINGS, WAIVER OF NOTICE. Not less than ten or more
than 90 days before each stockholders' meeting, the Secretary shall give written
notice of the meeting to each stockholder entitled to vote at the meeting and
each other stockholder entitled to notice of the meeting. The notice shall state
the time and place of the meeting and, if the meeting is a special meeting or
notice of the purpose is required by statute, the purpose of the meeting. Notice
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is given to a stockholder when it is personally delivered to him or her, left at
his or her residence or usual place of business, or mailed to him or her at his
or her address as it appears on the records of the Corporation. Notwithstanding
the foregoing provisions, each person who is entitled to notice waives notice if
he or she before or after the meeting signs a waiver of the notice which is
filed with the records of stockholders' meetings, or is present at the meeting
in person or by proxy.
SECTION 1.5 QUORUM; VOTING. Unless statute or the Charter provides
otherwise, at a meeting of stockholders the presence in person or by proxy of
stockholders entitled to be cast at the meeting constitutes a quorum, and a
majority of all the votes cast at a meeting at which a quorum is present is
sufficient to approve any matter which properly comes before the meeting, except
that a plurality of all the votes cast at a meeting at which a quorum is present
is sufficient to elect a director.
SECTION 1.6 ADJOURNMENTS. Whether or not a quorum is present, a meeting of
stockholders convened on the date for which it was called may be adjourned from
time to time without further notice by a majority vote of the stockholders
present in person or by proxy to a date not more than 120 days after the
original record date. Any business which might have been transacted at the
meeting as originally notified may be deferred and transacted at any such
adjourned meeting at which a quorum shall be present.
SECTION 1.7 GENERAL RIGHT TO VOTE; PROXIES. Unless the Charter provides for
a greater or lesser number of votes per share or limits or denies voting rights,
each outstanding share of stock, regardless of class, is entitled to one vote on
each matter submitted to a vote at a meeting or stockholders. In all elections
for directors, each share of stock may be voted for as many individuals as there
are directors to be elected and for whose election the share is entitled to be
voted. A stockholder may vote the stock the stockholder owns of record either in
person or by proxy. A stockholder may sign a writing authorizing another 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 authorize another person to act as proxy
by transmitting, or authorizing the transmission of, a telegram, cablegram,
datagram, 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. Unless a proxy provides otherwise, it is not valid
more than 11 months after its date. A proxy is revocable by a stockholder at any
time without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for so long as it is coupled with an interest.
SECTION 1.8 LIST OF STOCKHOLDERS. At each meeting of stockholders, a full,
true and complete list of all stockholders entitled to vote at such meeting,
showing the number and class of shares held by each and certified by the
transfer agent for such class or by the Secretary, shall be furnished by the
Secretary.
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SECTION 1.9 CONDUCT OF BUSINESS AND VOTING. At all meetings of
stockholders, unless the voting is conducted by inspectors, the proxies and
ballots shall be received, and all questions regarding the qualification of
voters and the validity of proxies, the acceptance or rejection of votes and
procedures for the conduct of business not otherwise specified by these Bylaws,
the Charter or applicable law, shall be decided or determined by the chairman of
the meeting. If demanded by stockholders, present in person or by proxy,
entitled to cast 10% in number of votes entitled to be cast or if ordered by the
chairman, the vote upon any election or question shall be taken by ballot and,
upon like demand or order, the voting shall be conducted by two inspectors, in
which event the proxies and ballots shall be received, and all questions
regarding the qualification of voters and the validity of proxies and the
acceptance or rejection of votes shall be decided, by such inspectors. Unless so
demanded or ordered, no vote need be taken by ballot and voting need not be
conducted by inspectors. The stockholders at any meeting may elect an inspector
or inspectors to act at such meeting, and in default of such election the
chairman of the meeting may appoint an inspector or inspectors. No candidate for
election as a director at a meeting shall serve as an inspector thereat.
SECTION 1.10 INFORMATION 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 stockholders meetings an 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 it.
SECTION 1.11 STOCKHOLDER PROPOSALS. For any stockholder proposal to be
presented in connection with an annual meeting of stockholders of the
Corporation, including any proposal relating to the nomination of a director to
be elected to the Board of Directors of the Corporation, the stockholders must
have given timely notice thereof in writing the Secretary of the Corporation. To
be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from
such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the later of the 60th day
prior to such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
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stockholder and of the beneficial owner, if any, on whose behalf proposal is
made, and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made, (i) the name and
address of such stockholders as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of stock of the
Corporation which are owned beneficially and of record by such stockholders and
such beneficial owner.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 FUNCTION OF DIRECTORS. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors. 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 statute or
by the Charter or Bylaws.
SECTION 2.2 NUMBER OF DIRECTORS. The Corporation shall have at least three
directors; provided that, if there is no stock outstanding, the number of
Directors may be less than three but not less than one, and, if there is stock
outstanding and so long as there are less than three stockholders, the number of
Directors may be less than three but not less than the number of stockholders.
The Corporation shall have the number of directors provided in the Charter until
changed as herein provided. A majority of the entire Board of Directors may
alter the number of directors set by the Charter to not exceeding 25 nor less
than the minimum number then permitted herein, but the action may not affect the
tenure of office of any director.
SECTION 2.3 ELECTION AND TENURE OF DIRECTORS. Subject to the rights of the
holders of any class of stock separately entitled to elect one or more
directors, at each annual meeting, the stockholders shall elect directors to
hold office until the next annual meeting and until their successors are elected
and qualify.
SECTION 2.4 REMOVAL OF DIRECTOR. Subject to the rights of the holders of
any class separately entitled to elect one or more directors, any director, or
the entire Board of Directors, may be removed from office at any time, only by
the affirmative vote of the holders of at least a majority of the combined
voting power of all classes of shares of capital stock entitled to vote in the
election for directors.
SECTION 2.5 VACANCY OF BOARD. Subject to the rights of the holders of any
class of stock separately entitled to elect one or more directors, the
stockholders may elect a successor to fill a vacancy on the Board of Directors
which results from the removal of a director. A director elected by the
stockholders to fill a vacancy which results from the removal of a director
serves for the balance of the term of the removed director. Subject to the
rights of the holders of any class of stock separately entitled to elect one or
more directors, a majority of the remaining directors, whether or not sufficient
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to constitute a quorum, may fill a vacancy on the Board of Directors which
results from any cause except an increase in the number of directors, and a
majority of the entire Board of Directors may fill a vacancy which results from
an increase in the number of directors. A director elected by the Board of
Directors to fill a vacancy serves until the next annual meeting of stockholders
and until his or her successor is elected and qualifies.
SECTION 2.6 REGULAR MEETINGS. After each meeting of stockholders at which
directors shall have been elected, the Board of Directors shall meet as soon as
practicable for the purpose of organization and the transaction of other
business. In the event that no other time and place are specified by resolution
of the Board, the President or the Chairman, with notice in accordance with
Section 2.08, the Board of Directors shall meet immediately following the close
of and at the place of, such stockholders' meeting. Any other regular meeting of
the Board of Directors shall be held on such date and at any place as may be
designated from time to time by the Board of Directors.
SECTION 2.7 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board or the President or by a
majority of the Board of Directors by vote at a meeting, or in writing or
without a meeting. A special meeting of the Board of Directors shall be held on
such date and at any place as may be designated from time to time by the
Chairman of the Board, the President or a majority of the Board of Directors.
SECTION 2.8 NOTICE OF MEETING. Except as provided in Section 2.6, the
Secretary, shall give notice to each director of each regular and special
meeting of the Board of Directors. The notice shall state the time and place of
the meeting. Notice is given to a director when it is delivered personally, left
at the residence or usual place of business of the director, or sent by
telegraph, facsimile transmission or telephone, at least 24 hours before the
time of the meeting or, in the alternative by mail to the address of the
director as it shall appear on the records of the Corporation, at least 72 hours
before the time of the meeting. Unless these Bylaws or a resolution of the Board
of Directors provides otherwise, the notice need not state the business to be
transacted at or the purposes of any regular or special meeting of the Board of
Directors. No notice of any meeting of the Board of Directors need be given to
any director who attends except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened, or to any director who, in writing
executed and filed with the records of the meeting either before or after the
holding thereof, waives such notice. Any meeting of the Board of Directors,
regular or special, may adjourn from time to time to reconvene at the same or
some other place, and no notice need be given of any such adjourned meeting
other than by announcement.
SECTION 2.9 QUORUM; ACTION OF DIRECTORS. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business. In the
absence of a quorum, the directors present, by majority vote and without notice
other than by announcement, may adjourn the meeting from time to time until a
quorum shall attend, At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting, as originally notified. Unless statute or the Charter or Bylaws
<PAGE>
requires a greater proportion, the action of a majority of the directors present
at a meeting at which a quorum is present is action of the Board of Directors.
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 of Directors and
filed with the minutes of proceedings of the Board of Directors.
SECTION 2.10 MEETING BY CONFERENCE TELEPHONE. Members of the Board of
Directors may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
constitutes presence in person at a meeting.
SECTION 2.11 COMPENSATION. By resolution of the Board of Directors a fixed
sum and expenses, if any, for attendance (in person or as otherwise permitted by
Section 2.10) at each regular or special meeting of the Board of Directors or of
committees thereof and other compensation for their services as such or on
committees of the Board of Directors, may be paid to directors. Directors who
are full-time employees of the Corporation shall not be paid for attendance at
meetings of the board or committees thereof for which fees are paid to other
directors. A director who serves the Corporation, in any other capacity also may
receive compensation for such other services, pursuant to a resolution of the
directors.
SECTION 2.12 RESIGNATION. Any director may resign at any time by sending a
written notice of such resignation to the home office of the Corporation
addressed to the Chairman of the Board or the President. Unless otherwise
specified herein such resignation shall take effect upon receipt thereof by the
Chairman of the Board or the President.
SECTION 2.13 PRESUMPTION OF ASSENT. A director of the Corporation 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
his dissent or abstention shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the Secretary of the Corporation immediately
after adjournment of the meeting. Such right to dissent shall not apply to a
director who votes in favor of such action.
SECTION 2.14 ADVISORY DIRECTORS. The Board of Directors may by resolution
appoint advisory directors to the Board, who may also serve as directors
emeriti, and shall have such authority and receive such compensation and
reimbursement as the Board of Directors shall provide. Advisory directors or
directors emeriti shall not have the authority to participate by vote in the
transaction of business.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 3.1 COMMITTEES. The Board of Directors may appoint from among its
members an Executive Committee and other committees composed of one or more
directors and delegate to these committees any of the powers of the Board of
Directors, except the power to authorize dividends on stock, elect directors,
issue stock other than as provided in the next sentence, recommend to the
stockholders any action which requires stockholder approval, amend these Bylaws,
or approve any merger or share exchange which does not require stockholder
approval. 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,
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.
SECTION 3.2 COMMITTEE PROCEDURE. Each committee may fix rules of procedure
for its business. A majority of the members of a committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present at a meeting at which a quorum is present shall be the act of the
committee. 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. Any action required or permitted to be taken at a meeting of a committee
may be taken without a meeting, if an unanimous written consent which sets forth
the action is signed by each member of the committee and filed with the minutes
of the committee. The members of a committee may conduct any meeting thereof by
conference telephone in accordance with the provisions of Section 2.10.
SECTION 3.3 EMERGENCY. In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Corporation by its directors and officers as contemplated by the Charter and
these Bylaws, any two or more available members of the then incumbent Executive
Committee shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Corporation in accordance with the
provisions of Section 3.1. In the event of the unavailability, at such time, of
a minimum of two members of the then incumbent Executive Committee, the
available directors shall elect an Executive Committee consisting of any two
members of the Board of Directors, whether or not they be officers of the
Corporation, which two members shall constitute the Executive Committee for the
full conduct and management of the affairs of the Corporation in accordance with
the foregoing provisions of this Section. This Section shall be subject to
implementation by resolution of the Board of Directors passed from time to time
for that purpose, and any provisions of these Bylaws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
<PAGE>
the provisions of any such implementary resolutions shall be suspended until it
shall be determined by any interim Executive Committee acting under this Section
that it shall be to the advantage of the Corporation to resume the conduct and
management of its affairs and business under all the other provisions of these
Bylaws.
ARTICLE IV
OFFICERS
SECTION 4.1 EXECUTIVE AND OTHER OFFICERS. The Corporation shall have a
President, a Secretary, and a Treasurer. It may also have a Chairman of the
Board. The Board of Directors shall designate who shall serve as chief executive
officer, who shall have general supervision of the business and affairs of the
Corporation, and may designate a chief operating officer, who shall have
supervision of the operations of the Corporation. In the absence of any
designation the Chairman of the Board, if there be one, shall serve as chief
executive officer and the President shall serve as chief operating officer. In
the absence of the Chairman of the Board, or if there be none, the President
shall be the chief executive officer. The same person may hold both offices. The
Corporation may also have one or more Vice Presidents, assistant officers, and
subordinate officers as may be established by the Board of Directors. A person
may hold more than one office in the Corporation except that no person may serve
concurrently as both President and Vice President of the Corporation. The
Chairman of the Board shall be a director, and the other officers may be
directors.
SECTION 4.2. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one be
elected, shall preside at all meetings of the Board of Directors and of the
stockholders at which he or she shall be present. Unless otherwise specified by
the Board of Directors, the Chairman of the Board shall be the chief executive
officer of the Corporation. In general, the Chairman of the Board shall perform
such duties as are customarily performed by the chief executive officer of a
corporation and may perform any duties of the President and shall perform such
other duties and have such other powers as are from time to time assigned the
Chairman of the Board by the Board of Directors.
SECTION 4.3 PRESIDENT. Unless otherwise provided by resolution of the Board
of Directors, the President, in the absence of the Chairman of the Board, shall
preside at all meetings of the Board of Directors and of the stockholders at
which he or she shall be present. Unless otherwise specified by the Board of
Directors, the President shall be the chief operating officer of the Corporation
and perform the duties customarily performed by chief operating officers. The
President may execute, in the name of the Corporation, all authorized deeds,
mortgages, bonds, contracts or other instruments, except in cases in which the
signing and execution thereof shall have been expressly delegated (in a
delegation of authority writing) to some other officer or agent of the
Corporation. In general, the President shall perform such other duties
customarily performed by a president of a corporation and shall perform such
other duties and have such other powers as are from time to time assigned (if
other than the President) by the Board of Directors or the chief executive
officer of the Corporation.
<PAGE>
SECTION 4.4 VICE PRESIDENTS. The Vice President or Vice Presidents, at the
request of the Chairman of the Board or the President, or in the President's
absence or inability to act, shall perform the duties and exercise the functions
of the President, and when so acting shall have the powers of the President. If
there be more than one Vice President, the Board of Directors may determine
which one or more of the Vice Presidents shall perform any of such duties or
exercise any of such functions, or if such determination is not made by the
Board of Directors, the Chairman of the Board or the President may make such
determination otherwise any of the Vice Presidents may perform any of such
duties or exercise any of such functions. Each Vice President shall perform such
other duties and have such other powers, and have such additional descriptive
designations in their titles (if any), as are from time to time assigned to them
by the Board of Directors, the Chairman of the Board, or the President.
SECTION 4.5 SECRETARY. The Secretary shall keep the minutes of the meetings
of the stockholders, of the Board of Directors and of any committees, in books
provided for the purpose; he or she shall see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; he or she
shall be custodian of the records of the Corporation; he or she may witness any
document on behalf of the Corporation, the execution of which is duly
authorized, affix the corporate seal where required or desired to be under its
seal, and, when so affixed, may attest the same. In general, the Secretary shall
perform such other duties customarily performed by a secretary of a corporation,
and shall perform such other duties and have such other powers as are from time
to time assigned by the Board of Directors, the Chairman of the Board, or the
President.
SECTION 4.6 TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by the Board of
Directors; he or she shall render to the Chairman of the Board, the President
and to the Board of Directors, whenever requested, an account of the financial
condition of the Corporation. In general, he or she shall perform such other
duties customarily performed by a treasurer of a corporation, and shall perform
such other duties and have such other powers as are from time to time assigned
to him or her by the Board of Directors, the Chairman of the Board, or the
President.
SECTION 4.7. ASSISTANT AND SUBORDINATE OFFICERS. The assistant and
subordinate officers of the Corporation are all officers below the office of
Vice President, Secretary, or Treasurer. The assistant or subordinate officers
shall have such duties as are from time to time assigned to them by the Board of
Directors, the Chairman of the Board, or the President.
SECTION 4.8 ELECTION, TENURE AND REMOVAL OF OFFICERS. The Board of
Directors shall elect the officers of the Corporation. The Board of Directors
may from time to time authorize any committee or officer to appoint assistant
and subordinate officers. Election or appointment of an officer, employee or
agent shall not of itself create contract rights. All officers shall be
<PAGE>
appointed to hold their offices, respectively, at the pleasure of the Board. The
Board of Directors (or, as to any assistant or subordinate officer, any
committee or officer authorized by the Board) may remove an officer at any time.
The removal of an officer does not prejudice any of that officers' contract
rights. The Board of Directors (or, as to any assistant or subordinate officer,
any committee or officer authorized by the Board) may fill a vacancy which
occurs in any Office for the unexpired portion of the term.
SECTION 4.9. COMPENSATION. The Board of Directors shall have power to fix
the salaries and other compensation and remuneration, of whatever kind, of all
officers of the Corporation. No officer shall be prevented from receiving such
salary by reason of the fact that he or she is also a director of the
Corporation. The Board of Directors may authorize any committee or officer, upon
whom the power of appointing assistant and subordinate officers may have been
conferred, to fix the salaries, compensation and remuneration of such assistant
and subordinate officers.
ARTICLE V
DIVISIONAL OF DEPARTMENTAL TITLES
SECTION 5.01. CONFERRING DIVISIONAL OR DEPARTMENTAL TITLES. The Board of
Directors may from time to time confer upon any employee of a division or
department of the Corporation the title of President, Vice President, Treasurer
or Controller of such division or any other title or titles deemed appropriate,
or may authorize the Chairman of the Board or the President to do so. Any such
titles so conferred may be discontinued and withdrawn at any time by the Board
of Directors, or by the Chairman of the Board or the President. Any employee of
a division or department designated by such a divisional title shall have the
powers and duties with respect to such division or department as shall be
prescribed by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5.2. EFFECT OF DIVISIONAL OR DEPARTMENTAL TITLES. The divisional or
departmental titles shall not create an office of the Corporation under Article
IV unless specifically designated as such by the Board of Directors; but any
person who is an officer of the Corporation may also have a divisional or
departmental title.
ARTICLE VI
STOCK
SECTION 6.01. CERTIFICATES OF STOCK. The Board of Directors may determine
to issue certificated or uncertificated shares of capital stock and other
securities of the Corporation. For certificated stock, each stock certificate
shall include on its face the name of the Corporation, the name of the
stockholder or other person to whom it is issued, and the class of stock and
number of shares it represents. It shall also include on its face or back a
statement which provides in substance that the Corporation will furnish to any
<PAGE>
stockholder on request and without charge a full statement of the designations
and any preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation is authorized to
issue, of the differences in the relative rights and preferences between the
shares of each series of a preferred or special class in series which the
Corporation is authorized to issue, to the extent they have been set, and of the
authority of the Board of Directors to set the relative rights and preferences
of subsequent series of a preferred or special class of stock and any
restrictions on transferability. Such request may be made to the Secretary or to
its transfer agent. Upon the issuance of uncertificated shares of capital stock,
the Corporation shall send the stockholder a written statement of the same
information which would be required on the certificate and by the Maryland
Uniform Commercial Code - Investment Securities. It shall be in such form, not
inconsistent with law or with the Charter, as shall be approved by the Board of
Directors or any officer or officers designated for such purpose by resolution
of the Board of Directors. Each stock certificate shall be signed by the
Chairman of the Board, the President, or a Vice President and countersigned by
the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer.
Each certificate may be sealed with the actual corporate seal or a facsimile of
it or in any other form and the signatures may be either manual or facsimile
signatures. A certificate is valid and may be issued whether or not an officer
who signed it is still an officer when it is issued. A certificate may not be
issued until the stock represented by it is fully paid, except in the case of
stock purchased under a plan, agreement, or transaction as provided by law and
with such statement on future payments as required by law.
SECTION 6.2 TRANSFERS. The Board of Directors shall have power and
authority to make such rules and regulations as it may deem expedient concerning
the issue, transfer and registration of stock; and may appoint transfer agents
and registrars thereof. The duties of transfer agent and registrar may be
combined.
SECTION 6.3 RECORD DATES OR CLOSING OF TRANSFER BOOKS. The Board of
Directors may set a record date or direct that the stock transfer books be
closed for a stated period for the purpose of making any proper determination
with respect to stockholders, including which stockholders are entitled to
notice of a meeting, vote at a meeting, receive a dividend, or be allotted other
rights. The record date may not be prior to the close of business on the day the
record date is fixed nor, subject to Section 1.6, more than 90 days before the
date on which the action requiring the determination will be taken; the transfer
books may not be closed for a period longer than 20 days; and, in the case of a
meeting of stockholders, the record date or the closing of the transfer books
shall be at least ten days before the date of the meeting.
SECTION 6.4. STOCK LEDGER. The Corporation shall maintain a stock ledger
which contains the name and address of each stockholder and the number of shares
of stock of each class which 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 office in the State of Maryland or
the principal executive offices of the Corporation.
<PAGE>
SECTION 6.5. 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 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 considers necessary or desirable.
On receipt of a certification which complies with the procedure adopted by the
Board 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 6.6. LOST STOCK CERTIFICATES. The Board of Directors of the
Corporation may determine the conditions for issuing a new stock certificate in
place of one which 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. In their discretion, the Board of Directors or such officer or
officers may require the owner of the certificate to give bond, with sufficient
surety, to indemnify the Corporation against any loss or claim arising as a
result of the issuance of a new certificate. In their discretion, the Board of
Directors or such officer or officers may refuse to issue such new certificate
save upon the order of some court having jurisdiction in the premises.
SECTION 6.07. EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE. The
provisions of Subsection 7 to Title 3 of the Corporations and Associations
Article of the Annotated Code of Maryland shall not apply to the Corporation's
capital stock.
ARTICLE VII
FINANCE
SECTION 7.1. CHECKS, DRAFTS, ETC. All checks, drafts and orders for the
payment of money, notes and other evidences of indebtedness, issued in the name
of the Corporation, shall, unless otherwise provided by resolution of the Board
of Directors, be signed by the Chairman of the Board, the President, or any
company official permitted by a delegation of authority writing.
SECTION 7.2. ANNUAL STATEMENT OF AFFAIRS. The President or chief accounting
officer shall prepare 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 at the annual meeting of the stockholders and, within 20 days after
the meeting, placed on file at the Corporation's principal office.
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SECTION 7.3. FISCAL YEAR. The fiscal year of the Corporation begin on
January 1 and end on December 31st each year, unless otherwise provided by the
Board of Directors.
SECTION 7.4. DIVIDENDS. If declared by the Board of Directors at any
meeting thereof the Corporation may pay dividends on its shares in cash,
property, or in shares of the capital stock of the Corporation, unless such
dividend is contrary to law or to a restriction contained in the Charter.
SECTION 7.5. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by the Board of Directors. Such authority may be general or confined
to specific instances.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. PROCEDURE. Any indemnification, or payment of expenses in
advance of the final disposition of any proceeding, shall be made promptly, and
in any event within 60 days, upon the written request of the director or officer
entitled to seek indemnification (the "Indemnified Party"). The right to
indemnification and advances hereunder shall be enforceable by the Indemnified
Party in any court of competent jurisdiction, if (i) the Corporation denies such
request, in whole or in part, or (ii) no disposition thereof is made within 60
days. The Indemnified Party's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part. In any such action, shall also be reimbursed by the Corporation. It shall
be a defense to any action for advance for expenses that (a) a determination has
been made that the facts then known to those making the determination would
preclude indemnification or (b) the Corporation has not received both (i) an
undertaking as required by law to repay such advances in the event it shall
ultimately be determined that the standard of conduct has not been met and (ii)
a written affirmation by the Indemnified Party of such Indemnified Party's good
faith belief that the standard of conduct necessary for indemnification by the
Corporation has been met.
SECTION 8.2 EXCLUSIVITY, ETC. The indemnification and advance of expenses
provided by the Charter and these Bylaws (i) shall not be deemed exclusive of
any other rights to which a person seeking indemnification or advance of
expenses may be entitled under any law (common or statutory), or any agreement
not prohibited by law, vote or stockholders or disinterested directors or other
provision that is consistent with law, both as to action in his or her official
capacity and as to action in another capacity while holding office or while
employed by or acting as agent for the Corporation, (ii) shall continue in
respect of all events occurring while a person was a director or officer after
such person has ceased to be a director or officer, and (iii) shall inure to the
benefit of the estate, heirs, executors and administrators of such person. The
Corporation shall not be liable for any payment under this Bylaw in connection
with a claim made by a director or officer to the extent such director or
officer has otherwise actually received payment under insurance policy,
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agreement, vote or otherwise, of the amounts otherwise indemnifiable hereunder.
All rights to indemnification and advance of expenses under the Charter of the
Corporation and hereunder shall be deemed to be a contract between the
Corporation and each director or officer of the Corporation who serves or served
in such capacity at any time while this Bylaw is in effect. Nothing herein shall
prevent the amendment of this Bylaw, provided that no such amendment shall
diminish the rights of any person hereunder with respect to events occurring or
claims made before its adoption. Any repeal or modification of this Bylaw shall
not in any way diminish any rights to indemnification or advance of expenses of
such director or officer or the obligations of the Corporation arising hereunder
with respect to events occurring, or claims made, while this Bylaw or any
provision hereof is in force.
SECTION 8.3. SEVERABILITY; DEFINITIONS. The invalidity or unenforceability
of any provision of this Article VIII shall not affect the validity or
enforceability of any other provision hereof. The phrase "this Bylaw" in this
Article VIII means this Article VIII in its entirety.
ARTICLE IX
SUNDRY PROVISIONS
SECTION 9.1. 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 executive or
other committee when exercising any of the powers of the Board of Directors. The
books and records of the Corporation may be in written form or in any other form
which can be converted within a reasonable time into written form for visual
inspection. Minutes shall be recorded in written form but may be maintained in
the form of a reproduction. The original or a certified copy of these Bylaws
shall be kept at the principal office of the Corporation.
SECTION 9.2. CORPORATE SEAL. The Board of Directors shall provide a
suitable seal, bearing the name of the Corporation, which shall be in the charge
of the Secretary. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof. If the Corporation is required to
place its corporate seal to a document, it is sufficient to meet the requirement
of any law, rule, or regulation relating to a corporate seal to place the word
"SEAL" adjacent to the signature of the person authorized to sign the document
on behalf of the Corporation.
SECTION 9.3 BONDS. The Board of Directors may require any officer, agent or
employee of the Corporation to give a bond to the Corporation, conditioned upon
the faithful discharge of his or her duties, with one or more sureties and in
such amount as may be satisfactory to the Board of Directors.
SECTION 9.4. VOTING STOCK IN OTHER CORPORATIONS. Stock of other
corporations or associations, registered in the name of the Corporation, may be
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voted by the Chairman of the Board, the President, a Vice President, or a proxy
appointed by any of them. The Board of Directors, however, may by resolution
appoint some other person to vote such shares, in which case such person shall
be entitled to vote such shares upon the production of a certified copy of such
resolution.
SECTION 9.5. MAIL. Any notice or other document which is required by these
Bylaws to be mailed shall be deposited in the United States mails, postage
prepaid.
SECTION 9.6. EXECUTION OF DOCUMENTS. A person who holds more than one
office in the Corporation may not act in more than one capacity to execute,
acknowledge, or verify an instrument required by law to be executed,
acknowledged, or verified by more than one officer.
SECTION 9.7. AMENDMENTS. Subject to the provisions of Section 2.2, these
Bylaws may be repealed, altered, amended or rescinded and new by-laws may be
adopted (a) by the stockholders of the Corporation by vote of not less than a
majority of the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this purpose as
one class) cast at any meeting of the stockholders called for that purpose
(provided that notice of such proposal is included in the notice of such
meeting) or (b) by the Board of Directors by a vote of not less than two-thirds
of the Board of Directors at a meeting held in accordance with the provisions of
these Bylaws.
SECTION 9.8. RELIANCE. To the fullest extent permitted by applicable law,
each director, officer, employee and agent of the Corporation shall, in the
performance of his or her duties with respect to the Corporation, be fully
justified and protected with regard to any act or failure to act in reliance in
good faith upon the books of account or other records of the Corporation, upon
an opinion of counsel or upon reports made to the Corporation by any of its
officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the
Corporation, regardless of whether such counsel or expert may also be a
director.
As of July 27, 1998 /s/ John L. Davis
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Secretary
