SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
INDEPENDENT COMMUNITY BANKSHARES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Virginia 54-1696103
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
111 West Washington Street
Middleburg, Virginia 20117
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [ ] box. [X]
Securities Act registration statement file number to which this form relates:
n/a (If applicable)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
none none
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $5.00 per share
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
The following summary description of the capital stock of the
Registrant is qualified in its entirety by reference to applicable provisions of
Virginia law and the Registrant's Articles of Incorporation and Bylaws, which
are exhibits to this registration statement.
Common Stock
Authorized Common Stock. The Registrant's Articles of Incorporation
authorize the issuance of 10,000,000 shares of the Registrant's common stock,
par value $5.00 per share (the "Common Stock"), without further shareholder
approval. The Registrant's Articles of Incorporation do not authorize the
issuance of shares of preferred stock.
Dividend Rights. Holders of Common Stock are entitled to receive
dividends when and as declared by the Registrant's Board of Directors from funds
legally available for the payment of dividends.
Voting Rights. The holders of Common Stock are entitled to one vote per
share on all matters submitted to a vote of shareholders. Holders of Common
Stock are not entitled to cumulative voting rights. Therefore, the holders of a
majority of the shares voted in the election of directors can elect all of the
directors then standing for election subject to the rights of preferred stock,
if and when issued.
Liquidation Rights. Upon any liquidation, dissolution or winding up of
the affairs of the Registrant, holders of Common Stock are entitled to receive
pro rata all of the assets of the Registrant available for distribution to
shareholders.
Preemptive, Conversion and Redemption Rights. Holders of Common Stock
have no preemptive or other preferential rights to purchase or subscribe to
shares of Common Stock, and there are no conversion rights or redemption or
sinking fund provisions with respect to the Common Stock.
Size and Classification of Board of Directors
The Registrant's Bylaws provide for a board of directors consisting of
14 individuals. Directors are elected annually to serve until their successors
are elected and qualified.
Vacancies and Removal of Directors
Under the Registrant's Articles of Incorporation, vacancies occurring
in the Board of Directors, including vacancies created by newly created
directorships resulting from an increase in the number of directors, may be
filled only by the affirmative vote of a majority of the remaining directors
then in office, even if less than a quorum, until the next election of directors
by shareholders. The Registrant's Articles of Incorporation allow for the
removal of directors from office, with or without cause, if at least 75% of the
votes cast are cast in favor of removal.
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Shareholders of the Registrant may not call a special meeting for the purpose of
removing a director.
Director Liability and Indemnification
The Virginia Stock Corporation Act (the "Virginia SCA") provides that
in any proceeding brought by or in the right of a corporation or brought by or
on behalf of shareholders of the corporation, the damages assessed against an
officer or director arising out of a single transaction, occurrence or course of
conduct may not exceed the lesser of (1) the monetary amount, including the
elimination of liability, specified in the articles of incorporation or, if
approved by the shareholders, in the bylaws as a limitation on or elimination of
the liability of the officer or director or (2) the greater of (a) $100,000 or
(b) the amount of cash compensation received by the officer or director from the
corporation during the 12 months immediately preceding the act or omission for
which liability was imposed. The liability of an officer or director is not
limited under the Virginia SCA or a corporation's articles of incorporation and
bylaws if the officer or director engaged in willful misconduct or a knowing
violation of the criminal law or of any federal or state securities law.
The Registrant's Articles of Incorporation provide that, to the full
extent that Virginia law permits the limitation or elimination of the liability
of directors and officers, they will not be liable to the Registrant or its
shareholders for any money damages in excess of one dollar.
To the full extent permitted by Virginia law, the Registrant's Articles
of Incorporation require it to indemnify any director or officer of the
Registrant who is made a party to any proceeding because he is or was a director
or officer of the Registrant against any liability, including reasonable
expenses and legal fees, incurred in the proceeding. Under the Registrant's
Articles of Incorporation, "proceeding" is broadly defined to include
threatened, pending or completed actions of all types, including actions by or
in the right of the Registrant. Similarly, "liability" is defined to include not
only judgments, but also settlements, penalties, fines and certain excise taxes.
The Registrant's Articles of Incorporation also provide that the Registrant may,
but is not obligated to, indemnify its other employees or agents. The Registrant
must indemnify any person who is or was serving at the written request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the full extent
permitted by Virginia law. The indemnification provisions also require the
Registrant to pay reasonable expenses incurred by a director or officer of the
Registrant in a proceeding in advance of the final disposition of any such
proceeding, provided that the indemnified person undertakes to repay the
Registrant if it is ultimately determined that such person was not entitled to
indemnification. Virginia law does not permit indemnification against willful
misconduct or a knowing violation of the criminal law.
The rights of indemnification provided in the Registrant's Articles of
Incorporation are not exclusive of any other rights that may be available under
any insurance or other agreement, by vote of shareholders or disinterested
directors or otherwise. In addition, the Articles of Incorporation authorize the
Registrant to maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Registrant, whether or not the
Registrant would have the power to provide indemnification to such person. The
rights of indemnification provided to directors could reduce the likelihood of
shareholder derivative actions and may discourage other third party claims
against the directors, even if such actions otherwise would be beneficial to
shareholders.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that, in the opinion of the
Securities and Exchange Commission (the "Commission"), such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Special Meetings of Shareholders
The Registrant's Bylaws provide that special meetings of shareholders
may be held whenever called by the President or the Chairman of the Board of
Directors or by the Board of Directors itself, which means that the shareholders
of the Registrant do not have the right to call special meetings.
Director Nominations and Shareholder Proposals
Under the Registrant's Bylaws, notice of a proposed nomination for any
meeting of shareholders called for the election of directors, or notice of a
shareholder proposal for an annual meeting of shareholders fulfilling certain
specified requirements, must be received by the Registrant not less than 60 nor
more than 90 days prior to any meeting of shareholders called for the election
of directors, provided in each case that, if fewer than 70 days' notice of the
meeting is given to shareholders, such written notice must be received not later
than the close of business on the tenth day following the day on which notice of
the meeting was mailed to shareholders.
The Registrant's Bylaws require that the shareholder's notice set forth
as to each nominee (i) the name, age, business address and residence address of
such nominee, (ii) the principal occupation or employment of such nominee, (iii)
the class and number of shares that are beneficially owned by such nominee, and
(iv) any other information relating to such nominee that is required under
federal securities laws to be disclosed in solicitations of proxies for the
election of directors, or is otherwise required (including, without limitation,
such nominee's written consent to being named in a proxy statement as nominee
and to serving as a director if elected). The Registrant's Bylaws further
require that the shareholder's notice set forth as to the shareholder giving the
notice (i) the name and address of such shareholder and (ii) the class and
amount of such shareholder's beneficial ownership of the Registrant's capital
stock. If the information supplied by the shareholder is deficient in any
material aspect or if the foregoing procedure is not followed, the chairman of
the meeting may determine that such shareholder's nomination should not be
brought before the meeting, and the defective nomination shall be disregarded.
The advance notice procedure of the Registrant's Bylaws affords the
Board of Directors the opportunity to consider the qualifications of the
proposed nominees and to inform shareholders about such qualifications. Although
such procedure does not give the Board of Directors any power to approve or
disapprove of shareholder nominations for election of directors, it may have the
effect of precluding surprise nominations and a contest for the election of
directors if such procedure established by it is not followed. Furthermore, such
procedure may discourage or deter a third party from conducting a solicitation
of proxies to elect its own slate of directors.
The Registrant's Bylaws require that the shareholder's notice of any
shareholder proposal to be presented at an annual meeting of shareholders must
set forth as to each such shareholder proposal (a) 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, (b) the name and address, as
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they appear on the Registrant's books, of the shareholder proposing such
business, (c) the class and number of shares of the Registrant that are
beneficially owned by the shareholder and (d) any material interest of such
shareholder in such proposal. If the information supplied by shareholder is
deficient in any material aspect or if the foregoing procedure is not followed,
the chairman of the annual meeting may determine that such shareholder's
business should not be brought before the annual meeting, and the business shall
not be transacted.
The procedures regarding shareholder proposals and nominations provide
the Board of Directors with the information that will be necessary to evaluate a
shareholder proposal or nomination and other relevant information, such as
existing shareholder support, as well as the time necessary to consider and
evaluate such information in advance of the applicable meeting. The procedures
also give incumbent directors advance notice of a business proposal or
nomination. This notice may make it easier for the incumbent directors to defeat
a shareholder proposal or nomination, even when certain shareholders view such
proposal or nomination as in the best interests of the Registrant or its
shareholders. The Registrant's Articles of Incorporation and Bylaws do not
prevent shareholders from making proposals under the Commission's rules and
regulations.
Amendment of Articles of Incorporation or Bylaws
The Virginia SCA provides that an amendment to a corporation's articles
of incorporation must be approved by each voting group entitled to vote on the
proposed amendment. Under Virginia law, an amendment to the corporation's
articles of incorporation must be approved by more than two-thirds of all votes
entitled to be cast by that voting group. However, the corporation's articles of
incorporation may require a greater vote or a lesser vote, which may not be less
than a majority, by each voting group entitled to vote on the transaction. A
corporation's board of directors may also require a greater vote.
The Registrant's Articles of Incorporation provide that amendments must
be approved by a majority of the votes entitled to be cast by each voting group
entitled to vote and, unless such action has been approved by at least
two-thirds of the Continuing Directors, by holders of more than two-thirds of
the issued and outstanding shares of Common Stock (the vote generally required
under Virginia law). The term "Continuing Director" is defined in the
Registrant's Articles of Incorporation to mean any individual (i) who is an
initial director named in the Registrant's Articles of Incorporation or (ii) who
has been elected to the Board of Directors of the Registrant at an annual
meeting of the shareholders of the Registrant more than one time or (iii) who
was elected to fill a vacancy on the Board of Directors of the Registrant and
received the affirmative vote of a majority of the Continuing Directors then on
the Board of Directors and thereafter elected to the Board of Directors at an
annual meeting of shareholders at least one time.
The Registrant's Bylaws may be amended by a majority vote of the
directors in office or by the shareholders.
Mergers, Consolidations and Sales of Assets.
The Registrant's Articles of Incorporation provide that a plan of
merger or share exchange or a direct or indirect sale, lease, exchange or other
disposition of all or substantially all of the property of the Registrant not in
the ordinary course of business may be approved by the same vote that is
required in order to amend the Articles of Incorporation. Additionally,
consistent with Virginia law, the Board of Directors of the Registrant may
condition its submission of such plan of merger or share exchange or such a sale
or disposition of assets to the shareholders on any
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basis, including the requirement of a greater vote than the required vote
described above. The reasons that the Registrant's Articles of Incorporation
provide for an alternative vote on mergers, share exchanges and certain sales,
leases, exchanges or dispositions of assets are the same reasons that the
Articles of Incorporation provide for an alternative vote to amend the Articles
of Incorporation. In many situations, the effect of the provisions in the
Registrant's Articles of Incorporation that govern amendments to the Articles of
Incorporation, mergers and share exchanges and certain dispositions of assets,
would be to make it easier for the Board of Directors to gain shareholder
approval of such actions than would be the case if a favorable vote of
two-thirds of the outstanding shares were required in all cases.
A proposed merger, share exchange or sale of substantially all assets
of the Registrant that is favored by two-thirds of the Continuing Directors
could be adopted as long as a majority (rather than two-thirds) of the
outstanding shares entitled to vote in each voting group entitled to vote are
voted in favor of the proposed action. In addition to requiring the affirmative
vote of a majority of the shares entitled to vote in each voting group entitled
to vote, the Registrant's Articles of Incorporation would require that, unless a
proposed action is approved by at least two-thirds of the Continuing Directors,
more than two-thirds of the issued and outstanding shares vote in favor of the
proposed action. The purpose of such additional requirements is to ensure that
if a proposed major corporate action does not have the support of a board of
directors who can provide continuity to and an in-depth knowledge of the
business of the Registrant, the action must be supported by more than two-thirds
of the issued and outstanding shares of Common Stock.
As with amendments to the Registrant's Articles of Incorporation,
however, if at least two-thirds of the directors do not approve such corporate
action upon which shareholders are voting, the additional requirement would
permit a minority of the holders of the Common Stock to defeat the proposed
action.
State Anti-Takeover Statutes
The Virginia SCA restricts transactions between a corporation and its
affiliates and potential acquirors. The summary below is necessarily general and
is not intended to be a complete description of all the features and
consequences of those provisions, and is qualified in its entirety by reference
to the statutory provisions contained in the Virginia SCA.
Affiliated Transactions. The Virginia SCA contains provisions governing
"Affiliated Transactions" found at Sections 13.1-725 - 727.1 of the Virginia
SCA. Affiliated Transactions include certain mergers and share exchanges,
certain material dispositions of corporate assets not in the ordinary course of
business, any dissolution of a corporation proposed by or on behalf of an
Interested Shareholder (as defined below), and reclassifications, including
reverse stock splits, recapitalizations or mergers of a corporation with its
subsidiaries, or distributions or other transactions that have the effect of
increasing the percentage of voting shares beneficially owned by an Interested
Shareholder by more than 5%. For purposes of the Virginia SCA, an Interested
Shareholder is defined as any beneficial owner of more than 10% of any class of
the voting securities of a Virginia corporation.
Subject to certain exceptions discussed below, the provisions governing
Affiliated Transactions require that, for three years following the date upon
which any shareholder becomes an Interested Shareholder, any Affiliated
Transaction must be approved by the affirmative vote of holders of two-thirds of
the outstanding shares of the corporation entitled to vote, other than the
shares beneficially owned by the Interested Shareholder, and by a majority (but
not less than two) of the Disinterested Directors (as defined below). A
Disinterested Director is defined in the
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Virginia SCA as a member of a corporation's board of directors who (i) was a
member before the later of January 1, 1988 or the date on which an Interested
Shareholder became an Interested Shareholder and (ii) was recommended for
election by, or was elected to fill a vacancy and received the affirmative vote
of, a majority of the Disinterested Directors then on the corporation's board of
directors. At the expiration of the three year period after a shareholder
becomes an Interested Shareholder, these provisions require approval of the
Affiliated Transaction by the affirmative vote of the holders of two-thirds of
the outstanding shares of the corporation entitled to vote, other than those
beneficially owned by the Interested Shareholder.
The principal exceptions to the special voting requirement apply to
Affiliated Transactions occurring after the three year period has expired and
require either that the transaction be approved by a majority of the
corporation's Disinterested Directors or that the transaction satisfy certain
fair price requirements of the statute. In general, the fair price requirements
provide that the shareholders must receive the higher of: the highest per share
price for their shares as was paid by the Interested Shareholder for his or its
shares, or the fair market value of the shares. The fair price requirements also
require that, during the three years preceding the announcement of the proposed
Affiliated Transaction, all required dividends have been paid and no special
financial accommodations have been accorded the Interested Shareholder, unless
approved by a majority of the Disinterested Directors.
None of the foregoing limitations and special voting requirements
applies to a transaction with an Interested Shareholder who has been an
Interested Shareholder continuously since the effective date of the statute
(January 26, 1988) or who became an Interested Shareholder by gift or
inheritance from such a person or whose acquisition of shares making such person
an Interested Shareholder was approved by a majority of the Disinterested
Directors of the corporation.
These provisions were designed to deter certain takeovers of Virginia
corporations. In addition, the Virginia SCA provides that by affirmative vote of
a majority of the voting shares other than shares owned by any Interested
Shareholder, a corporation may adopt by meeting certain voting requirements, an
amendment to its articles of incorporation or bylaws providing that the
Affiliated Transactions provisions shall not apply to the corporation. The
Registrant has not adopted such an amendment.
Control Share Acquisitions. The Virginia Control Share Acquisitions
statute, found at Sections 13.1-728 - 728.8 of the Virginia SCA, also is
designed to afford shareholders of a public company incorporated in Virginia
protection against certain types of non-negotiated acquisitions in which a
person, entity or group ("Acquiring Person") seeks to gain voting control of
that corporation. With certain enumerated exceptions, the statute applies to
acquisitions of shares of a corporation that would result in an Acquiring
Person's ownership of the corporation's shares entitled to vote in the election
of directors falling within any one of the following ranges: 20% to 33-1/3%,
33-1/3% to 50% or 50% or more (a "Control Share Acquisition"). Shares that are
the subject of a Control Share Acquisition ("Control Shares") will not be
entitled to voting rights unless the holders of a majority of the "Disinterested
Shares" vote at an annual or special meeting of shareholders of the corporation
to accord the Control Shares with voting rights. Disinterested Shares do not
include shares owned by the Acquiring Person or by officers and inside directors
of the target company. Under certain circumstances, the statute permits an
Acquiring Person to call a special shareholders' meeting for the purpose of
considering granting voting rights to the holders of the Control Shares. As a
condition to having this matter considered at either an annual or special
meeting, the Acquiring Person must provide shareholders with detailed
disclosures about his identity, the method and financing of the Control Share
Acquisition and any plans to
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engage in certain transactions with, or to make fundamental changes to, the
corporation, its management or business. Under certain circumstances, the
statute grants dissenters' rights to shareholders who vote against granting
voting rights to the Control Shares. The Virginia Control Share Acquisitions
statute also enables a corporation to make provisions for redemption of Control
Shares with no voting rights. A corporation may opt out of the statute, which
the Registrant has done, by so providing in its articles of incorporation or
bylaws. Among the acquisitions specifically excluded from the statute are
acquisitions that are a part of certain negotiated transactions to which the
corporation is a party and that, in the case of mergers or share exchanges, have
been approved by the corporation's shareholders under other provisions of the
Virginia SCA.
Item 2. Exhibits
I. 4.1 Articles of Incorporation of the Registrant (restated in
electronic format).
4.2 Bylaws of the Registrant (restated in electronic format).
II. Not applicable.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
INDEPENDENT COMMUNITY
BANKSHARES, INC.
Dated: April 27, 1998 By: /s/ Joseph L. Boling
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Joseph L. Boling
Chairman and Chief Executive Officer
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Articles of Incorporation of the Registrant (restated in
electronic format).
4.2 Bylaws of the Registrant (restated in electronic format).
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Exhibit 3.1
ARTICLES OF INCORPORATION
OF
INDEPENDENT COMMUNITY BANKSHARES, INC.
(restated in electronic format)
ARTICLE I
NAME
The name of the corporation is Independent Community Bankshares, Inc.
ARTICLE II
CAPITAL STOCK
Paragraph A. The aggregate number of shares of stock which the
Corporation shall have the authority to issue and the par value per share is as
follows:
Class Number of Shares Par Value
Common Stock 10,000,000 $5.00
Paragraph B. No holders of any class of stock of the Corporation
shall have any preemptive or other preferential right to purchase or subscribe
to (i) any shares of any class of stock of the Corporation, whether now or
hereafter authorized, (ii) any warrants, rights or options to purchase any such
stock, or (iii) any obligations convertible into any such stock or into
warrants, rights or options to purchase any such stock.
Paragraph C. The holders of the Common Stock shall, to the exclusion
of the holders of any other class of stock of the Corporation, have the sole and
full power to vote for the election of directors and for all other purposes
without limitation. The holders of the Common Stock shall have one vote for each
share of Common Stock held by them. The holders of the Common Stock shall be
entitled to receive the net assets of the Corporation upon dissolution.
ARTICLE III
INDEMNIFICATION AND LIMITS ON LIABILITY
OF DIRECTORS AND OFFICERS
Paragraph A. The Corporation shall indemnify any Director or Officer
made a Party to a Proceeding (including without limitation any Proceeding by or
in the right of the Corporation in which the Director or Officer is adjudged
liable to the Corporation) because he or she is or was a Director or Officer of
the Corporation against any Liability incurred in the Proceeding to the fullest
extent permitted by Virginia law, as it may be amended from time to time.
Paragraph B. The Corporation shall not indemnify a Director or
Officer under Paragraph A above (unless authorized or ordered by a court) unless
in each specific case a determination pursuant to Virginia law, as it may be
amended from time to time, has been made that indemnification is permissible
under the circumstances. The termination of a Proceeding by judgment, order,
settlement or conviction is not, of itself, determinative that the Director or
Officer is not entitled to indemnification under this Article III.
Paragraph C. Expenses incurred by a Director or Officer in a
Proceeding shall be paid by the Corporation in advance of the final disposition
of the Proceeding if:
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1. The Director or Officer furnishes the Corporation a
written statement of his good faith belief that he or she is
entitled to indemnification pursuant to this Article III.
2. The Director or Officer furnishes the Corporation
a written undertaking, executed personally or on his or her behalf, to
repay the advance if it is ultimately determined that he or she did
not meet the standard for indemnification pursuant to this Article
III; and
3. A determination pursuant to Virginia law, as it
may be amended from time to time, is made that the facts then known to
those making the determination would not preclude indemnification
under this Article III.
The undertaking required by subsection 2 of this Paragraph C shall
be an unlimited general obligation of the Director or Officer but need not be
secured and may be accepted without reference to his or her financial ability to
make repayment.
Paragraph D. The indemnification provided by this Article III shall
not be exclusive of any other rights to which any Director or Officer may be
entitled, including without limitation rights conferred by applicable law and
any right under policies of insurance that may be purchased and maintained by
the Corporation or others, even as to liabilities against which the Corporation
would not have the power to indemnify such Director or Officer under the
provisions of this Article III.
Paragraph E. The Corporation may purchase and maintain at its sole
expense insurance, in such amounts and on such terms and conditions as the Board
of Directors may deem reasonable, against all liabilities or losses it may
sustain in consequence of the indemnification provided for in this Article III.
Paragraph F. The Board of Directors shall have the power but not the
obligation, generally and in specific cases, to indemnify employees and agents
of the Corporation to the same extent as provided in this Article III with
respect to Directors or Officers. The Board of Directors is hereby empowered by
a majority vote of a quorum of disinterested Directors to contract in advance to
indemnify any Director or Officer. The Board of Directors is further empowered,
by majority vote of a quorum of disinterested Directors, to cause the
Corporation to contract in advance to indemnify any person who is not a Director
or Officer who was or is a party to any Proceeding, by reason of the fact that
he or she is or was an employee or agent of the Corporation, or was serving at
the request of the Corporation as Director, Officer, employee or agent of
another corporation, partnership, joint venture trust, employee benefit plan or
other enterprise, to the same extent as if such person were a Director or
Officer.
Paragraph G. To the full extent that Virginia law, as it exists on
the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of Directors and Officers, a Director or Officer
shall not be liable to the Corporation or its shareholders for any monetary
damages in excess of one dollar.
Paragraph H. In this Article III:
"Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or
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domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise. A director is considered to be
serving an employee benefit plan at the Corporation's request if his
duties to the corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of
the plan. "Director" includes the estate or personal representative of
a director.
"Officer" means an individual who is or was an officer of the
Corporation or an individual who is or was serving at the Corporation's
written request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. An officer
is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose
duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. "Officer" includes the
estate or personal representative of an officer. Except as set forth
above "Officer" does not include officers of corporations controlled by
the Corporation.
"Expenses" includes but is not limited to counsel fees.
"Liability" means the obligation to pay a judgment,
settlement, penalty, fine, including without limitation any excise tax
assessed with respect to an employee benefit plan, or reasonable
Expenses incurred with respect to a Proceeding.
"Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in any Proceeding.
"Proceeding" means any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal.
ARTICLE IV
DIRECTORS
Paragraph A. The initial directors, whose terms shall expire at the
first shareholders' meeting at which directors are elected, shall be:
Howard M. Armfield Joseph L. Boling
P. O. Box 3 P. O. Box 1306
Middleburg, VA 22117 Middleburg, VA 22117
J. Lynn Cornwell, Jr. William F. Curtis
Box 548 Rt. 2, Box 498
Purcellville, VA 22132 The Plains, VA 22171
Gordon Grayson George A. Horkan, Jr.
Blue Ridge Farm Cleremont Farm
Upperville, VA 22176 Rt. 1, Box 34
Upperville, VA 22176
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C. Oliver Iselin, III William S. Leach
P. O. Box 225 P. O. Box 42
Middleburg, VA 22117 Middleburg, VA 22117
John C. Palmer William S. Stokes, III
Rt. 2, Box 183 P. O. Box 720
Marshall, VA 22115 Ayrshire Farm
Upperville, VA 22176
Millicent W. West Edward T. Wright
P. O. Box 236 P. O. Box 424
Upperville, VA 22176 Middleburg, VA 22117
Commencing with the first shareholders' meeting at which directors are
elected, the directors shall be elected at each annual meeting of the
stockholders of the Corporation.
Paragraph B. Advance notice of stockholder nominations for the
election of directors shall be given in the manner provided in the Bylaws of the
Corporation.
Paragraph C. Newly created directorships resulting from any increase
in the number of directors and any vacancies on the Board of Directors resulting
from death, resignation, disqualification, removal or other cause shall be
filled only by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors. Any
director elected in accordance with the preceding sentence shall hold office for
the full term of the new directorship or the remainder of the full term of the
directorship in which the vacancy occurred and until such director's successor
shall have been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
ARTICLE V
BYLAW AMENDMENTS
The Board of Directors shall have power to make, alter, amend and
repeal the Bylaws of the Corporation except so far as the Bylaws of the
Corporation adopted by the stockholders shall otherwise provide. Any Bylaws made
by the directors under the powers conferred hereby may be altered, amended or
repealed by the directors or by the stockholders.
ARTICLE VI
SPECIAL VOTING PROVISIONS
Paragraph A. An amendment to the Articles of Incorporation of the
Corporation shall be approved if:
1. A majority of the votes entitled to be cast by each voting
group entitled to vote on such action are cast in favor of such action;
and,
2. Unless such action shall have been approved by at least
two-thirds of the directors who are Continuing Directors, holders of
more than two-thirds of the issued and outstanding shares of the
Corporation's Common Stock vote in favor of such action.
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Paragraph B. Any director may only be removed from office with or
without cause, but only if at least seventy-five percent (75%) of the votes cast
on such action are cast in favor of such action.
Paragraph C. Any merger or share exchange to which the Corporation is
a party or any direct or indirect sale, lease, exchange or other disposition of
all or substantially all of the Corporation's property, otherwise than in the
usual and regular course of business, shall be approved if:
1. A majority of the votes entitled to be cast by each voting
group entitled to vote on such action are cast in favor of such
action; and,
2. Unless such action shall have been approved by at least
two-thirds of the directors who are Continuing Directors, at least
two-thirds of the issued and outstanding shares of the Corporation's
Common Stock vote in favor of such action.
This Paragraph C shall not affect the power of the Board of Directors
to condition its submission of any plan of merger, share exchange or direct or
indirect sale, lease, exchange or other disposition of all or substantially all
of the Corporation's property, otherwise than in the usual and regular course of
business, on any basis, including the requirement of a greater vote.
Paragraph D. For purposes of these Articles of Incorporation an
abstention or failure to vote shall not be considered a vote in favor of or
opposing any particular action.
Paragraph E. For purposes of this Article VI, a Continuing Director
is (i) any individual who is an initial director named in these Articles of
Incorporation, or (ii) any individual who has been elected to the Board of
Directors of the Corporation at an annual meeting of the stockholders of the
Corporation more than one time or (iii) any individual who was elected to fill a
vacancy on the Board of Directors and received the affirmative vote of a
majority of the Continuing Directors then on the Board of Directors and
thereafter elected to the Board of Directors at an annual meeting of the
stockholders of the Corporation at least one time.
ARTICLE VII
REGISTERED OFFICE AND AGENT
The post office address of the initial registered office is Cleremont
Farm, Rt. 2, Box 34, Upperville, Virginia 22176, which is located in the County
of Loudon. The name of the initial registered agent is George A. Horkan, Jr.,
who is a resident of Virginia and a member of the Virginia State Bar, and whose
business office is the same as the registered office of the Corporation.
Exhibit 3.2
BYLAWS
OF
INDEPENDENT COMMUNITY BANKSHARES, INC.
(restated in electronic format)
ARTICLE I
Shareholder Matters
Section 1.1. Annual Meetings.
A. The annual meeting of the shareholders of the Corporation shall be
held at such a place as may be decided by, the Board of Directors on a date
during the month of March, April or May of each and every year, the exact date,
place and hour to be fixed by the Board of Directors.
B. At the annual meeting of the shareholders of the Corporation,
Directors shall be elected and reports of the affairs of the Corporation shall
be received and considered. Any other business may be transacted which is within
the powers of the shareholders, except that, if any shareholder shall bring new
business before the annual meeting, the shareholder must give advance notice as
set forth in Section 1.6 of these Bylaws.
C. The Board of Directors may designate any place, either within or
without the Commonwealth of Virginia, as the place of meeting for any annual
meeting or for any special meeting. If no place is designated by the Board, the
place of meeting shall be the principal office of the Corporation.
Section 1.2. Special Meetings. A special meeting of the
shareholders may be called for any purpose or purposes whatsoever at any time,
but only by the President, the Chairman of the Board of Directors, or the Board
of Directors.
Section 1.3. Notice of Meetings. Notice of the time and place of
every annual meeting or special meeting shall be mailed to each Shareholder of
record entitled to vote at the meeting at his address as it appears on the
records of the Corporation not less than ten (10) nor more than sixty (60) days
before the date of such meeting (except as a different time may be specified by
law).
Section 1.4. Quorum. A majority of the votes entitled to be cast
on a matter by a voting group constitutes a quorum of such voting group for
action on such matter. If there is not a quorum at the time for which a meeting
shall have been called, the meeting may be adjourned from time to time by a
majority of the shareholders present or represented by proxy without notice,
other than by announcement at the meeting, until there is a quorum.
Section 1.5. Voting. Except as the Articles of Incorporation
otherwise provide, at any meeting of the shareholders, each outstanding share,
regardless of class, is entitled to one vote on each matter voted on at a
shareholders' meeting.
Section 1.6. Notice of Shareholder Business. At an annual
meeting of the shareholders of the Corporation, only such business shall be
conducted as shall have been properly brought before the meeting. To be brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise bought before the meeting by or at the direction of the
Board of Directors, or (c) otherwise properly brought before the meeting by a
shareholder. For business to
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be properly brought before an annual meeting by a shareholder, the Shareholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a shareholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation, not less
than sixty (60) days nor more than ninety (90) days prior to the date of the
scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that in the
event that less than seventy (70) days' notice or prior public disclosure of the
date of the scheduled annual meeting is given or made, notice by a shareholder,
to be timely, must be so received not later than the close of business on the
tenth (10th) day following the earlier of the day on which such notice of the
date of the scheduled annual meeting was mailed or the day on which such public
disclosure was made. A shareholder's notice to the Secretary of the Corporation
shall set forth as to each matter the shareholder proposes to bring before the
annual meeting (a) 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, (b) the name and address, as they appear on the Corporation's
books of the shareholder proposing such business and of any other person or
entity who is the record or beneficial owner of any shares of the Corporation
and who, to the knowledge of the shareholder proposing such business, supports
such proposal, (c) the class and number of shares of the Corporation which are
beneficially owned and owned of record by the shareholder proposing such
business on the date of his notice to the Corporation and the number of shares
so owned by any person or entity who, to the knowledge of the shareholder
proposing such business, supports such proposal and (d) any material interest
(financial or other) of such shareholder in such proposal. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section 1.6. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section 1.6.
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.
Section 1.7. Order of Business. All meetings of shareholders
shall be conducted in accordance with such rules as are prescribed by the
Chairman of the meeting and he shall determine the order of business at all
meetings of the shareholders.
Section 1.8. Inspectors. The Board of Directors, in advance of
any meeting of shareholders, may, but shall not be required to, appoint one or
more inspectors to act at such meeting or any adjournment thereof. If any of the
inspectors so appointed shall fail to appear or act, the Chairman of the meeting
may appoint one or more inspectors. The inspectors shall determine the number of
shares of capital stock of the Corporation outstanding and the voting power of
each, the number of shares represented at the meeting, the existence of a
quorum, 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 results, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the Chairman of the
meeting, the inspectors shall make a report 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 an inspector of an
election of directors. Inspectors need not be shareholders.
ARTICLE II
Directors
Section 2.1. General Powers. The business and affairs of
the Corporation shall be managed under the direction of the Board of Directors
and, except as otherwise expressly
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provided by law or by the Articles of Incorporation, or by these Bylaws, all of
the powers of the Corporation shall be exercised by or under the authority of
said Board of Directors.
Section 2.2. Number and Qualification. The Board of Directors
shall consist of 14 Directors. Each Director shall be a resident of the
Commonwealth of Virginia. Except the initial directors of the Corporation named
in the Articles of Incorporation, no one who is seventy years of age or older
shall be eligible to stand for re-election to the Board of Directors at the
annual meeting following his seventieth birthday.
Section 2.3. Election of Directors. The Directors shall be
elected at the annual meeting of shareholders, and shall hold their offices
until their successors are elected in accordance with the Articles of
Incorporation. Nominations for the election of Directors shall be given in the
manner provided in Section 2.5.
Section 2.4. Honorary and Advisory Directors. The Board may
appoint to the position of Honorary Director or the position of Advisory
Director such person or persons as it deems appropriate. Honorary Directors
shall be entitled to receive notice of, and to attend all meetings of the Board,
but they shall not be Directors and shall not be entitled to vote, nor shall
they be counted in determining a quorum of the Board. Advisory Directors shall
be entitled only to notice of meetings of Advisory or other Boards of the
Corporation to which they shall be appointed. Honorary and Advisory Directors
shall receive such compensation as may be authorized by the Board of attendance
at meetings of Advisory or other Boards to which such Advisory or Honorary
Directors are appointed.
Section 2.5. Nominations. Only persons who are nominated in
accordance with the procedures set forth in this Section 2.5 shall be eligible
for election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made by or at the direction of the Board of
Directors, or by any shareholder of the Corporation entitled to vote for the
election of Directors who complies with the notice procedures set forth in this
Section 2.5. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporations not less than sixty (60) days nor more than ninety (90) days prior
to the date of the scheduled annual meeting, regardless of postponements,
deferrals, or adjournments of that meeting to a later date; provided, however,
in the event that less than seventy (70) days' notice or prior pubic disclosure
of the date of the meeting is given or made, notice by the shareholder to be
timely must be so received not later than the close of business on the 10th day
following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. Such shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election as a Director, (1) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person and (iv) any other
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,
as amended; and (b) as to the shareholder giving the notice (i) the name and
address of such shareholder and of any other person or entity who is the record
or beneficial owner of shares of the Corporation and who, to the knowledge of
the shareholder giving notice, supports such nominee(s) and (ii) the class and
number of shares of the Corporation which are beneficially owned and owned of
record by such shareholder and by any other person or entity who is the record
or beneficial owner of shares of the Corporation and who, to the knowledge of
the
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shareholder giving the notice, supports such nominee(s). At the request of the
Board of Directors any person nominated by the Board of Directors for election
as a Director shall furnish to the Secretary of the Corporation the information
required to be set forth in a shareholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a Director of the
Corporation unless in accordance with the procedures set forth in this Section
2.5. The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Section 2.6. Meetings of Directors. Meetings of the Board of
Directors shall be held at places within or without the Commonwealth of Virginia
and at times fixed by resolution of the Board of Directors, or upon call of the
Chairman of the Board of Directors or the President. The Secretary, or officer
performing his duties, shall give at least twenty-four (24) hours' notice by
telegraph, letter, telephone or in person, of all meetings of the Directors;
provided, that notice need not be given of regular meetings held at times and
places fixed by resolution of the Board. Regular meetings of the Board of
Directors shall be held at least once in every calendar month. Meetings may be
held at any time without notice if all of the Directors are present, or if those
not present waive notice either before or after the meeting. Neither the
business to be transacted nor the purpose of any annual or special meeting of
the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
Section 2.7. Quorum. A majority of the members of the Board
of Directors shall constitute a quorum.
Section 2.8. Compensation. The Board of Directors shall fix the
compensation of the Directors.
Section 2.9. Committees. The Board of Directors may create
committees and appoint members of committees in accordance with Virginia law.
There shall be an Executive Committee and such committee may exercise the
authority of the Board of Directors to the fullest extent permitted by law.
ARTICLE III
Officers
Section 3.1. Election. The Officers of the Corporation shall
consist of the Chairman of the Board of Directors, the President, one or more
Executive Vice Presidents, one or more senior Vice Presidents, one or more
additional Vice Presidents, a Secretary, a Treasurer, one or more Assistant
Secretaries, and such other officers as may be elected as provided in Section
3.3 of this Article. All Officers shall be elected by the Board of Directors,
and shall hold office until their successors are elected and qualify. Vacancies
may be filled at any meeting of the Board of Directors. Subject to any
applicable provision of Virginia law, more than one office may be combined in
the same person as the Board of Directors may determine.
Section 3.2. Removal of Officers. Any Officer of the Corporation
may be summarily removed with or without cause, at any time, by a resolution
passed by affirmative vote of a majority of all of the Directors; provided that
any such removal shall not affect an Officer's right to any compensation to
which he is entitled under any employment contract between him and the
Corporation.
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Section 3.3. Other Officers. Other Officers may from time to
time be appointed by the Board of Directors, and such Officers shall hold office
for such term as may be designated by the said Board of Directors.
Section 3.4. Chairman of the Board. The Chairman of the Board
shall be the senior Officer of the Corporation, and he shall preside at all
meetings of the Directors and all meetings of the shareholders. He shall appoint
all standing committees and temporary committees. He shall be a member ex
officio of all standing committees and shall have all other powers and duties as
may be prescribed by the Board of Directors or by the Bylaws.
Section 3.5. President. In the absence or disability of the
Chairman of the Board, the President shall preside at all meetings of the
Directors and at meetings of the shareholders and in the absence or disability
of the Chairman of the Board the duties and responsibilities of his office shall
devolve upon the President. The President shall have such other powers and
duties as may be prescribed by the Chairman of the Board of Directors, the Board
of Directors or by the Bylaws.
Section 3.6. Vice Presidents. Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents shall perform such duties as may be
prescribed for them from time to time by the Chairman of the Board of Directors,
the Board of Directors or the Bylaws.
Section 3.7. Secretary. The Secretary shall have the duties and
responsibilities prescribed by law for the secretary of a Virginia corporation.
Section 3.8. Surety Bonds. All Officers and employees who shall
have charge or possession of money, securities or property of the Corporation
must, before entering upon their duties, be covered by a bond with a surety
company approved by the Board of Directors and state and federal authorities.
The costs of such bond shall be borne by the Corporation.
ARTICLE IV
Capital Stock
Section 4.1. Issues of Certificate of Stock. Certificates of
capital stock shall be in such form as may be prescribed by law and by the Board
of Directors. All certificates shall be signed by the President and by the
Secretary or an Assistant Secretary, or by any other two Officers authorized by
resolution of the Board of Directors.
Section 4.2. Transfer of Stock. The stock of the corporation
shall be transferable or assignable on the books of the Corporation by the
holders in person or by attorney on surrender of the certificate or certificates
for such shares duly endorsed, and, if sought to be transferred by attorney,
accompanied by a written power of attorney to have such stock transferred on the
books of the Corporation.
Section 4.3. Restrictions on Transfer of Stock. Any restrictions
that may be imposed by law, by the Articles of Incorporation or Bylaws of the
Corporation, or by an agreement among shareholders of the Corporation, or by an
agreement among shareholders of the Corporation, shall be noted conspicuously on
the front or back of all certificates representing shares of stock of the
Corporation.
Section 4.4. Lost, Destroyed or Mutilated Certificates. The
holder of stock of the Corporation shall immediately notify the Corporation of
any loss, destruction, or mutilation of the
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certificate therefor, and the Corporation may in its discretion cause one or
more new certificates for the same aggregate number of shares to be issued to
such Stockholder upon the surrender of the mutilated certificate, or upon
satisfactory proof of such loss or destruction accompanied by the deposit of a
bond in such form and amount and with such surety as the Corporation may
require.
Section 4.5. Holder of Record. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder thereof in fact and shall not be bound to recognize any equitable or
other claim to or interest in such shares of stock on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
Section 4.6. Record Date. The Board of Directors shall fix in
advance the record date in order to make a determination of shareholders for any
purpose, including the determination of shareholders entitled to notice of or to
vote at any shareholders' meeting or entitled to payment of any dividend or
distribution to shareholders. Such record date shall not be more than seventy
(70) days prior to the date on which the particular action requiring such
determination of shareholders is to be taken.
Section 4.7. Control Share Acquisitions. Article 14.1 of the
Virginia Stock Corporation Act shall not apply to the Corporation.
ARTICLE V
Miscellaneous Provisions
Section 5.1. Seal. The seal of the Corporation shall be
circular in shape with the name of the Corporation around the circumference
thereof, and the word "SEAL" in the center thereof.
Section 5.2. Examination of the Books and Records. The books
and records of account of the Corporation, the minutes of the proceedings of the
shareholders, the Board and Committees appointed by the Board of Directors and
the records of the shareholders showing the names and addresses of all
shareholders and the number of shares held by each, shall be subject to
inspection during the normal business hours by any person who is a duly
qualified Director of the Corporation at the time he makes such inspection.
Shareholders shall have such rights to inspect records of the Corporation as are
prescribed by applicable law.
Section 5.3. Checks, Notes and Drafts. Checks, notes, drafts,
and other orders for the payment of money shall be signed by such persons as the
Board of Directors from time to time may authorize.
Section 5.4. Amendments to By-Laws. These Bylaws may be altered,
amended or repealed in accordance with the Articles of Incorporation.
Section 5.5. Voting of Stock Held. Unless otherwise provided
by resolution of the Board of Directors, the Chairman of the Board of Directors,
the President or any Executive Vice President may from time to time appoint an
attorney or attorneys as agent or agents of the Corporation to cast in the name
of the Corporation the votes which the Corporation may be entitled to cast as a
shareholder or otherwise in any other corporation, any of whose stock or
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing to
any action by any such other corporation; and such Officers may instruct the
person or persons so appointed as to the manner
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of casting such votes or giving such consent, and may execute or cause to be
executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers, or other instruments as may
be necessary or proper in the premises; or any of such Officers may himself
attend any meeting of the holders of stock or other securities of any such other
corporation and there vote or exercise any or all other powers of the
Corporation as the holder of such stock or other securities of such other
corporation.
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