S-11: Registration statement for securities to be issued by real estate companies
Published on March 13, 2007
Exhibit
3.1
FIRST
AMENDMENT TO THE AMENDED AND RESTATED BYLAWS OF
OMEGA
HEALTHCARE INVESTORS, INC.
January
16, 2007
THIS
FIRST AMENDMENT to the AMENDED AND RESTATED BYLAWS OF OMEGA HEALTHCARE
INVESTORS, INC. (this “Amendment”) is made as of the date hereof by Omega
Healthcare Investors, Inc. (the “Company”).
WHEREAS,
the Securities and Exchange Commission approved rule filings by the New York
Stock Exchange, which will require all listed issuers to be eligible for
Depository Trust Company’s Direct Registration System (“DRS”); and
WHEREAS,
the Board of Directors believes it is in the best interests of the Company
to
amend its Bylaws to authorize the issuance of uncertificated shares of some
or
all of its capital stock to permit the Company to convert to electronic
book-entry issuance of its common stock.
NOW,
THEREFORE, BE IT RESOLVED, that Section 1 of Article VII of the Bylaws shall
be
replaced in its entirety by the following:
Section
1. Certificates of Stock. Shares of the corporation’s capital stock may be
certificated or uncertificated. Owners of shares of the corporation’s capital
stock shall be recorded in the share transfer records of the corporation and
ownership of such shares shall be evidenced by a certificate or book entry
notation in the share transfer records of the corporation. Any certificates
representing such shares shall be numbered and signed by a member of the Board
of Directors, the Chief Executive Officer, the President or a Vice President,
and the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer and shall certify to the number of shares owned by the respective
stockholder of the corporation. Whenever any certificate is countersigned,
or
otherwise authenticated by a transfer agent or registrar, the signatures of
such
Director, Chief Executive Officer, President, Vice President, Secretary,
Assistant Secretary, Treasurer or Assistant Treasurer may be
facsimiles.
In
case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate
is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
Except
as
specifically amended hereby, the Bylaws shall remain in force and effect as
of
the date they were first executed.
OMEGA
HEALTHCARE INVESTORS, INC.
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By: | /s/ C. Taylor Pickett | |
Name: C. Taylor Pickett
Title: Chief Executive Officer
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AMENDED
AND RESTATED
BYLAWS
OF
OMEGA
HEALTHCARE INVESTORS, INC.
As
of May
30, 2002
BYLAWS
OF
OMEGA
HEALTHCARE INVESTORS, INC.
AS
AMENDED AND RESTATED
THROUGH
MAY 30, 2002
ARTICLE
I
OFFICES
Section
1. Registered
Office.
The
registered office of the corporation shall be established and maintained at
the
office of THE CORPORATION TRUST INCORPORATED, 32 South Street, Baltimore,
Maryland 21202, and said THE CORPORATION TRUST INCORPORATED be the registered
agent of this corporation in charge thereof.
Section
2. Other
Offices.
The
corporation may establish such other offices, within or without the State of
Maryland, at such place or places as the Board of Directors from time to time
may designate, or which the business of the corporation may
require.
ARTICLE
II
STOCKHOLDERS
Section
1. Annual
Meetings.
Annual
meetings of stockholders for the election of Directors and for such other
business as may be stated in the notice of the meeting, shall be held on a
date
and at a time designated by the Board of Directors at such place, within or
without the State of Maryland, as the Board of Directors by resolution shall
determine, and as set forth in the notice of the meeting.
If
the
date of the annual meeting shall fall on a legal holiday of the state in which
the meeting is to be held, the meeting shall be held on the next succeeding
business day.
Section
2. Special
Meetings.
Special
meetings of the stockholders, for any purpose or purposes, may be called by
the
Chairman, the Chief Executive Officer, the President, or by a majority of the
Board of Directors. A special meeting of the stockholders may also be called
by
the Secretary of the corporation upon the written request of the holders of
not
less than 50% of the outstanding shares entitled to vote on the business
proposed to be transacted thereat, delivered to the Secretary of the
corporation. Such request shall state the purpose or purposes of the proposed
meeting, including the information required by clause (B) of
Section 7(a)(ii) of this Article II. Within three days of the receipt
of such request, the Secretary shall inform such stockholders of the reasonably
estimated cost of preparing and mailing the Notice of Meeting (as defined in
Section 3 below) and, upon payment to the corporation of such costs, the
Secretary shall prepare the Notice of Meeting and give notice to 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 such
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
during the 12 months preceding such request. A special meeting may be called
for
the purpose of removing a Director as provided in Article VI,
Section 3.
Section
3. Notice
of Meetings.
By or
at the direction of the Secretary, the corporation shall cause written or
printed notice of every meeting (a “Notice of Meeting”), stating the place, date
and time of the meeting, and, in the case of a special meeting or as otherwise
may be required by statute, the purpose or purposes for which the meeting is
called, to be given to each stockholder entitled to vote thereat at his address
as it appears on the records of the corporation, either personally or by United
States mail, postage prepaid, not less than ten (10) nor more than ninety (90)
days before the date of the meeting. If mailed, the Notice of Meeting shall
be
deemed to be given when deposited in the United States mail addressed to the
stockholder at his or her post office address as it appears on the records
of
the corporation, with postage thereon prepaid. Subject to Section 7 of this
Article II, any business of the corporation may be transacted at an annual
meeting of stockholders without being specifically designated in the Notice
of
Meeting, except such business as is required by statute to be stated in such
Notice of Meeting. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the Notice of Meeting,
provided that if the Board has determined that Directors may or shall be elected
at such special meeting as set forth in such Notice of Meeting, certain
stockholder nominations of persons for election to the Board may be considered,
provided the requirements of clause (b) Section 7 of this Article II are
satisfied.
Section
4. Voting.
At each
annual meeting the stockholders entitled to vote shall elect a Board of
Directors, and they may transact such other corporate business as shall be
stated in the notice of the meeting. The vote for Directors, and, upon the
demand of any stockholder, the vote upon any question before the meeting, shall
be by ballot. Unless otherwise provided by the Articles of Incorporation or
by
the laws of the State of Maryland, all elections of Directors shall be by a
plurality of the votes cast, and all substantive questions shall be decided
by a
majority vote; all procedural questions shall be decided by the Chairman or
Parliamentarian of the meeting.
The
Directors may fix a day not more than sixty (60) days prior to the holding
of
any such meeting as the date as of which stockholders entitled to notice of
and
to vote at such meeting shall be determined; and only stockholders of record
on
such day shall be entitled to notice of or to vote at any such
meeting.
Each
stockholder entitled to vote, in accordance with the terms of the Articles
of
Incorporation and the provisions of these Bylaws, shall be entitled to one
vote,
in person or by proxy, for each share of stock entitled to vote held by such
stockholder, but no proxy shall be voted after eleven (11) months from its
date
unless such proxy provides for a longer period. There shall be no cumulative
voting. In no case shall any proxy be given for a period in excess of ten (10)
years from the date of its execution.
Section
5. Quorum.
Any
number of stockholders together holding a majority of the stock issued and
outstanding and entitled to vote thereat, who shall be present in person or
represented by proxy at any meeting duly called, shall constitute a quorum
for
the transaction of business. If, at any meeting, less than a quorum shall be
present or represented, those present, either in person or by proxy, shall
have
the power to adjourn the meeting from time to time to a date more than 120
days
after the original record date, without notice other than announcement at the
meeting, until the requisite amount of stock shall be present, at which time
any
business may be transacted which might have been transacted at the meeting
as
originally noticed.
Section
6. Action
Without Meeting.
Except
for the election of Directors, any action to be taken by the stockholders may
be
taken without a meeting, if, prior to such action, all stockholders entitled
to
vote thereon shall consent in writing to such action being taken, and such
consent shall be treated for all purposes as vote at a meeting.
3
Section
7. Notice
of Stockholder Business.
(a) Annual
Meetings of Stockholders.
(i) Nominations
of persons for election to the Board and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
(A) pursuant to the Notice of Meeting, (B) by or at the direction of the Board
or (C) by any stockholder of the corporation who was a stockholder of record
at
the time of giving the notice provided for in this Section 7(a), who is entitled
to vote at the meeting and who complied with the notice procedures set forth
in
this Section 7(a).
(ii) For
nominations or other business to be properly brought before an annual meeting
by
a stockholder pursuant to clause (C) of paragraph (i) of this Section 7(a),
the
stockholder must have given timely notice thereof in writing to the Secretary.
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 if
the date of the annual meeting is advanced by more than 30 days or delayed
by
more than 60 days from such anniversary date or if the corporation has not
previously held an annual meeting, notice by the stockholder to be timely must
be so delivered (x) not more than 90 days prior to such annual meeting nor
less
than 60 days prior to such annual meeting or (y) if later, not later than the
close of business on the tenth day following the day on which public
announcement of the date of such meeting is first made by the corporation.
Such
stockholder’s notice shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director, all 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
(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 stockholder and of the beneficial
owner, if any, on whose behalf the 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, (1) the name and address of such
stockholder, as they appear on the corporation’s books, and of such beneficial
owner, (2) the class and number of shares of stock of the corporation which
are
owned beneficially and of record by such stockholder and such beneficial owner
and, (3) in the case of a nomination, (x) a description of all arrangements
or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (y) a representation that such stockholder
intends to appear in person or by proxy at the meeting, if there is a meeting,
to nominate the persons named in its notice and (z) any other information
relating to such stockholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of Directors pursuant to Section 14 of the Exchange
Act
and the rules and regulations promulgated thereunder.
(iii) Notwithstanding
anything in the second sentence of paragraph (ii) of this Section 7(a) to the
contrary, if the number of Directors to be elected to the Board is increased
and
there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board made by the corporation at least
70
days prior to the first anniversary of the preceding year’s annual meeting, a
stockholder’s notice required by this Section 7(a) shall also be considered
timely, but only with respect to nominees for any new positions created by
such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the corporation not later than the close of business on the tenth
day
following the day on which such public announcement is first made by the
corporation.
4
(b) Special
Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the Notice of Meeting. Nominations of persons for election to the Board
may
be made at a special meeting of stockholders at which Directors are to be
elected (i) pursuant to the Notice of Meeting, (ii) by or at the direction
of
the Board or (iii) provided
that the
Board has determined that Directors shall or may be elected at such special
meeting, by any stockholder of the corporation who was a stockholder of record
at the time of giving of the Section 7(b) Notice (as defined below), who is
entitled to vote at the meeting and who complied with the notice procedures
set
forth in this Section 7(b). If the corporation calls a special meeting of
stockholders for the purpose of electing one or more Directors to the Board,
any
such stockholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Notice of Meeting, if a
stockholder’s notice containing the information required by clauses (A) and (C)
of the second sentence of paragraph (ii) of Section 7(a) (a “Section 7(b)
Notice”) shall be delivered to the Secretary at the principal executive offices
of the corporation (A) not more than 90 days prior to such meeting nor less
than
60 days prior to such meeting or (B) not later than the close of business on
the
tenth day following the day on which public announcement of the date of the
special meeting and of the nominees proposed by the Board to be elected at
such
meeting is first made by the corporation.
(c) General.
(i) Only
such
persons who are nominated in accordance with the procedures set forth in this
Section 7 shall be eligible to serve as Directors. Only such business shall
be
conducted at an annual meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in Section 7(a). The
presiding officer of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made in accordance with the procedures set forth in this Section 7 and,
if
any proposed nomination or business is not in compliance with this Section
7, to
declare that such nomination or proposal be disregarded.
(ii) For
purposes of this Section 7, “public announcement” shall mean disclosure by the
corporation in a press release by the corporation reported by the Dow Jones
News
Service, Associated Press or comparable news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant
to
Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding
the foregoing provisions of this Section 7, a stockholder shall also comply
with
all applicable requirements of state law and of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this
Section 7. Nothing in this Section 7 shall be deemed to affect any rights
of stockholders to request inclusion of, nor any rights of the corporation
to
omit, proposals in the corporation’s proxy statement pursuant to Rule 14a-8
under the Exchange Act.
5
Section
8. Voting
of Shares by Certain Holders.
Shares
of stock registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner, director or trustee thereof, as the case may
be,
or a proxy appointed by any of the foregoing individuals, unless some other
person who has been appointed to vote such shares pursuant to a bylaw or a
resolution of the board of directors of such corporation or governing body
of
such other entity presents a certified copy of such bylaw or resolution, in
which case such person may vote such shares of stock. Any trustee or other
fiduciary may vote shares of stock registered in his or her name as such
fiduciary, either in person or by proxy.
Shares
of
the corporation directly or indirectly owned by it shall not be voted at any
meeting and shall not be counted in determining the total number of outstanding
shares of stock entitled to be voted at any given time, unless they are held
by
it in a fiduciary capacity, in which case they may be voted and shall be counted
in determining the total number of outstanding shares at any given
time
The
Board
may adopt by resolution a procedure by which a stockholder may certify in
writing to the corporation that any shares of stock registered in the name
of
the stockholder are held for the account of a specified person other than the
stockholder. The resolution shall set forth the class of stockholders who may
make the certification, the purpose for which the certification may be made,
the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the share 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 such certification, the person specified
in the certification shall be regarded as, for the purposes set forth in the
certification, the stockholder of record of the specified shares in place of
the
stockholder who makes the certification.
Section
9. Inspectors.
At any
meeting of stockholders, the presiding officer of the meeting may, and upon
the
request of any stockholder shall, appoint one or more persons as inspectors
for
such meeting. Such inspectors shall ascertain and report the number of shares
of
stock represented at the meeting based on their determination of the validity
and effect of proxies, count all votes, report the results and perform such
other acts as are proper to conduct the election and voting with impartiality
and fairness to all the stockholders.
Each
report of an inspector shall be in writing and signed by him or by a majority
of
them if there is more than one inspector acting at such meeting. If there is
more than one inspector, the report of a majority shall be the report of the
inspectors. The report of the inspector or inspectors on the number of shares
of
stock represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
ARTICLE
III
DIRECTORS
Section
1. Number
and Term.
The
number of Directors constituting the full Board of Directors shall be not less
than five (5) nor more than thirteen (13) until changed by amendment of these
Bylaws, subject, at all times, to the rights of the holders of any class of
the
Corporation’s preferred stock to elect directors in certain circumstances
pursuant to the express terms of such preferred stock. The exact number of
Directors within such range shall be fixed from time to time by resolution
of
the Board of Directors or the stockholders. The Directors shall be elected
at
the annual meeting of stockholders, and each Director shall be elected to serve
until his successor shall be elected and shall have qualified. In no case shall
the number of Directors be less than five (5), unless changed by an amendment
to
the Articles of Incorporation.
6
The
Board
of Directors of this corporation shall be classified into three groups, with
two
Directors in Group 1, three Directors in Group II, and two Directors in Group
III. Each Director in Group I initially shall serve for a term ending at the
annual meeting of stockholders in 1993; each Director in Group II shall serve
for an initial term ending at the annual meeting of stockholders in 1994; and
each Director in Group III shall serve for an initial term ending at the annual
meeting of stockholders in 1995. After the respective initial terms of the
groups indicated, each such group of Directors shall be elected for successive
terms ending at the annual meeting of stockholders the third year after
election.
Directors
need not be stockholders.
Section
2. Quorum.
A
majority of the Directors shall constitute a quorum for the transaction of
business. If, at any meeting of the Board, there shall be less than a quorum
present, a majority of those present may adjourn the meeting, from time to
time,
until a quorum is obtained, and no further notice thereof need be given other
than by announcement at said meeting which shall be so adjourned.
Section
3. First
Meeting.
The
newly elected Directors may hold their first meeting for the purpose of
organization and the transaction of business, if a quorum is present,
immediately after the annual meeting of stockholders or the time and place
of
such meeting may be fixed by written consent of the entire Board.
Section
4. Election
of Officers.
At the
first meeting, or at any subsequent meeting called for that purpose, the
Directors shall elect the officers of the corporation, as more specifically
set
forth in Article V of these Bylaws. Such officers shall hold office until the
next annual election of officers, or until their successors are elected and
shall have qualified.
Section
5. Regular
Meetings.
Regular
meetings of the Board of Directors shall be held, without notice, at such places
and times as shall be determined, from time to time, by resolution of the Board
of Directors.
Section
6. Special
Meetings.
Special
meetings of the Board of Directors may be called by the Chairman, the Chief
Executive Officer, the President, or by the Secretary on four (4) days’ notice
to each Director. In case such notice is delivered personally, or by telephone,
facsimile or telegram, it shall be delivered at least twenty-four (24) hours
prior to the time of the holding of the meeting.
Section
7. Place
of Meetings.
The
Directors may hold their meetings, and have one or more offices, and keep the
books of the corporation outside the State of Maryland at any office or offices
of the corporation, or at any other place as they from time to time by
resolution may determine.
Section
8. Dispensing
With Notice.
The
transactions of any meeting of the Board of Directors, however called and
noticed or wherever held, shall be as valid as though had at a meeting duly
held
after regular call and notice if a quorum be present and if, either before
or
after the meeting, each of the Directors not present signs a written waiver
of
notice, a consent to holding the meeting or an approval of the minutes thereof.
The waiver of notice or consent need not specify the purpose of the meeting.
All
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting. Notice of a meeting need not
be
given to any Director who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to such Director.
7
Section
9. Action
Without Meeting.
Any
action required or permitted to be taken at any meeting of the Board of
Directors, or any committee thereof, may be taken without a meeting if, prior
to
such action, a written consent thereto is signed by all members of the Board
or
of such committee, as the case may be, and such written consent is filed with
the minutes of the proceedings of the Board of Directors or
committee.
Section
10. Telephonic
Meetings.
Unless
otherwise restricted by the Articles of Incorporation or these Bylaws, members
of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at
such
meeting.
Section
11. General
Powers of Directors.
The
Board of Directors shall have the management of the business of the corporation,
and, subject to the restrictions imposed by law exercise all the powers of
the
corporation. Each Director shall be entitled to rely upon the books and records
of the corporation, and upon information, opinions, reports, or statements,
including financial statements and other financial data, prepared or presented
by officers or employees of the corporation believed to be reliable and
competent in the matters presented, or by counsel, independent accountants,
or
other persons as to matters which the Board of Directors believes to be within
such person’s professional or expert competence.
Section
12. Specific
Powers of Directors.
Without
prejudice to such general powers, it hereby is expressly declared that the
Directors shall have the following powers:
(1) To
make
and change regulations, not inconsistent with these Bylaws, for the management
of the business and affairs of the corporation.
(2) To
purchase or otherwise acquire for the corporation any property, rights or
privileges which the corporation is authorized to acquire.
(3) To
pay
for any property purchased for the corporation, either wholly or partly in
money, stock, bonds, debentures or other securities of the
corporation.
(4) To
borrow
money and make and issue notes, bonds and other negotiable and transferable
instruments, mortgages, deeds of trust and trust agreements, and to do every
act
and thing necessary to effectuate the same.
(5) To
remove
any officer for cause, or any officer summarily, without cause, and, in their
discretion, from time to time to devolve the powers and duties of any officer
upon any other person for the time being.
8
(6) To
appoint and remove or suspend subordinate officers or agents as they may deem
necessary, and to determine their duties, and to fix and from time to time
to
change their salaries or remuneration, and to require security as and when
they
think fit.
(7) To
confer
upon any officer of the corporation the power to appoint, remove and suspend
subordinate officers and agents.
(8) To
determine who shall be authorized, on behalf of the corporation, to make and
sign bills, notes, acceptances, endorsements, contracts and other
instruments.
(9) To
determine who shall be entitled, in the name and on behalf of the corporation,
to vote upon or to assign and transfer any shares of stock, bonds or other
securities of other corporations held by this corporation.
(10) To
delegate any of the powers of the Board, in relation to the ordinary business
of
the corporation, to any standing or special committee, or to any officer or
agent (with power to sub-delegate), upon such terms as they deem
fit.
(11) To
call
special meetings of the stockholders for any purpose or purposes.
(12) To
appoint the accountants and attorneys for the corporation.
Section
13. Compensation.
Directors shall receive a stated salary for their services as Directors and,
by
resolution of the Board, a fixed fee and expenses of attendance for attendance
at each meeting. Directors may participate in retirement plans, stock option
and
restricted stock plans and other employee benefit plans of the Company which
specifically permit participation by directors.
Nothing
herein contained shall be construed to preclude any Director from serving the
corporation in any other capacity as an officer, agent, or
otherwise.
ARTICLE
IV
COMMITTEES
Section
1. Appointments
and Powers.
The
Board of Directors may, by resolution or resolutions passed by a majority of
the
whole Board, designate one or more committees. The Board of Directors may
designate one or more Directors as alternate members of a committee who may
replace any absent or disqualified member at any meeting of the committee.
Such
alternate members shall, for purposes of determining a quorum, be counted in
the
place of the absent or disqualified member. The committee, to the extent
provided in said resolution or resolutions or in these Bylaws, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation. Such committee or committees shall
have
such name or names as may be stated in these Bylaws or as may be determined
from
time to time by resolution adopted by the Board of Directors. For so long as
Section 3.1 of the Stockholders Agreement dated July 14, 2000 by and between
the
Company and Explorer Holdings L.P. (“Explorer”) shall remain in effect, each
committee of the Board of Directors will be comprised of that number of
directors who were designated to the Board of Directors (the “Explorer
Directors”) by Explorer pursuant to the terms of the Investment Agreement dated
as of May 11, 2000, by and between the Company and Explorer, equal to the
product (rounded to the nearest whole number in accordance with established
mathematical convention) of the number of directors on such committee multiplied
by a fraction, the numerator of which is the number of Explorer Designees and
the denominator of which is the aggregate number of directors on the entire
Board of Directors; provided, however, that the number of Explorer Designees
shall not constitute a majority of the members of any committee unless the
Explorer Designees also constitute a majority of the members of the Board of
Directors.
9
Section
2. Minutes.
Committees shall keep regular minutes of their proceedings, and report the
same
to the Board of Directors when required.
Section
3. Audit
Committee.
The
Audit Committee shall select and engage in behalf of the corporation, and fix
the compensation of, a firm of certified public accountants whose duty it shall
be to audit the books and accounts of the corporation and its subsidiaries
for
the fiscal year in which they are appointed, and who shall report to such
Committee. The Audit Committee shall confer with the auditors and shall
determine, and from time to time shall report to the Board of Directors upon
the
scope of the auditing of the books and accounts of the corporation and its
subsidiaries. The Audit Committee shall also be responsible for determining
that
the business practices and conduct of employees and other representatives of
the
corporation and its subsidiaries comply with the policies and procedures of
the
corporation. None of the members of the Audit Committee shall be officers or
employees of the corporation.
ARTICLE
V
OFFICERS
Section
1. Officers.
The
officers shall be elected at the first meeting of the Board of Directors after
each annual meeting of stockholders. The Directors shall elect a Chairman,
a
Chief Executive Officer, a President, a Secretary and a Treasurer and one or
more Vice Presidents as they may deem proper. Any person may hold two or more
offices.
The
Board
of Directors may appoint such other officers and agents as it may deem
advisable, who shall hold office for such terms and shall exercise such powers
and perform such duties as shall from time to time be determined by the Board
of
Directors.
Section
2. Chairman.
The
Chairman, if one be elected, shall preside at all meetings of the Board of
Directors and stockholders, and he shall have and perform such other duties
as
from time to time may be assigned to him by the Board of Directors.
Section
3. Chief
Executive Officer.
The
Chief Executive Officer shall have the general powers and duties of supervision
and management usually vested in the office of Chief Executive Officer of a
corporation. He shall have general supervision, direction and control of the
business of the corporation. Except as the Board of Directors shall authorize
the execution thereof in some other manner, he shall execute bonds, mortgages
and other contracts on behalf of the corporation.
Section
4. President.
The
President shall have the general powers and duties of supervision and management
usually vested in the office of President of a corporation. He shall have
general supervision, direction and control of the business of the corporation.
Except as the Board of Directors shall authorize the execution thereof in some
other manner, he shall execute bonds, mortgages and other contracts on behalf
of
the corporation.
Section
5. Vice
Presidents.
Each
Vice President shall have such powers and shall perform such duties as are
usually vested in the office of Vice President of a corporation. Except as
the
Board of Directors shall authorize the execution thereof in some other manner,
he shall execute bonds, mortgages and other contracts on behalf of the
corporation.
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Section
6. Secretary.
The
Secretary shall give, or cause to be given, notice of all meetings of
stockholders and Directors, and all other notices required by law or by these
Bylaws, and, in case of his absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chairman, the Chief
Executive Officer, the President, the Board of Directors, or the stockholders,
upon whose requisition the meeting is called as provided in these Bylaws. He
shall record all proceedings of meetings of the stockholders and of the Board
of
Directors in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the Directors or the President.
Section
7. Treasurer.
The
Treasurer shall have the custody of the corporate funds and securities, and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation. He shall deposit all monies and other valuables
in
the name and to the credit of the corporation in such depositories as may be
designated by the Board of Directors.
The
Treasurer shall disburse the funds of the corporation as may be ordered by
the
Board of Directors or the President, taking proper vouchers for such
disbursements. He shall render to the President and the Board of Directors,
at
the regular meetings of the Board, or whenever they may request it, an
accounting of all his transactions as Treasurer, and of the financial condition
of the corporation.
If
required by the Board of Directors, he shall give the corporation a bond for
the
faithful discharge of his duties, in such amount and with such surety as the
Board shall prescribe.
Section
8. Assistant
Secretaries and Assistant Treasurers.
Assistant Secretaries and Assistant Treasurers, if any, shall be appointed
by
the Board of Directors or by the Chief Executive Officer, the President or
Vice
President and shall have such powers and shall perform such duties as shall
be
assigned to them, respectively, by the Secretary and by the
Treasurer.
Section
9. General
Powers.
In
addition to the rights and duties set forth in this Article V, the Chief
Executive Officer, President, Secretary or any other officer of the corporation
shall be authorized and empowered to take such actions and to execute such
documents on behalf of the corporation as may, from time to time, be
required.
ARTICLE
VI
RESIGNATIONS;
FILLING OF VACANCIES;
INCREASE
IN NUMBER OF DIRECTORS;
REMOVAL
FROM OFFICE
Section
1. Resignations.
Any
Director, member of a committee, or other officer may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and, if no time be specified, at the time of its receipt
by
the Board of Directors, the President or the Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
Section
2. Filling
of Vacancies.
If the
office of any officer, Director or member of a committee becomes vacant (other
than, in the case of a Director, as a result of an increase in the number of
Directors or the removal of a Director), the remaining Directors in office,
whether or not sufficient to constitute a quorum, may appoint, by a majority
vote of such remaining Directors, any qualified person to fill such vacancy.
Any
vacancy occurring by reason of an increase in the number of Directors may be
filled by action of a majority of the entire Board.
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A
Director elected by the Board of Directors to fill a vacancy pursuant to this
Section 2 serves until the next annual meeting of stockholders and until his
or
her successor is elected and qualifies. An officer or member of a committee
elected by the Board of Directors to fill a vacancy pursuant to this Section
2
serves for the balance of the term of such officer or committee
member.
Section
3. Removal
From Office.
At a
meeting of stockholders expressly called for such purpose, any or all members
of
the Board of Directors may be removed for cause by a vote of the holders of
not
less than two-thirds (2/3) of the issued and outstanding capital stock entitled
to vote thereon and said stockholders may elect a successor or successors to
fill any resulting vacancies, for the unexpired terms of the removed
Directors.
Any
officer or agent, or member of a committee elected or appointed by the Board
of
Directors, may be removed by said Board whenever, in its judgment, the best
interests of the corporation shall be served thereby.
ARTICLE
VII
CAPITAL
STOCK
Section
1. Certificates
of Stock.
Certificates of stock, numbered, and signed by a member of the Board of
Directors, the Chief Executive Officer, the President or a Vice President,
and
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, shall be issued to each stockholder, certifying to the number of
shares owned by him in the corporation. Whenever any certificate is
countersigned, or otherwise authenticated by a transfer agent or registrar,
the
signatures of such Chairman, Chief Executive Officer, President, Vice President,
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer may be
facsimiles.
In
case
any officer who has signed or whose facsimile signature has been placed upon
such certificate shall have ceased to be such officer before such certificate
is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
Section
2. Lost
Certificates.
A new
certificate of stock may be issued in place of any certificate theretofore
issued by the corporation and alleged to have been lost or destroyed, and the
Directors may, at their discretion, request the owner of the lost or destroyed
certificate, or his legal representative, to give the corporation a bond, in
such sum as they may direct, but not exceeding double the value of the stock,
to
indemnify the corporation against any claim that may be made against it on
account of the alleged loss of any such certificate.
Section
3. Transfer
of Shares.
Subject
to the restrictions that may be contained in the Articles of Incorporation,
the
shares of stock of the corporation shall be transferable only upon its books
by
the holders thereof in person or by their duly authorized
representatives.
Section
4. Dividends.
Subject
to the provisions of the Articles of Incorporation and the laws of the State
of
Maryland, the Board of Directors may, at any regular or special meeting, declare
dividends upon the capital stock of the corporation, as and when they may deem
expedient.
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ARTICLE
VIII
MISCELLANEOUS
PROVISIONS
Section
1. Fiscal
Year.
The
fiscal year of the corporation shall end on the 31st day of December of each
calendar year.
Section
2. Checks,
Drafts, Notes.
All
checks, drafts, or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation, shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner as from time to time shall be determined by resolution of the Board
of
Directors.
Section
3. Corporate
Records.
The
corporation shall keep correct and complete books of account and minutes of
the
proceedings of its stockholders and Directors.
The
corporation shall keep and maintain at its principal offices a certified copy
of
its Articles of Incorporation and all amendments thereto, a certified copy
of
its Bylaws and all amendments thereto, a stock ledger or duplicate stock ledger,
revised annually, containing the names, alphabetically, arranged, of all
stockholders, their residence addresses, and the number of shares held by them,
respectively. In lieu of the stock ledger or duplicate stock ledger, a statement
may be filed in the principal office stating the name of the custodian of the
stock ledger or duplicate stock ledger, and the present and complete post office
address (including street and number, if any) where such stock ledger or
duplicate stock ledger is kept.
The
Directors shall take all reasonable steps to assure that a full and correct
annual statement of the affairs of the corporation is prepared annually,
including a balance sheet and a financial statement of operations for the
preceding fiscal year which shall be certified by independent certified public
accountants, and distributed to stockholders within 120 days after the close
of
the corporation’s fiscal year and a reasonable period of time prior to the
annual meeting of stockholders. The Directors shall also be responsible for
scheduling the annual meeting of stockholders.
Section
4. Notice
and Waiver of Notice.
Whenever, pursuant to the laws of the State of Maryland or these Bylaws, any
notice is required to be given, personal notice is not meant unless expressly
so
stated, and any notice so required shall be deemed to be sufficient if given
by
depositing the same in the United States mail, postage prepaid, addressed to
the
person entitled thereto at his address as it appears on the records of the
corporation, and such notice shall be deemed to have been given on the day
of
such mailing. Stockholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by statute.
Any
notice required to be given may be waived, in writing, by the person or persons
entitled thereto, whether before or after the time stated therein.
Section
5. Inspectors.
The
Board of Directors may, in advance of any meeting of stockholders, appoint
one
or more inspectors to act at such meeting or any adjournment thereof. If the
inspectors shall not be so appointed or if any of them shall fail to appear
or
act, the chairman of the meeting may, and on the request of any stockholder
entitled to vote thereat shall, appoint inspectors. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath to
execute faithfully the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors shall
determine 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 result, and do such acts as are proper to conduct the election
or
vote with fairness to all stockholders. On request of the chairman of the
meeting or any stockholder entitled to vote thereat, the inspectors shall make
a
report in writing of any challenge, request or matter determined by them and
shall execute a certificate of any fact found by them. No Director or candidate
for the office of Director shall act as inspector of an election of Directors.
Inspectors need not be stockholders.
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Section
6. Transactions
with Officers and Directors.
The
corporation shall not engage in any purchase, sale or lease of property or
other
business transaction in which an officer or director of the corporation has
a
direct or indirect material interest without the approval by resolution of
a
majority of those directors who do not have an interest in such
transaction.
ARTICLE
IX
AMENDMENTS
TO BYLAWS
Section
1. Amendment
by Stockholders.
New
Bylaws may be adopted or these Bylaws may be amended or repealed by the vote
or
written consent of holders of a majority of the outstanding shares entitled
to
vote, provided, however, that any provision of these Bylaws requiring a vote
of
greater than a majority may be amended, repealed or modified only by a vote
satisfying such higher voting requirements.
Section
2. Amendment
by Directors.
Subject
to the right of the stockholders as provided in Section 1 of this Article IX
to
adopt, amend, or repeal Bylaws, Bylaws may be adopted, amended, or repealed
by
the Board of Directors; provided, however, that the Board of Directors may
adopt
an amendment of a Bylaw changing the authorized number of directors only within
the limits specified in the Articles of Incorporation or in Section 1 of Article
III of these Bylaws.
ARTICLE
X
INDEMNIFICATION
OF OFFICERS AND DIRECTORS
Section
1. Indemnification.
The
corporation shall indemnify and hold harmless, and shall pay expenses incurred
by or satisfy a judgment or fine levied against, each officer, director and
other person, in the manner and to the full extent permitted by the General
Corporation Law of the State of Maryland.
Section
2. Provisions
Not Exclusive.
This
Article shall not be construed as a limitation upon the power of the corporation
to enter into contracts or undertakings of indemnity with a director, officer,
employee or agent of the corporation, nor shall it be construed as a limitation
upon any other rights to which a person seeking indemnification may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to actions in his official capacity and as to action in
another capacity while holding office.
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