AMENDED AND RESTATED BY-LAWS OF THE COMPANY
Published on August 14, 1996
Exhibit 3.1
The Company amended its Bylaws on October 17, 1995. Since this
amendment is the first amendment to the Company's Bylaws, which it is filing
electronically, the Company is required to restate the entire bylaws in
accordance with Rule 102(c) of Regulations S-T under the Securities Exchange Act
of 1934, as amended.
BYLAWS
OF
LTC PROPERTIES, INC.
TABLE OF CONTENTS
ii
iii
ARTICLE I
MEETINGS OF STOCKHOLDERS
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1.01. PLACE. All meetings of the holders of the issued and outstanding
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capital stock of the Corporation (the "Stockholders") shall be held at the
principal office of the Corporation in Ft. Smith, Arkansas or at such other
place within the United States as shall be stated in the notice of the meeting.
1.02. ANNUAL MEETING. An annual meeting of the Stockholders for the
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election of Directors and the transaction of any business within the powers of
the Corporation shall be held on the last Thursday of April, or at such other
date and time as may be fixed by the Board of Directors. If the day fixed for
the annual meeting shall be a legal holiday, such meeting shall be held at the
same time on the next succeeding business day.
1.03. SPECIAL MEETINGS. The Chairman of the Board (if any), the President
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or a majority of the Board of Directors may call special meetings of the
Stockholders. Special meetings of Stockholders shall also be called by the
Secretary upon the written request of the holders of shares entitled to cast not
less than 25% of all the votes entitled to be cast at such meeting. Such
request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The date, time, place and record date for any
such Special Meeting, including a meeting called at the request of Stockholders,
shall be established by the Board of Directors or Officer calling the same.
1.04. NOTICE. Not less than ten (10) nor more than ninety (90) days
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before the date of every meeting of Stockholders, written or printed notice of
such meeting shall be given, in accordance with Section 8.01, to each
Stockholder entitled to vote or entitled to notice by statute, stating the time
and place 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.
1.05. SCOPE OF NOTICE. No business shall be transacted at a special
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meeting of Stockholders except that specifically designated in the notice. Any
business of the Corporation may be transacted at the annual meeting without
being specifically designated in the notice, except such business as is required
by statute to be stated in such notice.
1.06. QUORUM. At any meeting of Stockholders, the presence in person or
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by proxy of Stockholders entitled to cast a majority of the votes shall
constitute a quorum; but this Section shall not affect any requirement under any
statute or the Charter of the Corporation (the "Charter") for the vote necessary
for the adoption of any measure. If, however, a quorum is not present at any
meeting of the Stockholders, the Stockholders present in person or by proxy
shall have the power to adjourn the meeting from time to time without notice
other than announcement at the meeting until a quorum is present and the meeting
so adjourned may be reconvened without further notice. At any adjourned
meeting at which a quorum is present,
any business may be transacted that might have been transacted at the meeting as
originally notified. The Stockholders present at a meeting which has been duly
called and convened and at which a quorum is present at the time counted may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough Stockholders to leave less than a quorum.
1.07. VOTING. A majority of the votes cast at a meeting of Stockholders
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duly called and at which a quorum is present shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is specifically required by
statute, by the Charter or by these Bylaws. Unless otherwise provided in the
Charter, each outstanding share (a "Share") of capital stock of the Corporation
(the "Stock"), regardless of class, shall be entitled to one vote upon each
matter submitted to a vote at a meeting of Stockholders. Shares of its own
Stock directly or indirectly owned by this Corporation shall not be voted in any
meeting and shall not be counted in determining the total number of outstanding
Shares entitled to vote at any given time, but Shares of its own Stock held by
it in a fiduciary capacity may be voted and shall be counted in determining the
total number of outstanding Shares at any given time.
1.08. PROXIES. A Stockholder may vote the Shares owned of record by him
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or her, either in person or by proxy executed in writing by the Stockholder or
by his or her duly authorized attorney in fact. Such proxy shall be filed with
the Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution, unless
otherwise provided in the proxy.
1.09. CONDUCT OF MEETINGS. The Chairman of the Board (if any) or, in the
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absence of the Chairman, the President, or, in the absence of the Chairman,
President and Vice Presidents, a presiding officer elected at the meeting, shall
preside over meetings of the Stockholders (the "Presiding Officer"). The
Secretary of the Corporation, or, in the absence of the Secretary and Assistant
Secretaries, the person appointed by the presiding Officer of the meeting shall
act as secretary of such meeting.
1.10. TABULATION OF VOTES. At any annual or special meeting of
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Stockholders, the presiding Officer shall be authorized to appoint a Teller for
such meeting. The Teller may, but need not, be an officer, employee or agent of
the Corporation. The Teller shall be responsible for tabulating or causing to
be tabulated shares voted at the meeting and reviewing or causing to be reviewed
all proxies. In tabulating votes, the Teller shall be entitled to rely in whole
or in part on tabulations and analyses made by personnel of the Corporation, its
counsel, its transfer agent, its registrar or such other organizations that are
customarily employed to provide such services. The Teller shall be authorized
to determine the legality and sufficiency of all votes cast and proxies
delivered under both the Charter and these Bylaws and applicable law. The
presiding Officer may review all determinations made by the Teller hereunder,
and in doing so the presiding Officer shall be entitled to exercise his or her
sole
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judgment and discretion and he or she shall not be bound by any determinations
made by the Teller.
1.11. INFORMAL ACTION BY STOCKHOLDERS. An action required or permitted to
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be taken at a meeting of Stockholders may be taken without a meeting if a
consent in writing, setting forth such action, is signed by all the Stockholders
entitled to vote on the subject matter thereof and any other Stockholders
entitled to notice of a meeting of Stockholders (but not to vote there at) have
waived in writing any rights which they may have to dissent from such action,
and such consents and waivers are filed with the minutes of proceedings of the
Stockholders. Such consents and waivers may be signed by different Stockholders
on separate counterparts.
1.12. VOTING BY BALLOT. Voting on any question or in any election may be
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viva voce unless the presiding Officer shall order or any Stockholder shall
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demand that voting be by ballot.
ARTICLE II
DIRECTORS
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2.01. GENERAL POWERS. The business and affairs of the Corporation shall
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be managed by its Board of Directors.
2.02. OUTSIDE ACTIVITIES. The Board of Directors and its members are
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required to spend only such time managing the business and affairs of the
Corporation as is necessary to carry out their duties in accordance with Section
2-405.1 of the Maryland General Corporation Law. The Board of Directors, each
Director, and the agents, Officers and employees of the Corporation or of the
Board of Directors or of any Director may engage with or for others in business
activities of the types conducted by the Corporation; none of them has an
obligation to notify or present to the Corporation or each other any investment
opportunity that may come to such person's attention even though such investment
might be within the scope of the Corporation's purposes or various investment
objectives. Any interest (including any interest as defined in Section 2-419(a)
of the Maryland General Corporation Law) that a Director has in any investment
opportunity presented to the Corporation must be disclosed by such Director to
the Board of Directors (and, if voting thereon, to the Stockholders or to any
committee of the Board of Directors) within ten (10) days after the later of the
date upon which such Director becomes aware of such interest or that the
Corporation is considering such investment opportunity. If such interest comes
to the interested Director's attention after a vote to take such investment
opportunity, the voting body shall reconsider such investment opportunity if not
already consummated or implemented.
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2.03. OUTSIDE MANAGEMENT. The Board of Directors may delegate some or all
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of the duties of management of the assets and the administration of the
Corporation's day-to-day business operations to one or more advisors pursuant to
a written contract or contracts approved by the Board of Directors.
2.04. NUMBER, TENURE, QUALIFICATION, NOMINATION AND ELECTION.
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2.04.1 The number of Directors of the Corporation shall be six (6),
unless a majority of the Board of Directors establishes some other number not
less than three (3) and not more than nine (9).
2.04.2 The Stockholders shall elect the number of Directors so
established, if and to the extent there are nominees duly nominated in
accordance with these Bylaws. Ballots bearing the names of all the persons who
have been duly nominated for election as directors at an annual meeting of
Stockholders in accordance with the procedures set forth in this Section 2.04
shall be provided for use at the annual meeting.
2.04.3 Nominations of candidates for election as Directors of the
Corporation at any annual meeting of Stockholders may be made (i) by, or at the
direction of, a majority of the Board of Directors or a duly authorized
committee thereof (which committee in the case of any nomination of a director
who is to be an Independent Director shall have a majority of Independent
Directors) or (ii) by any holder of record (both as of the time notice of such
nomination is given by the Stockholder as set forth below and as of the record
date for the annual meeting in question) of any shares of the Corporation's
capital stock entitled to vote at such annual meeting who complies with the
notice procedures of this Section 2.04. Any Stockholder who seeks to make such
a nomination, or his representative, must be present in person at the annual
meeting. Only persons nominated in accordance with the procedures set forth in
this Section 2.04 shall be eligible for election as Directors at an annual
meeting.
Nominations, other than those made by, or at the direction of, the Board of
Directors or a duly authorized committee thereto, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation as set forth in
this Section 2.04. To be timely, a Stockholder's notice shall be delivered to,
or mailed and received at, the principal executive offices of the Corporation
not less than 60 days nor more than 150 days prior to the anniversary of the
last annual meeting of Stockholders. Each such Stockholder notice shall set
forth (i) as to each person whom the Stockholder proposes to nominate for
election or reelection as a Director and as to the Stockholder giving the notice
(a) the name, age, business address and residence address of such person, (b)
the principal occupation or employment of such person, (c) the class and number
of shares of the Corporation's capital stock which are beneficially owned by
such person on the date of such Stockholder notice, (d) such nominee's consent
to serve as a Director if elected and (e) any other information relating to such
person that is required to be disclosed in solicitations of proxies with respect
to nominees for election as may be deemed necessary or desirable by the
Corporation's counsel, in the exercise of his
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or her discretion; and (ii) as to the Stockholder giving the notice (a) the name
and address, as they appear on the Corporation's books, of such Stockholder and
any other Stockholders known by such Stockholder to be supporting such nominees
and (b) the class and number of shares of the Corporation's capital stock which
are beneficially owned by such Stockholder on the date of such Stockholder
notice and by any other Stockholders known by such Stockholder to be supporting
such nominees on the date of such Stockholder notice. At the request of the
Board of Directors or a committee appointed by it, any persons nominated by, or
at the direction of, the Board or such committee for election as a Director at
an annual meeting shall furnish to the Secretary of the Corporation that
information required to be set forth in a Stockholder's notice of nomination
which pertains to the nominee.
2.04.4 If the Board of Directors, or a designated committee thereof,
determines that any Stockholder nomination was not timely made in accordance
with the terms of this Section 2.04, or the information provided in a
Stockholder's notice does not satisfy the informational requirements of this
Section 2.04 in any material respect, then the Board of Directors or such
committee, as the case may be, shall reject such Stockholder nomination and such
nomination shall not be considered at the annual meeting in question; provided,
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however, if such Stockholder's notice was duly received at least 15 days in
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advance of the last date on which such notice could have been timely made, then
the Secretary of the corporation shall, within 10 days after the Secretary's
receipt of such notice, notify such Stockholder of the deficiency in the notice.
Such Stockholder receiving such notice from the Secretary shall have an
opportunity to cure the deficiency by providing additional information to the
Secretary within such period of time, not to exceed five days from the date such
deficiency notice is given to the Stockholder, as the Board of Directors or such
committee shall reasonably determine. If the deficiency is not cured within such
period, or if the Board of Directors or such committee reasonably determines
that the additional information provided by the Stockholder, together with
information previously provided, does not satisfy the requirements of this
Section 2.04 in any material respect, then the Board of Directors shall reject
such Stockholder's nomination and such nomination shall not be considered at the
annual meeting in question.
2.04.5 If neither the Board of Directors nor such committee makes a
determination as to the validity of any nominations by a Stockholder as set
forth above, the Presiding Officer of the annual meeting shall determine and
declare at the annual meeting whether a nomination was made in accordance with
the terms of this Section 2.04. If the Presiding Officer determines that a
nomination was made in accordance with the terms of this Section 2.04, he shall
so declare at the annual meeting and ballots shall be provided for use at the
meeting with respect to such nominee. If the Presiding Officer determines that
a nomination was not made in accordance with the terms of this Section 2.04, he
shall so declare at the annual meeting and such nomination shall be disregarded.
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2.05. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of
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Directors may be held immediately after and at the same place as the annual
meeting of Stockholders, or such other time and place, either within or without
the State of Maryland, as is selected by resolution of the Board of Directors,
and no notice other than these Bylaws or such resolution shall be necessary.
The Board of Directors may provide, by resolution, the time and place, either
within or without the State of Maryland, for the holding of regular meetings of
the Board of Directors without other notice than such resolutions.
2.06. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
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called by or at the request of the Chairman of the Board (if any), the President
or a majority of the Directors then in office. The person or persons authorized
to call special meetings of the Board of Directors may fix any place, either
within or without the State of Maryland, as the place for holding any special
meeting of the Board of Directors called by them.
2.07. NOTICE. Notice of any special meeting to be provided herein shall
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be given, in accordance with Section 8.01, by written notice delivered
personally, telegraphed or telecopied to each Director at his or her business or
residence at least twenty-four (24) hours, or by mail at least five (5) days,
prior to the meeting. Neither the business to be transacted at, nor the purpose
of, any annual, regular or special meeting of the Board of Directors need be
specified in the notice, unless specifically required by statute or these
Bylaws.
2.08. QUORUM. A majority of the Directors then in office shall constitute
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a quorum for transaction of business at any meeting of the Board of Directors;
provided, however that a quorum for transaction of business with respect to any
matter in which any Director (or affiliate of such Director) who is not an
Independent Director has any interest shall consist of a majority of the
Directors, including a majority of the Independent Directors, then in office.
2.09. VOTING. Except as otherwise required by law or by the Charter, the
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act of a majority of Directors present at a meeting at which a quorum is present
shall constitute the act of the Board of Directors, except that no act relating
to any matter in which any Director (or affiliate of such Director) who is not
an Independent Director has any interest shall be the act of the Board unless a
majority of the Independent Directors on the Board vote for such act.
2.10. CONDUCT OF MEETINGS. All meetings of the Board of Directors shall
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be called to order and presided over by the Chairman of the Board (if any), or
in the absence of the Chairman of the Board by the President (if a member of the
Board of Directors), or, in the absence of the Chairman of the Board or the
President, by a member of the Board of Directors selected by the members
present. The Secretary of the Corporation shall act as secretary at all
meetings of the Board of Directors, and in the absence of the Secretary and
Assistant Secretaries, the presiding Officer of the meeting shall designate any
person to act as secretary of the meeting. Members of the Board of Directors
may participate in meetings of the Board of Directors by conference telephone or
similar communications equipment by means of which all Directors participating
in the meeting can hear each other at the same time, and
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participation in a meeting in accordance herewith shall constitute presence in
person at such meeting for all purposes.
2.11. RESIGNATIONS. Any Director may resign from the Board of Directors
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or any committee thereof at any time. Such resignation shall be made in writing
and shall take effect at the time specified herein, or if no time be specified,
at the time of the receipt of notice of such resignation by the President or the
Secretary.
2.12. VACANCIES. A vacancy which arises through the death, resignation or
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removal of a Director or as a result of an increase by the Board of Directors in
the number of Directors may be filled by a vote of the entire Board of
Directors, and a Director so elected by the Board of Directors to fill a vacancy
shall serve until the next annual meeting of Stockholders and until his
successor shall be duly elected and qualified. At the annual meeting of
Stockholders, a Director shall be elected to fill the vacancy for the remainder
of the present term of office of the class to which the Director is elected.
2.13. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to
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be taken at any meeting of the Board of Directors may be taken without a
meeting, if a consent in writing to such action is signed by all of the
Directors and such written consent is filed with the minutes of the Board of
Directors. Consents may be signed by different Directors on separate
counterparts.
2.14. COMPENSATION. An annual fee for services and payment for expenses
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of attendance at each meeting of the Board of Directors, or of any committee
thereof, may be allowed to any Director by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
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3.01. NUMBER, TENURE AND QUALIFICATION. The Board of Directors may
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appoint from among its members an Executive Committee and other committees,
composed of two or more Directors, to serve at the pleasure of the Board of
Directors. If any committee may take or authorize any act as to any matter in
which any Director (or affiliate of such Director) who is not an Independent
Director has or may have any interest, a majority of the members of such
committee shall be Independent Directors, except that any such committee
consisting of only two Directors may have one Independent Director and one
Director who is not an Independent Director.
3.02. DELEGATION OF POWER. The Board of Directors may delegate to these
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committees in the intervals between meetings of the Board of Directors any of
the powers of the Board of Directors to manage the business and affairs of the
Corporation, except those
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powers which the Board of Directors is specifically prohibited from delegating
pursuant to Section 2-411 of the Maryland General Corporation Law.
3.03. QUORUM AND VOTING. A majority of the members of any committee shall
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constitute a quorum for the transaction of business by such committee, and the
act of a majority of the quorum shall constitute the act of the committee,
except that no act relating to any matter in which any Director (or affiliate of
such Director) who is not an Independent Director has any interest shall be the
act of any committee unless a majority of the Independent Directors on the
committee vote for such act.
3.04. CONDUCT OF MEETINGS. Each committee shall designate a presiding
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Officer of such committee, and if not present at a particular meeting, the
committee shall select a presiding officer for such meeting. Members of any
committee may participate in meetings of such committee by conference telephone
or similar communications equipment by means of which all Directors
participating in the meeting can hear each other at the same time, and
participation in a meeting in accordance herewith shall constitute presence in
person at such meeting for all purposes. Each committee shall keep minutes of
its meetings, and report the results of any proceedings at the next succeeding
annual or regular meeting of the Board of Directors.
3.05. INFORMAL ACTION BY COMMITTEES. Any action required or permitted to
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be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of
proceedings of such committee. Consents may be signed by different members on
separate counterparts.
ARTICLE IV
OFFICERS
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4.01. ENUMUERATION. The Officers of the Corporation shall consist of a
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President, a Treasurer and a Secretary, and may also consist of a Chairman of
the Board, one or more Vice Presidents, Assistant Treasurers, Assistant
Secretaries and other Officers as the Board of Directors may from time to time
elect or appoint.
4.02. POWERS AND DUTIES. The President, Treasurer and Secretary of the
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Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of
Stockholders. If the election of such Officers shall not be held at such
meeting, such election shall be held as soon thereafter as may be convenient.
The Board of Directors may elect or appoint such other Officers as they
determine at any time. Each Officer shall hold office until his successor is
duly elected and qualifies or until his death, resignation or removal in the
manner hereinafter provided, or until
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the office to which he is elected (if other than that of President, Treasurer or
Secretary) is terminated by the Board of Directors. Any two or more offices
except President and Vice President may be held by the same person. Election or
appointment of an Officer or agent shall not of itself create contract rights
between the Corporation and such Officer or agent.
4.03. REMOVAL. Any Officer or agent elected or appointed by the Board of
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Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. The fact that a person is elected or appointed to an office, whether
or not for a specified term, shall not by itself constitute any undertaking or
evidence of any employment obligation of the Corporation to that person.
4.04. OUTSIDE ACTIVITIES. Any interest (including any interest as defined
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in Section 2-419(a) of the Maryland General Corporation Law as if the Officer or
agent were a Director of the Corporation) that an Officer or an agent has in any
investment opportunity presented to the Corporation must be disclosed by such
Officer or agent to the Board of Directors (and, if voting thereon, to the
Stockholders or to any committee of the Board of Directors) within ten (10) days
after the later of the date upon which such Officer or agent becomes aware of
such interest or that the Corporation is considering such investment
opportunity. If such interest comes to the attention of the interested Officer
or agent after a vote to take such investment opportunity, the voting body shall
reconsider such investment opportunity if not already consummated or
implemented.
4.05. VACANCIES. A vacancy in any office may be filled by the Board of
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Directors for the unexpired portion of the term.
4.06. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one is
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elected, shall preside at all meetings of the Stockholders and of the Board of
Directors. The Chairman of the Board may sign and execute all authorized deeds,
mortgages, bonds, contracts or other instruments in the name of the Corporation
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other Officer or agent of the
Corporation or shall be required by law to be otherwise signed or executed.
4.07. PRESIDENT. Unless the Board of Directors shall otherwise determine
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in favor of the Chairman of the Board or any other Officer of the Corporation,
the President shall be the Chief Executive Officer and general manager of the
Corporation and shall in general supervise and control all of the business and
affairs of the Corporation. In the absence of the Chairman of the Board (if
any), the President shall preside at all meetings of the Stockholders and of the
Board of Directors (if a member of the Board of Directors). The President may
sign any deed, mortgage, bond, contract or other instruments on behalf of the
Corporation except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other Officer or
agent of the Corporation or shall be
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required by law to be otherwise signed or executed. In general, the President
shall perform all duties incident to the office of President and such other
duties as may be prescribed by the Board of Directors from time to time.
4.08. VICE PRESIDENTS. In the absence of the President or in the event of
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a vacancy in such office, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated at the time of
their election, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President and when so acting shall
have all the powers of and be subject to all the restrictions upon the
President. Every Vice President shall perform such other duties as from time to
time may be assigned to him or her by the President or the Board of Directors.
4.09. SECRETARY. The Secretary shall (i) keep the minutes of the
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proceedings of the Stockholders and Board of Directors in one or more books
provided for that purpose; (ii) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (iii) be
custodian of the corporate records of the Corporation; (iv) unless a transfer
agent is appointed, keep a register of the post office address of each
Stockholder that shall be furnished to the Secretary by such Stockholder and
have general charge of the Stock Ledger of the Corporation; (v) when authorized
by the Board of Directors or the President, attest to or witness all documents
requiring the same; (vi) perform all duties as from time to time may be assigned
to him or her by the President or by the Board of Directors; and (vii) perform
all the duties generally incident to the office of secretary of a corporation.
4.10. TREASURER. The Treasurer shall have the custody of the corporate
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funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositaries 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, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at the regular meetings of the Board
of Directors or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation.
The Board of Directors may engage a Custodian to perform some or all of the
duties of the Treasurer, and if a Custodian is so engaged then the Treasurer
shall be relieved of the responsibilities set forth herein to the extent
delegated to such Custodian and, unless the Board of Directors otherwise
determines, shall have general supervision over the activities of such
Custodian. The Custodian shall not be an Officer of the Corporation.
4.11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
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Secretaries and Assistant Treasurers (if any) (i) shall have the power to
perform and shall perform all the duties of the Secretary and the Treasurer,
respectively, in such respective Officer's absence and (ii) shall perform such
duties as shall be assigned to him or her by the Secretary or Treasurer,
respectively, or by the President or the Board of Directors.
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4.12. SALARIES. The salaries, if any, of the Officers shall be fixed from
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time to time by the Board of Directors. No Officer shall be prevented from
receiving such salary, if any, by reason of the fact that he or she is also a
Director of the Corporation.
ARTICLE V
SHARES OF STOCK
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5.01. CERTIFICATES OF STOCK. Each Stockholder shall be entitled to a
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certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman, President, or any Vice President and countersigned by
the Treasurer, Secretary, or any Assistant Treasurer or Assistant Secretary.
The Corporation seal and the signatures by Corporation officers may be facsimile
if the certificate is manually countersigned by an authorized person on behalf
of a transfer agent or registrar other than the Corporation or its employee. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the time of its issue. Every certificate for
shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
5.02. STOCK LEDGER. The Corporation shall maintain at its principal
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office in Ft. Smith, Arkansas (or any subsequent address selected by the Board
of Directors) or at the office of its counsel, accountants or transfer agent, an
original or duplicate Stock Ledger containing the names and addresses of all the
Stockholders and the number of shares of each class held by each Stockholder.
The Stock Ledger shall be maintained pursuant to a system that the Corporation
shall adopt allowing for the issuance, recordation and transfer of its Stock by
electronic or other means that can be readily converted into written form for
visual inspection. Such system shall include provisions for notice to acquirers
of Stock (whether upon issuance or transfer of Stock) in accordance with
Sections 2-210 and 2-211 of the Maryland General Corporation Law, and Section 8-
408 of the Commercial Law Article of the State of Maryland. The Corporation
shall be entitled to treat the holder of record of any Share or Shares as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Maryland. Until a transfer is
duly effected on the Stock Ledger, the Corporation shall not be affected by any
notice of such transfer, either actual or constructive. Nothing herein shall
impose upon the Corporation, the Board of Directors or Officers or their agents
and representatives a duty or limit their rights to inquire as to the actual
ownership of Shares.
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5.03. RECORDING TRANSFERS OF STOCK. If transferred in accordance with any
----------------------------
restrictions on transfer contained in the Charter, these Bylaws or otherwise,
Shares shall be recorded as transferred in the Stock Ledger upon provision to
the Corporation or the transfer agent of the Corporation of an executed stock
power duly guaranteed and any other documents reasonably requested by the
Corporation, and the surrender of the certificate or certificates, if any,
representing such Shares. Upon receipt of such documents, the Corporation shall
issue the statements required by Sections 2-210 and 2-211 of the Maryland
General Corporation Law and Section 8-408 of the Commercial Law Article of the
State of Maryland, issue as needed a new certificate or certificates (if the
transferred Shares were certificated) to the persons entitled thereto, cancel
any old certificates and record the transaction upon its books.
5.04. LOST CERTIFICATE. The Board of Directors may direct a new
----------------
certificate to be issued in the place of any certificate theretofore issued by
the Corporation alleged to have been stolen, lost or destroyed upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be stolen, lost or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such stolen, lost or destroyed
certificate or his legal representative to advertise the same in such manner as
it shall require and/or to give bond, with sufficient surety, to the Corporation
to indemnify it against any loss or claim which may arise by reason of the
issuance of a new certificate.
5.05. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
--------------------------------------------------
5.5.1. The Board of Directors may fix, in advance, a date as the
record date for the purpose of determining Stockholders entitled to notice of,
or to vote at, any meeting of Stockholders, or Stockholders entitled to receive
payment of any dividend or the allotment of any rights, or in order to make a
determination of Stockholders for any other proper purpose. Such date, in any
case, shall be not more than sixty (60) days, and in case of a meeting of
Stockholders not less than ten (10) days, prior to the date on which the meeting
or particular action requiring such determination of Stockholders is to be held
or taken.
5.5.2. If, in lieu of fixing a record date, the stock transfer books
are closed by the Board of Directors in accordance with Section 2-511 of the
Maryland General Corporation Law for the purpose of determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders, such books shall
be closed for at least ten (10) days immediately preceding such meeting.
5.5.3. If no record date is fixed and the stock transfer books are
not closed for the determination of Stockholders, (a) the record date for the
determination of Stockholders entitled to notice of, or to vote at, a meeting of
Stockholders shall be at the close of business on the day on which the notice of
meeting is mailed or the 30th day before the meeting, whichever is the closer
date to the meeting; and (b) the record date for the determination of
Stockholders entitled to receive payment of a dividend or an allotment of and
rights shall be at
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the close of business on the day on which the resolution of the Board of
Directors, declaring the dividend or allotment of rights, is adopted.
5.5.4. When a determination of Stockholders entitled to vote at any
meeting of Stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the stock transfer books and
the stated period of closing has expired.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
---------------------------
6.01. DECLARATION. Dividends and other distributions upon the Stock may
-----------
be declared by the Board of Directors as set forth in the applicable provisions
of the Charter and any applicable law, limited only to the extent of Section 2-
311 of the Maryland General Corporation Law. Dividends and other distributions
upon the Stock may be paid in cash, property or Stock of the Corporation,
subject to the provisions of law and of the Charter.
6.02. CONTINGENCIES. Before payment of any dividends or other
-------------
distributions upon the Stock, there may be set aside (but there is no duty to
set aside) out of any funds of the Corporation available for dividends or other
distributions such sum or sums as the Board of Directors may from time to time,
in its absolute discretion, think proper as a reserve fund to meet
contingencies, for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors shall determine to be in the
best interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE VII
INDEMNIFICATION
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7.01 INDEMNIFICATION OF OFFICERS. Unless the Directors otherwise
---------------------------
determine prospectively in the case of any one or more specified officers, all
persons elected or appointed by the Directors as an officer of the Corporation
shall be entitled to indemnification by the Corporation on account of matters
resulting in their capacity as an officer to the same extent provided with
respect to Directors by the Charter.
7.02. INSURANCE. The Corporation shall have power to purchase and
---------
maintain insurance on behalf of any person entitled to indemnification or whom
the Corporation may indemnify under ARTICLE TWELFTH of the Charter or under
Maryland law against any liability, whether or not the Corporation would have
the power to indemnify him or her
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against such liability. The rights to indemnification set forth in the Charter
or in the Bylaws are in addition to all rights which any Indemnified Person may
be entitled as a matter of law, and shall inure to the benefit of the heirs and
personal representatives of each Indemnified Person.
ARTICLE VIII
NOTICES
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8.01. NOTICES. Whenever notice is required to be given pursuant to these
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Bylaws, it shall be construed to mean either written notice personally served
against written receipt, or notice in writing transmitted by mail, by depositing
the same in a post office or letter box, in a post-paid sealed wrapper,
addressed, if to the Corporation, at the principal office of the Corporation,
3820 Free Ferry Road, Ft. Smith, Arkansas 72903 (or any subsequent address
selected by the Board of Directors notice of which is given to the
Stockholders), attention President, or if to a Stockholder, Director or Officer,
at the address of such person as it appears on the books of the Corporation or
in default of any other address at the general post office situated in the city
or county of his or her residence. Unless otherwise specified, notice sent by
mail shall be deemed to be given at the time the same shall be thus mailed.
8.02. SECRETARY TO GIVE NOTICE. All notices required by law or these
------------------------
Bylaws to be given by the Corporation shall be given by the Secretary of the
Corporation. If the Secretary and Assistant Secretary are absent or refuse or
neglect to act, the notice may be given by any person directed to do so by the
President or, with respect to any meeting called pursuant to these Bylaws upon
the request of any Stockholders or Directors, by any person directed to do so by
the Stockholders or Directors upon whose request the meeting is called.
8.03. WAIVER OF NOTICE. Whenever any notice is required to be given
----------------
pursuant to the Charter or Bylaws of the Corporation or pursuant to applicable
law, a waiver thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Such waiver shall be filed with the
records of the meeting. Neither the business to be transacted at nor the
purpose of any meeting need be set forth in the waiver of notice, unless
specifically required by statute. The attendance of any person at any meeting
shall constitute a waiver of notice of such meeting, except where such person
attends a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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ARTICLE IX
MISCELLANEOUS
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9.01. BOOKS AND RECORDS. The Corporation shall keep correct and complete
-----------------
books and records of its accounts and transactions and minutes of the
proceedings of its Stockholders and Board of Directors and of executive or other
committee when exercising any of the powers or authority of the Board of
Directors. The books and records of the Corporation may be in written form or
in any other form that be converted within a reasonable time into written form
for visual inspection. Minutes shall be recorded in written form, but may be
maintained in the form of a reproduction.
9.02. INSPECTION OF BYLAWS AND CORPORATE RECORDS. These Bylaws, the
------------------------------------------
accounting books and records, including the stock register, of the Corporation,
the minutes of proceedings of the Stockholders, the Board of Directors and
committees thereof, annual statements of affairs and any Shareholders' or voting
trust agreements on record shall be open to inspection upon the written demand
on the Corporation by any Stockholder or holder of a voting trust certificate at
any reasonable time during usual business hours, for a purpose reasonably
related to such holder's interests as a Stockholder or as the holder of such
voting trust certificate, in each case to the extent permitted by the Maryland
General Corporation Law.
9.03. CONTRACTS. In addition to the provisions of these Bylaws relating
---------
to the authority of any specified Officer, the Board of Directors may authorize
any Officer or Officers, agent or agents, to enter into any contract or to
execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
9.04. CHECKS, DRAFTS, ETC. 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 Officers or agents of the Corporation
and in such manner as shall from time to time be determined by resolution of the
Board of Directors.
9.05. DEPOSITS. All funds of the Corporation not otherwise employed shall
--------
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositaries as the Board of Directors may select.
9.06. LOANS.
-----
9.6.1. Such Officers or agents of the Corporation as from time to
time have been designated by the Board of Directors shall have authority (i) to
effect loans, advances, or other forms of credit at any time or times for the
Corporation, from such banks, trust companies, institutions, corporations,
firms, or persons, in such amounts and subject to such
15
terms and conditions, as the Board of Directors from time to time has
designated; and (ii) as security for the repayment of any loans, advances, or
other forms of credit so authorized, to assign, transfer, endorse, and deliver,
either originally or in addition or substitution, any or all personal property,
real property, stocks, bonds, deposits, accounts, documents, bills, accounts
receivable, and other commercial paper and evidences of debt or other
securities, or any rights or interests at any time held by the Corporation; and
(iii) in connection with any loans, advances, or other forms of credit so
authorized, to make, execute, and deliver one or more notes, mortgages, deeds of
trust, financing statements, security agreements, acceptances, or written
obligations of the Corporation, on such terms and with such provisions as to the
security or sale or disposition of them as those Officers or agents deem proper;
and (iv) to sell to, or discount or rediscount with, the banks, trust companies,
institutions, corporations, firms or persons making those loans, advances, or
other forms of credit, any and all commercial paper, bills, accounts receivable,
acceptances, and other instruments and evidences of debt at any time held by the
Corporation, and, to that end, to endorse, transfer, and deliver the same.
9.6.2. From time to time the Corporation shall certify to each bank,
trust company, institution, corporation, firm, or person so designated, the
signatures of the Officers or agents so authorized. Each bank, trust company,
institution, corporation, firm, or person so designated is authorized to rely
upon such certification until it has received written notice that the Board of
Directors has revoked the authority of those Officers or agents.
9.07. FISCAL YEAR. The Board of Directors shall have the power, from time
-----------
to time, to fix the fiscal year of the Corporation by a duly adopted resolution,
and, in the absence of such resolution, the fiscal year shall be the period
ending December 31.
9.08. REPORTS AND OTHER INFORMATION.
-----------------------------
9.8.1. Not later than 120 days after the close of each fiscal year,
the Board of Directors of the Corporation shall cause to be sent to the
Stockholders an Annual Report in such form as may be deemed appropriate by the
Board of Directors. The Annual Report shall include audited financial
statements and shall be accompanied by the report thereon of an independent
certified public accountant. The Board of Directors of the Corporation shall
also cause to be sent to the Stockholders such other information as may be
necessary to enable the Stockholders to prepare their respective state and
federal income tax returns.
9.8.2. The Corporation may send interim reports to the Stockholders
having such form and content as the Board of Directors deem proper or as the
Officers of the Corporation in good faith deem is required by law or by good
corporate practices.
9.8.3. Any distributions to Stockholders of income, capital gains or
a return of capital assets shall be accompanied by a written statement
disclosing the source of the funds distributed unless at the time of
distribution they are accompanied by a written explanation of the relevant
circumstances. The statement as to such source shall be sent to the Stockholders
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not later than sixty (60) days after the close of the fiscal year in which the
distributions were made.
9.09. BYLAWS SEVERABLE. The provisions of these Bylaws are severable, and
----------------
if any provision shall be held invalid or unenforceable, that invalidity or
unenforceability shall attach only to that provision and shall not in any manner
affect or render invalid or unenforceable any other provision of these Bylaws,
and these Bylaws shall be carried out as if the invalid or unenforceable
provision were not contained herein.
ARTICLE X
AMENDMENT OF BYLAWS
--------------------
10.1. BY DIRECTORS. To the fullest extent permitted by the Maryland
------------
General Corporation Law the Board of Directors shall have the power, at any
annual or regular meeting, or at any special meeting if notice thereof be
included in the notice of such special meeting, to alter or repeal any Bylaws of
the Corporation and to make new Bylaws.
10.2. BY STOCKHOLDERS. The Stockholders shall have the power, at any
---------------
annual meeting, or at any special meeting if notice thereof be included in the
notice of such special meeting, with the approval of Stockholders holding in
excess of 66 2/3% of all outstanding Shares of Stock to alter or repeal any
Bylaws of the Corporation and to make new Bylaws.
10.3. EXCEPTION FOR INDEMNIFICATION. No amendment or repeal of any
-----------------------------
Charter provision, Bylaw provision or provision of any resolution of the Board
of Directors or other contractual obligation of the Corporation affording
indemnification by the Corporation to any person shall be effective so as to
deprive such person from the right to indemnification on account of all matters
occurring or arising prior to such amendment or repeal without the consent of
such indemnified person.
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