Attached files
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| 8-K - FORM 8-K FOR COMMUNITY BANCORP. - COMMUNITY BANCORP /VT | form8kcmtvbylawchanges202.htm |
Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
COMMUNITY BANCORP.
A
Vermont Corporation
(Amended
and Restated through July 15, 2020)
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TABLE OF CONTENTS
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Page
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ARTICLE
ONE: OFFICES
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1
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1.01
Registered Office and Agent.
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1
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1.02
Other Offices.
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1
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ARTICLE
TWO: SHAREHOLDERS
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1
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2.01
Classes of Shares.
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1
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2.02
Annual Meetings.
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1
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2.03
Special Meetings.
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1
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2.04
Place and Manner of Holding Meetings.
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1
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2.05
Notice.
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2
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2.06
Voting List for Meeting.
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2
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2.07
Voting of Shares Held by Corporation.
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2
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2.08
Quorum.
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2
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2.09
Required Vote; Withdrawal of Quorum.
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3
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2.10
Method of Voting; Proxies.
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3
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2.11
Acceptance of Votes.
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3
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2.12
Record Date.
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4
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2.13
Nominations and Other Business.
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4
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2.14
Conduct of Meetings.
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6
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ARTICLE
THREE: DIRECTORS
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6
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3.01
Management.
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6
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3.02
Number; Election; Term; Qualification.
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6
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3.03
Classification.
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7
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3.04
Vacancies.
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7
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3.05
Removal.
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7
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3.06
Inconsistency
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7
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3.07
Age and Other Qualifications.
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7
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3.08
Nominations.
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7
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3.09
Annual Meeting.
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7
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3.10
Regular Meetings.
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7
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3.11
Special Meetings.
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8
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3.12
Quorum; Majority Vote.
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8
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3.13
Procedure; Minutes.
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8
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3.14
Presumption of Assent.
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8
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3.15
Compensation.
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8
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ARTICLE
FOUR: COMMITTEES
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8
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4.01
Audit Committee.
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8
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4.02
Compensation Committee.
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9
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4.03
Nominating/Corporate Governance Committee.
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9
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4.04
Independent Directors.
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9
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4.05
Other Committees.
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9
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4.06
Number; Qualification; Term.
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9
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4.07
Limitation on Authority.
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9
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4.08
Committee Changes.
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10
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4.09
Meetings.
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10
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4.10
Quorum; Majority Vote.
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10
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4.11
Minutes.
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10
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4.12
Compensation.
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10
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4.13
Responsibility.
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10
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ARTICLE
FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
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10
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5.01
Manner of Giving Notice.
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10
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5.02
Waiver of Notice.
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11
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5.03
Householding of Notices; E-Proxy.
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11
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5.04
Bulk Mail.
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11
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5.05
Shareholders Without Forwarding Addresses.
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11
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5.06
Telephone and Similar Meetings.
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11
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5.07
Action Without Meeting.
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11
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ARTICLE
SIX: OFFICERS
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11
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6.01
Number; Titles; Election; Term.
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11
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6.02
Removal.
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12
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6.03
Vacancies.
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12
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6.04
Authority.
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12
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6.05
Compensation.
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12
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6.06
Chair of the Board.
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12
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6.07
Chief Executive Officer
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12
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6.08
President.
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12
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6.09
Chief Operating Officer
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12
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6.10
Vice President.
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13
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6.11
Treasurer.
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13
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6.12
Secretary.
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13
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6.13
Assistant Officers.
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13
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ARTICLE
SEVEN: CERTIFICATES AND SHAREHOLDERS
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13
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7.01
Certificates for Shares.
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13
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7.02
Issuance.
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13
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7.03
Shares Without Certificates.
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13
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7.04
Consideration for Shares.
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14
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7.05
Lost, Stolen, or Destroyed Certificates.
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14
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7.06
Transfer Agent; Transfer of Shares.
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14
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7.07
Registered Shareholders.
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15
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ARTICLE
EIGHT: INDEMNIFICATION
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15
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8.01
Definitions.
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15
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8.02
Authority to Indemnify.
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15
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8.03
Mandatory Indemnification in Certain Circumstances.
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16
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8.04
Advance for Expenses.
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16
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8.05
Court Ordered Indemnification.
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16
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8.06
Determination and Authorization of Indemnification.
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17
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8.07
Indemnification of Officers, Employees and Agents.
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17
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8.08
Insurance.
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18
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8.09
Contract Right.
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18
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8.10
Enforcement of Rights.
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18
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8.11
Non-Exclusive Rights; Survival.
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18
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8.12
Severability.
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18
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8.13
Application of this Article.
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19
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ARTICLE
NINE: EMERGENCY PREPAREDNESS
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19
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9.01
Emergency.
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19
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ARTICLE
TEN: MISCELLANEOUS PROVISIONS
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19
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10.01
Distributions.
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19
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10.02
Reserves.
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19
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10.03
Books and Records.
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20
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10.04
Fiscal Year.
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20
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10.05
Seal.
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20
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10.06
Resignation.
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20
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10.07
Securities of Other Corporations.
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20
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10.08
Electronic Signatures.
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20
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10.09
Amendment.
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20
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10.10
Invalid Provisions.
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20
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10.11
Headings; Interpretation.
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20
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ii
AMENDED AND RESTATED
BYLAWS
OF
COMMUNITY BANCORP.
ARTICLE ONE: OFFICES
1.01 Registered Office and Agent. The registered office and
registered agent of Community Bancorp. (the "Corporation") shall be as designated
from time to time by the appropriate filing by the Corporation in
the office of the Secretary of State of Vermont.
1.02 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Vermont, as
the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE TWO: SHAREHOLDERS
2.01 Classes of Shares. The Company has two
classes of outstanding shares, common and preferred, as authorized
by Article Five of the Corporation’s Amended and Restated
Articles of Association (the “Articles of
Association”). The preferred shares are
issuable in one or more series and have such limited voting rights
as the Board of Directors (the “Board”) may determine upon
issuance and as may be specified in the applicable Certificate of
Creation, filed with the Articles of Association in the Office of
the Vermont Secretary of State. The provisions of this
Article shall pertain to the holders of each class or series of
outstanding shares who have the right to vote as a voting group on
any item presented at an annual or special meeting of shareholders,
as the context may require.
2.02 Annual Meetings. The regular annual meeting of
shareholders of the Corporation shall be held on the third Tuesday
of May of each year, at such time and place as shall be designated
by the Board of Directors; provided, however, that the Board may
in its discretion designate a different date for the annual
meeting. At such meeting, the shareholders shall elect directors
and transact such other business as may properly be brought before
the meeting.
2.03 Special Meetings. A special meeting of the shareholders
may be called at any time by the Chair, or by the Board of
Directors, or by the Secretary upon the petition of the holders of
not less than ten percent of the shares of a voting group entitled
to vote on any issue at such meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in
the notice of such meeting. At any special meeting the only matters
that may be considered for action by the shareholders are those
proposed by the Board or by the shareholders who have requested the
meeting and referred to in the notice of meeting. Any
proposal made by shareholders for action at a special meeting,
including election of directors, shall comply with the requirements
of Section 2.13 of these Bylaws.
2.04 Place and Manner of Holding Meetings.
(a)
In-Person Meetings. The annual meeting
of shareholders may be held at any place within or without the
State of Vermont as may be designated by the Board of Directors.
Special meetings of shareholders may be held at any place within
the State of Vermont as may be designated by the Board of Directors
in the notice of meeting. If no place for a meeting is designated,
it shall be held at the registered office of the
Corporation.
1
(b)
Virtual and Hybrid
Meetings. Notwithstanding
anything to the contrary in these Bylaws, the Board of Directors
may by resolution provide that any annual or special meeting of
shareholders shall be held by means of structured electronic
communications, either (i) entirely in such virtual electronic
format, or (ii) partially in-person and partially by means of
structured electronic communications, with shareholders given the
opportunity to attend the meeting in person or to participate by
means of electronic communications. Any electronic
communications medium used for such purpose must permit the
participants to communicate at the meeting in a structured fashion,
either simultaneously or sequentially, for the purpose of reaching
collective agreement or action.
2.05 Notice. Written notice in accordance with Section 5.01
of these Bylaws stating the place, day, and hour of each meeting of
shareholders, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not
less than ten nor more than 60 days before the date of the meeting,
by or at the direction of the Board of Directors, the Chair, the
Secretary, or the persons calling the meeting, to each shareholder
of record entitled to vote at such meeting.
2.06 Voting List for Meeting. In accordance with 11A VSA
§ 7.20, beginning two business days after the notice of
meeting is given, and continuing through the meeting, the Secretary
shall make available for inspection by any shareholder a complete
list of shareholders entitled to notice of and to vote at such
meeting, arranged in alphabetical order and by voting group (if
applicable), including the address of each shareholder and the
number of voting shares held by each shareholder. Such list shall
be kept on file during the time specified at the principal office
of the Corporation or at a place identified in the notice in the
city or town in which the meeting is to be held. The list shall be
subject to inspection during usual business hours, and upon written
demand, by any shareholder of record entitled to vote at that
meeting, or his or her agent or attorney. Subject to compliance
with 11A VSA § 16.02(c), a shareholder or his or her agent or
attorney shall be entitled to copy the list at his or her own
expense. Such list shall be produced at such meeting, and at all
times during such meeting shall be subject to inspection by any
shareholder of record entitled to vote at that meeting, or his or
her agent or attorney. The Corporation’s stock transfer
records, which may be maintained by a third party stock transfer
agent, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or stock transfer books.
2.07 Voting of Shares Held by Corporation. Treasury shares,
and shares of the Corporation's own stock owned, directly or
indirectly by another corporation (other than shares held in a
fiduciary capacity) the majority of the voting stock of which is
owned or controlled by the Corporation, shall not be shares
entitled to vote or to be counted in determining (a) the total
number of outstanding shares, (b) the number of shares constituting
a quorum, or (c) the number of shares required to elect a director
or to approve any other action.
2.08 Quorum. The holders of a majority of the outstanding
shares of a voting group entitled to vote on a matter, present in
person or represented by proxy, shall constitute a quorum for
action on that matter by such voting group at any meeting of
shareholders, except as otherwise provided by law or the Articles
of Association. If a quorum shall not be present or represented at
any meeting of shareholders, a majority of the shareholders who are
present in person or represented by proxy and who are entitled to
vote as a voting group on any issue at the meeting, may adjourn the
meeting from time to time, until a quorum shall be present or
represented. Notice of the new date, time and place of the
adjourned meeting shall not be required to be given, if announced
at the meeting prior to adjournment, unless a new record date must
be established for the adjourned meeting, in accordance with
Section 2.12 of these Bylaws. At any reconvening of an adjourned
meeting any business as to which a quorum of a voting group is
present or represented by proxy may be transacted by such voting
group which could have been transacted at the original meeting, had
a quorum been present or represented.
2
2.09 Required Vote; Withdrawal of Quorum. Except as
otherwise provided by law or the Articles of Association, if a
quorum of a voting group with respect to a matter is present in
person or represented by proxy at any meeting, the action on such
matter will be approved by such voting group if the number of votes
cast in favor of the matter exceeds the number of votes cast
opposing the matter. The shareholders of a voting group present at
a duly convened meeting may continue to transact business until
adjournment, notwithstanding any withdrawal of shareholders which
may leave less than a quorum remaining.
2.10 Method of Voting; Proxies. Every shareholder of record
shall be entitled at every meeting of shareholders to one vote on
each matter submitted to a vote, for every share standing in his
name in the Corporation’s stock transfer records, except to
the extent that the voting rights of the shares of any class or
series of shares are limited or denied by the Articles of
Association (including any Certificate of Creation with respect to
preferred shares) or by law. Such stock transfer records shall be
prima facie evidence as to the identity of shareholders entitled to
vote. At any meeting of shareholders, every shareholder having the
right to vote may vote either in person or by a proxy executed in
writing by the shareholder or by his duly authorized
attorney-in-fact. Proxies shall be in such form, and
delivered by such method or methods, as the Board may approve from
time to time, including by telephone; facsimile or electronic
transmission. Each such proxy shall be filed with the Secretary of
the Corporation or other officer or agent authorized to tabulate
votes, before or at the time of the meeting and shall become
effective upon such filing. No proxy shall be valid after 11 months
from the date of its execution, unless otherwise expressly provided
in the proxy. If no date is stated on a proxy, such proxy shall be
presumed to have been executed on the date of the meeting at which
it is to be voted. Each proxy shall be revocable unless expressly
and conspicuously provided therein to be irrevocable and the
appointment as proxy is coupled with an interest, or unless
otherwise made irrevocable by law.
2.11 Acceptance of Votes. If the name signed on a vote,
consent, waiver, or proxy appointment (including one submitted by
facsimile or electronic transmission) corresponds to the name of a
shareholder, the Corporation if acting in good faith, shall be
entitled to accept the vote, consent, waiver, or proxy appointment
and give it effect as the act of the shareholder. If the name
signed on a vote, consent, waiver, or proxy appointment does not
correspond to the name of its shareholder, the Corporation, if
acting in good faith, shall nevertheless be entitled to accept the
vote, consent, waiver, or proxy appointment and give it effect as
the act of the shareholder if:
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(1)
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the
shareholder is an entity and the name signed purports to be that of
an officer or agent of the entity;
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(2)
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the
name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the
Corporation requests, evidence of fiduciary status acceptable to
the Corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment;
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(3)
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the
name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
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(4)
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the
name signed purports to be that of a pledgee, beneficial owner, or
attorney-in-fact of the shareholder and, if the Corporation
requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the shareholder has been presented with
respect to the vote, consent, waiver, or proxy appointment;
or
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(5)
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two or
more persons are the shareholder as co-tenants or fiduciaries and
the name signed purports to be the name of at least one of the
co-owners and the person signing appears to be acting on behalf of
all the co-owners.
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3
The
Corporation shall be entitled to reject a vote, consent, waiver, or
proxy appointment if the Secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about (a) the validity of the signature on it, or
(b) the signatory's authority to sign for the shareholder, or (c)
if applicable, the electronic transmission by which the proxy
appointment or the vote, consent or waiver was made. The
Corporation and its officer or agent who accepts or rejects a vote,
consent, waiver, or proxy appointment in good faith and in
accordance with the standards of this section are not liable in
damages to the shareholder for the consequences of the acceptance
or rejection. Corporate action based on the acceptance or rejection
of a vote, consent, waiver, or proxy appointment under this section
is valid unless a court of competent jurisdiction determines
otherwise.
2.12 Record Date. The Board of Directors may fix in advance
a date as the record date for the purpose of determining voting
groups and shareholders entitled to notice of or to vote at any
meeting of shareholders or any reconvening thereof or entitled to
receive payment of any dividend or in order to make a determination
of shareholders for any other proper purpose. Such record date
shall not be more than 70 days prior to the date on which the
particular action requiring such determination of shareholders is
to be taken. When a determination of shareholders entitled to vote
at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof
unless the Board of Directors fixes a new record date. The Board of
Directors shall fix a new record date if the meeting is adjourned
to a date more than 120 days after the date fixed for the original
meeting.
2.13 Nominations and Other Business. Nominations for the
election of Directors and other proposals for action at an annual
or special meeting of shareholders may be made only (a) pursuant to
the Corporation's notice of such meeting, (b) by the presiding
officer at the meeting, (c) by or at the direction of a majority of
the Board of Directors, or (d) by one or more shareholders, in
compliance with the provisions of this Section 2.13. In addition,
if a shareholder seeks to include his proposal for action in the
Corporation’s proxy materials for the meeting, the
shareholder must also comply with Securities and Exchange
Commission (“SEC”) Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”). Notwithstanding anything herein to
the contrary, a proposal by a shareholder for action at a meeting
of shareholders may only be presented if it is a proper matter for
shareholder action.
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(a)
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Time for Submission. A nomination for the election of a
Director or a proposal for action at an annual or special meeting
of shareholders may be made by a shareholder only if a written
notice of such nomination or proposal that complies in all respects
with this Section 2.13 has been received by the Secretary at the
Corporation's principal office on a timely basis. To be timely,
such notice must be received by the Corporation at its principal
office:
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In the case of an annual meeting,
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(1)
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No
earlier than 180 days, and no later than 120 days, prior to the
third Tuesday in May; or
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(2)
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If the
annual meeting is to be held on a date that is more than 30 days
before or after the third Tuesday in May, no later than the close
of business on the tenth day following the first public disclosure
of the date of such meeting. The first public disclosure of the
date of any annual meeting of shareholders shall be when public
disclosure of such meeting date is first made (i) in a filing by
the Corporation with the SEC, (ii) in any notice given to The
NASDAQ Stock Market, or other securities self-regulatory
organization, or (iii) in a news release reported by any national
news service.
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4
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In the case of a special meeting,
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No
later than the close of business on the tenth day after the earlier
of (i) the date the Corporation shall have mailed notice of such
special meeting to its shareholders, or (ii) the date of the first
public disclosure of the date of the special meeting made (i) in a
filing by the Corporation with the SEC, (ii) in any notice given to
the NASDAQ Stock Market, or other securities self-regulatory
organization, or (iii) in a news release reported by any national
news service.
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(b)
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Information Required - General. Each such notice from a
shareholder shall set forth:
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(1)
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the
name and address, as they appear on the Corporation’s stock
transfer records, of the shareholder proposing such business or
nominations and any Shareholder Associated Person (as defined in
subsection (e));
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(2)
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(i) the
class and series and number of shares of the Corporation which are
held of record or are beneficially owned by such shareholder and by
any Shareholder Associated Person with respect to the
Corporation’s securities and (ii) any derivative positions
held or beneficially held by the shareholder and any Shareholder
Associated Person and whether and the extent to which any hedging
or other transaction or series of transactions has been entered
into by or on behalf of, or any other agreement, arrangement or
understanding has been made, the effect or intent of which is to
increase or decrease the voting power of, such shareholder or any
Shareholder Associated Person with respect to the
Corporation’s securities;
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(3)
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any
material interest of the shareholder or any Shareholder Associated
Person in such business or nomination(s); and
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(4)
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a
representation that the shareholder intends to be present at the
meeting in person or by proxy to make such nomination(s) or
proposal.
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(c)
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Information Required - Nominations. Each notice of
nomination for the election of a Director from a shareholder also
shall set forth:
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(1)
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The
name and address of the person to be nominated;
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(2)
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A
description of all arrangements or understandings between the
shareholder and the nominee and any Shareholder Associated Person
(as defined herein), or any other person or persons (naming such
person or persons) pursuant to which the nomination is to be made
by the shareholder;
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(3)
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A
statement confirming that the nominee meets the age qualification
requirement in Section 3.07 of these Bylaws;
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(4)
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Such
other information regarding the nominee as would be required to be
included in proxy materials filed under applicable rules of the
Securities and Exchange Commission had the nominee been nominated
by the Board of Directors; and
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(5)
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The
written consent of the nominee to serve as a Director if properly
nominated and elected.
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5
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(d)
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Information Required - Other Business. Each notice of a
proposal for action at an annual meeting from a shareholder also
shall set forth:
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(1)
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A brief
description of the proposal;
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(2)
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The
reasons for making such proposal; and
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(3)
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Any
direct or indirect interest of the shareholder or any Shareholder
Associated Person in making such proposal.
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(e)
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Shareholder Associated Person. For purposes of
this Section 2.13, a “Shareholder Associated Person” of
any shareholder means (A) any person controlling, directly or
indirectly, or acting in concert with, such shareholder, (B) any
beneficial owner of shares of stock of the Corporation owned of
record or beneficially by such shareholder and (C) any person
controlling, controlled by or under common control with such
Shareholder Associated Person.
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(f)
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Compliance Mandatory. The presiding officer at the meeting
may refuse to permit any nomination for the election of a Director
or proposal to be made at an annual or special meeting by a
shareholder who has not complied with all of the foregoing
procedures and requirements.
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(g)
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Interpretation of Provision. Notwithstanding
anything herein to the contrary, this provision shall be deemed to
apply to all shareholder nominations for Director and proposals for
other business, whether or not such shareholder seeks to include
such matter in any proxy materials of the Corporation for such
meeting.
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2.14 Conduct of Meetings. Unless a different person is
elected by a vote of a majority of the shares then entitled to vote
at a meeting of shareholders, or is designated by the Board of
Directors, the Chair shall preside at meetings of the shareholders.
The Board may adopt by resolution such rules and regulations for
the conduct of meetings of shareholders, including virtual and
hybrid shareholder meetings, as it shall deem appropriate. Except
to the extent inconsistent with any such rules and regulations
adopted by the Board, the Chair of any meeting of shareholders
shall have the right and authority to convene and adjourn the
meeting, prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of such person, are necessary,
appropriate or convenient for the proper conduct of the
meeting.
ARTICLE THREE: DIRECTORS
3.01 Management. The business and affairs of the Corporation
shall be managed by the Board of Directors, subject to the
restrictions imposed by law, the Articles of Association, or these
Bylaws.
3.02 Number; Election; Term; Qualification. The Board of
Directors shall consist of not less than 9 nor more than 25
shareholders, the exact number and the terms of office of which
shall be fixed from time to time by the Board of Directors pursuant
to a resolution adopted by a majority of the full Board of
Directors. Such exact number may be increased or decreased by the
affirmative vote of the holders of at least seventy-five percent
(75%) of the combined voting power of all of the then-outstanding
shares of the Corporation's capital stock entitled to vote
generally in the election of directors. Election of directors shall
be by vote of a majority of the shares represented in person or by
proxy at a meeting at which a quorum is present.
6
3.03 Classification. The directors shall be classified, with
respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible. Upon their
initial election, the members of the first class shall hold office
for a term expiring at the next annual meeting of the shareholders
after their election, the members of the second class shall hold
office for a term expiring at the second annual meeting of the
shareholders after their election, and the members of the third
class shall hold office for a term expiring at the third annual
meeting of shareholders after their election. At each annual
meeting of shareholders following such initial classification and
election, directors elected to succeed those directors whose terms
expire shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their
election.
3.04 Vacancies. Subject to Section 3.06, any
vacancies in the Board of Directors resulting from death,
resignation, retirement, or removal from office of a director may
be filled by the Board of Directors, acting by resolution of a
majority of the directors then in office (other than directors, if
any, elected under Article Fifteen* of the Articles of Association),
although less than a quorum. Any director chosen to fill a vacancy
as provided herein shall hold office until the next election of the
class for which such director shall have been elected and shall
have qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
3.05 Removal. Any director, or the entire Board of
Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least
seventy-five percent (75%) of the combined voting power of all of
the then-outstanding shares of the Corporation's capital stock
entitled to vote generally in the election of
directors.
3.06 Inconsistency. Nothing contained in Sections
3.02 through 3.06 of this Article Three shall be deemed to alter,
amend or repeal any of the provisions of Article
Fifteen*
of the Articles of Association, which confers, under circumstances
described therein, on the holders of the debentures referred to
therein, the right to elect directors in certain
circumstances. During any period in which such rights
may be exercised, the provision or provisions conferring such
rights shall prevail over any provision of these Bylaws
inconsistent therewith.
3.07 Age and Other Qualifications.
No individual may be elected,
re-elected or appointed to a term of office as a Director following
his or her seventy-eighth birthday. Any Director who passes the age
of 78 following election, re-election or appointment to the Board
may continue to serve until the expiration of the term of the class
of Directors to which he or she was elected, re-elected or
appointed. In order to ensure that an individual’s
service, or continued service, on the Board is in the best
interests of the Corporation and its shareholders, as a condition
to his or her appointment or nomination for election or
re-election, each director nominee regardless of age shall be
subject to such evaluation and review as the Board or its
Nomination and Governance Committee may prescribe from time to
time.
3.08 Nominations. Nominations for election to the Board of
Directors shall be made by the Nominating/Corporate Governance
Committee of the Board of Directors, or by the shareholders, in
compliance with the procedures set forth in Section 2.13 of these
Bylaws.
3.09 Annual Meeting. The Board of Directors shall hold its
annual meeting for the purpose of organization and the transaction
of business, if a quorum is present, at its first regularly
scheduled meeting following the annual meeting of shareholders,
unless an earlier special meeting for that purpose is convened by
the Chair of the Board.
3.10 Regular Meetings. Regular meetings of the Board of
Directors shall be held without notice at such times and places as
may be designated from time to time by resolution of the Board of
Directors and communicated to all directors.
7
3.11 Special Meetings. A special meeting of the Board of
Directors shall be held whenever called by the Chair of the
Corporation or by any three directors at such time and place as the
Chair or directors shall designate in the notice of such special
meeting. The person or persons calling any special meeting shall
cause notice of such special meeting to be given to each director
at least 24 hours before such special meeting. Neither the business
to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice or waiver of
notice of any special meeting, except for proposed amendments to
the Bylaws.
3.12 Quorum; Majority Vote. At all meetings of the Board of
Directors, a majority of the directors fixed in the manner provided
in these Bylaws shall constitute a quorum for the transaction of
business. If a quorum is not present at a meeting, a majority of
the directors present may adjourn the meeting from time to time,
without notice other than an announcement at the meeting, until a
quorum is present. The vote of a majority of the directors present
at a meeting at which a quorum is in attendance shall be the act of
the board of directors, unless the vote of a different number is
required by law, the Articles of Association or these
Bylaws.
3.13 Procedure; Minutes. Meetings of the
Board of Directors may be held in person, or by means of any
electronic or telecommunications medium permitting simultaneous or
sequentially structured communications. At meetings of
the Board of Directors, business shall be transacted in such order
as the Board of Directors may determine from time to time. The
Chair of the Corporation, or in his absence the President, shall
preside at each meeting of the Board of Directors, provided that in
the absence of the Chair and President, the Board of Directors may
appoint a person to preside at the meeting. The Secretary of the
Corporation or an Assistant Secretary designated by the Board shall
act as secretary of each meeting provided that in the absence of
the Secretary and any qualified Assistant Secretary, the Board of
Directors shall appoint at each meeting a person to act as
Secretary of the meeting. The Secretary of the meeting shall
prepare minutes of the meeting which shall be delivered to the
Secretary of the Corporation for placement in the minute books of
the Corporation.
3.14 Presumption of Assent. A director of the Corporation
who is present at any meeting of the Board of Directors at which
action on any matter is taken shall be presumed to have assented to
the action unless (i) he shall object at the beginning of the
meeting (or promptly following his arrival) to holding the meeting
or transacting business at the meeting, or (ii) his dissent or
abstention from the action shall be entered in the minutes of the
meeting or (iii) he shall file his written dissent or abstention to
such action with the presiding officer of the meeting before the
adjournment thereof. Such right to dissent shall not apply to a
director who voted in favor of such action.
3.15 Compensation. Unless otherwise provided in the Articles
of Association, by resolution of the Board of Directors, each
director may be paid his expenses, if any, of attendance at
meetings of the Board of Directors, and may be paid a stated salary
or retainer as director or a fixed sum per meeting of the Board of
Directors (and/or its Committees), or any combination of the
foregoing. No such payment shall preclude any director from serving
the Corporation in any non-director capacity and receiving
compensation therefor.
ARTICLE FOUR: COMMITTEES
4.01 Audit Committee. There shall be an Audit Committee
consisting entirely of such independent Directors as shall from
time to time be appointed by resolution of the Board of Directors.
The Audit Committee shall be responsible for the selection and
appointment of the Corporation's independent accountants and for
approving their compensation and any non-audit services performed
by them; reviewing the scope and results of the audit plans of the
independent accountants and internal auditors; overseeing the scope
and adequacy of internal accounting control and record-keeping
systems; reviewing the objectivity, effectiveness and resources of
the internal audit function; conferring independently with
management, the internal auditors and the independent accountants;
and overseeing the Corporation's system of financial disclosure.
The Audit Committee shall have such other duties and
responsibilities as shall be set forth in a charter approved by the
Board of Directors from time to time.
8
4.02 Compensation Committee. There shall be a Compensation
Committee consisting of Directors as shall from time to time be
appointed by resolution of the Board of Directors. At
least a majority of the Committee members shall be independent
Directors. The Compensation Committee shall be
responsible for reviewing and approving the Chief Executive
Officer's compensation, and the compensation of other executive
officers, whether paid directly by the Corporation, or indirectly
by the Corporation's subsidiaries. The Compensation Committee shall
have such other duties and responsibilities as shall be set forth
in a charter approved by the Board of Directors from time to
time.
4.03 Nominating/Corporate Governance Committee. There shall
be a Nominating/ Corporate Governance Committee consisting entirely
of Directors as shall from time to time be appointed by resolution
of the Board of Directors. At least a majority of the
Committee members shall be independent directors. The
Nominating/Corporate Governance Committee shall be responsible for
screening and recommending to the Board of Directors persons to be
candidates for election or appointment as Directors; evaluating the
performance of the Board, including the training and orientation of
directors; establishing compensation policies for the
Corporation’s directors; and reviewing corporate policies
such as Code of Conduct, stock ownership guidelines and insider
trading policies. The Nominating/ Corporate Governance Committee
shall have such other duties and responsibilities as shall be set
forth in a charter approved by the Board of Directors from time to
time.
4.04 Independent Directors. For the purposes of the
preceding sections 4.01, 4.02 and 4.03, an “independent
director” shall mean a non-employee Director who otherwise
meets the qualifications for independence under applicable
standards of The NASDAQ Stock Market, as amended from time to
time.
4.05 Other Committees. The Board of Directors may, at any
time and from time to time, appoint such other standing or special
committees with such duties and responsibilities as the Board of
Directors shall determine, including, without limitation, an
executive committee possessing and authorized to exercise, between
meetings of the Board, all of the powers of the Board in the
management of the business and affairs of the Corporation, except
as may be limited by resolution of the Board, by Section 4.07 of
these Bylaws, or otherwise by applicable law.
4.06 Number; Qualification; Term. Each committee shall
consist of two or more directors appointed by resolution adopted by
a majority of the entire Board of Directors. The number of
committee members may be increased or decreased from time to time,
and qualifications of membership established and modified, by
resolution or committee charter adopted by a majority of the entire
Board of Directors. Committee members shall serve at the pleasure
of the Board of Directors.
4.07 Limitation on Authority. Notwithstanding anything to
the contrary in these Bylaws, or in any committee charter or
resolution of the Board appointing such committee, no committee
shall have the authority of the Board of Directors in reference
to:
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(a)
|
amending
the Articles of Association;
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(b)
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approving
a plan of merger not requiring shareholder approval;
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(c)
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approving
or proposing to shareholders action that the Vermont Business
Corporation Act requires be approved by the
shareholders;
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(d)
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amending,
altering, or repealing these Bylaws or adopting new
Bylaws;
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(e)
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filling
vacancies in or removing members of the Board of Directors or of
any committee;
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(f)
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electing
or removing officers or committee members;
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(g)
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fixing
the compensation of any committee member;
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(h)
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altering
or repealing any resolution of the full Board of
Directors;
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(i)
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declaring
dividends or authorizing any other form of distribution to
shareholders; or
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(j)
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authorizing
or approving the issuance or sale of shares or the reacquisition of
shares, except according to a formula or method prescribed by the
Board of Directors.
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9
4.08
Committee Changes. The Board of Directors shall have the
power at any time to fill vacancies in, to change the membership
of, and to discharge any committee.
4.09 Meetings. Regular and special meetings of any committee
may be held without notice at such times and places as may be
designated from time to time by resolution of the committee and
communicated to all committee members.
4.10 Quorum; Majority Vote. At all meetings of any
committee, a majority of the number of committee members designated
by the Board of Directors shall constitute a quorum for the
transaction of business. If a quorum is not present at a meeting of
any committee, a majority of the committee members present may
adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is present. The vote of
a majority of the committee members present at any meeting at which
a quorum is in attendance shall be the act of a committee, unless
the vote of a different number is required by the Articles of
Association or these Bylaws.
4.11 Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the Board
of Directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Corporation.
4.12 Compensation. Committee members may, by resolution of
the Board of Directors, be allowed a fixed sum and expenses of
attendance, if any, for attending any committee meetings or a
stated salary.
4.13 Responsibility. The designation of any committee and
the delegation of authority to it shall not operate to relieve the
Board of Directors or any director of any responsibility imposed
upon it or such director by law.
ARTICLE FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
5.01 Manner of Giving Notice. Any notice required to be
given to any person under the provisions of the Articles of
Association, these Bylaws or by law shall be given to the person
either personally or by sending a copy thereof:
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(a)
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By
first class or express mail, postage prepaid, or courier service,
charges prepaid, to such person's postal address appearing in the
Corporation’s stock transfer records, or in the case of
Directors, supplied by such Director to the Corporation for the
purpose of notice. Notice pursuant to this subsection shall be
deemed to have been given to the person entitled thereto when
deposited in the United States mail or with a courier service for
delivery to that person; or
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(b)
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With
respect to directors, by telephone, facsimile transmission, e-mail
or other electronic communication to such person's facsimile number
or address for e-mail or other electronic communications supplied
by such person to the Corporation for the purpose of notice. Notice
pursuant to this subsection shall be deemed to have been given when
sent; or
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(c)
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With
respect to shareholders, by a written medium specified by the Board
of Directors from time to time and permitted by applicable law,
including electronic transmission. Notice pursuant to
this subsection given by electronic transmission shall be deemed to
have been given when transmitted in a manner authorized by the
shareholder.
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A
notice of meeting shall specify the date, time and place, if any,
of the meeting and any other information required by law or these
Bylaws.
10
5.02 Waiver of Notice. Whenever by law, the Articles
of Association, or these Bylaws, any notice is required
to be given to any person, a waiver thereof in writing signed by
the person or persons entitled to such notice, whether before or
after the time notice should have been given, shall be equivalent
to the giving of such notice. Attendance of a person at a 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.
5.03 Householding of Notices; E-Proxy. For so
long as the Corporation shall have a class of stock registered
under Section 12 of the Exchange Act, any documents, reports and
other material (including proxy materials) delivered to a
shareholder in a manner consistent with the delivery and
availability requirements contained in Regulation 14A or 14C under
the Exchange Act shall be deemed to be delivered to the shareholder
entitled to such delivery.
5.04 Bulk Mail. Notice of any regular or special meeting of
the shareholders, or any other notice or delivery required by law,
the Articles of Association or these Bylaws to be given to
shareholders, may be given by bulk or second or third class mail,
postage prepaid, if the notice is deposited in the United States
mail at least 20 days prior to the day named for the meeting or any
corporate or shareholder action specified in the
notice.
5.05 Shareholders Without Forwarding Addresses. Except as
may otherwise expressly be required by law, notice or other
communications need not be sent to any shareholder with whom the
Corporation has been unable to communicate for more than 24
consecutive months because communications to the shareholder are
returned unclaimed or the shareholder has otherwise failed to
provide the Corporation with a current address. Whenever the
shareholder provides the Corporation with a current address, the
Corporation shall commence sending notices and other communications
to the shareholder in the same manner as to other
shareholders.
5.06 Telephone and Similar Meetings. Directors or committee
members may participate in and hold a meeting by means of audio or
video conferencing or other telecommunications or electronic
equipment, provided that all persons participating in the meeting
may communicate with each other simultaneously or sequentially.
Participation in such a meeting shall constitute presence in person
at such meeting, except where a person participates in the 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.
5.07 Action Without Meeting. Any action that may be taken,
or is required by law, the Articles of Association, or these Bylaws
to be taken, at a meeting of directors, or committee members may be
taken without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the directors, or
committee members, as the case may be, entitled to vote on the
matter. Any such written consent shall have the same
force and effect as a resolution of such directors or committee
members, as the case may be, adopted by unanimous vote at a duly
convened meeting, and may be stated as such in any document filed
with the Secretary of State of Vermont or in any certificate or
other document delivered to any person. The consent may be in one
or more counterparts so long as each director or committee member
signs one of the counterparts. The signed consent shall be placed
in the minute books of the Corporation and shall take effect as of
the date of the last signature, unless a different effective date
is specified in the consent.
ARTICLE SIX: OFFICERS
6.01 Number; Titles; Election; Term. The Corporation shall
have a Chair of the Board, Chief Executive Officer, a president,
one or more vice presidents (and, in the case of each vice
president, with such descriptive title, if any, as the Board of
Directors shall determine), a secretary, a treasurer, and such
other officers and agents as the Board of Directors may deem
desirable. The Board of Directors shall elect one of its members as
Chief Executive Officer and one of its members as President of the
Corporation. Both offices may but are not required to be held by
the same person. Each officer and agent shall hold office for the
term for which he is elected or appointed and until his successor
has been elected or appointed and qualified. Unless otherwise
provided in the resolution of the Board of Directors electing or
appointing an officer or agent, his term of office shall extend to
and expire at the meeting of the Board of Directors following the
next annual meeting of shareholders, or, if earlier, at his death,
resignation, or removal. Any two or more offices may be held by the
same person. No officer or agent except the Chief Executive Officer
and President of the Corporation need be a shareholder or
director.
11
6.02 Removal. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors, at
any time, with or without cause, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself
create contract rights.
6.03 Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
6.04 Authority. Officers shall have such authority and
perform such duties in the management of the Corporation as are
provided in these Bylaws or as may be determined by resolution of
the Board of Directors not inconsistent with these
Bylaws.
6.05 Compensation. The compensation, if any, of officers
shall be fixed, increased, or decreased from time to time by the
Board of Directors; provided, that the Board of Directors may by
resolution delegate to any one or more officers of the Corporation,
or to a committee of the Board, the authority to fix such
compensation.
6.06 Chair of the Board. The Board shall appoint one of its
members to be Chair of the Board to oversee and direct the Board.
Such person shall preside at meetings of the Board and shall
supervise the implementation of the policies adopted or approved by
the Board. The Chair may exercise such further powers and duties as
from time to time may be conferred upon, or assigned by, the Board.
The Chair shall preside at all meetings of the shareholders and
shall establish rules for the conduct of meetings, unless the Board
decides otherwise.
6.07 Chief Executive Officer. The Chief Executive Officer of
the Corporation, subject to the supervision of the Board of
Directors, shall have general management of the business and
affairs of the Corporation in the ordinary course of its business
with all such powers with respect to such business and affairs as
may be reasonably incident to such responsibilities, including, but
not limited to, the power to employ, discharge, or suspend
employees and agents of the Corporation, to fix the compensation of
employees and agents, and to suspend, with or without cause, any
officer of the Corporation pending final action by the Board of
Directors with respect to continued suspension, removal, or
reinstatement of such officer. The Chief Executive Officer shall
see that all orders and resolutions of the Board of Directors are
carried into effect and shall perform such other duties and have
such other authority and powers as the Board of Directors may from
time to time prescribe.
6.08 President. The Board of Directors shall appoint a
President to serve as one of the officers of the Company subject to
the supervision of the Board of Directors. In the absence of the
Chair or if no Chair is appointed, the President shall preside at
any meeting of the Board. He or she shall have and may exercise any
and all powers and duties pertaining by law, regulation or practice
to the office of President or imposed by these Bylaws. He or she
shall also have and may exercise such further powers and duties as
from time to time may be conferred upon or assigned by the Board of
Directors. In the absence or unavailability of the CEO, the
President shall be authorized to perform all the duties of that
office.
6.09 Chief Operating Officer. The Board of Directors may
designate one of the officers of this Corporation as the Chief
Operating Officer. The officer thus designated shall have and may
exercise any and all powers and duties pertaining by law,
regulation, or practice to the office or as may be imposed by these
Bylaws. He or she shall also have and may exercise such further
powers and duties as from time to time may be conferred upon or
assigned by the Board of Directors.
12
6.10 Vice President. Each vice president shall have such
powers and duties as may be prescribed from time to time by the
Board of Directors or as may be delegated from time to time by the
President. The Board shall designate one vice president to exercise
the powers of the President in the event of that officer's absence
or inability to act.
6.11 Treasurer. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate
accounts of receipts and disbursements, and shall deposit all
moneys and valuable effects in the name and to the credit of the
Corporation in such depository or depositories as may be designated
by the Board of Directors. The Treasurer shall audit all payrolls
and vouchers of the Corporation, receive, audit, and consolidate
all operating and financial statements of the Corporation and its
various departments and shall supervise the accounting and auditing
practices of the Corporation. Additionally, the Treasurer shall
have the power to endorse for deposit, collection or otherwise all
checks, drafts, notes, bills of exchange, and other commercial
paper payable to the Corporation and to give proper receipts and
discharges for all payments to the Corporation. The Treasurer shall
perform such other duties as may be prescribed from time to time by
the Board of Directors or as may be delegated from time to time by
the President.
6.12 Secretary. In addition to any other duties required by
law or by the Board of Directors from time to time, the Secretary
shall perform the following duties:
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(a)
|
record
all votes and proceedings of the shareholders and directors or any
committee thereof;
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|
(b)
|
have
the custody of the corporate seal, and of the corporate records
within this State; and
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|
(c)
|
Maintain
certified copies of all documents required by law to be filed by
the Corporation with the Secretary of State.
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6.13 Assistant Officers. The Board may appoint one or more
assistant officers, to exercise such powers and to perform such
functions as they may prescribe from time to time.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.01 Certificates for Shares. The certificates for shares of
stock of the Corporation shall be in such form as shall be approved
by the Board of Directors in conformity with law. The certificates
of each class or series shall be consecutively numbered, shall be
entered as they are issued in the books of the Corporation or in
the records of the Corporation's designated transfer agent, if any,
and shall state the shareholder's name, the number of shares, and
such other matters as may be required by law. The certificates
shall be signed, either manually or by facsimile, by the President
or any Vice-President and by the Secretary or the Treasurer and
shall be sealed with the seal of the Corporation or facsimile
thereof.
7.02 Issuance. Common or preferred shares with or without
par value may be issued pursuant to Article Five of the Articles of
Association for such consideration and to such persons as the Board
of Directors may from time to time determine, except in the case of
the shares with par value the consideration must be at least equal
to the par value of such shares. Shares may not be issued until the
full amount of the consideration has been paid.
7.03 Shares Without Certificates.
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(a)
|
Issuing Shares Without Certificates. Unless the Articles of
Association provide otherwise, the Board of Directors may authorize
the issuance of some or all the shares of the Corporation’s
capital stock without certificates. Such authorization shall not
affect shares already represented by certificates until they are
surrendered to the Corporation.
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(b)
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Information Statement Required. Within a reasonable time
after the issue or transfer of shares without certificates, the
Corporation shall send the shareholder a written statement
containing at a minimum:
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(1)
|
the
name of the issuing corporation and that it is organized under the
laws of Vermont;
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(2)
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the
name of the person to whom issued; and
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(3)
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the
number and class of shares and the designation of the series, if
any, of the issued shares.
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13
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(c)
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Procedures. The procedures in Section 7.06 shall not apply
to uncertificated shares. The Board may adopt such alternative
procedures concerning such shares as it deems necessary or
appropriate.
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7.04 Consideration for Shares. The consideration for the
issuance of shares shall consist of money paid, labor done
(including services actually performed for the Corporation), or
property (tangible or intangible) actually received, including
other securities of the Corporation, and, in the discretion of the
Board of Directors, one or more promissory notes. The promise of
future services shall not constitute payment for shares. In the
absence of fraud in the transaction, the judgment of the Board of
Directors as to the value of consideration received shall be
conclusive. When consideration, fixed as provided by law, has been
paid, the shares shall be deemed to have been issued and shall be
considered fully paid and nonassessable. The consideration received
for shares shall be allocated by the Board of Directors between
stated capital and capital surplus accounts.
7.05 Lost, Stolen, or Destroyed Certificates. The
Corporation shall issue a new certificate in place of any
certificate for shares previously issued if the registered owner of
the certificate:
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(a)
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Claim. Makes proof in affidavit form that a previously
issued certificate for shares has been lost, destroyed, or
stolen;
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(b)
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Timely Request. Requests the issuance of a new certificate
before the Corporation has notice that the certificate has been
acquired by a purchaser for value in good faith and without notice
of an adverse claim;
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(c)
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Bond. Gives a bond in such form, and with such surety or
sureties, with fixed or open penalty, as the Board of Directors may
direct, in its discretion, to indemnify the Corporation (and its
transfer agent and registrar, if any) against any claim that may be
made on account of the alleged loss, destruction, or theft of the
certificate; and
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(d)
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Other Requirements. Satisfies any other reasonable
requirements imposed by the Corporation, including any requirements
of the Corporation’s transfer agent.
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Notwithstanding
the foregoing, the Corporation may waive any or all of the
foregoing requirements in its discretion. When a certificate has
been lost, destroyed, or stolen, and the shareholder of record
fails to notify the Corporation within a reasonable time after he
has notice of it, and the Corporation registers a transfer of the
shares represented by the certificate before receiving such
notification, the shareholder of record is precluded from making
any claim against the Corporation for the transfer or for a new
certificate.
7.06 Transfer Agent; Transfer of Shares.
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(a)
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Transfer Agent. The Corporation may act as its own registrar
and transfer agent for any class or series of the Corporation's
debt or equity securities, or it may designate an affiliated or
non-affiliated third party for such purpose, as the Board of
Directors may determine in its discretion.
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(b)
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Transfer of Shares. Shares of stock of the Corporation shall
be transferable only on the books of the Corporation (or its
designated transfer agent) by the shareholders of record thereof in
person or by their duly authorized attorneys or legal
representatives. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate representing shares, duly
endorsed or accompanied by executed stock powers or other proper
evidence of succession, assignment, or authority to transfer, the
Corporation or its transfer agent shall issue a new certificate to
the person entitled thereto, cancel the old certificate, and record
the transaction in the stock transfer records. The Board of
Directors may make such additional rules and regulations as it may
deem necessary or appropriate concerning the issue, transfer and
registration of share certificates and uncertificated
shares.
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7.07 Registered Shareholders. The Corporation shall be
entitled to treat the shareholder of record as the shareholder in
fact of any shares and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such
shares on the part of any other person, whether or not it shall
have actual or other notice thereof, except as otherwise provided
by law.
ARTICLE EIGHT: INDEMNIFICATION
8.01 Definitions. Terms not otherwise defined in this
Article shall have the meaning ascribed to them in the Vermont
Business Corporation Act, Title 11A of the Vermont Statutes
Annotated, as in effect from time to time.
8.02 Authority to Indemnify.
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(a)
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Except
as provided in subsection 8.02(d) and subject to the procedures in
Section 8.06, this Corporation shall indemnify an individual who is
made a party to a proceeding because he is or was a director of the
Corporation against liability incurred in the proceeding
if:
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(1)
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he
conducted himself in good faith; and
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(2)
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he
reasonably believed:
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(i)
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in the
case of conduct in his official capacity with the Corporation, that
his conduct was in its best interest; and
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(ii)
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in all
other cases, that his conduct was at least not opposed to its best
interests; and
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(3)
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in the
case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
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(b)
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A
director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection
8.02(a)(2)(ii).
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(c)
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The
termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the director did not meet the
standard of conduct described in this section.
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(d)
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The
Corporation may not indemnify a director under this
section:
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(1)
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in
connection with a proceeding by or in the right of the Corporation
in which the director was adjudged liable to the Corporation;
or
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(2)
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in
connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that
personal benefit was improperly received by him.
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(e)
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Indemnification
permitted under this section in connection with a proceeding by or
in the right of the Corporation is limited to reasonable expenses
incurred in connection with the proceeding.
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8.03 Mandatory Indemnification in Certain Circumstances.
This Corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director
of the Corporation against reasonable expenses incurred by him in
connection with the proceeding.
8.04 Advance for Expenses.
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(a)
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The
Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is or was a party to a proceeding in
advance of final disposition of the proceeding if:
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(1)
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the
director furnishes the Corporation a written affirmation of his
good faith belief that he has met the standard of conduct described
in Section 8.02;
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(2)
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the
director furnishes the Corporation a written undertaking, executed
personally or on his behalf, to repay the advance if it is
ultimately determined that he did not meet the standard of conduct;
and
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(3)
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a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Article
Eight.
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(b)
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The
undertaking required by subsection 8.04(a)(2) must be an unlimited
general obligation of the director but need not be secured and may
be accepted without reference to financial ability to make
repayment.
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8.05 Court Ordered Indemnification. A director of this
Corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers
necessary may order indemnification if it determines:
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(1)
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the
director is entitled to mandatory indemnification under Section
8.03, in which case the court shall also order the Corporation to
pay the director's reasonable expenses incurred to obtain
court-ordered indemnification; or
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(2)
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the
director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not he met the
standard of conduct set forth in Section 8.02 or was adjudged
liable as described in subsection 8.02(d), but if he was adjudged
so liable his indemnification is limited to reasonable expenses
incurred.
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8.06 Determination and Authorization of
Indemnification.
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(a)
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The
Corporation may not indemnify a director under Section 8.02 unless
authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the
circumstances because he has met the standard of conduct set forth
in Section 8.02.
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(b)
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The
determination referred to in subsection 8.06(a) shall be
made:
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(1)
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by the
Board of Directors by majority vote of a quorum consisting of
directors not at the time parties to the proceeding;
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(2)
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if a
quorum cannot be obtained under subdivision (1), by majority vote
of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate), consisting
solely of two or more directors not at the time parties to the
proceeding;
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(3)
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by
special legal counsel:
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(i)
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selected
by the Board of Directors or its committee in the manner prescribed
in subdivision (1) or (2); or
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(ii)
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if a
quorum of the Board of Directors cannot be obtained under
subdivision (1) and a committee cannot be designated under
subdivision (2), selected by majority vote of the full Board of
Directors (in which selection directors who are parties may
participate); or
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(4)
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by the
shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be
voted on the determination.
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Notwithstanding
the foregoing, if a "change in control" (as defined in the federal
Bank Holding Company Act of 1956, as amended) of the Corporation
shall have occurred within the preceding two years, the
determination shall be made by special legal counsel, unless
otherwise expressly agreed by the person claiming
indemnification.
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(c)
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Authorization
of indemnification and evaluation as to reasonableness of expenses
shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is
made by special legal counsel, authorization of indemnification and
evaluation as to reasonableness of expenses shall be made by those
entitled under subsection 8.06(b)(3) to select
counsel.
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If it
is determined under this Section 8.06 that the claimant is entitled
to indemnification, payment to the claimant shall be made within 15
days after such determination or demand.
8.07 Indemnification of Officers, Employees and
Agents.
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(a)
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An
individual who is made a party to a proceeding because he is or was
an officer of the Corporation is entitled to mandatory
indemnification under Section 8.03 and is entitled to apply for
court-ordered indemnification under Section 8.05, in each case to
the same extent as a director.
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(b)
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The
Corporation shall indemnify and advance expenses under Sections
8.02 and 8.04 to an individual who is made a party to a proceeding
because he is or was an officer of the Corporation, subject to the
same conditions and limitations and to the same extent that these
Bylaws provide for indemnification and advancement of expenses to a
director.
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(c)
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In the
discretion of the Board of Directors, the Corporation may indemnify
and advance expenses under Sections 8.02 and 8.04 to an individual
who is made a party to a proceeding because he is or was an
employee or agent of the Corporation, subject to the same
conditions and limitations and to the same extent that these Bylaws
provide for indemnification and advancement of expenses to a
director.
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8.08
Insurance. The Corporation may purchase and maintain
insurance on behalf of an individual who is or was a director,
officer, employee, or agent of the Corporation or who, while a
director, officer, employee, or agent of the Corporation, is or was
serving at the request of the Corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit
plan, or other enterprise, against liability asserted against or
incurred by him in that capacity or arising from his status as a
director, officer, employee, or agent, whether or not the
Corporation would have power to indemnify him against the same
liability under Sections 8.02 or 8.03.
8.09 Contract Right. The right of mandatory indemnification
conferred upon directors and officers in this Bylaw shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any proceeding in
advance of its final disposition. The right to indemnification
under this Section 8.09 shall be deemed to vest upon the occurrence
of the event giving rise to the claim for indemnification and no
subsequent modification or repeal of this Article Eight or other
action on the part of the Corporation or otherwise shall operate to
limit or impair such right. Notwithstanding the foregoing, nothing
in this Section 8.09 shall be deemed to create any vested contract
right to indemnification or advance of expenses in favor of any
person for whom indemnification or advancement of expenses is
merely permissive and not required under applicable law or this
Article Eight.
8.10 Enforcement of Rights. In any action brought by a
claimant to enforce the right to indemnification under this Article
Eight, it shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where
the requirements of Section 8.04 have been met), that the claimant
has not met the standard of conduct which makes it permissible
under the Vermont Business Corporation Act for the Corporation to
indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation.
8.11 Non-Exclusive Rights; Survival. The right to
indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this
Article Eight shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, other
provision of the Articles of Association or Bylaws, contract, vote
of stockholders or Directors or otherwise. No repeal or
modification of this Article Eight shall in any way diminish or
adversely affect the rights of any director, officer, employee or
agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or
modification.
8.12 Severability. If any provision or provisions of this
Article Eight shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (i) the validity, legality and
enforceability of the remaining provisions of this Article Eight
(including, without limitation, each portion of any section of this
Article Eight containing any such provision held to be invalid,
illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Article Eight shall be construed so as to give
effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
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8.13 Application of this Article.
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(a)
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These
provisions do not limit the Corporation's power to pay or reimburse
expenses incurred by a director, officer or other person in
connection with his appearance as a witness in a proceeding at a
time when such individual has not been made a named defendant or
respondent to the proceeding.
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(b)
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It is
the intent of this Article Eight that the Corporation shall have
the right to indemnify and advance expenses to directors, officers,
employees or agents, in each case, to the fullest extent permitted
by applicable law. In the event that, after this Article Eight
becomes effective, any such applicable law is amended to permit
expanded powers to indemnify or advance expenses, the Corporation
shall be deemed to have and may exercise all such expanded powers,
notwithstanding any contrary provision of these
Bylaws.
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(c)
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It is
the intent of this Article Eight that it shall apply to acts and
omissions that occurred prior to its adoption, even though suit is
not filed or a claim is otherwise asserted until after such
adoption.
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ARTICLE NINE: EMERGENCY PREPAREDNESS
9.01 Emergency. If there is an emergency declared by
governmental authorities or otherwise subsisting as the result of a
regional or national disaster or act of war or terrorism, and of
such severity as to prevent the normal conduct and management of
the affairs of the Corporation and its subsidiaries:
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(a)
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Temporary Executive Committee. If it is impractical for the
Board of Directors, or the Executive Committee (if one has been
appointed) to meet, any three available Directors shall constitute
an Emergency Executive Committee authorized to exercise the full
authority of the Board of Directors, except as limited by
applicable law, until such time as the appointed Executive
Committee or the Board of Directors can again assume full
responsibility and control of the Corporation; and
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(b)
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The
available officers and employees of the Corporation shall continue
to conduct the affairs of the Corporation, with such guidance as
may be available to them from the Board of Directors, the Executive
Committee or the Temporary Executive Committee constituted under
Section 9.01(a) hereof, subject to conformance with any
governmental directives during the emergency.
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ARTICLE TEN: MISCELLANEOUS PROVISIONS
10.01 Distributions. Subject to provisions of applicable law
and the Articles of Association, dividends or other distributions
may be declared by the Board of Directors at any meeting and may be
paid in cash, in property, or in shares of stock of the
Corporation. Such declaration and payment shall be at the
discretion of the Board of Directors and shall only be paid out of
funds legally available therefor.
10.02 Reserves. The Board of Directors may create out of
funds of the Corporation legally available therefor such reserve or
reserves as the Board of Directors from time to time, in its
discretion, considers proper to provide for contingencies, to
equalize dividends or to repair or maintain any property of the
Corporation, or for such other purposes as the Board of Directors
shall consider beneficial to the Corporation. The Board of
Directors may modify or abolish any such reserve.
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10.03 Books and Records. The Corporation shall keep correct
and complete books and records of account, shall keep as permanent
records the minutes of the proceedings of its shareholders, Board
of Directors, and any committee, and shall keep at its registered
office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving
the names and addresses of all shareholders and the number and
class of the shares held by each shareholder.
10.04 Fiscal Year. The fiscal year of the Corporation shall
be as provided in the Articles of Association.
10.05 Seal. The seal, if any, of the Corporation shall be in
such form as may be approved from time to time by the Board of
Directors.
10.06 Resignation. A director, committee member, officer, or
agent may resign by so stating at any meeting of the Board of
Directors or by giving written notice to the Board of Directors,
the President, or the Secretary, or other officer responsible for
recording the minutes of the meetings of the shareholders and
directors. Such resignation shall take effect at the time specified
therein, or immediately if no time is specified. Unless it
specifies otherwise, a resignation is effective without being
accepted.
10.07 Securities of Other Corporations. Except as may be
otherwise provided by resolution of the Board of Directors, the
Chair, the CEO, the President, the Secretary, or any Vice-President
of the Corporation shall have the power and authority to transfer,
endorse for transfer, vote, consent, or take any other action with
respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any
waiver, proxy, or consent with respect to any such securities. For
purposes of this section, the term "securities" shall include,
without limitation, any membership interest the Corporation may
hold in any limited liability company or similar
venture.
10.08 Electronic Signatures. The Corporation may
accept electronic signatures, including signatures transmitted by
facsimile, email communication or other electronic means, on any
document or instrument, including any shareholder proxy,
shareholder or director consent or stock transfer instruction,
with the same effect as an original signature.
10.09 Amendment. Except as hereinafter provided in this
Section 10.09, or by law or in the Articles of Association, these
Bylaws may be altered, amended or repealed by the directors acting
by resolution of a majority of the directors then in office or by
resolution of the shareholders. In accordance with Article Seven of
the Corporation’s Articles of Association, and
notwithstanding any other provision of these Bylaws, the
affirmative vote of the holders of 75% or more of the combined
voting power of the then-outstanding shares of the Corporation's
capital stock entitled to vote generally in the election of
directors shall be required to amend, alter, change, or repeal, in
whole or in part, Sections 3.02, 3.03, 3.04, 3.05 or 3.06 of these
Bylaws.
10.10 Invalid Provisions. If any part of these Bylaws shall
be held invalid or inoperative for any reason, the remaining parts,
so far as it is possible and reasonable, shall remain valid and
operative.
10.11 Headings; Interpretation. The headings used in these
Bylaws are for convenience only and do not constitute matter to be
construed in the interpretation of these Bylaws. To
the extent not inconsistent with the Corporation’s Articles
of Association, terms used in these Bylaws that are defined in the
Vermont Business Corporation Act shall be deemed to have the
meanings ascribed therein.
The
undersigned Corporate Secretary hereby certifies that the foregoing
is a true and complete copy of the Amended and Restated Bylaws of
Community Bancorp. as adopted by the Board of Directors of the
Corporation and amended through July 15, 2020.
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Corporate
Secretary
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Community
Bancorp.
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(Seal)
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