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Exhibit 3(b)
AMENDED AND RESTATED
BY-LAWS
OF
THE DEWEY ELECTRONICS CORPORATION
(as of January 30, 2017)
ARTICLE I
OFFICES
Section 1. Location.
The corporation may have other offices at such places either within
or without the State of New York as the board of directors may from
time to time designate or the business of the corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Annual
Meeting. The annual meeting of
the shareholders of the corporation, for the election of directors
and the transaction of such other business as may properly come
before said meeting, shall be held annually at such place within or
without the State of New York as may from time to time be
designated by the directors and set forth in the notice of the
meeting. The meeting shall be held in each year as may from time to
time be designated by the directors and set forth in the notice of
the meeting. The chairman of the board of directors, or another
member of the board of directors appointed by the chairman, shall
be the presiding officer at every meeting of the shareholders of
the corporation.
Section 2. Special
Meetings. Special meetings of
shareholders, unless otherwise prescribed by law, may be called for
any purpose or purposes at any time by the chairman of the board or
by the order of the board of directors, and special meetings of
shareholders prescribed by law for the election of directors shall
be called by the board of directors or by the secretary or an
assistant secretary upon demand as prescribed by law. Such meetings
shall, except as otherwise prescribed by law, be held at such time
and place within or without the State of New York as shall be
designated by the person, or by the order of the board of
directors, calling such meeting.
Section 3. Notice
of Meetings. A copy of the notice
of every annual and special meeting of shareholders, other than any
meeting the giving of notice of which is otherwise prescribed by
law, stating the place, date and hour thereof, and in the case of
any special meeting, indicating that it is being issued by or at
the direction of the person or persons calling the meeting and
setting forth the purposes for which the meeting is called, shall
be given personally, electronically, or mailed, at least 10 but not
more than 50 days before such meeting, to each shareholder of
record entitled to vote thereat. If sent electronically, such
notice shall be directed to the e-mail address provided by the
shareholder in writing. If mailed, such copy shall be deposited in
the United States mail with postage thereon prepaid, directed to
each such shareholder at his or her address as the same appears on
the record of shareholders of the corporation or, if a shareholder
shall have filed with the secretary of the corporation a written
request that notices to him or her be mailed to some other address,
then directed to him or her at such other address. If at any
meeting, annual or special, action is proposed to be taken which
would, if taken, entitle shareholders fulfilling the requirements
of law to receive payment for their shares, the notice of the
meeting shall include a statement of that purpose and to that
effect.
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Section 4. Quorum.
At all meetings of shareholders, except as otherwise expressly
provided by law, there shall be present either in person or by
proxy shareholders of record holding at least a majority of the
shares entitled to vote at such meetings in order to constitute a
quorum, but less than a quorum shall have the power to adjourn any
meeting until a quorum shall be present. The presiding officer at
any meeting of shareholders may adjourn such meeting at any time
for the purpose of determining whether a quorum is present or for
any other reason. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any
shareholders.
Section 5. Voting
and Proxies. At every meeting of
shareholders every shareholder of record shall be entitled to one
vote for every share standing in his or her name on the record of
shareholders on any matter to be voted upon at such meeting, unless
otherwise provided in the certificate of incorporation, and may
exercise such voting right either in person or by proxy, except
that no proxy shall be voted on after 11 months from its date
unless otherwise provided in the proxy. No share of stock shall be
voted at any meeting by any person other than (i) the owner thereof
registered as such on the corporation’s books on the record
date fixed by the directors, or (ii) the duly appointed proxy of
such registered owner. Any vote for directors and/or proposals that
shall be presented at a shareholders’ meeting may be by
written, telephonic or electronic means. This includes, but is not
limited to, written ballots, telegrams, cablegrams, facsimile or
internet transmissions, provided that such electronic transmissions
are submitted with proof that such electronic transmission is
authorized by the shareholder.
Section 6. Inspectors
of Voting. The board of
directors, in advance of any shareholders’ meeting, may
appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the person
presiding at a shareholders’ meeting may, and on the request
of any shareholder entitled to vote thereat shall, appoint one or
more inspectors. In case any person appointed fails to appear or
act, the vacancy may be filled by appointment made by the board of
directors in advance of the meeting or at the meeting by the person
presiding thereat. Inspectors, none of whom shall be an officer,
director or a candidate for the office of director, shall determine
the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall determine and report to
the meeting as to the results of all voting (by ballot or
otherwise) on all matters submitted to a vote at the meeting. Each
inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to
the best of his or her ability.
Section 7. Voting
List of Shareholders. A list of shareholders
as of the record date, certified by the corporate officer
responsible for its preparation or by a transfer agent, shall be
produced at any meeting of shareholders upon the request thereat or
prior thereto of any shareholder. If the right to vote at any
meeting is challenged, the inspectors of election, or person
presiding thereat, shall require such list of shareholders to be
produced as evidence of the right of the persons challenged to vote
at such meeting, and all persons who appear from such list to be
shareholders entitled to vote thereat may vote at such
meeting.
Section 8. Conduct
of Meetings of Shareholders. Subject to the
following and any other provisions of the corporation’s certificate of incorporation or
these by-laws, meetings of shareholders generally shall follow
accepted rules of parliamentary procedure, as determined by the
presiding officer at such meeting.
(a) The
presiding officer of the meeting shall have absolute authority over
matters of procedure, and there shall be no appeal from the ruling
of the presiding officer. If the presiding officer, in his or her
absolute discretion, deems it advisable to dispense with the rules
of parliamentary procedure as to any meeting or any part thereof,
the presiding officer shall so state and shall also state the rules
under which the meeting or any part thereof shall be
conducted.
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(b) In
order to prevent disruption or disorder which could interfere with
the conduct of the business of the meeting or for any other reason
deemed necessary or advisable, the presiding officer at any meeting
may, in his or her sole discretion, quit the chair and announce the
adjournment of the meeting; and upon his or her so doing, the
meeting is thereupon adjourned.
(c) Any
other motion for adjournment, if otherwise properly made, other
than a motion to adjourn at the close of business of the meeting or
a motion to adjourn for the purpose of tabulating votes or proxies,
shall be disposed of by a per share vote.
(d) The
presiding officer of the meeting may require that any person not a
shareholder or the proxy of a shareholder leave the
meeting.
(e) A
resolution or motion shall be considered for a vote at a meeting
only if (i) proposed by a shareholder or a duly authorized proxy of
such a shareholder, (ii) seconded by a shareholder or a duly
authorized proxy of such a shareholder (other than the individual
proposing the resolution or motion) and (iii) such resolution or
motion is ruled in order by the presiding officer of the meeting in
his or her sole discretion, which order shall not be
appealable.
(f) At
any meeting called for the election of directors, the polls shall
be opened and closed at the times and in the manner directed by the
presiding officer of such meeting. Once the presiding officer has
announced the closing of the polls, no further voting shall be
permitted.
Section
9. Notice of Proposed
Shareholder Business.
(a) A
proposal of business to be considered by the shareholders, other
than the nomination of a director, at an annual meeting of
shareholders (“annual
meeting”) may be made (i)
pursuant to the corporation’s notice of meeting, (ii) by or at
the direction of the board of directors or (iii) by any shareholder
of the corporation who was a shareholder of record at the time of
giving notice provided for in this Section 9, who is entitled to
vote at the meeting and who complies with the notice procedures set
forth in this Section 9. Notice of director nominations to be made
pursuant to Section 14 of Article III shall be made in keeping with
the requirements of that Section.
(b) For
an item of business to be properly brought before an annual meeting
by a shareholder pursuant to clause (iii) of paragraph (a) of this
Section 9, the shareholder must have given timely notice thereof in
writing to the secretary of the corporation and such item of
business must otherwise be a proper matter for shareholder action.
To be timely, a shareholder’s notice shall be delivered to the
secretary at the office of the corporation provided for in Article
I Section 1 of these by-laws not later than the close of business
on the 90th day
nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year’s annual meeting. In the event that
the date of the annual meeting is more than 30 days before or more
than 60 days after such anniversary date, notice by the shareholder
to be timely must be so delivered not earlier than the close of
business on the 120th day
prior to such annual meeting and not later than the close of
business on the later of the 90th day
prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such
meeting is first made by the corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence
a new time period for the giving of a shareholder’s notice as described above. Such
shareholder’s notice
shall set forth (i) a brief description of the business desired to
be brought before the meeting, the reasons for considering such
business at the meeting and any material interest in such business
of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made and (ii) as to the shareholder giving
the notice and the beneficial owner, if any, on whose behalf the
proposal is made, (A) the name and address of such shareholder, as
they appear on the corporation’s books, and of such
beneficial owner, and (B) the class and number of shares of the
corporation which are owned beneficially and of record by such
shareholder and such beneficial owner.
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(c) Only
such business shall be conducted at an annual meeting as shall have
been brought before the meeting in accordance with the procedures
set forth in this Section 9 or, if applicable, in accordance with
Section 14 of Article III. Except as otherwise provided by law, the
presiding officer of the meeting shall have the power and duty to
determine whether any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance
with the notice procedures set forth in this Section 9 or, if
applicable, as outlined in Section 14 of Article III and, if any
proposed business is not in compliance with this Section 9 or, if
applicable, Section 14 of Article III, to declare that such
proposal shall be disregarded.
(d)
For purposes of this Section 9, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by
the corporation with the Securities and Exchange Commission (the
“SEC”) pursuant to Section 13, 14 or
15(d) of the Securities and Exchange Act of 1934, as amended (the
“Exchange Act”).
(e) Notwithstanding
the foregoing provisions of this Section 9, a shareholder shall
also comply with all applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to the
matters set forth in this Section 9. Nothing in this Section 9
shall be deemed to adversely affect any rights of shareholders to
request inclusion of proposals in the corporation’s proxy statement pursuant to Rule
14a-8 under the Exchange Act.
ARTICLE III
DIRECTORS
Section 1. Number,
Election and Terms. The number of the
directors constituting the entire board of directors shall be 11,
or such other number, not less than three nor more than 11, as
shall be fixed by the board of directors from time to time, subject
to the rights of the holders of shares of any class or series of
preferred stock (or shares of common stock issued upon conversion
of such shares of preferred stock).
Directors shall be
elected annually at the annual meeting of shareholders, to hold
office until the next succeeding annual meeting. Each director
shall be elected to serve until the expiration of his or her term
or until his or her successor shall have been elected and qualified
except in the event of the death, resignation or removal or the
earlier termination of the term of office of any such director.
Each director shall be at least 21 years of age. It is not
necessary for a director to be a shareholder of the
corporation.
Section 2. Newly
Created Directorships and Vacancies. Except as otherwise
provided by the certificate of incorporation, newly created
directorships resulting from any increase in the number of
directors and any vacancies on the board of directors resulting
from death, resignation, disqualification, removal or other cause
shall be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum
of the board of directors. Any director elected in accordance with
the preceding sentence shall hold office until the next meeting of
shareholders at which the election of directors is in the regular
order of business, and until such director’s successor shall have been duly
elected and qualified, except in the event of the death,
resignation or removal or the earlier termination of the term of
office of such director. No decrease in the number of directors
constituting the board of directors shall shorten the term of any
incumbent director.
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Section 3. Removal.
Except as otherwise provided by the certificate of incorporation,
any director, or the entire board of directors, may be removed from
office at any time only for cause and only by the affirmative vote
of the holders of a majority of the voting power of all shares of
the corporation entitled to vote generally in the election of
directors, voting together as a single class.
Section 4. Powers
and Duties of the Board of Directors. Except as otherwise
provided by law, the certificate of incorporation or these by-laws,
the business of the corporation shall be managed by the board of
directors, which may adopt such rules and regulations for that
purpose and for the conduct of its meetings as it may deem proper.
The board of directors may have one or more offices and keep the
books, records and minutes of the corporation, except such records
as are required to be kept in the State of New York, at such places
as it may from time to time determine. Any of such records may be
in written form or in any other form capable of being converted
into written form within a reasonable time. In addition to the
powers and authority expressly conferred upon it by these by-laws,
the board of directors may exercise all such powers of the
corporation and do all such lawful acts and things as are allowed
by the certificate of incorporation or these by-laws.
Section 5. Chairman
of the Board. The board of directors
shall elect a chairman of the board from their number. The chairman
of the board shall preside over the meetings of the board of
directors and shall have the rights and shall perform such duties
as may be prescribed by the board of directors which at minimum
shall include the right to (i) receive regular reports from the
chief executive officer, (ii) coordinate periodic board of
directors’ input and
review of management’s
strategic plans for the corporation, (iii) assist and advise the
chief executive officer in connection with corporate strategy and
personnel and organizational matters, (iv) lead the board of
directors’ review of a
succession plan, (v) assist and advise the chief executive officer
in the development and monitoring of budgets, operations and
similar plans and (vi) have a reasonable opportunity to review and
comment on the agenda for any special meeting of the board of
directors that is not called by the chairman of the
board.
Section 6. Clearance.
No director, by reason of his office
as director, shall be authorized access to any classified
information unless he has received a security clearance from the
federal government which authorizes him to have access to such
classified information.
Section 7. First
Meeting of the Board of Directors. The first meeting of
the board of directors to be held after an annual meeting of
shareholders for the election of directors shall be called and held
for the purposes of organization, the election or appointment of
officers and the transaction of such other business as may be
stated in the notice thereof. The first meeting shall be held at
such time and place as shall be fixed in written notice mailed to
each newly elected director at his or her last known post office
address or by electronic transmission to the last e-mail address
provided by such director for such purposes.
Section 8. Regular
Meetings. Regular meetings of
the board of directors shall be held at such time and place within
or without the State of New York as may be determined by the
chairman of the board from time to time, and no notice shall be
required for any regular meeting. Except as otherwise provided by
law, any business may be transacted at any regular
meeting.
Section 9. Special
Meetings. Special meetings of
the board of directors may, unless otherwise prescribed by law, be
called from time to time by the chairman of the board, who in each
case may set the agenda for any such meetings. In addition, upon at
least five days’ prior written notice, a written request
directed to the chairman of the board or the secretary (stating the
time, place and purposes of such special meeting), a majority of
the directors may request a special meeting. The chairman of the
board or the secretary shall then call a special meeting of the
board of directors. Special meetings of the board of directors
shall be held at the place where regular meetings of the board of
directors are usually held, unless otherwise fixed by the chairman
of the board from time to time. The chairman of the board shall be
given a reasonable opportunity to review and comment on the agendas
for any special meetings of the board of directors.
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Section 10. Notice
of Special Meetings. Except as otherwise
provided in Section 9 of this Article, notice of the time, place
and purpose of each special meeting of the board of directors,
other than any meeting the giving of notice of which is otherwise
prescribed by law, shall be given to each director at least 2 hours
prior to such meeting. For the purpose of this Section 10, notice
will be deemed to be duly given to a director if given to him or
her orally (including by telephone) or if such notice be delivered
to such director in person or be mailed, sent by facsimile, e-mail
or other electronic transmission, or cabled to his address as it
appears upon the books of the corporation or to the address last
made known in writing to the secretary of the corporation by such
director as the address to which such notices are to be given. Each
member of the board of directors shall ensure that the corporation
and the chairman of the board have a current and effective
facsimile, e-mail or other electronic transmission address to be
utilized for the foregoing purposes.
Section 11. Quorum.
A majority of the directors then in office (but not less than
one-third of the entire board of directors), acting at a meeting
duly assembled, shall constitute a quorum for the transaction of
business. If at any meeting of the board of directors there shall
be less than a quorum present, a majority of those present may
adjourn the meeting without further notice (other than announcement
at the meeting of the time and place to which the meeting is
adjourned) from time to time until a quorum shall have been
obtained. Any act of a majority of directors present at a meeting
at which there is a quorum shall be the act of the board of
directors, except as otherwise specifically provided by law, the
Certificate of Incorporation or these by-laws
Section 12. Compensation
of Directors and Members of Committees. The board of directors
may from time to time, in its discretion, fix the amount which
shall be payable to members of the board of directors and to
members of any committee for attendance at the meetings of the
board of directors or of such committee and for services rendered
to the corporation. A director or member of the committee may serve
the corporation in any other capacity and receive compensation
therefor.
Section 13. Meetings
by Communication Equipment. The board of directors
or any committee of the board of directors may hold a meeting by
means of conference telephone or similar communications equipment
that includes, but is not limited to, web meetings or other
meetings over the internet, allowing all persons participating in
the meeting to hear each other at the same time. Participation by
such means shall constitute presence in person at the
meeting.
Section 14. Nomination
of Director Candidates. Nominations for the
election of directors may be made by the board of directors or a
proxy committee appointed by the board of directors or by any
shareholder entitled to vote in the election of directors generally
in accordance with the requirements set forth in this
Section.
(a) Advance
Notice. Any shareholder entitled to vote in the election of
directors intending to nominate one or more persons for election as
directors at a meeting other than in accordance with Section 14(b)
of this Article III may do so only if written notice of such
shareholder’s intent to
make such nomination is given to the secretary of the corporation
not later than (i) with respect to an election to be held at an
annual meeting of shareholders, not later than the close of
business on the 90th day nor earlier than the 120th day prior to
the first anniversary of the immediately preceding year’s
annual meeting; provided, however, that in the event that the date
of the current year’s annual meeting is not within 30 days
before or after such anniversary date, in order to be timely notice
by the shareholder must be so delivered not later than the close of
business on the 90th day (or, if the first public announcement of
the date of such meeting is made less than 100 days prior to such
meeting, then as of the close of business on the 10th day following
the day on which such public announcement is first made by the
Corporation) nor earlier than the 120th day prior to such current
year’s annual meeting. Each such notice shall set forth: (a)
the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of common
stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (c) a description of
all arrangements or understandings between the shareholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by the shareholder; (d) such other information regarding each
nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of
the SEC, had the nominee been nominated, or intended to be
nominated, by the board of directors; and (e) the consent of each
nominee to serve as a director of the corporation if so elected.
The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
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(b) Proxy
Access.
i. Subject
to the terms and conditions set forth in these by-laws, the
corporation shall include in its proxy statement and on its form of
proxy for an annual meeting of shareholders the name of, and the
Additional Information (as defined below) relating to, any nominee
for election or reelection to the board of directors who satisfies
the eligibility requirements in this Section 14(b) (a “Shareholder Nominee”) and who is identified in a notice
that complies with Section 14(b)(vi) of this Article III and that
is timely delivered pursuant to Section 14(b)(vii) of this Article
III (the “Shareholder
Notice”) by a shareholder
on behalf of one or more shareholders, but in no case more than
twenty shareholders, who:
(A)
elect at the time
of delivering the Shareholder Notice to have such Shareholder
Nominee included in the corporation’s proxy materials,
(B)
as of the date of
the Shareholder Notice, own (as defined below in Section 14(b)(iii)
of this Article III) a number of shares that represents at least 3%
of the outstanding shares of the corporation entitled to vote in
the election of directors (the “Required Shares”) and has owned (as defined below in
Section 14(b)(iii) of this Article III) continuously the Required
Shares (as adjusted for any stock splits, stock dividends, or
similar events) for at least 3 years, and
(C)
satisfy the
additional requirements in these by-laws (such shareholder or
shareholders collectively, an “Eligible Shareholder”).
ii. For
purposes of satisfying the ownership requirement under Section
14(b)(i) of this Article III:
(A)
the outstanding
shares of the corporation owned by one or more shareholders may be
aggregated, provided that the number of shareholders and other
beneficial owners whose ownership of shares is aggregated for such
purpose shall not exceed twenty, and
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(B)
two or more funds
that are (1) under common management and investment control, (2)
under common management and funded primarily by a single employer
or (3) a “group of
investment companies,” as
such term is defined in Section 14(d)(1)(G)(ii) of the Investment
Company Act of 1940 (as amended from time to time the “Investment Company Act”) (such funds together under each of
(1), (2) or (3) comprising a “Qualifying Fund”) shall be treated as one
shareholder for the purpose of determining the aggregate number of
shareholders in this paragraph and treated as one owner as defined
in Section 14(b)(iii) provided that each fund comprising a
Qualifying Fund otherwise meets the requirements set forth in this
Section 14(b).
iii. For
purposes of this Section 14(b), an Eligible Shareholder
“owns” only those outstanding shares of
the corporation as to which the shareholder possesses
both:
(A)
the full voting and
investment rights pertaining to the shares, and
(B)
the full economic
interest in (including the opportunity for profit and risk of loss
on) such shares;
provided that
the number of shares calculated in accordance with clauses (A) and
(B) shall not include any shares:
(1)
sold by such
shareholder or any control person in any transaction that has not
been settled or closed (including any short sales),
(2)
borrowed by such
shareholder or any control person for any purpose or purchased by
such shareholder or any control person pursuant to an agreement to
resell, or
(3)
subject to any
option, warrant, forward contract, swap, contract of sale, other
derivative or similar agreement entered into by such shareholder or
any of its control persons, whether any such instrument or
agreement is to be settled with shares or with cash based on the
notional amount or value of outstanding shares of the corporation,
in any such case which instrument or agreement has, or is intended
to have, or if exercised by either party thereto would have, the
purpose or effect of: (I) reducing in any manner, to any extent or
at any time in the future, such shareholder’s or any of its control
persons’ full right to
vote or direct the voting of any such shares, and/or (II) hedging,
offsetting, or altering to any degree gain or loss arising from the
full economic ownership of such shares by such shareholder or
control person.
A
shareholder “owns” shares held in the name of a
nominee or other intermediary so long as the shareholder retains
the right to instruct how the shares are voted with respect to the
election of directors and possesses the full economic interest in
the shares. A shareholder’s ownership of shares shall be deemed to continue during any period in
which the shareholder has delegated any voting power by means of a
proxy, power of attorney, or other instrument or arrangement that
is revocable at any time by the shareholder. A shareholder’s
ownership of shares shall be deemed to continue during any period
in which the shareholder has loaned such shares provided that the
shareholder has the power to recall such loaned shares on 5
business days’ notice. The terms “owned,”
“owning” and other variations of the word
“own” shall have correlative meanings. Whether
outstanding shares of the corporation are “owned” for
these purposes shall be determined by the board of
directors.
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iv. No
shareholder may be a member of more than one group of shareholders
constituting an Eligible Shareholder under this Section 14(b). If a
shareholder would otherwise qualify as a member of more than one
group of shareholders constituting an Eligible Shareholder, it
shall be deemed to be a member of the group with the largest
shareholding as reflected in the Shareholder Notice.
v. For
purposes of this Section 14(b), the “Required Information” that the corporation will include
in its proxy statement is:
(A)
the information
concerning the Shareholder Nominee and the Eligible Shareholder
that is required to be disclosed in the corporation’s proxy statement by the applicable
requirements of the Exchange Act and the rules and regulations
thereunder and as required by the principal U.S. exchange, if any,
upon which the shares of the corporation are listed;
and
(B)
if the Eligible
Shareholder so elects, a written statement of the Eligible
Shareholder, not to exceed 500 words, in support of its Shareholder
Nominee, which must be provided at the same time as the Shareholder
Notice for inclusion in the corporation’s proxy statement for the annual
meeting (the “Statement”).
Notwithstanding
anything to the contrary contained in this Section 14(b), the
corporation may omit from its proxy materials any information or
Statement that it in good faith believes would violate any
applicable law or regulation. Nothing in this Section 14(b) shall
limit the corporation’s
ability to solicit against, and include in its proxy materials its
own statements relating to, any Eligible Shareholder or Shareholder
Nominee.
vi. The
inclusion of the Shareholder Nominee in the proxy materials shall
be subject to the delivery to the corporation of, and the
Shareholder Notice shall set forth, the following:
(A)
as to the Eligible
Shareholder (or in the case of a group, each shareholder whose
shares are aggregated for purposes of constituting an Eligible
Shareholder) giving the Shareholder Notice, (1) the name and
address of each such shareholder or shareholders, as they appear on
the corporation’s books,
and of such beneficial owner, and (2) the class and number of
shares of the corporation which are owned beneficially and of
record by such shareholder and such beneficial owner;
(B)
as to each
Shareholder Nominee whom the Eligible Shareholder proposes to
nominate for election or reelection to the board of directors
pursuant to this Section 14(b) of this Article III, (1) the
Required Information (including the Shareholder Nominee’s written consent to being named in
the corporation’s proxy
statement as a nominee and to serving as a director if elected),
and (2) a description of all direct and indirect compensation and
other material monetary or voting agreements, arrangements, and
understandings during the past 3 years, and any other material
relationships, between or among the Eligible Shareholder and its
affiliates and associates, or others acting in concert therewith,
on the one hand, and each Shareholder Nominee, and each Shareholder
Nominee’s respective
affiliates and associates, or others acting in concert therewith,
on the other hand, including, without limitation all information
that would be required to be disclosed pursuant to Item 404 of
Regulation S-K if the Eligible Shareholder, or any affiliate or
associate thereof or person acting in concert therewith, were the
“registrant” for purposes of Item 404 and the
Shareholder Nominee were a director or executive officer of such
registrant;
9
(C)
a copy of the
Schedule 14N that has been or concurrently is filed with the SEC
under Exchange Act Rule 14a-18; and
(D)
the written
agreement of the Eligible Shareholder (or in the case of a group,
each shareholder whose shares are aggregated for purposes of
constituting an Eligible Shareholder) addressed to the corporation,
setting forth the following additional agreements, representations,
and warranties:
(1)
setting forth and
certifying to the number of shares of the corporation it owns and
has owned (as defined in Section 14(b)(iii) of this Article III)
continuously for at least 3 years as of the date of the Shareholder
Notice and agreeing to continue to own such shares through the date
of the annual meeting, which statement shall also be included in
the written statements set forth in Item 4 of the Schedule 14N
filed by the Eligible Shareholder with the SEC;
(2)
the Eligible
Shareholder’s agreement
to provide written statements from the record holder and
intermediaries as required under Section 14(b)(viii) of this
Article III verifying the Eligible Shareholder’s continuous ownership of the
Required Shares through and as of the business day immediately
preceding the date of the annual meeting;
(3)
the Eligible
Shareholder’s
representation and agreement that the Eligible Shareholder
(including each member of any group of shareholders that together
is an Eligible Shareholder under this Section 14(b)):
I.
acquired the
Required Shares in the ordinary course of business and not with the
intent to change or influence control at the corporation, and does
not presently have such intent,
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II.
has not nominated
and will not otherwise nominate for election to the board of
directors at the annual meeting any person other than the
Shareholder Nominee(s) being nominated pursuant to this Section
14(b),
III.
has not engaged and
will not engage in a, and has not been and will not be a
“participant” in another person’s, “solicitation” within the meaning of Exchange Act
Rule 14a-1(l), in support of the election of any individual as a
director at the annual meeting other than its Shareholder Nominee
or a nominee of the board of directors, and
IV.
will not distribute
to any shareholder any form of proxy for the annual meeting other
than the form distributed by the corporation; and
(4)
the Eligible
Shareholder’s agreement
to:
I.
assume all
liability stemming from any legal or regulatory violation arising
out of the Eligible Shareholder’s communications with the
shareholders of the corporation or out of the information that the
Eligible Shareholder provided to the corporation,
II.
indemnify and hold
harmless the corporation and each of its directors, officers and
employees individually against any liability, loss or damages in
connection with any threatened or pending action, suit or
proceeding, whether legal, administrative or investigative, against
the corporation or any of its directors, officers or employees
arising out of any nomination submitted by the Eligible Shareholder
pursuant to this Section 14(b),
III.
comply with all
other laws and regulations applicable to any solicitation in
connection with the annual meeting,
IV.
file all materials
described below in Section 14(b)(viii)(C) of this Article III with
the SEC, regardless of whether any such filing is required under
Exchange Act Regulation 14A, or whether any exemption from filing
is available for such materials under Exchange Act Regulation
14A,
V.
immediately notify
the corporation if the Eligible Shareholder ceases to own any of
the Required Shares prior to the date of the annual
meeting,
VI.
intend to be
present in person at the annual meeting to present its Shareholder
Nominee at the meeting, and
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VII.
provide to the
corporation prior to the annual meeting such additional information
as necessary or reasonably requested by the corporation;
and
(5)
in the case of a
nomination by a group of shareholders that together is an Eligible
Shareholder, the designation by all group members of one group
member that is authorized to act on behalf of all such members with
respect to the nomination and matters related thereto, including
any withdrawal of the nomination.
vii. To
be timely under this Section 14(b), the Shareholder Notice must be
received by the secretary of the corporation not later than the
close of business on the 120th day nor earlier than the close of
business on the 150th day prior to the first anniversary of the
date the definitive proxy statement was first released to
shareholders in connection with the preceding year’s annual meeting of shareholders;
provided, however that in the event the date of the current year
annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareholder to be timely
must be so delivered not earlier than the close of business on the
120th day and not later than the close of business on the later of
the 90th day prior to the current year annual meeting or the 10th
day following the day on which public announcement of the date of
the current year annual meeting is first made by the corporation.
In no event shall any adjournment or postponement of an annual
meeting, or the announcement thereof, commence a new time period
for the giving of the Shareholder Notice as described
above.
viii. An
Eligible Shareholder (or in the case of a group, each shareholder
whose shares are aggregated for purposes of constituting an
Eligible Shareholder) must:
(A)
within 5 business
days after the date of the Shareholder Notice, provide one or more
written statements from the record holder(s) of the Required Shares
and from each intermediary through which the Required Shares are or
have been held, in each case during the requisite 3-year holding
period, verifying that the Eligible Shareholder owns, and has owned
continuously for the preceding 3 years, the Required
Shares,
(B)
include in the
written statements provided pursuant to Item 4 of Schedule 14N
filed with the SEC a statement certifying that it owns and
continuously has owned, as defined in Section 14(b)(iii) of this
Article III, the Required Shares for at least 3 years,
(C)
file with the SEC
any solicitation or other communication relating to the current
year annual meeting, one or more of the corporation’s directors or director nominees or
any Shareholder Nominee, regardless of whether any such filing is
required under Exchange Act Regulation 14A or whether any exemption
from filing is available for such solicitation or other
communication under Exchange Act Regulation 14A, and
(D)
as to any group of
funds whose shares are aggregated for purposes of constituting an
Eligible Shareholder, within 5 business days after the date of the
Shareholder Notice, provide documentation reasonably satisfactory
to the corporation that demonstrates that the funds qualify as a
Qualifying Fund.
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ix. Within
the time period specified in Section 14(b)(vii) of this Article III
for delivery of the Shareholder Notice, a Shareholder Nominee must
deliver to the secretary of the corporation the questionnaire,
representation and agreement set forth in Section 16 of this
Article III. At the request of the corporation, the Shareholder
Nominee must promptly, but in any event within 5 business days of
such request, submit any additional completed and signed
questionnaires required of the corporation’s directors and provide to the
corporation such other information as it may reasonably request.
The corporation may request such additional information as
necessary to permit the board of directors to determine if each
Shareholder Nominee is independent under the listing standards of
the principal U.S. exchange, if any, upon which the shares of the
corporation are listed, any applicable rules of the SEC and any
publicly disclosed standards used by the board of directors in
determining and disclosing the independence of the
corporation’s
directors.
x. Notwithstanding
anything to the contrary contained in this Section 14(b), the
corporation may omit from its proxy statement any Shareholder
Nominee, and such nomination shall be disregarded and no vote on
such Shareholder Nominee will occur, notwithstanding that proxies
in respect of such vote may have been received by the corporation,
if:
(A)
the secretary of
the corporation receives notice that the Eligible Shareholder
nominating such Shareholder Nominee intends to nominate any person
for election to the board of directors pursuant to the advance
notice requirements for stockholder nominees for directors set
forth in Section 14(a) of this Article,
(B)
the Eligible
Shareholder materially breaches any of its agreements,
representations, or warranties set forth in the Shareholder Notice,
or if any of the information in the Shareholder Notice was not,
when provided, true and correct or contains material omissions,
or
(C)
the Shareholder
Nominee (1) is not independent under the listing standards of any
applicable rules of the SEC, and any publicly disclosed standards
used by the board of directors in determining and disclosing the
independence of the corporation’s directors, (2) does not qualify as
independent under the audit committee independence requirements set
forth in the rules of the principal U.S. exchange, if any, on which
shares of the corporation are listed, as a “non-employee director” under Exchange Act Rule 16b-3, or
as an “outside
director” for the
purposes of Section 162(m) of the Internal Revenue Code (or any
successor provision), (3) is or has been, within the past three
years, an officer or director of a competitor (as defined in
Section 8 of the Clayton Antitrust Act of 1914, as amended) of the
corporation, or (4) is a named subject of a pending criminal
proceeding (excluding traffic violations and other minor offenses)
or has been convicted in a criminal proceeding within the past 10
years.
xi. The
number of Shareholder Nominees appearing in the
corporation’s proxy
materials with respect to an annual meeting of shareholders shall
not exceed the greater of (A) 2 or (B) 20% of the number of
directors in office as of the last day on which a Shareholder
Notice may be delivered pursuant to this Section 14(b) with respect
to the annual meeting, or if such amount is not a whole number, the
closest whole number below 20%. The following persons shall be
considered Shareholder Nominees for purposes of determining when
the maximum number of Shareholder Nominees provided for in this
Section 14(b) has been reached: (1) any Shareholder
13
Nominee
that was submitted by an Eligible Shareholder for inclusion in the
company’s proxy materials
pursuant to this Section 14(b) whom the board of directors decides
to nominate as a nominee and (2) any Shareholder Nominee whose
nomination is subsequently withdrawn. In the event that the number
of Shareholder Nominees submitted by Eligible Shareholders pursuant
to this Section 14(b) exceeds this maximum number, each Eligible
Shareholder will select one Shareholder Nominee for inclusion in
the corporation’s proxy
materials until the maximum number is reached, going in order of
the number (largest to smallest) of shares of the corporation each
Eligible Shareholder disclosed as owned in its respective
Shareholder Notice submitted to the corporation. If the maximum
number is not reached after each Eligible Shareholder has selected
one Shareholder Nominee, this selection process will continue as
many times as necessary, following the same order each time, until
the maximum number is reached.
xii. Any
Shareholder Nominee who is included in the corporation’s proxy materials for a particular
annual meeting of shareholders but either (A) withdraws from or
becomes ineligible or unavailable for election at the annual
meeting, or (B) does not receive at least 20% of the votes cast in
favor of the Shareholder Nominee’s election, will be ineligible to be
a Shareholder Nominee pursuant to this Section 14(b) for the next 2
annual meetings.
Section 15. Submission
of Questionnaire, Representation and Agreement. To be eligible to be a
nominee for election or reelection as a director of the
corporation, a person must deliver (in accordance with the time
periods prescribed for delivery of notice under Section 14 of this
Article) to the secretary at the offices of the corporation
provided for in Article I Section 1 of these by-laws a written
questionnaire with respect to the background and qualification of
such person and the background of any other person or entity on
whose behalf the nomination is being made (which questionnaire
shall be provided by the secretary upon written request) and a
written representation and agreement (in the form provided by the
secretary upon written request) that such person is not and will
not become a party to (1) any agreement, arrangement or
understanding with, and has not given any commitment or assurance
to, any person or entity as to how such person, if elected as a
director of the corporation, will act or vote on any issue or
question (a “Voting
Commitment”) that has not
been disclosed to the corporation or (2) any Voting Commitment that
could limit or interfere with such person’s ability to comply, if elected as a
director of the corporation, with such person’s fiduciary duties under applicable
law, and (c) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than
the corporation with respect to any direct or indirect
compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed
therein.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. Committees.
The board of directors, by resolution or resolutions passed by a
majority of the entire board of directors, may designate from among
its members various committees, each consisting of one or more of
the directors, and each of which, to the extent provided in said
resolution or resolutions, shall have and may exercise such powers
and authority as may be specified by the board of directors, except
that no such committee shall have authority as to (1) the
submission to shareholders of any action that needs
shareholders’ authorization under law, (2) the filling of
vacancies in the board of directors or in any committee, (3) the
fixing of compensation of the directors for serving on the board of
directors or on any committee, (4) the amendment or repeal of the
by-laws, or the adoption of new by-laws, or (5) the amendment or
repeal of any resolution of the board of directors which by its
terms shall not be so amendable or repealable. The board of
directors may designate one or more directors as alternate members
of any such committee. Each such committee and the members thereof
shall serve at the pleasure of the board of directors.
14
Section 2. Standing
Committees. There shall at all
times be an audit committee of the board of directors. The audit
committee shall consist of one or more directors, none of whom may
be a current or former officer or employee of the
corporation.
Section 3. General
Rules. At each meeting of a
committee, the greater of one-third of the entire committee and at
least two members of such committee shall constitute a quorum for
the transaction of business. Notice of the time and place of each
committee meeting shall be subject to the same notice rules as are
applicable to special meetings of the board of directors, except
that no notice of the purpose of a committee meeting need be
stated. Any action required or permitted to be taken at any meeting
of a committee of the board of directors may be taken without a
meeting if all members of such committee consent to such action in
writing and such writing or writings are filed with the minutes of
proceedings of the committee. Except as otherwise provided in this
Article IV, each committee of the board of directors may adopt its
own rules of procedure, may meet at stated times or on such notice
as the committee may determine and shall keep regular minutes of
its proceedings and report the same to the board of directors when
required.
ARTICLE V
OFFICERS
Section 1. Number
and Designation. The officers of the
corporation will consist of a chief executive officer, one or more
vice presidents, a treasurer, one or more secretaries, a controller
and such other officers as the board of directors may elect,
including, but not limited to, one or more vice chairmen, a
president, a chief financial officer, “executive” vice
presidents, “senior” vice presidents or
“group” vice presidents. Any two or more offices may be
held by one person, except that where these by-laws or resolutions
of the board of directors provide for signatures of the incumbents
of two offices of the corporation upon certificates for shares,
notes, checks or other instruments or documents issued by the
corporation, such offices must be held by two separate
persons.
Section 2. Election.
The board of directors shall, at their first meeting after their
election, elect a chief executive officer, one or more vice
presidents, one or more secretaries, a treasurer and a controller
who need not be members of the board of directors, but in the event
of the failure of the board of directors to elect any officer at
such meeting, then such officers may be elected at any subsequent
meeting of the board of directors. Each officer so elected shall
hold office until the first meeting of the board of directors
following the next annual meeting of shareholders for the election
of directors and until his or her successor is elected, except in
the event of his or her death, resignation or removal or the
earlier termination of his or her term of office, and except that
the terms of office of all vice presidents shall terminate with
each annual election of officers at which any vice president is
elected. Any vacancy in an office may be filled for the unexpired
portion of the term of such office by the board of directors at any
regular or special meeting. The board of directors may also elect
other officers, including a controller, who need not be members of
the board of directors, and may prescribe, and from time to time
change, their respective powers and duties, except as the powers
and duties of the controller are prescribed by these
by-laws.
Section 3. The
Chief Executive Officer. The position of chief
executive officer shall be held by such officer as the board of
directors may from time to time designate. The chief executive
officer shall have the general powers and duties of supervision and
management of the corporation, subject to the control of the board
of directors, including the appointment of officers and employees
of the corporation other than any successor chief executive
officer, who shall be appointed and elected solely by the board of
directors. The chief executive officer shall also have the power,
at any time, to discharge or remove any such appointed officer or
employee of the corporation.
15
Section 5. Vice
Presidents. Each vice president,
including any executive vice presidents, senior vice presidents
and/or group vice presidents, shall have such powers and shall
perform such duties as may be assigned to him or her by the board
of directors or the chief executive officer.
Section 6. The
Treasurer. The treasurer shall
have oversight of the care and custody of all the funds and
securities of the corporation and shall deposit the same in the
name of the corporation or other applicable entity in such bank or
banks, trust company or trust companies, deposit company or
companies or other entities as may be designated from time to time,
as appropriate. The treasurer shall perform the duties and exercise
all the powers usually incidental to the office of the treasurer
and such other duties as from time to time may be assigned to him
or her by the board of directors or the chief executive
officer.
Section 7. Secretaries.
A secretary or a secretary’s designee shall keep the minutes
and act as secretary of all meetings of the board of directors and
of the shareholders. A secretary shall attend to the giving and
serving of all notices of the corporation. A secretary shall be the
custodian of the records of the board of directors and committees
thereof and of the corporate seal of the corporation. A secretary
shall attend to such correspondence as may be assigned to him or
her and perform all the duties incidental to his or her office. Any
secretary shall be empowered to affix the corporate seal to all
documents, execution of which, on behalf of the corporation, under
its seal, is duly authorized and when so affixed may attest the
same; and, in general, he or she shall perform the duties and
exercise all the powers usually incidental to the office of a
secretary of a corporation, and such other duties as, from time to
time, may be assigned to him or her by the board of directors or
the chief executive officer.
Section 8. The
Controller. The controller shall
maintain and supervise proper books and records of all assets,
liabilities, disbursements and transactions of the corporation. The
controller shall prepare such financial statements and reports as
shall be required, and shall perform such other duties as from time
to time may be assigned to him or her by the board of directors or
the chief executive officer.
Section 9. Shareholder
Consents and Proxies. The chief executive
officer, treasurer and secretary of the corporation or any one of
them or their designees, shall have the power and authority on
behalf of the corporation to execute any consents or proxies,
authorizing any person to attend and act and vote in person or by
proxy at any meetings of the shareholders or members of any
corporation or other entity in which the corporation owns stock or
otherwise has an ownership interest, or to attend such meetings
themselves, and at any such meetings they or their designees or
proxies, as the case may be, shall possess and may exercise any and
all rights and powers incidental to such ownership as the
corporation as the owner thereof might have possessed and executed
if present.
Section 10. Delegation
of Duties of Officer. The board of directors
may delegate the duties and powers of any officer, agent or
employee of the corporation to any other officer, agent or employee
or director for a specified time during the absence of any such
person or for any other reason that the board of directors may deem
sufficient.
Section 11. Removal.
Any officer of the corporation elected or appointed by the board of
directors may be removed by the board of directors with or without
cause. Any officer appointed by the chief executive officer in
accordance with these by-laws may be removed by the chief executive
officer with or without cause.
16
ARTICLE VI
CAPITAL SHARES
Section 1. Form.
The capital shares of the corporation may be represented by
certificates, may be uncertificated shares or may be in such other
form as shall be prescribed by law or approved by the board of
directors.
Section 2. Certificates
for Shares. To the extent the
capital shares of the corporation are represented by certificates,
the certificates shall be in such forms as may be prescribed by law
and as shall be approved by the board of directors. All share
certificates shall be signed by the chairman or a vice-chairman of
the board or the president or a vice-president and the secretary or
an assistant secretary or the treasurer or an assistant treasurer
and shall have the seal of the corporation affixed thereto. Such
seal may be a facsimile, engraved or printed. Where any such
certificate is countersigned by a transfer agent or registered by a
registrar, other than the corporation itself or its employee, the
signatures of any such officers or assistant officers upon such
certificate may be facsimiles, engraved or printed.
Section 3. Lost,
Destroyed or Mutilated Share Certificates. The holder of any
certificated share of the corporation shall immediately notify the
corporation of any loss, destruction or mutilation of such
certificate, and the corporation may issue a new share certificate
in place of any certificate theretofore issued by it which the
owner thereof shall allege to have been lost, destroyed or
mutilated. The corporation may, in its discretion, require such
owner or the owner’s
legal representative to give to the corporation a bond in such sum
and in such form and with such surety or sureties as the board in
its sole discretion shall determine, to indemnify the corporation
against any claim that may be made against it on account of the
alleged loss or destruction of any such certificate, or the
issuance of such new certificate. Anything to the contrary in these
by-laws notwithstanding, but subject to anything to the contrary in
the certificate of incorporation, the corporation, in its absolute
discretion, may refuse to issue any such new certificate, except
pursuant to legal proceedings under the laws of the State of New
York.
Section 4. Transfer.
The board of directors shall have the power and authority to make
such rules and regulations as it may deem expedient concerning the
issue, registration and transfer of share certificates, and may
appoint transfer agents or clerks and registrars thereof. Transfers
of shares of stock of the corporation shall be made on the record
of shareholders of the corporation only upon authorization by the
registered holder thereof, or by an attorney thereunto authorized
by power of attorney duly executed and filed with the secretary or
with a transfer agent or transfer clerk, and on surrender of the
share certificate or share certificates properly endorsed, provided
such shares are represented by a certificate, or accompanied by a
duly executed stock transfer power and the payment of all taxes
thereon. The person in whose names shares of stock shall stand on
the record of shareholders of the corporation shall be deemed the
owner thereof for all purposes as regards the corporation. Whenever
any transfers of shares shall be made for collateral security and
not absolutely and written notice thereof shall be given to the
secretary or to such transfer agent or transfer clerk, such fact
shall be stated in the entry of the transfer.
Section 5. Fixing
of Record Date. The board of directors
may at any time fix a record date not more than 50 nor less than 10
days prior to (a) the date of any meeting of shareholders or (b)
the last day on which the shareholders are entitled to express
consent or dissent from any proposal without a meeting, as the date
as of which shareholders entitled to notice of or to vote at such a
meeting, or whose consent or dissent is required or may be
expressed, for any purpose, as the case may be, shall be
determined, and, except as otherwise provided by law, all persons
who were the holders of record of voting shares at such date and no
others shall be entitled to notice of and to vote at such meeting
or to express their consent or dissent, as the case may be. The
board of directors may at any time fix a record date not exceeding
fifty days prior to the date fixed for the payment of any dividend
or the making of any distribution or for the delivery or allotment
of evidences of rights or evidences of interest arising out of any
change, conversion, or exchange of capital shares, as the date for
the determination of the shareholders entitled to receive any such
dividend, distribution, rights or interest, and in any such case
only shareholders of record at the date so fixed shall be entitled
to receive such dividend, distribution, rights or
interest.
17
ARTICLE VII
NEGOTIABLE
INSTRUMENTS, CONTRACTS, ETC.
Section 1. Signatures
on Checks, etc. All checks, drafts,
bills of exchange, notes or other obligations or orders for the
payment of money shall be signed in the name of the corporation by
such officer or officers, person or persons, as the board of
directors may from time to time designate by
resolution.
Section 2. Execution
of Contracts, Deeds, etc. The board of directors
or any committee given specific authority in the premises, or given
authority to exercise generally the powers of the board of
directors during the interval between meetings of the board of
directors to the extent permitted by law, may authorize any officer
or officers, agent or agents, in the name of and on behalf of the
corporation, to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other obligations or
instruments and to vote on behalf of the corporation shares of
stock of other domestic or foreign corporations standing in the
name of the corporation, and such authority may be general or
confined to specific instances.
ARTICLE VIII
CORPORATE SEAL
Section 1. Description.
The corporate seal shall have inscribed thereon the name of the
corporation and the year of its incorporation, and shall be in such
form and contain such other words and/or figures as the board of
directors shall determine. The corporate seal may be used by
printing, engraving, lithographing, stamping or otherwise making,
placing or affixing, or causing to be printed, engraved,
lithographed, stamped or otherwise made, placed or affixed, upon
any paper or document, by any process whatsoever, an impression,
facsimile, or other reproduction of said corporate
seal.
ARTICLE IX
FISCAL YEAR
Section 1. Definition.
The fiscal year of the Corporation shall begin on the first day of
July in each year and shall end on the thirtieth day of June next
following, unless otherwise determined by the board of
directors.
18
ARTICLE X
WAIVER OF NOTICE
Section 1. Meetings
Held on Waiver. Whenever any notice is
required to be given under the provisions of these by-laws, or of
the certificate of incorporation, or of any of the laws of the
State of New York, a waiver thereof, in writing, signed by the
person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent thereto. The
attendance of any shareholder at a meeting, in person or by proxy,
without protesting prior to the conclusion of the meeting the lack
of notice of such meeting, shall constitute a waiver of notice by
him or her.
ARTICLE XI
AMENDMENTS
Section 1. By
the Shareholders. Except as otherwise
provided by law, these by-laws may be amended or repealed or new
by-laws may be adopted at any meeting of the shareholders of the
corporation by the affirmative vote of shareholders holding of
record a majority of the issued and outstanding shares entitled to
vote, represented either in person or by proxy, provided notice of
the proposed amendment be contained in the notice or waiver of
notice of such meeting.
Section 2. By
the Board of Directors. Except as otherwise
provided by law, these by-laws may be amended at any meeting of the
board of directors of the corporation at which a quorum is present
by the affirmative vote of a majority of the directors present at
such meeting, provided notice of the proposed amendment is
contained in the notice or waiver of notice of such meeting;
provided, however, that the board of directors shall have no power
to alter, amend or repeal Section 6 of Article II of these
by-laws.
ARTICLE XII
INDEMNIFICATION
Section 1. Indemnification -
Third Party and Derivative Actions.
(a) The
corporation shall indemnify any person made, or threatened to be
made, a party to an action or proceeding, whether civil or criminal
(other than one by or in the right of the corporation to procure a
judgment in its favor), including an action by or in the right of
any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director, officer or employee of the
corporation served in any capacity at the request of the
corporation, by reason of the fact that the person is or was a
director or officer of the corporation, or is or was serving such
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against
judgments, fines, including excise taxes, amounts paid in
settlement and expenses, including attorneys’ fees, incurred in connection with
any such action or proceeding, or any appeal therein, provided that
no indemnification may be made to or on behalf of such person if a
judgment or other final adjudication adverse to such person
establishes that (i) his or her
acts were committed in bad faith or were the result of his or her
active or deliberate dishonesty and were material to such action or
proceeding or (ii) he or she
personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled.
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(b) The
corporation shall indemnify any person made, or threatened to be
made, a party to an action by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the
person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or
officer of any other corporation of any type or kind, domestic or
foreign, or of any partnership, joint venture, trust, employee
benefit plan or other enterprise, against amounts paid in
settlement and expenses, including attorneys’ fees, incurred in connection with
such action, or any appeal therein, provided that
no indemnification may be made to or on behalf of such person if
(i)
his or her acts were committed in bad faith or were the result of
his or her active and deliberate dishonesty and were material to
such action or (ii) he or she
personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled.
(c) The
termination of any civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself create a
presumption that any such person has not met the standard of
conduct set forth in this Section 1.
Section 2. Payment of
Indemnification; Repayment.
(a) A person
who has been successful, on the merits or otherwise, in the defense
of a civil or criminal action or proceeding of the character
described in Section 1 of this Article shall be entitled to
indemnification as authorized in such Section.
(b) Any
indemnification under Section 1 of this Article, unless ordered by
a court, shall be made by the corporation in such manner as
provided by law.
(c) Expenses
incurred by a person referred to in Section 1 of this Article in
defending a civil or criminal action or proceeding shall be paid by
the corporation in advance of the final disposition of such action
or proceeding upon receipt of an undertaking by or on behalf of
such person to repay such amount in case he or she is ultimately
found, in accordance with this Article, not to be entitled to
indemnification or, where indemnity is granted, to the extent the
expenses so paid exceed the indemnification to which he or she is
entitled.
(d) Any
indemnification of a person under Section 1 of this Article, or
advancement of expenses under Section 2(c) of this Article, shall
be made promptly, and in any event within 60 days, upon the written
request of such person.
Section 3. Enforcement;
Defenses. The right to
indemnification or advancement of expenses granted by this Article
shall be enforceable by the person in question in any court of
competent jurisdiction if the corporation denies such request, in
whole or in part, or if no disposition thereof is made within 60
days. Such person’s expenses incurred in connection with
successfully establishing his or her right to indemnification, in
whole or in part, in any such action shall also be indemnified by
the corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advancement of
expenses under Section 2(c) of this Article where the required
undertaking has been received by the corporation) that the claimant
has not met the standard of conduct set forth in Section 1 of this
Article, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation to have made a
determination that indemnification of the claimant is proper, nor
the fact that there has been an actual determination by the
corporation that indemnification of the claimant is not proper,
shall be a defense to the action or create a presumption that the
claimant is not entitled to indemnification.
Section 4. Other
Indemnitors. As to each director of the corporation elected
or designated for nomination solely by the holders of shares of any
class or series of preferred stock (or shares of common stock
issued upon conversion of such shares of preferred stock), the
corporation shall be the indemnitor of first resort with respect to
each matter for which the corporation is subject to an
indemnification or advancement of expenses obligation pursuant to
this Article XII (i.e., the corporation’s obligations shall be primary and
any obligation of other entities shall be secondary). The
corporation shall not seek contribution, subrogation or any other
recovery from any such other entity in respect of any of the
corporation’s obligations
to such director under Article XII.
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Section 5. Survival; Savings
Clause; Preservation of Other Rights.
(a) The
foregoing indemnification provisions shall be deemed to be a
contract between the corporation and each person who serves in such
capacity at any time while these provisions as well as the relevant
provisions of the New York Business Corporation Law are in effect
and any repeal or modification thereof shall not affect any right
or obligation then existing with respect to any state of facts then
or previously existing or any action or proceeding previously or
thereafter brought or threatened based in whole or in part upon any
such state of facts. Such a contract right may not be modified
retroactively without the consent of such person.
(b) If this
Article or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each such person against judgments, fines,
amounts paid in settlement and expenses, including
attorneys’ fees, incurred
in connection with any actual or threatened action by or in the
right of the corporation, or any appeal therein, to the full extent
permitted by any applicable portion of this Article that shall not
have been invalidated and to the full extent permitted by
applicable law.
(c) The
indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of shareholders or
directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a
director, officer or employee of the corporation and shall inure to
the benefit of the heirs, executors and administrators of such a
person. The corporation is hereby authorized to provide further
indemnification if it deems it advisable by resolution of
shareholders or directors, by amendment of these by-laws or by
agreement.
ARTICLE XIII
FORUM FOR ADJUDICATION OF DISPUTES
Section 1. General.
Unless the corporation consents in writing to the selection of an
alternative forum, a state or federal court located within the
State of New York shall be the sole and exclusive forum for (a) any
derivative action or proceeding brought on behalf of the
corporation, (b) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of
the corporation to the corporation or the corporation’s
shareholders, (c) any action asserting a claim against the
Corporation arising pursuant to any provision of the Business
Corporation Law of the State of New York or the corporation’s
certificate of incorporation or these by-laws (in each case, as
amended from time to time), or (d) any action asserting a claim
against the corporation or any director, officer or other employee
of the corporation governed by the internal affairs doctrine. Any
person or entity purchasing or otherwise acquiring any interest in
shares of capital stock of the corporation shall be deemed to have
notice of and consented to the provisions of this Article
XIII.
* *
*
For
purposes of these by-laws, the masculine pronoun means the feminine
and the singular means the plural whenever
appropriate.
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