EXHIBIT 3.1
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(as amended through April 29, 2008)
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BY-LAWS
OF
AMERICAN EXPRESS COMPANY
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the
corporation within the State of New York shall be located in the City of New
York, County of New York.
SECTION 1.2 OTHER OFFICES. The corporation may have such other
offices and places of business within and without the State of New York as
the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the shareholders
for the election of directors and for the transaction of other business shall
be held at the principal office of the corporation within the State of New
York, or at such other place either within or without the State of New York
as may be fixed by the Board of Directors (hereinafter referred to as the
"Board") from time to time. The annual meeting shall be held on such full
business day in each year not earlier than March 15 nor later than April 30
and at such hour as shall be fixed by the Board, or on such other day and at
such hour as shall be fixed by the Board. If the election of directors shall
not be held on the date so fixed for the annual meeting, a special meeting of
the shareholders for the election of directors shall be called forthwith in
the manner provided herein for special meetings, or as may otherwise be
provided by law. (B.C.L. Section 602.)(1)
SECTION 2.2 SPECIAL MEETINGS. Special Meetings of the shareholders
may be held for such purpose or purposes as shall be specified in a call for
such meeting made by resolution of the Board or by a majority of the
directors then in office or by the Chief Executive Officer.
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(1) This and other references to the New York Business Corporation Law are
not part of the by-laws, but are included solely for convenience in locating
relevant portions of the statute.
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At any such special meeting only such business may be transacted
which is related to the purpose or purposes set forth in the notice of
meeting. (B.C.L. Section 602(c).)
SECTION 2.3 NOTICE OF MEETINGS. Notice of all meetings of
shareholders shall be in writing and shall state the place, date and hour of
the meeting and such other matters as may be required by law. Notice of any
special meeting shall also state the purpose or purposes for which the
meeting is called and shall indicate that it is being issued by or at the
direction of the person or persons calling the meeting. A copy of the notice
of any meeting, shall be given, personally or by mail, not less than ten nor
more than sixty days before the date of the meeting, provided that a copy of
such notice may be given by third class mail not less than twenty-four nor
more than sixty days before the date of the meeting, to each shareholder
entitled to vote at such meeting. If mailed, such notice shall be deemed
given when deposited in the United States mail, with postage thereon prepaid,
directed to the shareholder at his address as it appears on the record of
shareholders, or, if he shall have filed with the Secretary of the
corporation a written request that notices to him be mailed at some other
address, then directed to him at such other address. Notice of any adjourned
meeting of the shareholders shall not be required if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, but if after the adjournment the Board or Chief
Executive Officer fixes a new record date for the adjourned meeting, notice
of the adjourned meeting shall be given to each shareholder of record on the
new record date. (B.C.L. Section 605.)
SECTION 2.4 QUORUM AND VOTING. Except as otherwise provided by law
or the certificate of incorporation, the holders of a majority of the votes
of the shares entitled to vote thereat shall constitute a quorum at any
meeting of the shareholders for the transaction of any business, but a lesser
interest may adjourn any meeting from time to time and from place to place
until a quorum is obtained. Any business may be transacted at any adjourned
meeting that might have been transacted at the original meeting. When a
quorum is once present to organize a meeting of shareholders, it is not
broken by the subsequent withdrawal of any shareholders. Any corporate action
taken by vote of the shareholders shall, except as otherwise required by law
or the certificate of incorporation, be authorized by a majority of the votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon. Every shareholder of record shall be entitled at every meeting of
shareholders to one vote for each share standing in his name on the record of
shareholders, unless otherwise provided in the certificate of incorporation.
Neither treasury shares, nor shares held by any other corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the corporation, shall be voted at any meeting
or counted in determining the total number of outstanding shares then
entitled to vote.
In a non-contested election of directors, any incumbent director
nominee who is not elected by the shareholders shall immediately tender his
or her resignation. The Board of Directors shall decide whether or not to
accept such resignation, and shall promptly disclose and explain its decision
in a Form 8-K (or successor form) filed with the Securities and Exchange
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Commission within 90 days after the date the results of the election are
certified. An incumbent director who tenders his or her resignation pursuant
to this paragraph will not participate in the Board's deliberations with
respect to such resignation. In acting on the resignation, the Board shall
consider all factors that it may deem relevant.
If the incumbent director's resignation is not accepted by the
Board, he or she shall continue to serve until the next annual meeting of
shareholders and until his or her successor is elected and qualified. If the
resignation is accepted or if the nominee who failed to receive the required
vote is not an incumbent director, the Board may fill the resulting vacancy
or decrease the size of the Board in accordance with these by-laws. (B.C.L.
Sections 608, 614.)
SECTION 2.5 PROXIES. Every shareholder entitled to vote at a meeting
of the shareholders may authorize another person to vote for him by proxy
executed in writing (or in such manner permitted by law) by the shareholder
or his attorney-in-fact. No proxy shall be valid after the expiration of
eleven months from the date thereof, unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the shareholder executing
it, except that a proxy which is entitled "irrevocable proxy" and which
states that it is irrevocable shall be irrevocable when and to the extent
permitted by law. (B.C.L. Section 609.)
SECTION 2.6 LIST OF SHAREHOLDERS AT MEETINGS. A list of shareholders
as of the record date, certified by the Secretary or by the transfer agent of
the corporation, 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. (B.C.L. Section 607.)
SECTION 2.7 WAIVER OF NOTICE. Notice of a shareholders' meeting need
not be given to any shareholder who submits a signed waiver of notice, in
person or by proxy, whether before or after the meeting. 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. (B.C.L. Section 606.)
SECTION 2.8 INSPECTORS AT SHAREHOLDERS' MEETINGS. The Board, in advance
of any shareholders' meeting, may appoint one or more inspectors to act at the
meeting or any adjournment thereof and to perform such duties thereat as are
prescribed by law. If inspectors are not so appointed, the person presiding
at a shareholders' meeting 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 in advance of the meeting or at the meeting by
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the person presiding thereat. Each inspector, before entering upon the
discharge of his 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 ability. (B.C.L. Section 610.)
SECTION 2.9 BUSINESS TO BE TRANSACTED AT SHAREHOLDERS' MEETINGS. No
business shall be transacted at any annual meeting of shareholders, except as
may be (i) specified in the notice of the meeting given by or at the
direction of the Board (including, if so specified, any shareholder proposal
submitted pursuant to the rules and regulations of the Securities and
Exchange Commission), (ii) otherwise brought before the meeting by or at the
direction of the Board or (iii) otherwise brought before the meeting in
accordance with the procedure set forth in the following paragraph, by a
shareholder of the corporation entitled to vote at such meeting.
For business to be brought by a shareholder before an annual meeting
of shareholders pursuant to clause (iii) above, the shareholder must have
given written notice thereof to the Secretary of the corporation, such notice
to be received at the principal executive offices of the corporation not less
than 90 nor more than 120 days prior to the one year anniversary of the date
of the annual meeting of shareholders of the previous year; PROVIDED,
HOWEVER, that in the event that the annual meeting of shareholders is called
for a date that is not within 30 days before or after such anniversary date,
notice by the shareholder must be received at the principal executive offices
of the corporation not later than the close of business on the tenth day
following the day on which the corporation's notice of the date of the
meeting is first given or made to the shareholders or disclosed to the
general public (which disclosure may be effected by means of a publicly
available filing with the Securities and Exchange Commission), whichever
occurs first. A shareholder's notice to the Secretary shall set forth, as to
each matter the shareholder proposes to bring before the annual meeting of
shareholders, (i) a brief description of the business proposed to be brought
before the annual meeting of shareholders and of the reasons for bringing
such business before the meeting and, if such business includes a proposal to
amend either the certificate of incorporation or these by-laws, the text of
the proposed amendment, (ii) the name and record address of the shareholder
proposing such business, (iii) the number of shares of each class of stock of
the corporation that are beneficially owned by such shareholder, (iv) any
material interest of the shareholder in such business and (v) such other
information relating to the proposal that is required to be disclosed in
solicitations pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission or
other applicable law.
Notwithstanding anything in these by-laws to the contrary, no
business shall be conducted at an annual meeting of shareholders except in
accordance with the procedures set forth in this Section 2.9; PROVIDED,
HOWEVER, that nothing in this Section 2.9 shall be deemed to preclude
discussion by any shareholder of any business properly brought before the
annual meeting of shareholders in accordance with such procedures. The
chairman of an annual meeting of shareholders shall, if the facts warrant,
determine and declare to the meeting that the business was not properly
brought before the meeting in accordance with the provisions of this Section
2.9, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the annual meeting of
shareholders shall not be transacted.
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ARTICLE III
DIRECTORS
SECTION 3.1 POWERS, NUMBER, QUALIFICATIONS AND TERM OF OFFICE. The
business of the corporation shall be managed by its Board, which shall
consist of not less than seven persons, each of whom shall be at least
twenty-one years of age. Subject to such limitation, the number of directors
shall be fixed and may be increased or decreased from time to time by a
majority of the entire Board. Directors need not be shareholders. Except as
otherwise provided by law or these by-laws, the directors shall be elected at
the annual meetings of the shareholders, and each director shall hold office
until the next annual meeting of shareholders, and until his successor has
been elected and qualified. Newly created directorships resulting from an
increase in the number of directors and any vacancies occurring in the Board
for any reason, including vacancies occurring by reason of the removal of any
of the directors with or without cause, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists. No
decrease in the number of directors shall shorten the terms of any incumbent
director. A director elected to fill a vacancy shall be elected to hold
office for the unexpired term of his predecessor. If the Board has not
elected a Chairman of the Board as an officer, it may choose a Chairman of
the Board from among its members to preside at its meetings. (B.C.L. Sections
701, 702, 703, 705.)
SECTION 3.2 REGULAR MEETINGS. There shall be regular meetings of the
Board, which may be held on such dates and without notice or upon such notice
as the Board may from time to time determine. Regular meetings shall be held
at the principal office of the corporation within the State of New York or at
such other place either within or without the State of New York and at such
specific time as may be fixed by the Board from time to time. There shall
also be a regular meeting of the Board, which may be held without notice or
upon such notice as the Board may from time to time determine, after the
annual meeting of the shareholders or any special meeting of the shareholders
at which an election of directors is held. (B.C.L. Sections 710, 711.)
SECTION 3.3 SPECIAL MEETINGS. Special meetings of the Board may be
held at any place within or without the State of New York at any time when
called by the Chairman of the Board or the President or four or more
directors. Notice of the time and place of special meetings shall be given to
each director by serving such notice upon him personally within the City of
New York at least one day prior to the time fixed for such meeting, or by
mailing or telegraphing it, prepaid, addressed to him at his post office
address, as it appears on the books of the corporation, at least three days
prior to the time fixed for such meeting. Neither the call or notice nor any
waiver of notice need specify the purpose of any meeting of the Board.
(B.C.L. Sections 710, 711.)
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SECTION 3.4 WAIVER OF NOTICE. Notice of a meeting need not be given
to any director who signs a waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to him. (B.C.L. Section 711(c).)
SECTION 3.5 QUORUM AND VOTING. One-third of the entire Board shall
constitute a quorum. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. Notice
of any adjournment shall be given to the directors who were not present at
the time of the adjournment and, unless the time and place of such
adjournment are announced at the meeting, to the other directors. The vote of
a majority of the directors present at the time of the vote, if a quorum is
present at such time, shall be the act of the Board, except where a larger
vote is required by law, the certificate of incorporation or these by-laws.
(B.C.L. Sections 701, 708, 711(d).)
SECTION 3.6 ACTION BY THE BOARD. Any reference in these by-laws to
corporate action to be taken by the Board shall mean such action at a meeting
of the Board. However, any action required or permitted to be taken by the
Board or any committee thereof may be taken without a meeting if all members
of the Board or the committee consent in writing to the adoption of a
resolution authorizing the action. The resolution and the written consent
thereto by the members of the Board or committee shall be filed with the
minutes of the proceedings of the Board or committee. Any one or more members
of the Board or any committee thereof may participate in a meeting of such
Board or committee by means of a conference telephone or similar
communications equipment 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. (B.C.L. Section 708.)
SECTION 3.7 COMMITTEES OF THE BOARD. The Board by resolution adopted
by a majority of the entire Board may designate from among its members one or
more committees, each consisting of three or more directors. Each such
committee shall have all the authority of the Board to the extent provided in
such resolution, except as limited by law. No such committee shall exercise
its authority in a manner inconsistent with any action, direction, or
instruction of the Board.
The Board may appoint a Chairman of any committee (except for the
Executive Committee, if one is established, in the case where the Chairman of
the Executive Committee has been elected pursuant to Section 4.1 of these
by-laws), who shall preside at meetings of their respective committees. The
Board may fill any vacancy in any committee and may designate one or more
directors as alternate members of such committee, who may replace any absent
member or members at any meeting of such committee. Each such committee shall
serve at the pleasure of the Board, but in no event beyond its first meeting
following the annual meeting of the shareholders.
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All acts done and powers conferred by any committee pursuant to the
foregoing authorization shall be deemed to be and may be certified as being
done or conferred under authority of the Board.
A record of the proceedings of each committee shall be kept and
submitted at the next regular meeting of the Board.
At least one-third but not less than two of the members of any
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members present at the time of the vote, if a
quorum is present at such time, shall be the act of the committee. If a
committee or the Board shall establish regular meetings of any committee,
such meetings may be held without notice or upon such notice as the committee
may from time to time determine. Notice of the time and place of special
meetings of any committee shall be given to each member of the committee in
the same manner as in the case of special meetings of the Board. Notice of a
meeting need not be given to any member of a committee who signs a waiver of
notice whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice
to him. Except as otherwise provided in these by- laws, each committee shall
adopt its own rules of procedure. (B.C.L. Section 712.)
SECTION 3.8 COMPENSATION OF DIRECTORS. The Board shall have authority
to fix the compensation of directors for services in any capacity.
(B.C.L. Section 713(e).)
SECTION 3.9 RESIGNATION AND REMOVAL OF DIRECTORS. Any director may
resign at any time by giving written notice thereof to the Chief Executive
Officer or to the Board, and such resignation shall take effect at the time
therein specified without the necessity of further action. Any director may
be removed with or without cause by vote of the shareholders, or with cause
by action of the Board. (B.C.L. Section 706.)
SECTION 3.10 THE "ENTIRE BOARD". As used in these by-laws the term
"the entire Board" or "the entire Board of Directors" means the total number
of directors which the corporation would have if there were no vacancies.
(B.C.L. Section 702.)
SECTION 3.11 NOMINATION OF DIRECTORS. Subject to the rights of
holders of any class or series of stock having a preference over the common
shares as to dividends or upon liquidation, nominations for the election of
directors may only be made (i) by the Board or a committee appointed by the
Board or (ii) by a shareholder of the corporation entitled to vote at the
meeting at which a person is to be nominated in accordance with the procedure
set forth in the following paragraph.
A shareholder may nominate a person or persons for election as
directors only if the shareholder has given written notice of its intent to
make such nomination to the Secretary of the corporation, such notice to be
received at the principal executive offices of the corporation (i) with
respect to an annual meeting of shareholders, not less than 90 nor more than
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120 days prior to the one year anniversary of the date of the annual meeting
of shareholders of the previous year; PROVIDED, HOWEVER, that in the event
that the annual meeting of shareholders is called for a date that is not
within 30 days before or after such anniversary date, notice by the
shareholder must be received at the principal executive offices of the
corporation not later than the close of business on the tenth day following
the day on which the corporation's notice of the date of the meeting is first
given or made to the shareholders or disclosed to the general public (which
disclosure may be effected by means of a publicly available filing with the
Securities and Exchange Commission), whichever occurs first and (ii) with
respect to a special meeting of shareholders called for the purpose of
electing directors, not later than the close of business on the tenth day
following the day on which the corporation's notice of the date of the
meeting is first given or made to the shareholders or disclosed to the
general public (which disclosure may be effected by means of a publicly
available filing with the Securities and Exchange Commission), whichever
occurs first. A shareholder's notice to the Secretary shall set forth (i) the
name and record address of the shareholder who intends to make such
nomination, (ii) the name, age, business and residence addresses and
principal occupation of each person to be nominated, (iii) the number of
shares of each class of stock of the corporation that are beneficially owned
by the shareholder, (iv) a description of all arrangements and understandings
between the shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such shareholder, (v) such other information relating to the
person(s) that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission or other applicable law and (vi) the written consent of each
proposed nominee to be named as a nominee and to serve as a director of the
corporation if elected, together with an undertaking, signed by each proposed
nominee, to furnish to the corporation any information it may request upon
the advice of counsel for the purpose of determining such proposed nominee's
eligibility to serve as a director. The chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedures and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
ARTICLE IV
OFFICERS AND OFFICIALS
SECTION 4.1 OFFICERS. The Board shall elect a Chairman of the Board
or a President or both, and a Secretary, a Treasurer and a Comptroller and
may elect such other officers, including a Chairman of the Executive
Committee and one or more Vice Chairmen of the Board, as the Board shall
determine. Each officer shall have such powers and perform such duties as are
provided in these by-laws and as may be provided from time to time by the
Board or by the Chief Executive Officer. Each officer shall at all times be
subject to the control of the Board, and any power or duty assigned to an
officer by these by-laws or the Board or the Chief Executive Officer shall be
subject to control, withdrawal or limitation by the Board. (B.C.L. Section
715.)
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SECTION 4.2 QUALIFICATIONS. Any person may hold two or more offices,
except that neither the Chairman nor the President shall be Secretary or
Treasurer. The Board may require any officer to give security for the
faithful performance of his duties.
(B.C.L. Sections 715(e) and (f).)
SECTION 4.3 ELECTION AND TERMINATION. The Board shall elect officers
at the meeting of the Board following the annual meeting of the shareholders
and may elect additional officers and fill vacancies at any other time.
Unless the Board shall otherwise specify, each officer shall hold office
until the meeting of the Board following the next annual meeting of the
shareholders, and until his successor has been elected and qualified, except
as hereinafter provided. The Board may remove any officer or terminate his
duties and powers, at any time, with or without cause. Any officer may resign
at any time by giving written notice thereof to the Chief Executive Officer
or to the Board, or by retiring or by leaving the employ of the corporation
(without being employed by a subsidiary or affiliate) and any such action
shall take effect as a resignation without necessity of further action. The
Chief Executive Officer may suspend any officer until the next meeting of the
Board. (B.C.L. Sections 715, 716.)
SECTION 4.4 DELEGATION OF POWERS. Each officer may delegate to any
other officer and to any official, employee or agent of the corporation, such
portions of his powers as he shall deem appropriate, subject to such
limitations and expirations as he shall specify, and may revoke such
delegation at any time.
SECTION 4.5 CHAIRMAN OF THE BOARD. The Chairman of the Board may be,
but need not be, a person other than the Chief Executive Officer of the
corporation. The Chairman of the Board may be, but need not be, an officer or
employee of the corporation. The Chairman of the Board shall preside at
meetings of the Board of Directors and shall establish agendas for such
meetings. In addition, he shall assure that matters of significant interest
to shareholders and the investment community are addressed by management. The
Chairman of the Board shall be an ex-officio member of each of the standing
committees of the Board, except for the Executive Committee, of which he
shall be a member.
SECTION 4.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall, subject to the direction of the Board, have general and active control
of the affairs and business of the corporation and general supervision of its
officers, officials, employees and agents. He shall preside at all meetings
of the shareholders. He shall also preside at all meetings of the Board and
any committee thereof of which he is a member, unless the Board or such
committee shall have chosen another chairman. He shall see that all orders
and resolutions of the Board are carried into effect, and in addition he
shall have all the powers and perform all the duties generally appertaining
to the office of the Chief Executive Officer of a corporation. The Chief
Executive Officer shall designate the person or persons who shall exercise
his powers and perform his duties in his absence or disability and the
absence or disability of the President.
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SECTION 4.7 PRESIDENT. The President may be Chief Executive Officer
if so designated by the Board. If not, he shall have such powers and perform
such duties as are prescribed by the Chief Executive Officer or by the Board,
and, in the absence or disability of the Chief Executive Officer, he shall
have the powers and perform the duties of the Chief Executive Officer, except
to the extent that the Board shall have otherwise provided.
SECTION 4.8 CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Chairman of the
Executive Committee shall be a member of the Executive Committee. He shall
preside at meetings of the Executive Committee and shall have such other
powers and perform such other duties as are prescribed by the Board or by the
Chief Executive Officer.
SECTION 4.9 VICE CHAIRMAN OF THE BOARD. Each Vice Chairman of the
Board shall have such powers and perform such duties as are prescribed by the
Chief Executive Officer or by the Board.
SECTION 4.10 SECRETARY. The Secretary shall attend all meetings and
keep the minutes of all proceedings of the shareholders, the Board, the
Executive Committee and any other committee unless it shall have chosen
another secretary. He shall give notice of all such meetings and all other
notices required by law or by these by-laws. He shall have custody of the
seal of the corporation and shall have power to affix it to any instrument
and to attest thereto. He shall have charge of the record of shareholders
required by law, which may be kept by any transfer agent or agents under his
direction. He shall maintain the records of directors and officers as
required by law. He shall have charge of all documents and other records,
except those for which some other officer or agent is properly accountable,
and shall generally perform all duties appertaining to the office of
secretary of a corporation. (B.C.L. Sections 605, 624, 718.)
SECTION 4.11 TREASURER. The Treasurer shall have the care and
custody of all of the funds, securities and other valuables of the
corporation, except to the extent they shall be entrusted to other officers,
employees or agents by direction of the Chief Executive Officer or the Board.
The Treasurer may hold the funds, securities and other valuables in his care
in such vaults or safe deposit facilities, or may deposit them in and entrust
them to such bank, trust companies and other depositories, all as he shall
determine with the written concurrence of the Chief Executive Officer or his
delegate. The Treasurer shall account regularly to the Comptroller for all of
his receipts, disbursements and deliveries of funds, securities and other
valuables.
The Treasurer or his delegate, jointly with the Chief Executive
Officer or his delegate, may designate in writing and certify to any bank,
trust company, safe deposit company or other depository the persons
(including themselves) who are authorized, singly or jointly as they shall
specify in each case, to open accounts in the name of the corporation with
banks, trust companies and other depositories, to deposit therein funds,
instruments and securities belonging to the corporation, to draw checks or
drafts on such accounts in amounts not exceeding the credit balances therein,
to order the delivery of securities therefrom, to rent safe deposit boxes or
vaults in the name of the corporation, to have access to such facility and to
deposit therein and remove therefrom securities and other valuables. Any such
designation and certification shall contain the regulations, terms and
conditions applicable to such authority and may be amended or terminated at
any time.
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Such powers may also be granted to any other officer, official,
employee or agent of the corporation by resolution of the Board or by power
of attorney authorized by the Board.
SECTION 4.12 COMPTROLLER. The Comptroller shall be the chief
accounting officer of the corporation and shall have control of all its books
of account. He shall see that correct and complete books and records of
account are kept as required by law, showing fully, in such form as he shall
prescribe, all transactions of the corporation, and he shall require, keep
and preserve all vouchers relating thereto for such period as may be
necessary.
The Comptroller shall render periodically such financial statements
and such other reports relating to the corporation's business as may be
required by the Chief Executive Officer or the Board. He shall generally
perform all duties appertaining to the office of comptroller of a
corporation. (B.C.L. Section 624.)
SECTION 4.13 OFFICIALS AND AGENTS. The Chief Executive Officer or
his delegate may appoint such officials and agents of the corporation as the
conduct of its business may require and assign to them such titles, powers,
duties and compensation as he shall see fit and may remove or suspend or
modify such titles, powers, duties or compensation at any time with or
without cause.
ARTICLE V
SHARES
SECTION 5.1 CERTIFICATES. The shares of the corporation shall be
represented by certificates or shall be uncertificated shares. Certificates
shall be in such form, consistent with law, as prescribed by the Board, and
signed and sealed as provided by law. (B.C.L. Section 508.)
SECTION 5.2 TRANSFER OF SHARES. Except as provided in the
certificate of incorporation, upon surrender to the corporation or to its
transfer agent of a certificate representing shares, duly endorsed or
accompanied with proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto and to cancel the old certificate. The
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corporation shall be entitled to treat the holder of record of any shares as
the holder in fact thereof, and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such shares on the part of any
other person, whether or not the corporation shall have express or other
notice thereof, except as may be required by law. (B.C.L. Section 508(d).)
SECTION 5.3 RECORD OF SHAREHOLDERS. The corporation shall keep at its
principal office within the State of New York, or at the office of its transfer
agent or registrar in the State of New York, a record in written form, or in
any other form capable of being converted into written form within a reasonable
time, which shall contain the names and addresses of all shareholders, the
numbers and class of shares held by each, and the dates when they respectively
became the owners of record thereof. (B.C.L. Section 624(a).)
SECTION 5.4 LOST OR DESTROYED CERTIFICATES. In case of the alleged
loss, destruction or mutilation of a certificate or certificates representing
shares, the Board may direct the issuance of a new certificate or certificates
in lieu thereof upon such terms and conditions in conformity with law as the
Board may prescribe. (B.C.L. Section 508(e).)
SECTION 5.5 FIXING RECORD DATE. The Board or the Chief Executive
Officer may fix, in advance, a date as the record date for the purpose of
determining the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of
any rights, or for the purpose of any other action. Such date shall not be
more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. (B.C.L. Section 604.)
ARTICLE VI
INDEMNIFICATION OF CORPORATION PERSONNEL
SECTION 6.1 DIRECTORS, OFFICERS AND EMPLOYEES. The corporation
shall, to the fullest extent permitted by applicable law as the same exists
or may hereafter be in effect, indemnify any person, made or threatened to be
made, a party to, or who is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, legislative or investigative, by reason of the fact that such
person, is or was or has agreed to become a director of the corporation, or
is or was an officer or employee of the corporation, or serves or served or
has agreed to serve any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the request of
the corporation, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred in connection with such action or proceeding, or any
appeal therein; PROVIDED, HOWEVER, that no indemnification shall be provided
to any such person if a judgment or other final adjudication adverse to the
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director, officer or employee establishes that (i) his acts were committed in
bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he
was not legally entitled. Any action or proceeding by or in the right of the
corporation to procure a judgment in its favor or 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 serves or served or agreed to serve
at the request of the corporation shall be included in the actions for which
directors, officers and employees will be indemnified under the terms of this
Section 6.1. Such indemnification shall include the right to be paid advances
of any expenses incurred by such person in connection with such action, suit
or proceeding, upon receipt of an undertaking by or on behalf of such person
to repay such amount consistent with the provisions of applicable law.
(B.C.L. Sections 721, 722, 723(c).)
SECTION 6.2 OTHER INDEMNIFICATION. The corporation may indemnify any
person to whom the corporation is permitted by applicable law or these
by-laws to provide indemnification or the advancement of expenses, whether
pursuant to rights granted pursuant to, or provided by, the New York Business
Corporation Law or any other law or these by-laws or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended
that these by-laws authorize the creation of other rights in any such manner.
The right to be indemnified and to the reimbursement or advancement of
expenses incurred in defending a proceeding in advance of its final
disposition authorized by this Section 6.2, shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
(B.C.L. Sections 721, 723(c).)
SECTION 6.3 MISCELLANEOUS. The right to indemnification conferred by
Section 6.1, and any indemnification extended under Section 6.2, (i) is a
contract right pursuant to which the person entitled thereto may bring suit
as if the provisions thereof were set forth in a separate written contract
between the corporation and such person, (ii) is intended to be retroactive
to events occurring prior to the adoption of this Article VI, to the fullest
extent permitted by applicable law, and (iii) shall continue to exist after
the rescission or restrictive modification thereof with respect to events
occurring prior thereto. The benefits of Section 6.1 shall extend to the
heirs, executors, administrators and legal representatives of any person
entitled to indemnification under this Article.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall be
the calendar year.
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SECTION 7.2 VOTING OF SHARES OF OTHER CORPORATIONS. The Board may
authorize any officer, agent or proxy to vote shares of any domestic or
foreign corporation of any type or kind standing in the name of this
corporation and to execute written consents respecting the same, but in the
absence of such specific authorization the Chief Executive Officer of this
corporation or his delegate may vote such shares and may execute proxies and
written consents with relation thereto.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 GENERAL. Except as otherwise provided by law, these
by-laws may be amended or repealed or new by-laws may be adopted by the Board
of Directors, or by vote of the holders of the shares at the time entitled to
vote in the election of any directors, except that the Board may not amend or
repeal any by-law, or adopt any new by-law with respect to the subject matter
of any by-law, which specifically states that it may be amended or repealed
only by the shareholders. (B.C.L. Section 601.)
SECTION 8.2 AMENDMENT OF THIS ARTICLE. This Article VIII may be
amended or repealed only by the shareholders entitled to vote hereon as
provided in Section 8.1 above.
* * * * * * * * * * * * * * * * * * *
-15-
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(as amended through April 29, 2008)
-1-
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the
corporation within the State of New York shall be located in the City of New
York, County of New York.
SECTION 1.2 OTHER OFFICES. The corporation may have such other
offices and places of business within and without the State of New York as
the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the shareholders
for the election of directors and for the transaction of other business shall
be held at the principal office of the corporation within the State of New
York, or at such other place either within or without the State of New York
as may be fixed by the Board of Directors (hereinafter referred to as the
"Board") from time to time. The annual meeting shall be held on such full
business day in each year not earlier than March 15 nor later than April 30
and at such hour as shall be fixed by the Board, or on such other day and at
such hour as shall be fixed by the Board. If the election of directors shall
not be held on the date so fixed for the annual meeting, a special meeting of
the shareholders for the election of directors shall be called forthwith in
the manner provided herein for special meetings, or as may otherwise be
provided by law. (B.C.L. Section 602.)(1)
SECTION 2.2 SPECIAL MEETINGS. Special Meetings of the shareholders
may be held for such purpose or purposes as shall be specified in a call for
such meeting made by resolution of the Board or by a majority of the
directors then in office or by the Chief Executive Officer.
-----------------------------------------
(1) This and other references to the New York Business Corporation Law are
not part of the by-laws, but are included solely for convenience in locating
relevant portions of the statute.
-2-
At any such special meeting only such business may be transacted
which is related to the purpose or purposes set forth in the notice of
meeting. (B.C.L. Section 602(c).)
SECTION 2.3 NOTICE OF MEETINGS. Notice of all meetings of
shareholders shall be in writing and shall state the place, date and hour of
the meeting and such other matters as may be required by law. Notice of any
special meeting shall also state the purpose or purposes for which the
meeting is called and shall indicate that it is being issued by or at the
direction of the person or persons calling the meeting. A copy of the notice
of any meeting, shall be given, personally or by mail, not less than ten nor
more than sixty days before the date of the meeting, provided that a copy of
such notice may be given by third class mail not less than twenty-four nor
more than sixty days before the date of the meeting, to each shareholder
entitled to vote at such meeting. If mailed, such notice shall be deemed
given when deposited in the United States mail, with postage thereon prepaid,
directed to the shareholder at his address as it appears on the record of
shareholders, or, if he shall have filed with the Secretary of the
corporation a written request that notices to him be mailed at some other
address, then directed to him at such other address. Notice of any adjourned
meeting of the shareholders shall not be required if the time and place to
which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, but if after the adjournment the Board or Chief
Executive Officer fixes a new record date for the adjourned meeting, notice
of the adjourned meeting shall be given to each shareholder of record on the
new record date. (B.C.L. Section 605.)
SECTION 2.4 QUORUM AND VOTING. Except as otherwise provided by law
or the certificate of incorporation, the holders of a majority of the votes
of the shares entitled to vote thereat shall constitute a quorum at any
meeting of the shareholders for the transaction of any business, but a lesser
interest may adjourn any meeting from time to time and from place to place
until a quorum is obtained. Any business may be transacted at any adjourned
meeting that might have been transacted at the original meeting. When a
quorum is once present to organize a meeting of shareholders, it is not
broken by the subsequent withdrawal of any shareholders. Any corporate action
taken by vote of the shareholders shall, except as otherwise required by law
or the certificate of incorporation, be authorized by a majority of the votes
cast at a meeting of shareholders by the holders of shares entitled to vote
thereon. Every shareholder of record shall be entitled at every meeting of
shareholders to one vote for each share standing in his name on the record of
shareholders, unless otherwise provided in the certificate of incorporation.
Neither treasury shares, nor shares held by any other corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the corporation, shall be voted at any meeting
or counted in determining the total number of outstanding shares then
entitled to vote.
In a non-contested election of directors, any incumbent director
nominee who is not elected by the shareholders shall immediately tender his
or her resignation. The Board of Directors shall decide whether or not to
accept such resignation, and shall promptly disclose and explain its decision
in a Form 8-K (or successor form) filed with the Securities and Exchange
-3-
Commission within 90 days after the date the results of the election are
certified. An incumbent director who tenders his or her resignation pursuant
to this paragraph will not participate in the Board's deliberations with
respect to such resignation. In acting on the resignation, the Board shall
consider all factors that it may deem relevant.
If the incumbent director's resignation is not accepted by the
Board, he or she shall continue to serve until the next annual meeting of
shareholders and until his or her successor is elected and qualified. If the
resignation is accepted or if the nominee who failed to receive the required
vote is not an incumbent director, the Board may fill the resulting vacancy
or decrease the size of the Board in accordance with these by-laws. (B.C.L.
Sections 608, 614.)
SECTION 2.5 PROXIES. Every shareholder entitled to vote at a meeting
of the shareholders may authorize another person to vote for him by proxy
executed in writing (or in such manner permitted by law) by the shareholder
or his attorney-in-fact. No proxy shall be valid after the expiration of
eleven months from the date thereof, unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the shareholder executing
it, except that a proxy which is entitled "irrevocable proxy" and which
states that it is irrevocable shall be irrevocable when and to the extent
permitted by law. (B.C.L. Section 609.)
SECTION 2.6 LIST OF SHAREHOLDERS AT MEETINGS. A list of shareholders
as of the record date, certified by the Secretary or by the transfer agent of
the corporation, 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. (B.C.L. Section 607.)
SECTION 2.7 WAIVER OF NOTICE. Notice of a shareholders' meeting need
not be given to any shareholder who submits a signed waiver of notice, in
person or by proxy, whether before or after the meeting. 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. (B.C.L. Section 606.)
SECTION 2.8 INSPECTORS AT SHAREHOLDERS' MEETINGS. The Board, in advance
of any shareholders' meeting, may appoint one or more inspectors to act at the
meeting or any adjournment thereof and to perform such duties thereat as are
prescribed by law. If inspectors are not so appointed, the person presiding
at a shareholders' meeting 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 in advance of the meeting or at the meeting by
-4-
the person presiding thereat. Each inspector, before entering upon the
discharge of his 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 ability. (B.C.L. Section 610.)
SECTION 2.9 BUSINESS TO BE TRANSACTED AT SHAREHOLDERS' MEETINGS. No
business shall be transacted at any annual meeting of shareholders, except as
may be (i) specified in the notice of the meeting given by or at the
direction of the Board (including, if so specified, any shareholder proposal
submitted pursuant to the rules and regulations of the Securities and
Exchange Commission), (ii) otherwise brought before the meeting by or at the
direction of the Board or (iii) otherwise brought before the meeting in
accordance with the procedure set forth in the following paragraph, by a
shareholder of the corporation entitled to vote at such meeting.
For business to be brought by a shareholder before an annual meeting
of shareholders pursuant to clause (iii) above, the shareholder must have
given written notice thereof to the Secretary of the corporation, such notice
to be received at the principal executive offices of the corporation not less
than 90 nor more than 120 days prior to the one year anniversary of the date
of the annual meeting of shareholders of the previous year; PROVIDED,
HOWEVER, that in the event that the annual meeting of shareholders is called
for a date that is not within 30 days before or after such anniversary date,
notice by the shareholder must be received at the principal executive offices
of the corporation not later than the close of business on the tenth day
following the day on which the corporation's notice of the date of the
meeting is first given or made to the shareholders or disclosed to the
general public (which disclosure may be effected by means of a publicly
available filing with the Securities and Exchange Commission), whichever
occurs first. A shareholder's notice to the Secretary shall set forth, as to
each matter the shareholder proposes to bring before the annual meeting of
shareholders, (i) a brief description of the business proposed to be brought
before the annual meeting of shareholders and of the reasons for bringing
such business before the meeting and, if such business includes a proposal to
amend either the certificate of incorporation or these by-laws, the text of
the proposed amendment, (ii) the name and record address of the shareholder
proposing such business, (iii) the number of shares of each class of stock of
the corporation that are beneficially owned by such shareholder, (iv) any
material interest of the shareholder in such business and (v) such other
information relating to the proposal that is required to be disclosed in
solicitations pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission or
other applicable law.
Notwithstanding anything in these by-laws to the contrary, no
business shall be conducted at an annual meeting of shareholders except in
accordance with the procedures set forth in this Section 2.9; PROVIDED,
HOWEVER, that nothing in this Section 2.9 shall be deemed to preclude
discussion by any shareholder of any business properly brought before the
annual meeting of shareholders in accordance with such procedures. The
chairman of an annual meeting of shareholders shall, if the facts warrant,
determine and declare to the meeting that the business was not properly
brought before the meeting in accordance with the provisions of this Section
2.9, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the annual meeting of
shareholders shall not be transacted.
-5-
ARTICLE III
DIRECTORS
SECTION 3.1 POWERS, NUMBER, QUALIFICATIONS AND TERM OF OFFICE. The
business of the corporation shall be managed by its Board, which shall
consist of not less than seven persons, each of whom shall be at least
twenty-one years of age. Subject to such limitation, the number of directors
shall be fixed and may be increased or decreased from time to time by a
majority of the entire Board. Directors need not be shareholders. Except as
otherwise provided by law or these by-laws, the directors shall be elected at
the annual meetings of the shareholders, and each director shall hold office
until the next annual meeting of shareholders, and until his successor has
been elected and qualified. Newly created directorships resulting from an
increase in the number of directors and any vacancies occurring in the Board
for any reason, including vacancies occurring by reason of the removal of any
of the directors with or without cause, may be filled by vote of a majority
of the directors then in office, although less than a quorum exists. No
decrease in the number of directors shall shorten the terms of any incumbent
director. A director elected to fill a vacancy shall be elected to hold
office for the unexpired term of his predecessor. If the Board has not
elected a Chairman of the Board as an officer, it may choose a Chairman of
the Board from among its members to preside at its meetings. (B.C.L. Sections
701, 702, 703, 705.)
SECTION 3.2 REGULAR MEETINGS. There shall be regular meetings of the
Board, which may be held on such dates and without notice or upon such notice
as the Board may from time to time determine. Regular meetings shall be held
at the principal office of the corporation within the State of New York or at
such other place either within or without the State of New York and at such
specific time as may be fixed by the Board from time to time. There shall
also be a regular meeting of the Board, which may be held without notice or
upon such notice as the Board may from time to time determine, after the
annual meeting of the shareholders or any special meeting of the shareholders
at which an election of directors is held. (B.C.L. Sections 710, 711.)
SECTION 3.3 SPECIAL MEETINGS. Special meetings of the Board may be
held at any place within or without the State of New York at any time when
called by the Chairman of the Board or the President or four or more
directors. Notice of the time and place of special meetings shall be given to
each director by serving such notice upon him personally within the City of
New York at least one day prior to the time fixed for such meeting, or by
mailing or telegraphing it, prepaid, addressed to him at his post office
address, as it appears on the books of the corporation, at least three days
prior to the time fixed for such meeting. Neither the call or notice nor any
waiver of notice need specify the purpose of any meeting of the Board.
(B.C.L. Sections 710, 711.)
-6-
SECTION 3.4 WAIVER OF NOTICE. Notice of a meeting need not be given
to any director who signs a waiver of notice whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to him. (B.C.L. Section 711(c).)
SECTION 3.5 QUORUM AND VOTING. One-third of the entire Board shall
constitute a quorum. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time and place. Notice
of any adjournment shall be given to the directors who were not present at
the time of the adjournment and, unless the time and place of such
adjournment are announced at the meeting, to the other directors. The vote of
a majority of the directors present at the time of the vote, if a quorum is
present at such time, shall be the act of the Board, except where a larger
vote is required by law, the certificate of incorporation or these by-laws.
(B.C.L. Sections 701, 708, 711(d).)
SECTION 3.6 ACTION BY THE BOARD. Any reference in these by-laws to
corporate action to be taken by the Board shall mean such action at a meeting
of the Board. However, any action required or permitted to be taken by the
Board or any committee thereof may be taken without a meeting if all members
of the Board or the committee consent in writing to the adoption of a
resolution authorizing the action. The resolution and the written consent
thereto by the members of the Board or committee shall be filed with the
minutes of the proceedings of the Board or committee. Any one or more members
of the Board or any committee thereof may participate in a meeting of such
Board or committee by means of a conference telephone or similar
communications equipment 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. (B.C.L. Section 708.)
SECTION 3.7 COMMITTEES OF THE BOARD. The Board by resolution adopted
by a majority of the entire Board may designate from among its members one or
more committees, each consisting of three or more directors. Each such
committee shall have all the authority of the Board to the extent provided in
such resolution, except as limited by law. No such committee shall exercise
its authority in a manner inconsistent with any action, direction, or
instruction of the Board.
The Board may appoint a Chairman of any committee (except for the
Executive Committee, if one is established, in the case where the Chairman of
the Executive Committee has been elected pursuant to Section 4.1 of these
by-laws), who shall preside at meetings of their respective committees. The
Board may fill any vacancy in any committee and may designate one or more
directors as alternate members of such committee, who may replace any absent
member or members at any meeting of such committee. Each such committee shall
serve at the pleasure of the Board, but in no event beyond its first meeting
following the annual meeting of the shareholders.
-7-
All acts done and powers conferred by any committee pursuant to the
foregoing authorization shall be deemed to be and may be certified as being
done or conferred under authority of the Board.
A record of the proceedings of each committee shall be kept and
submitted at the next regular meeting of the Board.
At least one-third but not less than two of the members of any
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members present at the time of the vote, if a
quorum is present at such time, shall be the act of the committee. If a
committee or the Board shall establish regular meetings of any committee,
such meetings may be held without notice or upon such notice as the committee
may from time to time determine. Notice of the time and place of special
meetings of any committee shall be given to each member of the committee in
the same manner as in the case of special meetings of the Board. Notice of a
meeting need not be given to any member of a committee who signs a waiver of
notice whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice
to him. Except as otherwise provided in these by- laws, each committee shall
adopt its own rules of procedure. (B.C.L. Section 712.)
SECTION 3.8 COMPENSATION OF DIRECTORS. The Board shall have authority
to fix the compensation of directors for services in any capacity.
(B.C.L. Section 713(e).)
SECTION 3.9 RESIGNATION AND REMOVAL OF DIRECTORS. Any director may
resign at any time by giving written notice thereof to the Chief Executive
Officer or to the Board, and such resignation shall take effect at the time
therein specified without the necessity of further action. Any director may
be removed with or without cause by vote of the shareholders, or with cause
by action of the Board. (B.C.L. Section 706.)
SECTION 3.10 THE "ENTIRE BOARD". As used in these by-laws the term
"the entire Board" or "the entire Board of Directors" means the total number
of directors which the corporation would have if there were no vacancies.
(B.C.L. Section 702.)
SECTION 3.11 NOMINATION OF DIRECTORS. Subject to the rights of
holders of any class or series of stock having a preference over the common
shares as to dividends or upon liquidation, nominations for the election of
directors may only be made (i) by the Board or a committee appointed by the
Board or (ii) by a shareholder of the corporation entitled to vote at the
meeting at which a person is to be nominated in accordance with the procedure
set forth in the following paragraph.
A shareholder may nominate a person or persons for election as
directors only if the shareholder has given written notice of its intent to
make such nomination to the Secretary of the corporation, such notice to be
received at the principal executive offices of the corporation (i) with
respect to an annual meeting of shareholders, not less than 90 nor more than
-8-
120 days prior to the one year anniversary of the date of the annual meeting
of shareholders of the previous year; PROVIDED, HOWEVER, that in the event
that the annual meeting of shareholders is called for a date that is not
within 30 days before or after such anniversary date, notice by the
shareholder must be received at the principal executive offices of the
corporation not later than the close of business on the tenth day following
the day on which the corporation's notice of the date of the meeting is first
given or made to the shareholders or disclosed to the general public (which
disclosure may be effected by means of a publicly available filing with the
Securities and Exchange Commission), whichever occurs first and (ii) with
respect to a special meeting of shareholders called for the purpose of
electing directors, not later than the close of business on the tenth day
following the day on which the corporation's notice of the date of the
meeting is first given or made to the shareholders or disclosed to the
general public (which disclosure may be effected by means of a publicly
available filing with the Securities and Exchange Commission), whichever
occurs first. A shareholder's notice to the Secretary shall set forth (i) the
name and record address of the shareholder who intends to make such
nomination, (ii) the name, age, business and residence addresses and
principal occupation of each person to be nominated, (iii) the number of
shares of each class of stock of the corporation that are beneficially owned
by the shareholder, (iv) a description of all arrangements and understandings
between the shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such shareholder, (v) such other information relating to the
person(s) that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission or other applicable law and (vi) the written consent of each
proposed nominee to be named as a nominee and to serve as a director of the
corporation if elected, together with an undertaking, signed by each proposed
nominee, to furnish to the corporation any information it may request upon
the advice of counsel for the purpose of determining such proposed nominee's
eligibility to serve as a director. The chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedures and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
ARTICLE IV
OFFICERS AND OFFICIALS
SECTION 4.1 OFFICERS. The Board shall elect a Chairman of the Board
or a President or both, and a Secretary, a Treasurer and a Comptroller and
may elect such other officers, including a Chairman of the Executive
Committee and one or more Vice Chairmen of the Board, as the Board shall
determine. Each officer shall have such powers and perform such duties as are
provided in these by-laws and as may be provided from time to time by the
Board or by the Chief Executive Officer. Each officer shall at all times be
subject to the control of the Board, and any power or duty assigned to an
officer by these by-laws or the Board or the Chief Executive Officer shall be
subject to control, withdrawal or limitation by the Board. (B.C.L. Section
715.)
-9-
SECTION 4.2 QUALIFICATIONS. Any person may hold two or more offices,
except that neither the Chairman nor the President shall be Secretary or
Treasurer. The Board may require any officer to give security for the
faithful performance of his duties.
(B.C.L. Sections 715(e) and (f).)
SECTION 4.3 ELECTION AND TERMINATION. The Board shall elect officers
at the meeting of the Board following the annual meeting of the shareholders
and may elect additional officers and fill vacancies at any other time.
Unless the Board shall otherwise specify, each officer shall hold office
until the meeting of the Board following the next annual meeting of the
shareholders, and until his successor has been elected and qualified, except
as hereinafter provided. The Board may remove any officer or terminate his
duties and powers, at any time, with or without cause. Any officer may resign
at any time by giving written notice thereof to the Chief Executive Officer
or to the Board, or by retiring or by leaving the employ of the corporation
(without being employed by a subsidiary or affiliate) and any such action
shall take effect as a resignation without necessity of further action. The
Chief Executive Officer may suspend any officer until the next meeting of the
Board. (B.C.L. Sections 715, 716.)
SECTION 4.4 DELEGATION OF POWERS. Each officer may delegate to any
other officer and to any official, employee or agent of the corporation, such
portions of his powers as he shall deem appropriate, subject to such
limitations and expirations as he shall specify, and may revoke such
delegation at any time.
SECTION 4.5 CHAIRMAN OF THE BOARD. The Chairman of the Board may be,
but need not be, a person other than the Chief Executive Officer of the
corporation. The Chairman of the Board may be, but need not be, an officer or
employee of the corporation. The Chairman of the Board shall preside at
meetings of the Board of Directors and shall establish agendas for such
meetings. In addition, he shall assure that matters of significant interest
to shareholders and the investment community are addressed by management. The
Chairman of the Board shall be an ex-officio member of each of the standing
committees of the Board, except for the Executive Committee, of which he
shall be a member.
SECTION 4.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall, subject to the direction of the Board, have general and active control
of the affairs and business of the corporation and general supervision of its
officers, officials, employees and agents. He shall preside at all meetings
of the shareholders. He shall also preside at all meetings of the Board and
any committee thereof of which he is a member, unless the Board or such
committee shall have chosen another chairman. He shall see that all orders
and resolutions of the Board are carried into effect, and in addition he
shall have all the powers and perform all the duties generally appertaining
to the office of the Chief Executive Officer of a corporation. The Chief
Executive Officer shall designate the person or persons who shall exercise
his powers and perform his duties in his absence or disability and the
absence or disability of the President.
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SECTION 4.7 PRESIDENT. The President may be Chief Executive Officer
if so designated by the Board. If not, he shall have such powers and perform
such duties as are prescribed by the Chief Executive Officer or by the Board,
and, in the absence or disability of the Chief Executive Officer, he shall
have the powers and perform the duties of the Chief Executive Officer, except
to the extent that the Board shall have otherwise provided.
SECTION 4.8 CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Chairman of the
Executive Committee shall be a member of the Executive Committee. He shall
preside at meetings of the Executive Committee and shall have such other
powers and perform such other duties as are prescribed by the Board or by the
Chief Executive Officer.
SECTION 4.9 VICE CHAIRMAN OF THE BOARD. Each Vice Chairman of the
Board shall have such powers and perform such duties as are prescribed by the
Chief Executive Officer or by the Board.
SECTION 4.10 SECRETARY. The Secretary shall attend all meetings and
keep the minutes of all proceedings of the shareholders, the Board, the
Executive Committee and any other committee unless it shall have chosen
another secretary. He shall give notice of all such meetings and all other
notices required by law or by these by-laws. He shall have custody of the
seal of the corporation and shall have power to affix it to any instrument
and to attest thereto. He shall have charge of the record of shareholders
required by law, which may be kept by any transfer agent or agents under his
direction. He shall maintain the records of directors and officers as
required by law. He shall have charge of all documents and other records,
except those for which some other officer or agent is properly accountable,
and shall generally perform all duties appertaining to the office of
secretary of a corporation. (B.C.L. Sections 605, 624, 718.)
SECTION 4.11 TREASURER. The Treasurer shall have the care and
custody of all of the funds, securities and other valuables of the
corporation, except to the extent they shall be entrusted to other officers,
employees or agents by direction of the Chief Executive Officer or the Board.
The Treasurer may hold the funds, securities and other valuables in his care
in such vaults or safe deposit facilities, or may deposit them in and entrust
them to such bank, trust companies and other depositories, all as he shall
determine with the written concurrence of the Chief Executive Officer or his
delegate. The Treasurer shall account regularly to the Comptroller for all of
his receipts, disbursements and deliveries of funds, securities and other
valuables.
The Treasurer or his delegate, jointly with the Chief Executive
Officer or his delegate, may designate in writing and certify to any bank,
trust company, safe deposit company or other depository the persons
(including themselves) who are authorized, singly or jointly as they shall
specify in each case, to open accounts in the name of the corporation with
banks, trust companies and other depositories, to deposit therein funds,
instruments and securities belonging to the corporation, to draw checks or
drafts on such accounts in amounts not exceeding the credit balances therein,
to order the delivery of securities therefrom, to rent safe deposit boxes or
vaults in the name of the corporation, to have access to such facility and to
deposit therein and remove therefrom securities and other valuables. Any such
designation and certification shall contain the regulations, terms and
conditions applicable to such authority and may be amended or terminated at
any time.
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Such powers may also be granted to any other officer, official,
employee or agent of the corporation by resolution of the Board or by power
of attorney authorized by the Board.
SECTION 4.12 COMPTROLLER. The Comptroller shall be the chief
accounting officer of the corporation and shall have control of all its books
of account. He shall see that correct and complete books and records of
account are kept as required by law, showing fully, in such form as he shall
prescribe, all transactions of the corporation, and he shall require, keep
and preserve all vouchers relating thereto for such period as may be
necessary.
The Comptroller shall render periodically such financial statements
and such other reports relating to the corporation's business as may be
required by the Chief Executive Officer or the Board. He shall generally
perform all duties appertaining to the office of comptroller of a
corporation. (B.C.L. Section 624.)
SECTION 4.13 OFFICIALS AND AGENTS. The Chief Executive Officer or
his delegate may appoint such officials and agents of the corporation as the
conduct of its business may require and assign to them such titles, powers,
duties and compensation as he shall see fit and may remove or suspend or
modify such titles, powers, duties or compensation at any time with or
without cause.
ARTICLE V
SHARES
SECTION 5.1 CERTIFICATES. The shares of the corporation shall be
represented by certificates or shall be uncertificated shares. Certificates
shall be in such form, consistent with law, as prescribed by the Board, and
signed and sealed as provided by law. (B.C.L. Section 508.)
SECTION 5.2 TRANSFER OF SHARES. Except as provided in the
certificate of incorporation, upon surrender to the corporation or to its
transfer agent of a certificate representing shares, duly endorsed or
accompanied with proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto and to cancel the old certificate. The
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corporation shall be entitled to treat the holder of record of any shares as
the holder in fact thereof, and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such shares on the part of any
other person, whether or not the corporation shall have express or other
notice thereof, except as may be required by law. (B.C.L. Section 508(d).)
SECTION 5.3 RECORD OF SHAREHOLDERS. The corporation shall keep at its
principal office within the State of New York, or at the office of its transfer
agent or registrar in the State of New York, a record in written form, or in
any other form capable of being converted into written form within a reasonable
time, which shall contain the names and addresses of all shareholders, the
numbers and class of shares held by each, and the dates when they respectively
became the owners of record thereof. (B.C.L. Section 624(a).)
SECTION 5.4 LOST OR DESTROYED CERTIFICATES. In case of the alleged
loss, destruction or mutilation of a certificate or certificates representing
shares, the Board may direct the issuance of a new certificate or certificates
in lieu thereof upon such terms and conditions in conformity with law as the
Board may prescribe. (B.C.L. Section 508(e).)
SECTION 5.5 FIXING RECORD DATE. The Board or the Chief Executive
Officer may fix, in advance, a date as the record date for the purpose of
determining the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of
any rights, or for the purpose of any other action. Such date shall not be
more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. (B.C.L. Section 604.)
ARTICLE VI
INDEMNIFICATION OF CORPORATION PERSONNEL
SECTION 6.1 DIRECTORS, OFFICERS AND EMPLOYEES. The corporation
shall, to the fullest extent permitted by applicable law as the same exists
or may hereafter be in effect, indemnify any person, made or threatened to be
made, a party to, or who is otherwise involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative, legislative or investigative, by reason of the fact that such
person, is or was or has agreed to become a director of the corporation, or
is or was an officer or employee of the corporation, or serves or served or
has agreed to serve any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the request of
the corporation, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred in connection with such action or proceeding, or any
appeal therein; PROVIDED, HOWEVER, that no indemnification shall be provided
to any such person if a judgment or other final adjudication adverse to the
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director, officer or employee establishes that (i) his acts were committed in
bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he
was not legally entitled. Any action or proceeding by or in the right of the
corporation to procure a judgment in its favor or 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 serves or served or agreed to serve
at the request of the corporation shall be included in the actions for which
directors, officers and employees will be indemnified under the terms of this
Section 6.1. Such indemnification shall include the right to be paid advances
of any expenses incurred by such person in connection with such action, suit
or proceeding, upon receipt of an undertaking by or on behalf of such person
to repay such amount consistent with the provisions of applicable law.
(B.C.L. Sections 721, 722, 723(c).)
SECTION 6.2 OTHER INDEMNIFICATION. The corporation may indemnify any
person to whom the corporation is permitted by applicable law or these
by-laws to provide indemnification or the advancement of expenses, whether
pursuant to rights granted pursuant to, or provided by, the New York Business
Corporation Law or any other law or these by-laws or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended
that these by-laws authorize the creation of other rights in any such manner.
The right to be indemnified and to the reimbursement or advancement of
expenses incurred in defending a proceeding in advance of its final
disposition authorized by this Section 6.2, shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
(B.C.L. Sections 721, 723(c).)
SECTION 6.3 MISCELLANEOUS. The right to indemnification conferred by
Section 6.1, and any indemnification extended under Section 6.2, (i) is a
contract right pursuant to which the person entitled thereto may bring suit
as if the provisions thereof were set forth in a separate written contract
between the corporation and such person, (ii) is intended to be retroactive
to events occurring prior to the adoption of this Article VI, to the fullest
extent permitted by applicable law, and (iii) shall continue to exist after
the rescission or restrictive modification thereof with respect to events
occurring prior thereto. The benefits of Section 6.1 shall extend to the
heirs, executors, administrators and legal representatives of any person
entitled to indemnification under this Article.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall be
the calendar year.
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SECTION 7.2 VOTING OF SHARES OF OTHER CORPORATIONS. The Board may
authorize any officer, agent or proxy to vote shares of any domestic or
foreign corporation of any type or kind standing in the name of this
corporation and to execute written consents respecting the same, but in the
absence of such specific authorization the Chief Executive Officer of this
corporation or his delegate may vote such shares and may execute proxies and
written consents with relation thereto.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 GENERAL. Except as otherwise provided by law, these
by-laws may be amended or repealed or new by-laws may be adopted by the Board
of Directors, or by vote of the holders of the shares at the time entitled to
vote in the election of any directors, except that the Board may not amend or
repeal any by-law, or adopt any new by-law with respect to the subject matter
of any by-law, which specifically states that it may be amended or repealed
only by the shareholders. (B.C.L. Section 601.)
SECTION 8.2 AMENDMENT OF THIS ARTICLE. This Article VIII may be
amended or repealed only by the shareholders entitled to vote hereon as
provided in Section 8.1 above.
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