Exhibit 3.2
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(as amended through February 23, 1998)
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. 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.)
SECTION 2.2 SPECIAL MEETINGS. Special Meetings of the shareholders may
be held for such purpose or purposes (other than for the election of directors,
except as provided in Section 2.1) 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, or by the Secretary upon written
demand by the holder or holders of a majority of shares of the corporation then
outstanding and entitled to vote in the election of directors. Any such demand
by shareholders shall be delivered to the Secretary at the principal executive
offices of the corporation, and shall set forth (i) the purpose or purposes of
the meeting, and a description of each proposed matter to be approved or
addressed at such meeting, including the text of any proposed amendments to the
certificate of incorporation or these by-laws, (ii) the name and record address
of the shareholder or shareholders demanding the special meeting and (iii) the
number of shares of each class of stock of the corporation that are
beneficially owned by such shareholders. Upon receiving a demand for a special
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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.
meeting by shareholders that conforms to the requirements set forth herein, the
Secretary shall call, and in accordance with these by-laws, give notice of the
special meeting, and shall fix a date of any such meeting not less than sixty
(60) days nor more than ninety (90) days after the receipt by the Secretary of
the demand by shareholders. 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. Directors shall, except as otherwise required
by law or the certificate of incorporation or a by-law adopted by the
shareholders, be elected by a plurality of the votes cast in favor of or
against such action at a meeting of shareholders by the holders of shares
entitled to vote in the election. Any other 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. (B.C.L. Sections 608,
614.)
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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
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
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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.
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
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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.)
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.)
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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.
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.)
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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 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.
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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.)
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
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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.
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.
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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.
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 corporation shall be entitled
to treat the holder of record of any shares as the holder in fact thereof, and,
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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 AND OFFICERS. The corporation shall, to the
fullest extent permitted by applicable law as the same exists or may hereafter
be in effect, indemnify any person who is or was or has agreed to become a
director or officer of the corporation and who is or was made or threatened to
be made a party to, and may, in its discretion, indemnify, any person who is
or was or has agreed to become a director or officer and is otherwise involved
in, any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, legislative or investigative, including an
action by or in the right of the corporation to procure a judgment in its favor
and 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 such person is serving or has served or has
agreed to serve in any capacity at the request of the corporation, by reason
of the fact that he is or was or has agreed to become a director or officer of
the corporation, or is or was serving or has agreed to serve such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid or to be
paid in settlement, penalties, costs, charges and expenses, including
attorneys' fees, incurred in connection with such action or proceeding or any
appeal thereof; provided, however, that no indemnification shall be provided
to any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith
11
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. The benefits of this Section 6.1 shall extend to the heirs,
executors, administrators and legal representatives of any person entitled to
indemnification under this Section. (B.C.L. Sections 721, 722.)
SECTION 6.2 OTHER PERSONNEL. The Board in its discretion may authorize
the corporation to indemnity any person, other than a director or officer, for
expenses incurred or other amounts paid in any civil or criminal action, suit
or proceeding, to which such person was, or was threatened to be, made a party
by reason of the fact that he, his testator or intestate is or was an employee
of the corporation.
SECTION 6.3 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 6.3, 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 6.4 MISCELLANEOUS. The right to indemnification conferred by
Section 6.1, and any indemnification extended under Section 6.3, (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.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall be the
calendar year.
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.
12
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.
13
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(as amended through February 23, 1998)
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. 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.)
SECTION 2.2 SPECIAL MEETINGS. Special Meetings of the shareholders may
be held for such purpose or purposes (other than for the election of directors,
except as provided in Section 2.1) 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, or by the Secretary upon written
demand by the holder or holders of a majority of shares of the corporation then
outstanding and entitled to vote in the election of directors. Any such demand
by shareholders shall be delivered to the Secretary at the principal executive
offices of the corporation, and shall set forth (i) the purpose or purposes of
the meeting, and a description of each proposed matter to be approved or
addressed at such meeting, including the text of any proposed amendments to the
certificate of incorporation or these by-laws, (ii) the name and record address
of the shareholder or shareholders demanding the special meeting and (iii) the
number of shares of each class of stock of the corporation that are
beneficially owned by such shareholders. Upon receiving a demand for a special
------------------
not part of the by-laws, but are included solely for convenience in locating
relevant portions of the statute.
meeting by shareholders that conforms to the requirements set forth herein, the
Secretary shall call, and in accordance with these by-laws, give notice of the
special meeting, and shall fix a date of any such meeting not less than sixty
(60) days nor more than ninety (90) days after the receipt by the Secretary of
the demand by shareholders. 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. Directors shall, except as otherwise required
by law or the certificate of incorporation or a by-law adopted by the
shareholders, be elected by a plurality of the votes cast in favor of or
against such action at a meeting of shareholders by the holders of shares
entitled to vote in the election. Any other 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. (B.C.L. Sections 608,
614.)
2
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
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
3
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.
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
4
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.)
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.)
5
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.
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.)
6
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 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.
7
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.)
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
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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.
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.
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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.
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 corporation shall be entitled
to treat the holder of record of any shares as the holder in fact thereof, and,
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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 AND OFFICERS. The corporation shall, to the
fullest extent permitted by applicable law as the same exists or may hereafter
be in effect, indemnify any person who is or was or has agreed to become a
director or officer of the corporation and who is or was made or threatened to
be made a party to, and may, in its discretion, indemnify, any person who is
or was or has agreed to become a director or officer and is otherwise involved
in, any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, legislative or investigative, including an
action by or in the right of the corporation to procure a judgment in its favor
and 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 such person is serving or has served or has
agreed to serve in any capacity at the request of the corporation, by reason
of the fact that he is or was or has agreed to become a director or officer of
the corporation, or is or was serving or has agreed to serve such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid or to be
paid in settlement, penalties, costs, charges and expenses, including
attorneys' fees, incurred in connection with such action or proceeding or any
appeal thereof; provided, however, that no indemnification shall be provided
to any such person if a judgment or other final adjudication adverse to the
director or officer establishes that (i) his acts were committed in bad faith
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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. The benefits of this Section 6.1 shall extend to the heirs,
executors, administrators and legal representatives of any person entitled to
indemnification under this Section. (B.C.L. Sections 721, 722.)
SECTION 6.2 OTHER PERSONNEL. The Board in its discretion may authorize
the corporation to indemnity any person, other than a director or officer, for
expenses incurred or other amounts paid in any civil or criminal action, suit
or proceeding, to which such person was, or was threatened to be, made a party
by reason of the fact that he, his testator or intestate is or was an employee
of the corporation.
SECTION 6.3 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 6.3, 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 6.4 MISCELLANEOUS. The right to indemnification conferred by
Section 6.1, and any indemnification extended under Section 6.3, (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.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall be the
calendar year.
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.
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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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