Exhibit 3.5
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(As
amended and restated as of February 24, 2011)
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
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 such place,
within or without the State of New York, on such date and at
such time as shall be fixed by the Board of Directors
(hereinafter referred to as the “Board”) from time to
time. 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.)(Footnote 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
(i) resolution of the Board or by a majority of the
directors then in office or by the Chief Executive Officer, or
(ii) solely to the extent required by this
Section 2.2, by the Secretary. (B.C.L. Section 602(c).)
Subject to the provisions of this Section 2.2 and all other
applicable sections of these by-laws, a special meeting of
shareholders shall be called by the Secretary of the corporation
(the “Secretary”) upon written request (a
“Special Meeting Request”) to the Secretary of one or
more record holders of common shares of the corporation
representing not less than 25% of the voting power of all
outstanding common shares of the corporation which shares are
determined to be “Net Long Shares” in accordance with
this Section 2.2 (the “Requisite Percentage”).
For purposes of this Section 2.2 and for determining the
Requisite Percentage, Net Long Shares shall be limited to the
number of shares beneficially owned, directly or indirectly, by
any shareholder or beneficial owner that constitute such
person’s net long position as defined in
Rule 14e-4
under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), provided that for purposes of such
definition the date the tender offer is first announced shall
instead be the date for determining
and/or
documenting a shareholder’s or beneficial owner’s Net
Long Shares and the reference to the highest tender price shall
refer to the market price on such date and, to the extent not
covered by such definition, reduced by any shares as to which
such person does not, at the time the Special Meeting Request is
delivered to the Company, have the right to vote or direct the
vote at the Special Meeting or as to which such person has
entered into a derivative or other agreement, arrangement or
understanding that hedges or transfers, in whole or in part,
directly or indirectly, any of the economic consequences of
ownership of such shares. In addition, to the extent any
affiliates of the Requesting Shareholder (as defined below) are
acting in concert with the Requesting Shareholder with respect
to the calling of the special meeting, the determination of Net
Long Shares may include the effect of aggregating the Net Long
Shares (including any negative number) of such affiliate or
affiliates. Whether shares constitute “Net Long
Shares” shall be decided by the Board in its reasonable
determination.
(Footnote 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.
A Special Meeting Request must be delivered by hand or by
registered U.S. mail, postage prepaid, return receipt
requested, or courier service, postage prepaid, to the attention
of the Secretary at the principal executive offices of the
corporation. A Special Meeting Request shall only be valid if it
is signed and dated by each shareholder of record submitting the
Special Meeting Request and by each of the beneficial owners, if
any, on whose behalf the Special Meeting Request is being made
(each such record owner and beneficial owner, a “Requesting
Shareholder”), and includes (i) a statement of the
specific purpose(s) of the special meeting and the matters
proposed to be acted on at the special meeting, the text of any
proposal or business (including the text of any resolutions
proposed for consideration, and in the event that such business
includes a proposal to amend the by-laws of the corporation, the
text of the proposed amendment), the reasons for conducting such
business at the special meeting, and any material interest in
such business of each Requesting Shareholder; (ii) in the
case of any director nominations proposed to be presented at the
special meeting, the information required by the second
paragraph of Section 3.11 of these by-laws, including with
respect to each Requesting Shareholder; (iii) in the case
of any matter (other than a director nomination) proposed to be
conducted at the special meeting, the information required by
the second paragraph of Section 2.9 of these by-laws,
including with respect to each Requesting Shareholder;
(iv) a representation that each Requesting Shareholder, or
one or more representatives of each such shareholder, intends to
appear in person or by proxy at the special meeting to present
the proposal(s) or business to be brought before the special
meeting; (v) a representation as to whether the Requesting
Shareholders intend, or are part of a group that intends, to
solicit proxies with respect to the proposals or business to be
presented at the special meeting; (vi) an agreement by the
Requesting Shareholders to notify the corporation promptly in
the event of any decrease in the number of Net Long Shares held
by the Requesting Shareholders following the delivery of such
Special Meeting Request and prior to the special meeting and an
acknowledgement that any such decrease shall be deemed to be a
revocation of such Special Meeting Request to the extent of such
reduction; and (vii) documentary evidence that the
Requesting Shareholders own the Requisite Percentage as of the
date on which the Special Meeting Request is delivered to the
Secretary; PROVIDED, HOWEVER, that if the shareholder(s) of
record submitting the Special Meeting Request are not the
beneficial owners of the shares representing the Requisite
Percentage, then to be valid, the Special Meeting Request must
also include documentary evidence (or, if not simultaneously
provided with the Special Meeting Request, such documentary
evidence must be delivered to the Secretary within 10 days
after the date on which the Special Meeting Request is delivered
to the Secretary) that the beneficial owners on whose behalf the
Special Meeting Request is made beneficially own the Requisite
Percentage as of the date on which such Special Meeting Request
is delivered to the Secretary. In addition, each Requesting
Shareholder shall promptly provide any other information
reasonably requested by the corporation.
The corporation will provide the Requesting Shareholders with
notice of the record date for the determination of shareholders
entitled to vote at the special meeting. Each Requesting
Shareholder is required to update the notice delivered pursuant
to this Section 2.2 not later than 10 business days after
such record date to provide any material changes in the
foregoing information as of such record date and, with respect
to the information required under clause (vii) of the
previous paragraph, also as of a date not more than five
business days before the scheduled date of the special meeting
as to which the Special Meeting Request relates.
A Special Meeting Request shall not be valid, and a special
meeting requested by shareholders shall not be held, if
(i) the Special Meeting Request does not comply with this
Section 2.2; (ii) the Special Meeting Request relates
to an item of business that is not a proper subject for
shareholder action under applicable law; (iii) the Special
Meeting Request is delivered during the period commencing
90 days prior to the first anniversary of the date of the
immediately preceding annual meeting of shareholders and ending
on the date of the next annual meeting; (iv) an identical
or substantially similar item (as determined in good faith by
the Board, a “Similar Item”), other than the election
or removal of director(s), was presented at an annual or special
meeting of shareholders held not more than 12 months before
the Special Meeting Request is delivered; (v) the Special
Meeting Request relates to the election or removal of
director(s) and the election or removal of director(s) was
presented at an annual or special meeting of shareholders held
not more than 90 days before the Special Meeting Request is
delivered; (vi) a Similar Item, including the election or
removal of director(s), is included in the corporation’s
notice of meeting as an item of business to be brought before an
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annual or special meeting of shareholders that has been called
but not yet held or that is called for a date within
120 days of the receipt by the corporation of a Special
Meeting Request; or (vii) the Special Meeting Request was
made in a manner that involved a violation of
Regulation 14A under the Exchange Act or other applicable
law. The Board shall determine in good faith whether all
requirements set forth in this Section 2.2 have been
satisfied and such determination shall be binding on the
corporation and its shareholders.
Except as otherwise provided in this Section 2.2, a special
meeting held following a Special Meeting Request shall be held
at such date, time and place, within or without the State of New
York, as may be fixed by the Board.
A Requesting Shareholder may revoke a Special Meeting Request by
written revocation delivered to Secretary at the principal
executive offices of the corporation at any time prior to the
special meeting. If, following such revocation (or deemed
revocation pursuant to clause (vi) of the fourth paragraph
of this Section 2.2), there are unrevoked requests from
Requesting Shareholders holding, in the aggregate, less than the
Requisite Percentage, the Board, in its discretion, may cancel
the special meeting.
If none of the Requesting Shareholders appear or send a duly
authorized agent to present the business to be presented for
consideration specified in the Special Meeting Request, the
corporation need not present such business for a vote at the
special meeting, notwithstanding that proxies in respect of such
matter may have been received by the corporation.
Business transacted at any special meeting shall be limited to
(i) the purpose(s) stated in the valid Special Meeting
Request for such special meeting and (ii) any additional
matters the Board determines to submit to the shareholders at
such special meeting. The chairman of a special meeting shall
determine all matters relating to the conduct of the special
meeting, including, without limitation, determining whether to
adjourn the special meeting and whether any nomination or other
item of business has been properly brought before the special
meeting in accordance with these by-laws, and if the chairman
should so determine and declare that any nomination or other
item of business has not been properly brought before the
special meeting, then such business shall not be transacted at
the special meeting.
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,
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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
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 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. Only such business (other than nominations for the
election of directors to the Board, which must comply with the
provisions of Section 3.11 of these by-laws) may be
transacted at any annual meeting of shareholders as is
(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
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shareholder of the corporation entitled to vote at such meeting.
This Section 2.9 is expressly intended to apply to any
business proposed to be brought before an annual meeting of
shareholders other than any proposal made pursuant to
Rule 14a-8
under the Securities Exchange Act of 1934, as amended.
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
25 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) as to the
shareholder giving the notice, (A) the class, series and
number of all shares of the corporation that are owned of record
or beneficially by such shareholder, (B) the name of each
nominee holder of shares owned beneficially but not of record by
such shareholder and the number of shares of the corporation
held by each such nominee holder, (C) whether and the
extent to which any derivative instrument, swap, option,
warrant, short interest, hedge or profit interest has been
entered into by or on behalf of such shareholder or any of its
affiliates or associates with respect to the shares of the
corporation, (D) whether any other transaction, agreement,
arrangement or understanding (including any short position or
any borrowing or lending of shares) has been made by or on
behalf of such shareholder or any of its affiliates or
associates, the effect or intent of which is to mitigate loss
to, or to manage risk or benefit of share price changes for,
such shareholder or any of its affiliates or associates or to
increase or decrease the voting power or pecuniary or economic
interest of such shareholder or any of its affiliates or
associates with respect to the shares of the corporation, and
(E) a representation that such shareholder will notify the
corporation in writing of the information required in
clauses (A) through (D), in each case as in effect as of
the record date for the meeting, promptly following the later of
the record date or the date notice of the record date is first
publicly disclosed, (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 (other than nominations for the election of directors
to the Board, which must comply with the provisions of
Section 3.11 of these by-laws) 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
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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.)
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
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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.)
SECTION 3.11 NOMINATION OF DIRECTORS. Subject to the rights
of holders of any class or series of shares 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
25 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
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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) as to the shareholder giving the notice, (A) the
class, series and number of all shares of the corporation that
are owned of record or beneficially by such shareholder,
(B) the name of each nominee holder of shares owned
beneficially but not of record by such shareholder and the
number of shares the corporation held by each such nominee
holder, (C) whether and the extent to which any derivative
instrument, swap, option, warrant, short interest, hedge or
profit interest has been entered into by or on behalf of such
shareholder or any of its affiliates or associates with respect
to the shares of the corporation, (D) whether any other
transaction, agreement, arrangement or understanding (including
any short position or any borrowing or lending of shares) has
been made by or on behalf of such shareholder or any of its
affiliates or associates, the effect or intent of which is to
mitigate loss to, or to manage risk or benefit of share price
changes for, such shareholder or any of its affiliates or
associates or to increase or decrease the voting power or
pecuniary or economic interest of such shareholder or any of its
affiliates or associates with respect to the shares of the
corporation, and (E) a representation that such shareholder
will notify the corporation in writing of the information
required in clauses (A) through (D), in each case as in
effect as of the record date for the meeting, promptly following
the later of the record date or the date notice of the record
date is first publicly disclosed, (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.)
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
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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.
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
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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.
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, 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
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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 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.
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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.
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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