Exhibit 3.1
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
(A New York Corporation)
(as amended through September 27, 2006)
BY-LAWS
OF
AMERICAN EXPRESS COMPANY
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of the
corporation within the State of New York shall be located in the
City of New York, County of New York.
SECTION 1.2 OTHER OFFICES. The corporation may have such other
offices and places of business within and without the State of New
York as the business of the corporation may require.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of the
shareholders for the election of directors and for the transaction
of other business shall be held at the principal office of the
corporation within the State of New York, or at such other place
either within or without the State of New York as may be fixed by
the Board of Directors (hereinafter referred to as the "Board") from
time to time. The annual meeting shall be held on such full business
day in each year not earlier than March 15 nor later than April 30
and at such hour as shall be fixed by the Board, or on such other
day and at such hour as shall be fixed by the Board. If the election
of directors shall not be held on the date so fixed for the annual
meeting, a special meeting of the shareholders for the election of
directors shall be called forthwith in the manner provided herein
for special meetings, or as may otherwise be provided by law.
(B.C.L. Section 602.)*
SECTION 2.2 SPECIAL MEETINGS. Special Meetings of the
shareholders may be held for such purpose or purposes as shall be
specified in a call for such meeting made by resolution of the Board
or by a majority of the directors then in office or by the Chief
Executive Officer.
- -------------------
*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.
1
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
8
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.
9
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,
10
accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other
person, whether or not the corporation shall have express or other
notice thereof, except as may be required by law. (B.C.L. Section
508(d).)
SECTION 5.3 RECORD OF SHAREHOLDERS. The corporation shall keep
at its principal office within the State of New York, or at the
office of its transfer agent or registrar in the State of New York,
a record in written form, or in any other form capable of being
converted into written form within a reasonable time, which shall
contain the names and addresses of all shareholders, the numbers and
class of shares held by each, and the dates when they respectively
became the owners of record thereof. (B.C.L. Section 624(a).)
SECTION 5.4 LOST OR DESTROYED CERTIFICATES. In case of the
alleged loss, destruction or mutilation of a certificate or
certificates representing shares, the Board may direct the issuance
of a new certificate or certificates in lieu thereof upon such terms
and conditions in conformity with law as the Board may prescribe.
(B.C.L. Section 508(e).)
SECTION 5.5 FIXING RECORD DATE. The Board or the Chief Executive
Officer may fix, in advance, a date as the record date for the
purpose of determining the shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or
for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the
purpose of any other action. Such date shall not be more than sixty
nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. (B.C.L. Section 604.)
ARTICLE VI
INDEMNIFICATION OF CORPORATION PERSONNEL
SECTION 6.1. DIRECTORS, OFFICERS AND EMPLOYEES. The corporation
shall, to the fullest extent permitted by applicable law as the same
exists or may hereafter be in effect, indemnify any person, made or
threatened to be made, a party to, or who is otherwise involved in,
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, legislative or
investigative, by reason of the fact that such person, is or was or
has agreed to become a director of the corporation, or is or was an
officer or employee of the corporation, or serves or served or has
agreed to serve any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at
the request of the corporation, against judgments, fines, penalties,
amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with
such action or proceeding, or any appeal therein; provided, however,
that no indemnification shall be provided to any such person if a
judgment or other final adjudication adverse to the 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).)
11
SECTION 6.2 OTHER INDEMNIFICATION. The corporation may
indemnify any person to whom the corporation is permitted by
applicable law or these by-laws to provide indemnification or the
advancement of expenses, whether pursuant to rights granted pursuant
to, or provided by, the New York Business Corporation Law or any
other law or these by-laws or other rights created by (i) a
resolution of shareholders, (ii) a resolution of directors, or (iii)
an agreement providing for such indemnification, it being expressly
intended that these by-laws authorize the creation of other rights
in any such manner. The right to be indemnified and to the
reimbursement or advancement of expenses incurred in defending a
proceeding in advance of its final disposition authorized by this
Section 6.2, shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of
the certificate of incorporation, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
(B.C.L. Sections 721, 723(c).)
SECTION 6.3 MISCELLANEOUS. The right to indemnification
conferred by Section 6.1, and any indemnification extended under
Section 6.2, (i) is a contract right pursuant to which the person
entitled thereto may bring suit as if the provisions thereof were
set forth in a separate written contract between the corporation and
such person, (ii) is intended to be retroactive to events occurring
prior to the adoption of this Article VI, to the fullest extent
permitted by applicable law, and (iii) shall continue to exist after
the rescission or restrictive modification thereof with respect to
events occurring prior thereto. The benefits of Section 6.1 shall
extend to the heirs, executors, administrators and legal
representatives of any person entitled to indemnification under this
Article.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 FISCAL YEAR. The fiscal year of the corporation shall
be the calendar year.
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