Exhibit 3.2
BY-LAWS
JOHN WILEY & SONS, INC.
July 1994
By-Laws
As Amended July 1994
John Wiley & Sons, Inc.
Article I
Offices
Section 1. Offices. The principle office of the Corporation
shall be in the City, County and State of New York. The
Corporation may also have offices and places of business at
such other places within or without the State of New York as
the Board of Directors may from time to time determine or
the business of the Corporation may require.
Article II
Shareholders
Section 1. Annual Meeting. The annual meeting of the
shareholders of the Corporation shall be held on the third
Thursday of September, in each year or, if a legal holiday,
on the next business day, or (whether or not a legal
holiday) on such other day in September as may be fixed by
resolution of the Board of Directors or by the chairman, at
which the shareholders shall elect a Board of Directors and
transact such other business as may properly come before the
meeting.
Section 2. Special Meeting. Special meetings of the
shareholders for any purpose or purposes, unless otherwise
prescribed by statute, may be called by resolution of the
Board of Directors or by the chairman, and shall be called
by the chairman or by the president at the request in
writing of a majority of the Board of Directors. Such
request shall state the purpose of the proposed meeting.
Section 3. Time and Place of Meeting. Meetings of the
shareholders shall be held at such time and place within or
without the State of New York as the Board of Directors may
determine, or as shall be stated in the notices of the
meeting.
Section 4. Notice of Meeting. Written notice of every
meeting of shareholders, stating the purpose or purposes for
which the meeting is called and the place, date and hour of
the meeting, and unless the notice pertains to the annual
meeting, indicating that it is being issued by or at the
direction of the persons calling the meeting, shall be
given, personally or by mail, no less than ten nor more than
fifty days before the date of the meeting, to each
shareholder entitled to vote at such meeting. If mailed,
such notice shall be directed to the shareholder at the
shareholder's address as it appears on the Corporation's
record of shareholders, unless such shareholder shall have
filed with the Secretary of the Corporation a written
request that notices be mailed to some other address, in
which event the notice shall be directed to the shareholder
at such other address. Notice of meeting need not be given
to any shareholder who submits a waiver of notice, signed 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 protest as to the sufficiency of notice of
such meeting, shall constitute a waiver by such shareholder
of such notice.
Section 5. Quorum. Except as otherwise prescribed by
statute, the holders of a majority of the shares of each
class issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall be
requisite to and shall constitute a quorum at all meetings
of the shareholders for the transaction of each item of
business required to be voted on by a class voting as a
class. Except as otherwise provided by statute, the holders
of shares issued and outstanding and entitled to vote
thereat of a majority of the votes accorded to holders of
all shares, present in person or represented by proxy, shall
be requisite to and shall constitute a quorum at all
meetings of the shareholders for the transactions of any
items of business not required to be voted on separately by
a class. If a quorum shall not be present or represented,
the shareholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the
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meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present
and represented. At such adjourned meetings at which a
quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting
as originally noticed.
Section 6. Voting. Except as otherwise prescribed by
statute, each shareholder of record having the right to
vote, in respect of each share of stock standing in that
shareholder's name on the books of the Corporation, shall be
entitled at every meeting of the shareholders of the
Corporation to such voting rights as are specified in the
Certificate of Incorporation of the Corporation. Such voting
rights may be exercised in person or by proxy. All elections
shall be determined by a plurality of the class of shares
voting thereon, and, except as otherwise prescribed by
statute, all other matters shall be determined by vote of
the majority of votes cast by shareholders present or
represented at such meeting and voting on such question.
Section 7. Introduction of Business at an Annual Meeting of
Shareholders. Except as otherwise provided by law, at any
meeting of shareholders only such business shall be
conducted as shall have been properly brought before the
meeting. In order to be properly brought before the meeting,
such business must have either been (a) specified in the
written notice of the meeting (or any supplement thereto)
given to shareholders of record on the record date for such
meeting by or at the direction of the Board of Directors,
(b) brought before the meeting at the direction of the Board
of Directors or the presiding officer of the meeting, or (c)
specified in a written notice given by or on behalf of a
shareholder of record on the record date for such meeting
entitled to vote thereat or a duly authorized proxy for such
shareholder, provided that such shareholder continues to be
a shareholder of record at the time of such meeting in
accordance with all of the following requirements. A notice
referred to in clause (c) hereof must be delivered
personally, or mailed to and received at, the principal
executive office of the Corporation, addressed to the
attention of the secretary, not less than 120 calendar days
in advance of the date in the then current year
corresponding to the date the Corporation's proxy statement
was released to shareholders in connection with the previous
year's annual meeting of shareholders, except that if the
date of the annual meeting has been changed by more than 30
calendar days from any date contemplated at the time of the
previous year's proxy statement, the notice must be received
by the Corporation a reasonable time before such new date
for the annual meeting of shareholders. Such notice referred
to in clause (c) hereof shall set forth (i) a full
description of each such item of business proposed to be
brought before the meeting, (ii) the name and address of the
person proposing to bring such business before the meeting,
(iii) the class and number of shares held of record, held
beneficially and represented by proxy by such person as of
the record date for the meeting (if such date has then been
made publicly available) and as of the date of such notice,
(iv) if any item of such business involves a nomination for
director, all information regarding each such nominee that
would be required to be set forth in a definitive proxy
statement filed with the Securities and Exchange Commission
(the "SEC") pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor thereto, and the written consent of each such
nominee to serve if elected, and (v) if so requested by the
Corporation, all other information that would be required to
be filed with the SEC if, with respect to the business
proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation
subject to Section 14 of the Exchange Act or any successor
thereto. No business shall be brought before any meeting of
shareholders of the Corporation otherwise than as provided
in this Section. Notwithstanding the foregoing provision,
unless otherwise required by law, the Board of Directors
shall not be obligated to include information as to any
nominee for director in any proxy statement or other
communication sent to shareholders. The presiding officer of
the meeting may, if the facts warrant, determine and declare
to the meeting that any proposed item of business was not
brought before the meeting in accordance with the foregoing
procedures, and if he or she should so determine, he or she
shall so declare at the meeting and the defective item of
business shall be disregarded.
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Article III
Board of Directors
Section 1. Number of Directors; Election; Tenure. The
number of directors which shall constitute the Board of
Directors shall not be less than ten (10) nor more than
twenty (20) members. Within these limits the number of
directors constituting the Board shall be determined from
time to time by resolution of the Board of Directors, or by
the shareholders at an annual or special meeting. Except as
otherwise hereinafter provided in the case of vacancies, the
directors shall be elected by the shareholders at the annual
meeting. The holders of Class A Common Stock voting as a
separate class shall be entitled to elect that number of
directors which constitutes 30% of the authorized number of
members of the Board of Directors and, if 30% of the
authorized number of directors is not a whole number, the
holders of Class A Common Stock shall be entitled to elect
the nearest higher whole number of directors that is a least
30% of such membership. Holders of Class B Common Stock
voting as a separate class shall be entitled to elect the
remaining directors. Each director shall hold office until
the election and qualification of his or her successor.
Section 2. Qualification of Directors. A director must be
at least 18 years of age and not have attained age 70 on the
first day of the month in which the annual meeting occurs.
Notwithstanding the foregoing, the Board of Directors may in
its discretion vote to nominate for election a person who by
reason of having attained age 70 would otherwise cease to be
qualified under this provision, if it deems that special
circumstances justify such action.
Section 3. Nomination of Directors. Nominations for
election to the Board of Directors of the Corporation at a
meeting of the shareholders may be made only by the Board,
or on behalf of the Board by any nominating committee
appointed by the Board, or by any shareholder of the
Corporation entitled to vote for the election of directors
of the class for which such nomination is submitted who
complies with the notice procedures set forth in the By
laws.
Section 4. Director Emeritus. The Board of Directors may
designate one or more former directors as director emeritus,
which position shall be entirely honorary and shall not
confer upon the director emeritus any of the powers, duties,
rights or liabilities of a director.
Section 5. Vacancies. If any vacancy occurs in the Board
of Directors by reason of the death, resignation,
retirement, or removal from office of any director with or
without cause, or if any new directorship is created, such
vacancy shall be filled by the holders of the class of stock
entitled to elect a director to fill such a vacancy or by a
majority of the directors then in office of the class in
which such a vacancy occurs, though less than a quorum, all
in manner prescribed by the Certificate of Incorporation of
the Corporation.
Section 6. Regular Meetings of the Board. The first regular
meeting of each newly elected Board of Directors shall be
held as soon as practicable after the annual meeting of the
shareholders for the purpose of the election or appointment
of officers and the transaction of other business. Other
regular meetings of the Board of Directors may be held
without notice at such time and place as shall, from time to
time, be determined by the Board.
Section 7. Special Meetings; Notice. Special meetings
of the Board of Directors may be called by the Chairman of
the Board or by the president at any time, and shall be
called
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by the chairman, president, or secretary at the written
request of two members of the Board. Notice of a special
meeting shall be given to each director in writing either
personally, by next day courier delivery service, by
telegram at least two days prior to the meeting, or by mail
at least four days prior to the meeting. If mailed, such
notice shall be deemed given when deposited properly stamped
and addressed in the United States mail. If telegraphed or
by next day delivery service, such notice shall be deemed
given when delivered properly addressed to the telegraph or
courier company. Notice of meeting need not be given to a
director who submits a signed waiver of notice either before
or after the meeting. The attendance of a director at a
meeting without protest as to the sufficiency of notice of
such meeting shall constitute a waiver by such director of
such notice.
Section 8. Quorum. At all meetings of the Board of
Directors, a majority of the entire Board shall be requisite
to and shall constitute a quorum for the transaction of
business. If a quorum shall not be present at any meeting of
the Board of Directors, a majority of those present may
adjourn the meeting from time to time until a quorum shall
be present.
Section 9. Executive and Policy Committee. The Board of
Directors may elect from among its members, by resolution
adopted by a majority of the entire Board of Directors, an
Executive and Policy Committee consisting of four or more
members of the Board (at least one of whom shall be a
director elected by the holders of Class A common shares and
none of whom shall be an employee of the Corporation or any
of its subsidiaries). From among such committee members, the
Board shall elect a chairman of such committee.
Section 10. Duties of Executive and Policy Committee. (a)
During the intervals between meetings of the Board of
Directors, the Executive and Policy Committee shall, subject
to any limitations imposed by law or the Board of Directors,
possess and it may exercise all the powers of the Board of
Directors in the management and direction of the Corporation
in such manner as the Executive and Policy Committee shall
deem best for the interests of the Corporation. (b) The
Executive and Policy Committee shall also have
responsibility, together with the Chairman of the Board, for
review of corporate objectives and strategies and policies
formulated by senior management to attain them. It is
authorized to assist management in developing and refining
such policies as it deems appropriate, to monitor their
implementation, and to evaluate the chief executive
officer's performance in connection therewith. The Executive
and Policy Committee shall monitor and report to the Board
its recommendations and observations in respect of all
matters within its charge and shall also serve as a focal
point for communication between non-committee directors as
their duties relate to the matters described in the
preceding sentence.
Section 11. Other Committees. The Board of Directors may
also elect from among its members, by resolutions adopted by
a majority of the entire Board of Directors, such other
committee or committees as the Board of Directors shall
determine, each such committee to consist of at least three
members of the Board. The Board shall elect a chairman of
each such committee, shall fix the number and elect the
other members thereof, and shall establish the duties and
authority thereof, subject to such limitations as may be
required by law.
Section 12. Committee Vacancies. The Board of Directors
shall fill any vacancies on any committee established under
this Article, with the objective of keeping the membership
of each such committee at the authorized level.
Section 13. Action by Committees. All action by any
committee of the Board of Directors shall be referred to the
Board of Directors at its meeting next succeeding such
action, and shall be subject to revision or alteration by
the Board of Directors, provided that no rights or acts of
third parties shall be affected by any such revision or
alteration. Subject to such applicable resolutions as may be
adopted by the Board, each committee shall fix its own rules
of procedure as deemed appropriate, but in any case, except
as the Board explicitly otherwise provides, the presence of
a majority shall be necessary to constitute a quorum.
Section 14. Action of the Board. All corporate action
taken by the Board of Directors or any committee thereof
shall be taken at a meeting of such Board or committee, as
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the case may be, except that any action required or
permitted to be taken at a meeting of the Board or any
committee may be taken without a meeting, if all members
of the Board or committee, as the case may be, consent
in writing to such action and the writing or writings
are filed with the minutes of the proceedings of the
Board or committee. Any one or more members of the
Board of Directors or any committee thereof may
participate in a meeting of the Board or such committee
by means of a conference telephone or similar
communications equipment allowing all persons
participating in the meeting to hear each other.
Participation by such means shall constitute presence in
person at such meeting. Except as otherwise provided with
respect to the election of a director or as otherwise
provided by law, the vote of a majority of all directors
present at the time of the vote, voting together as a single
class, if a quorum is present at such time, shall be the act
of the Board or any committee.
Article IV
Officers
Section 1. Officers. The executive officers of the
Corporation shall be a chairman, a president, one or more
vice presidents (one or more of whom may be designated as
executive, senior or other class of vice president or
designated as chief operating officer, chief financial
officer or chief accounting officer), a secretary, and a
treasurer. There may also be such assistant vice presidents,
assistant secretaries, and assistant treasurers as the Board
of Directors may from time to time deem advisable. The Board
of Directors shall fix the authority and duties of the
officers to the extent not provided herein. Any two or more
offices may be held by the same person at the same time
except that neither the chairman nor the president may hold
the offices of vice president, treasurer or secretary.
Section 2. Election of Officers; Term of Office;
Removal. The officers shall be elected or appointed by the
Board of Directors at the first meeting of the Board
following the annual meeting of the shareholders, and shall
hold office until their respective successors have been
elected or appointed and have qualified. Any officer may be
removed with or without cause at any time by the Board. If
an office becomes vacant for any reason, the Board of
Directors shall fill such vacancy.
Section 3. Chairman. The chairman shall preside at all
meetings of the shareholders and the Board of Directors;
shall provide leadership to the Board of Directors and
advice and counsel to the president of the Corporation; and
shall perform such other duties as may be prescribed by the
Board of Directors.
Section 4. President. The president shall be the chief
executive officer of the Corporation; shall administer and
implement the policies and decisions of the Corporation and
see that all orders and resolutions of the Board of
Directors are carried into effect; shall have general and
active management of the business and affairs of the
Corporation subject to the control of the Board of
Directors; and shall have such other powers and perform such
other duties as the Board of Directors may from time to time
prescribe. In the absence of the chairman, the president
shall preside at meetings of shareholders and of the Board
of Directors.
Section 5. Vice Presidents. In the absence or disability
of the chairman and of the president, the vice presidents,
in the order designated by the Board of Directors or in
the absence of such designation, then in the order of
their election, shall exercise the duties and have the
powers of the chairman and of the president and shall
perform such other duties as may be prescribed by the
chairman, the president, or by the Board of Directors.
Section 6. Secretary. The secretary shall attend all
meetings of the Board of Directors and of the shareholders
and record all votes and the minutes of all proceedings of
the Board of Directors and of the shareholders in a book to
be kept for that purpose; shall give or cause to be given
notice of meetings of the Board of Directors and of the
shareholders and shall have custody of the certificate books
and shareholder records and such other books as the Board
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may direct; shall have custody of the seal of the
Corporation and, when authorized by the Board, shall affix
it to any instrument requiring the corporate seal; and shall
perform all other duties incident to the office of the
secretary and such other duties as may from time to time be
prescribed by the Board of Directors, by the chairman, or by
the president.
Section 7. Chief Financial Officer and Chief Accounting
Officer. The Board shall designate a chief financial officer
and a chief accounting officer who may be a single officer
or two officers and who may hold the office of treasurer (if
chief financial officer) or controller (if chief accounting
officer). The chief financial officer shall advise the Board
and the officers regarding financial requirements of the
Corporation and the financial impact of events affecting the
Corporation or action proposed to be taken by the
Corporation; shall have principal responsibility, subject to
the authority of the Board and the president, for the
development and implementation of financial planning for the
Corporation and its subsidiaries, including matters
pertaining to the capital and debt structure of the
Corporation and its subsidiaries and the allocation of
capital resources among the operations of the Corporation
and its subsidiaries; shall have the right to require, from
time to time, reports or statements giving such information
as he or she may desire with respect to any and all
financial transactions of the Corporation from the officers
or agents transacting the same; and shall cause taxes and
assessments to be paid and tax returns and reports to be
prepared and filed as required by law. The chief accounting
officer shall make and keep, or cause to be made and kept
under his or her authority, books, records, and accounts
which, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of the assets of the
Corporation; shall prepare or cause to be prepared under his
or her authority financial statements and other reports of
the financial condition and results of operations of the
Corporation and its subsidiaries; shall issue and file such
statements and render such reports when and in the form and
manner required by law; shall advise the Board and the
officers regarding accounting policies and procedures to be
adopted or adhered to in the reporting of the financial
condition and results of operations of the Corporation and
its subsidiaries; shall be responsible for the development
and implementation of internal accounting controls necessary
and appropriate to the management of the operations and
activities of the Corporation and its subsidiaries; shall
prepare or cause to be prepared such financial forecasts as
may be requested from time to time by the president or the
Board of Directors and shall develop and supervise
procedures facilitating the preparation of such forecasts;
and shall exhibit at all reasonable times the books of
account and other records caused by him or her to be kept to
any of the directors upon application at the office of the
Corporation where such books and records are kept.
The chief financial officer and the chief accounting
officer shall also, in general, perform (or cause to be
performed subject to their authority and direction) all
duties incident to the offices and functions of chief
financial officer and chief accounting officer and such
other duties as from time to time may be assigned to them by
the president or the Board of Directors.
Section 8. Treasurer. The Treasurer shall have charge and
custody of, and be responsible for, all funds, securities,
and notes of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the
Corporation in such banks, trust companies, and other
depositories as shall be selected by the Board of Directors
against proper vouchers, cause such funds to be disbursed by
checks or drafts on the authorized depositories of the
Corporation signed in such manner as shall be determined in
accordance with resolutions of the Board of Directors and be
responsible for the accuracy of the amounts of all moneys so
disbursed; and in general, perform all duties incident to
the office of treasurer and such other duties as from time
to time may be assigned to him or her by the president, the
chief financial officer, or the Board of Directors.
Section 9. Divisional Officers. The Board of Directors or
the president may establish from time to time one or more
divisions for the consolidation of all or part of the
operations or administration of the Corporation and in
connection therewith may appoint such officers and other
agents of such divisions as the Board or the president may
determine. Such divisional officers and agents as such shall
not be deemed officers of the Corporation but shall have as
between themselves and the Corporation such authority and
perform such duties in the management of the division in
which they are appointed as the Board may from time to time
determine, and shall have such authority as between
themselves and third parties to bind the Corporation in
matters respecting the ordinary course of business of the
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division for which they are appointed, as would generally be
incident to the offices to which they are appointed if such
a division were a separate corporation wholly owned by the
Corporation and such offices were held in such subsidiary.
Section 10. Controller. The Board of Directors or the chief
financial officer may elect or appoint a controller. The
controller shall have principal responsibility for
implementation of accounting policies and procedures,
including the preparation of financial statements and
reports, under the supervisory authority of the chief
accounting officer. The controller shall have such
responsibilities in the areas of development and
implementation of internal accounting controls and financial
forecasting as may be assigned to him or her from time to
time by the president, the chief accounting officer, or the
Board of Directors. The controller as such shall not be
deemed an officer of the Corporation.
Section 11. Assistant Officer. Each assistant vice
president, each assistant secretary and each assistant
treasurer shall have such powers and shall perform such
duties as may be prescribed by the Board of Directors or by
the appropriate executive officer, as the case may be.
Section 12. Compensation. The compensation of all executive
officers of the Corporation shall be fixed by the Board of
Directors. The compensation of division officers, assistant
officers, if any, and of other employees shall be fixed by
the appropriate officers.
Article V
Certificates of Stock
Section 1. Description of Stock Certificates. The
certificates of stock of this Corporation shall be
consecutively numbered by class and shall be entered on
books of the Corporation as they are issued. They shall show
the holder's name and the number of shares and shall be
signed by the chairman of the Board, the president, or a
vice president, and countersigned by the secretary or
treasurer, and shall have the seal of the Corporation, which
may be a facsimile, affixed thereto. Whenever any
certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself
or an employee of the Corporation, the signatures of
officers of the Corporation upon such certificate may be
facsimiles. If an officer who has signed or whose facsimile
signature has been placed upon a certificate shall no longer
hold such office when the certificate is issued, the
certificate may nevertheless be issued by the Corporation
with the same effect as if the officer were still holding
such office at the date of the issue.
Section 2. Transfer of Stock. Upon surrender to the
Corporation or any transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to
transfer, together with all necessary federal and state
transfer tax stamps affixed thereto, it shall be the duty of
the Corporation or such transfer agent to issue a new
certificate to the person entitled thereto, cancel the old
certificate, and record the transaction upon its books.
Section 3. Fixing 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 to express consent to or dissent from any
proposal without a meeting, or for the purpose or
determining shareholders entitled to receive payment of any
dividend or the allotment of any rights, or for the purpose
of any other action, the Board of Directors shall fix, in
advance, a date as the record date for any such
determination of shareholders. Such date shall not be more
than fifty nor less than ten days before the date of such
meeting, nor more than fifty days prior to any other action.
Section 4. Registered Shareholders. The Corporation shall
be entitled to recognize the exclusive right of a person,
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registered on its books as the owner of shares, to receive
dividends or other distributions, and vote as such owner and
otherwise treat such person as the owner of such shares 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 it shall have express or other
notice thereof except as expressly provided by the laws of
the State of New York.
Section 5. Lost Certificates. The Board of Directors may
direct the issuance of a new stock certificate in place of a
certificate theretofore issued by the Corporation which is
alleged to have been lost or destroyed. The person claiming
such loss or destruction shall submit an affidavit of the
fact in form satisfactory to the Board of Directors. The
Board of Directors, in its discretion and as condition
precedent to the issuance of the new certificate, may
require the owner of such lost or destroyed certificate or
his legal representative to give the Corporation a suitable
bond in such sum as it may direct as indemnity against any
claims that may be made against the Corporation with respect
to the certificate alleged to have been lost or destroyed
and to satisfy such other reasonable conditions as it may
impose.
Section 6. Stock Regulations. The Board of Directors shall
have the authority to make all such further rules and
regulations, not inconsistent with the laws of the State of
New York, as it may deem expedient, concerning the issue,
transfer, conversion, and registration of certificates
representing shares of the Corporation, and may appoint one
or more transfer agents and one or more registrars.
Article VI
General Provisions
Section 1. Dividends. Dividends upon the outstanding
shares of the Corporation may be declared by the Board of
Directors at any regular or special meetings in the manner
provided by the Certificate of Incorporation of the
Corporation and pursuant to applicable laws and may be paid
in cash, or in property, or in shares of the Corporation.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall begin on the 1st day of May and end on the 30th day of
April.
Section 3. Corporate Seal. The seal of the Corporation
shall consist of a circular device, having inscribed thereon
the name of the Corporation, the words "Corporate Seal New
York" and the date "1904"; and shall otherwise be in such
form as may be prescribed by the Board of Directors. The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced upon the
instrument or writing to be sealed.
Article VII
Indemnification of Officers and Directors
Section 1. General. The Corporation shall, to the fullest
extent permitted by the New York Business Corporation Law as
the same exists or may hereafter be amended, indemnify any
director or officer of the Corporation or any wholly-owned
subsidiary (or the personal representative of such director
or officer) who is or was made or threatened to be made a
party to or is involved in any threatened, pending, or
completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (including an
action by or in the right of the Corporation or any of its
subsidiaries or any other corporation, domestic or foreign,
or any partnership, joint venture, trust, employee benefit
plan, or other enterprise), by reason of the fact that he or
she is or was a director or officer of the Corporation, or,
at the request of the Corporation, is or was serving such
subsidiary or other corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise as
director, officer, trustee, or in any other capacity,
against judgments, fines, amounts paid or to be paid in
settlement, excise tax or penalties, and costs, charges and
expenses, including attorneys' fees, 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 such person establishes that (i) his or her acts
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(or those of the testator or intestate) 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 or she (or
the testator or intestate) personally gained in fact a
financial profit or other advantage to which he or she
was not legally entitled; provided, further, that where
applicable, payment of such indemnification shall be
made pursuant to the provisions of Section 723 of
the New York Business Corporation Law, as the same may
be amended from time to time.
Section 2. Non-Exclusivity of Rights. The Corporation may
indemnify any person to whom the Corporation is permitted to
provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted to, or
provided by, the New York Business Corporation Law or other
rights created by (i) a resolution of shareholders, (ii) a
resolution of the Board of Directors, or (iii) an agreement
providing for such indemnification. The rights conferred in
this Article VII shall not be exclusive of any other right
of indemnification, or reimbursement or advancement of
expenses which any person may have or hereafter acquire.
Section 3. Expenses. The Corporation shall, from time to
time, reimburse or advance to any person referred to in
Section 1 of this Article VII the funds necessary for
payment of expenses, including attorneys' fees, incurred in
connection with any action or proceeding referred to in
Section 1, upon receipt of a written undertaking by or on
behalf of such person to repay such amount(s) if a judgment
or other final adjudication adverse to the director or
officer establishes that (i) his or her 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 or she personally
gained in fact a financial profit or other advantage to
which he or she was not legally entitled.
Section 4. Other Rights. The right to be indemnified or to
the reimbursement or advancement of expenses pursuant to
this Article VII (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the
provision hereof were set forth in a separate written
contract between the Corporation and the director or
officer, (ii) is intended to be retroactive and shall be
available with respect to events occurring prior to the
adoption thereof and (iii) shall continue to exist after the
rescission or restrictive modification of the provisions of
this Article VII, with respect to events occurring prior
thereto.
Section 5. Insurance. Subject to the provisions of Section
726 of the New York Business Corporation Law, the
Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent
of the Corporation or another corporation, partnership,
joint venture, trust, or other enterprise against any such
expense, liability, or loss, whether or not the Corporation
would have the power to indemnify such person against such
expense, liability, or loss under the New York Business
Corporation Law.
Section 6. Service with Another Corporation or Employee
Benefit Plan. Any director or officer of the Corporation
serving (i) another corporation of which a majority of the
shares entitled to vote in the election of its directors is
held by the Corporation, or (ii) any employee benefit plan
of the Corporation or any corporation referred to in clause
(i), in any capacity shall, unless and until otherwise
expressly provided by a resolution of the Board of Directors
of the Corporation, be deemed to be doing so at the request
of the Corporation.
Section 7. Action to Enforce Right to Indemnification. If a
request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full
by the Corporation within thirty days after a written claim
has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if entitled,
also to be paid the expenses of prosecuting such claim.
Neither the failure of the Corporation (including its Board
of
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Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the
commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is
proper in the circumstances, nor an actual determination by
the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the
reimbursement or advancement of expenses, shall be a defense
to the action or create a presumption that the claimant is
not so entitled.
Section 8. Exclusive Remedy. A person who has been
successful, on the merits or otherwise, in the defense of a
civil or criminal action or proceeding of the character
described in Section 1 shall be entitled to indemnification
only as provided in Sections 1 and 3, notwithstanding any
provision of the New York Business Corporation Law to the
contrary.
Section 9. Separability. If this Article VII or any portion
hereby shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall
nevertheless indemnify each director, officer, employee, or
agent of the Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any
applicable portion of this Article VII that shall not have
been invalidated and to the fullest extent permitted by
applicable law.
Article VIII
Amendments
Section 1. Power to Amend. The By-laws may be amended or
repealed or new by-laws adopted from time to time by the
shareholders or by the Board of Directors.
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