Exhibit 3(ii)
By-Laws
AMENDED AND RESTATED-SEPTEMBER 1998
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 sixty 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. 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 sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
Section 6. Quorum. Except as otherwise prescribed by statute, the
holders of a majority of the votes of 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 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 7. 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 8. 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 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.
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
eight (8) nor more than sixteen (16) 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 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 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 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). From among such committee members, the Board shall elect a
chairman of such committee.
Section 10. Duties of Executive Committee. During the intervals
between meetings of the Board of Directors, the Executive 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 Committee shall
deem best for the interests of the Corporation.
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 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 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.
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 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 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 the chairman, the
president, and the officers who report directly to the president shall be fixed
by the Board of Directors. The compensation of other officers, 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. Registered Shareholders. The Corporation shall be entitled
to recognize the exclusive right of a person, 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 4. 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 5. 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
(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 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.