ARROW
FINANCIAL CORPORATION
(A New York Corporation)
BY-LAWS
(Effective 7/2/90)
Revisions:
1/23/91 - Section 3.2
4/24/91 - Section 3.2
7/24/91 - Section 3.2
9/25/91 - Section 3.2
2/26/92 - Section 3.2
2/26/92 - Section 4.1
12/16/92 - Section 3.2
4/20/94 - Section 3.2
4/20/94 - Section 3.20
7/01/95 - Section 3.2
10/25/95 - Section 3.4
4/26/96 - Section 3.2
12/18/96 - Section 3.2
2/26/97 - Section 3.17
2/26/97 - Article XIII
3/26/97 - Section 3.2
10/28/98 - Section 2.2
BY-LAWS
ARROW FINANCIAL CORPORATION
(A New York Corporation)
(As amended to 12/18/96)
ARTICLE I
Definitions
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the
Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the
Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Business Corporation Law" means the Business Corporation Law of
the State of New York, as amended from time to time.
1.5 "By-laws" means the initial By-laws of the Corporation, as amended
from time to time.
1.6 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or
restated from time to time.
1.7 "Corporation" means Arrow Financial Corporation
1.8 "Directors" means directors of the Corporation
1.9 "Entire Board" means the total number of directors which the
Corporation would have if there were no vacancies.
1.10 "Office of the Corporation" means the executive office of the
Corporation, anything in Section 102(10) of the Business Corporation
Law to the contrary notwithstanding.
1.11 "Chairman of the Board" means the Chairman of the Board of the
Corporation.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Shareholders" means shareholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the Corporation.
ARTICLE II
Shareholders
2.1 Place of Meetings. Every meeting of shareholders shall be held at
the office of the Corporation or at such other place within or without
the State of New York as shall be designated in the notice of such
meeting or in the waiver of notice
2.2 Annual Meeting. A meeting of shareholders shall be held annually for
the election of directors and the transaction of other business at such hour
and on such business day in April, May or June as may be determined by the
Board and designated in the notice of meeting.
No business may be transacted at an annual meeting of shareholders, other
than business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b)
otherwise properly brought before the annual meeting by or at the direction
of the Board, or (c) otherwise properly brought before the annual meeting
by any shareholder of the Company (i) who is a shareholder of record on the
date of the giving of the notice provided for in Section 2.6 of these By-laws
and on the record date for the determination of shareholders entitled
to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 2.2.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such
shareholder must have given timely notice thereof in proper written form to
the Secretary of the Company. To be timely, a shareholder's notice to the
Secretary must be delivered to or mailed and received at the principal
executive offices of the Company not less than one hundred twenty (120)
days prior to the anniversary date of the immediately preceding annual
meeting of shareholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30) days
before or after the anniversary date of the prior year's annual meeting,
notice by the shareholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day
on which notice of the date of the annual meeting is first mailed or public
disclosure of the date of the annual meeting is first made, whichever first
occurs.
To be in proper written form, a shareholder's notice to the Secretary must
set forth as to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
shareholder, (iii) the class or series and number of shares of capital
stock of the Company that are owned beneficially or of record by such
shareholder, (iv) a description of all arrangements or understandings
between such shareholder and any other person or persons (including their
names) in connection with the proposal of such business by such shareholder
and any material interest of such shareholder in such business and (v) a
representation that such shareholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.2 and Section 2.6 of these By-laws;
provided, however, that, once business has been properly brought before the
annual meeting in accordance with such procedures, nothing in this Section
2.2 shall be deemed to preclude discussion by any shareholder of any such
business. If the Chairman of an annual meeting determines that business
was not properly brought before the annual meeting in accordnace with the
foregoing procedures of this Section 2.2 and Section 2.6 of these By-laws,
the Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be
transacted or discussed.
2.3 Special Meeting for Election of Directors, Etc. If the annual meeting
of shareholders for the election of directors and the transaction of
other business is not held within the months specified in Section 2.2,
the Board may call a special meeting of shareholders for the election
of directors and the transaction of other business at any time
thereafter.
2.4 Special Meetings. A special meeting of shareholders, (other than a
special meeting for the election of directors), unless otherwise
prescribed by statute, may be called at any time by the Board or by
the Chairman of the Board or by the Secretary. At any special
meeting of shareholders, only such business may be transacted as
is related to the purpose or purposes of such meeting set forth in the
notice thereof given pursuant to Section 2.6 of the By-laws or in any
waiver of notice thereof given pursuant to Section 2.7 of the By-laws.
2.5 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 of 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 may 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. If no such record date is fixed:
2.5.1 The record date for the determination of shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is
given, or, if no notice is given, the day on which the meeting is
held;
2.5.2 The record date for determining shareholders for any purpose other
than that specified in Section 2.5.1 shall be at the close of business
on the day on which the resolution of the Board relating thereto is
adopted. When a determination of shareholders entitled to notice of
or to vote at any meeting of shareholders has been made as provided
in this Section 2.5, such determination shall apply to any adjournment
thereof, unless the Board fixes a new record date for the adjourned
meeting.
2.6 Notice of Meetings of Shareholders. Except as otherwise provided in
Section 2.5 and Section 2.7 of the By-laws, whenever under the
Business Corporation Law or the Certificate of Incorporation or the
By-laws, shareholders are required or permitted to take any action at
a meeting, written notice shall be given stating the place, date and
hour of the meeting and, unless it is the annual meeting, indicating
that it is being issued by or at the direction of the person or persons
calling the meeting. Notice of a special meeting shall also state the
purpose or purposes for which the meeting is called. If, at any
meeting, action is proposed to be taken which would, if taken entitle
shareholders fulfilling the requirements of Section 623 of the
Business Corporation Law to receive payment for their shares, the
notice of such meeting shall include a statement of that purpose and
to that effect. A copy of the notice of any meeting shall be given,
personally or by mail, not less than ten nor more than fifty days before
the date of the meeting, to each shareholder entitled to notice of or to
vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, with postage thereon
prepaid, directed to the shareholder at his/her address as it appears
on the record of shareholders, or if he/she shall have filed with the
Secretary of the Corporation a written request that notices to him/her
be mailed to some other address, then directed to him/her at such
other address. An affidavit of the Secretary or other person giving the
notice or of the transfer agent of the Corporation that the notice
required by this section has been given shall, in the absence of fraud,
be prima facie evidence of the facts therein stated. When a meeting
is adjourned to another time or place, it shall not be necessary to give
any notice of the adjourned meeting if the time and place to which the
meeting is adjourned are announced at the meeting at which the
adjournment is taken, and at the adjourned meeting any business
may be transacted that might have been transacted at the
meeting as originally called. However, if after the adjournment the
Board fixes a new record date for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record
on the new record date who is entitled to notice.
2.7 Waivers of Notice. Notice of 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/her.
2.8 List of Shareholders at Meeting. A list of shareholders as of the
record date, certified by the officer of the Corporation responsible for
its preparation, or by a transfer agent, 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.
2.9 Quorum of Shareholders; Adjournment. The holders of one-third of
the shares entitled to vote at any meeting of shareholders, present
in person or represented by proxy, shall constitute a quorum for the
transaction of any business at any such meeting, provided that when
a specified item of business is required to be voted on by a class or
series (if the Corporation shall then have outstanding shares of more
than one class or series), voting as a class, the holders of one-third
of the shares of such class or series shall constitute a quorum (as to
such class or series) for the transaction of such item of business.
When a quorum is once present to organize a meeting of
shareholders, it is not broken by the subsequent withdrawal of any
shareholders or their proxies. The holders of a majority of shares
present in person or represented by proxy at any meeting of
shareholders, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and
place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every shareholder of record shall be entitled to
vote at every meeting of hareholders determined in accordance with
Section 2.5 of the By-laws. Theprovisions of Section 612 of the
Business Corporation Law shall apply in determining whether any
shares may be voted and the persons, if any, entitled to vote such
shares; but the Corporation shall be protected in treating the persons
in whose names such shares stand on the record of shareholders as
owners thereof for all purposes. At any meeting of shareholders (at
which a quorum was once present to organize the meeting), all
matters, except as otherwise provided by law or by the Certificate of
Incorporation or by the By-laws, shall be decided by a majority of the
votes cast at such meeting by the holders of shares present in person
or represented by proxy and entitled to vote thereon, whether or not
a quorum is present when the vote is taken. In voting on any
questions on which a vote by ballot is required by law or is demanded
by any shareholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the shareholder voting or by his proxy,
and shall state the number of shares voted. On all other questions,
the voting may be viva voce. Every shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent without a
meeting may authorize another person or persons to act for him by
proxy. The validity and enforceability of any proxy shall be
determined in accordance with Section 609 of the Business
Corporation Law.
2.11 Selection and Duties of Inspectors at Meetings of Shareholders. The
Board, in advance of any meeting of shareholders, may appoint
one or more inspectors to act at the meeting or any adjournment
thereof. If inspectors are not so appointed, the person presiding at
such meeting may, and on the request of any shareholder entitled to
vote thereat 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/her 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/her ability. The
inspector or inspectors represented at the meeting, shall determine
the number of shares outstanding and the voting power of each, the
shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots
or consents, determine the result, and shall do such acts as are
proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting or
any shareholder entitled to vote thereat, the inspector or inspectors
shall make a report in writing of any challenge, question or matter
determined by his/her or them and execute a certificate of any act
found by him/her or them. Any report or certificate made by the
inspector or inspectors shall be prima facie evidence of the facts
stated and of the vote as certified by him/her or them.
2.12 Organization. At every meeting of shareholders, the Chairman of the
Board, or in his/her absence the President, shall act as Chairman
of the meeting. The Secretary, or in his/her absence one of the
Assistant Secretaries, shall act as Secretary of the meeting. In case
none of the officers above designated to act as Chairman or
Secretary of the meeting, respectively, shall be present, a Chairman
or a Secretary of the meeting, as the case may be, shall be chosen
by a majority of the votes cast at such meeting by the holders of
shares present in person or represented by proxy and entitled to vote
at the meeting.
2.13 Order of Business. The order of business at all meetings of
shareholders shall be as determined by the Chairman of the
meeting, but the order of business to be followed at any meeting at
which a quorum is present may be changed by a majority of the votes
cast at such meeting by the holders of shares present in person or
represented by proxy and entitled to vote at the meeting.
2.14 Written Consent of Shareholders Without a Meeting. Whenever the
shareholders are required or permitted to take any action by
vote, such action may be taken without a meeting on written
consent, setting forth the action so taken or to be taken, signed
by the holders of all outstanding shares entitled to vote
thereon. Such consent shall have the same effect as a unanimous
vote of shareholders.
ARTICLE III
Directors
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business of the Corporation shall be managed
under the direction of its Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or
the By-Laws or applicable laws, as it may deem proper for the
conduct of its meetings and the management of the Corporation. In
addition to the powers expressly conferred by the By-laws, the Board
may exercise all powers and perform all acts which are not required,
by the By-laws or the Certificate of Incorporation or by law, to be
exercised and performed by the shareholders.
3.2 Number and Qualification. The number of directors constituting the
Entire Board is fixed at ten (10).
3.3 Qualifications. Each director shall, at the time of his election, be at
least eighteen (18) years of age, but not more than seventy (70)
years of age.
3.4 Election and Classification. The entire Board of Directors shall be
divided into three (3) classes of not less than three (3) members
each, which classes are designated as Class A, Class B and Class
C. The number of directors of Class A shall equal one-third (1/3) of
the total number of directors as determined in the manner provided
in the By-laws (with any fractional remainder to count as one); the
number of directors of Class B shall equal one-third (1/3) of said total
number of directors (or the nearest whole number thereto); and the
number of directors of Class C shall equal said total number of
directors minus the aggregate number of directors of Classes A and
B. At the election of the first Board of Directors, the class of each of
the members then elected shall be designated. The term of office of
each member then designated as a Class A director shall expire at
the annual meeting of shareholders next ensuing, that of each
member then designated as a Class B director at the annual meeting
of shareholders one year thereafter, and that of each member then
designated as a Class C director at the annual meeting of
shareholders two years thereafter. At each annual meeting of
shareholders held after the election and classification of the first
Board of directors, directors to succeed those whose terms expire at
such annual meeting shall be elected to hold office for a term expiring
at the third succeeding annual meeting of shareholders and until their
respective successors are elected and have qualified or until their
respective earlierdisplacement from office by resignation, removal or
otherwise. Directors shall, except as otherwise required by law or by
the Certificate of Incorporation, be elected by a plurality of the votes
cast at a meeting of shareholders by the holders of shares entitled to
vote in the election. Only persons who have been nominated in
accordance with the following procedures shall be eligible for election
as directors of the Corporation. Nominations of persons for election
to the Board of Directors may be made at any annual meeting of
shareholders or special meeting of shareholders called and held for
such express purpose (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any
shareholder of the Corporation who (i) is a shareholder of record both
on the date of the giving of the notice provided for in this Section 3.4
and on the record date for the determination of shareholders entitled
to vote at such annual or special meeting and (ii) complies with the
notice procedures set forth in this Section 3.4. In addition to any
other applicable requirements, for a nomination to be made by a
shareholder, such shareholder must have given a timely notice of
nomination in proper written form to the Secretary of the Corporation.
To be timely given in the case of an annual meeting, a shareholder's
notice of nomination to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation not
less than one hundred twenty (120) days prior to the anniversary date
of the immediately preceding annual meeting of shareholders. To be
timely given in the case of a special meeting called and held for such
express purpose, a shareholder's notice of nomination to the
Secretary must be delivered to or mailed and received at the principal
executive offices of the Corporation not later than close of business
on the tenth (10th) day following the date on which the notice of the
special meeting was first mailed to shareholders. To be in proper
written form, a shareholder's notice of nomination to the Secretary
must set forth (a) as to each person whom the shareholder proposes
to nominate for election as a director (i) the name, age, business
address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by such person and (iv) any other information
relating to such person that may be required to be disclosed by the
Corporation in connection with its solicitations of proxies for election
of directors pursuant to Section 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, or as may be required in order
to ascertain that the person meets any prerequisites contained in
applicable law, the Corporation's Certificate of Incorporation or these
Bylaws for serving as a director of the Corporation; and (b) as to the
shareholder giving such notice (i) the name and record address of
such shareholder, (ii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of
record by such shareholder, (iii) a description of all arrangements or
understandings between such 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, (iv) a representation that such shareholder intends to
appear in person or by proxy at the annual meeting to nominate the
person or persons named in the notice of nomination, and (v) any
other information relating to such shareholder that would be required
to be disclosed by the Corporation in connection with its solicitations
of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder.
Such notice of nomination must be accompanied by a written consent
of each proposed nominee to being named as a nominee and to
serve as a director if elected. No person shall be eligible for election
as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 3.4. If the Chairman of the
annual or special meeting determines that a nomination was not
made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
3.5 Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors
and vacancies occurring in the Board for any reason, including the
removal of directors without cause, may be filled by vote of a majority
of the directors then in office, although less than a quorum, at any
meeting of the Board, or may be elected by a plurality of the votes
cast by the holders of shares entitled to vote in the election at a
special meeting of shareholders called for that purpose. A director
elected to fill a vacancy shall hold office during the term to which
his/her predecessor had been elected and until his/her successor
shall have been elected and shall qualify, or until his/her earlier
death, resignation or removal.
3.6 Resignations. Any director may resign at any time by written notice
to the Chairman of the Board or the Secretary. Such resignation shall
take effect at the time therein specified, and unless otherwise
specified, the acceptance of such resignation shall not be necessary
to make it effective.
3.7 Removal of Directors. The Entire Board, or less than the Entire
Board, may be removed for cause by vote of the shareholders
or by action of the Board. The Entire Board, or less than the Entire
Board may be removed without cause only in the manner prescribed
in the Certificate of Incorporation.
3.8 Compensation. Each director, in consideration of his/his service as
such, shall be entitled to receive from the corporation such amount
per annum or such fees for attendance at directors' meetings, or both,
as the Board may from time to time determine, together with
reimbursement for the reasonable expenses incurred by him/her in
connection with the performance of his/her duties. Each director who
shall serve as a member of any committee of directors in
consideration of his/her serving as such shall be entitled to such
additional amount per annum or such fees for attendance at
committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable expenses
incurred by him/her in the performance of his/her duties. Nothing in
this section contained shall preclude any director from serving the
corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.9 Place and Time of Meetings of the Board. Meetings of the Board,
regular or special, may be held at such times and places within or
without the State of New York as the Board will by vote determine at
its annual meeting, and may alter or amend from time to time. The
times and places for holding meetings may be fixed from time to time
by resolution of the Board or (unless contrary to resolution of the
Board) in the notice of the meeting.
3.10 Annual Meetings. On the day when and at the place where the
annual meeting of shareholders for the election of directors is held,
and as soon as practicable thereafter, the Board may hold its annual
meeting, without notice of such meeting, for the purposes of
organization, the election of officers and the transaction of other
business. The annual meeting of the Board may be held at any other
time and place specified in a notice given as provided in Section 3.12
of the By-laws for special meetings of the Board or in a waiver of
notice thereof.
3.11 Regular Meetings. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the
Board. Unless otherwise required by the Board, regular meetings of
the Board may be held without notice. If any day fixed for a regular
meeting of the Board shall be a Saturday or Sunday or a legal holiday
at the place where such meeting is to be held, then such meeting
shall be held at the same hour at the same place on the first business
day thereafter which is not a Saturday, Sunday or legal holiday.
3.12 Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board or the Secretary or by
any three (3) or more directors. Notice of each special meeting of the
Board shall, if mailed, be addressed to each director at the address
designated by him/her for that purpose or, if none is designated, at
his/her last known address not later than 24 hours before the date on
which such meeting is to be held; or such notice shall be sent to each
director at such address by telegraph, Telex, TWX, cable,wireless, or
similar means of communication, or be delivered to him/he personally,
not later than the day before the date on which such meeting is to be
held. Every such notice shall state the time and place of the meeting
but need not state the purpose of the meeting, except to the extent
required by law. If mailed, each notice shall be deemed given when
deposited, with postage thereon prepaid, in the post office or official
depository under the exclusive care and custody of the United States
post office department. Such mailing shall be by first class mail.
3.13 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not
a quorum is present, may adjourn such meeting to another time and
place. Notice of any adjourned meeting of the Board need not be
given to any director whether or not present at the time of the
adjournment. Any business may be transacted at any adjourned
meeting that might have been transacted at the meeting as originally
called.
3.14 Waivers of Notice. Anything in these By-laws or in any resolution
adopted by the Board to the contrary notwithstanding, notice of any
meeting of the Board need not be given to any director who submits
a signed waiver of such notice, whether before or after such meeting,
or who attends such meeting without protesting, prior thereto or at its
commencement, the lack of notice to him/her.
3.15 Organization. At each meeting of the Board, the Chairman of the
Board of the Corporation, or a chairman chosen by the majority of the
directors present, shall preside. The Secretary shall act as Secretary
at each meeting of the Board. In case the Secretary shall be absent
from any meeting of the Board, an Assistant Secretary shall perform
the duties of Secretary at such meeting; and in the absence from any
such meeting of the Secretary and Assistant Secretaries, the person
presiding at the meeting may appoint any person to act as Secretary
of the meeting.
3.16 Quorum of Directors. A majority of the directors shall constitute a
quorum at any meeting of the Board.
3.17 Action by the Board. Except as otherwise provided in Section 3.18 of
the By-laws, all corporate action taken by the board shall be
taken at a meeting of the Board. Except as otherwise provided herein
or by the Certificate of Incorporation or by law, 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.
3.18 Written Consent of Directors Without a Meeting. Any action required
or permitted to be taken by the Board may be taken without a meeting
if all members of the Board consent in writing to the adoption of a
resolution authorizing the action. The resolution and the written
consents thereto by the members of the Board shall be filed with the
minutes of the proceedings of the Board.
3.19 Participation in Meeting of Board by Means of Conference Telephone
or Similar Communications Equipment. Any one or more members of
the Board may participate in a meeting of the Board 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 a meeting.
3.20 Retirement of Directors. Any director who shall have attained the age
of 70 during his/her term office shall retire from the Board at the first
annual meeting of shareholders held on or after his/her birthdate.
ARTICLE IV
Executive Committee and Other Committees
4.1 How Constituted and Powers. The Board shall, by resolution adopted
by a majority of the Entire Board, designate from among its members
an Executive Committee of three (3) or more members which shall
have all the authority of the Board, except that it shall have no
authority as to the following matters:
4.1.1 The submission to shareholders of any matter that needs
shareholders' approval;
4.1.2 The filling of vacancies in the Board or in any committee;
4.1.3 The fixing of compensation of the directors for serving on the Board
or on any committee;
4.1.4 The amendment or repeal of the By-laws, or the adoption of new
By-laws;
4.1.5 The amendment or repeal of any resolution of the Board which
includes among its terms a provision that it is not so amendable or
repealable. The Board, by resolution adopted by a majority of the
Entire Board, may designate from among its members other
committees, each consisting of three or more directors, which shall
have the authority provided in such resolution. The Chairman of the
Executive Committee shall vote only in the case of a tie.
4.2 General. Any committee designated by the Board pursuant to
Section 4.1 of the By-laws, and each of the members and alternate
members thereof, shall serve at the pleasure of such committee, who
may replace any absent member or members at any meeting of such
committee. All corporate action taken by any committee designated
by the Board pursuant to Section 4.1 of the By-laws shall be taken at
a meeting of such committee except that any action required or
permitted to be taken by any committee may be taken without a
meeting if all members of the committee consent in writing to the
adoption of a resolution authorizing the action; in such event the
resolution and the written consents thereto by the members of the
committee shall be filed with the minutes of the proceedings of the
committee. Any one or more members of any committee may
participate in a meeting of such committee by means of 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 a
meeting. Any committee may adopt such rules and regulations, not
inconsistent with the Certificate of Incorporation or the By-laws or
applicable laws or resolution of the Board designating such
committee, as it may deem proper for the conduct of its meetings and
the exercise by it of the authority of the Board conferred upon such
committee by the resolution of the Board designating such committee.
ARTICLE V
Officers
5.1 Officers. The Board may elect or appoint a Chairman of the Board,
President, one or more Vice Presidents, a Secretary and a Treasurer,
and such other officers as it may determine. All officers shall be
elected or appointed to hold offices until the meeting of the Board
following the next annual meeting of shareholders. The Board may
designate one or more Vice Presidents as Executive Vice Presidents,
and may use descriptive words or phrases to designate the standing,
seniority or area of special competence of the Vice Presidents elected
or appointed by it. Each officer shall hold office for the term for which
he/she is elected or appointed, and until his/her successor shall have
been elected or appointed and qualified or until his/her death, his/her
resignation or his/her removal in the manner provided in Section 5.2
of the By-laws. Any two or more offices may be held by the same
person, except the offices of President and Secretary; provided,
however, that if all of the issued and outstanding shares of the
Corporation are owned by one person, such person may hold all or
any combination of offices. The Board may require any officers to
give a bond or other security for the faithful performance of his/her
duties, in such amount and with such sureties as the Board may
determine. All officers as between themselves and the Corporation
shall have such authority and perform such duties in the management
of the Corporation as may be provided in the By-laws or as the Board
may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the Board
may be removed by the Board with or without cause. The removal of
an officer without cause shall be without prejudice to his/her contract
rights, if any. The election or appointment of an officer shall not of
itself create contract rights.
5.3 Resignations. Any officer may resign at any time by notifying the
Board or the Chairman of the Board or the Secretary in writing. Such
resignation shall take effect at the date of receipt of such notice or at
such later time as is therein specified, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary
to make it effective. The resignation of an officer shall be without
prejudice to the contract rights of the Corporation, if any.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause may be filled for the
unexpired portion of the term by the Board at any regular or special
meeting of the Board.
5.5 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented
from receiving a salary or other compensation by reason of the fact
that he/she is also a director.
5.6 Chairman of the Board. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and Directors, and shall
have such other duties as may be assigned to him from time to time
by the Board of Directors. Unless the Board of Directors otherwise
determines, the Chairman of the Board shall be the chief executive
officer and head of the Corporation. Under the supervision of the
Board of Directors and of the executive committee, the chief executive
officer shall have the general control and management of its business
and affairs, subject, however, to the right of the Board of Directors
and of the executive committee to confer any specific power, except
such as may be by statute exclusively conferred on the chief
executive officer, upon any other officer or officers of the Corporation.
The chief executive officer shall perform and do all acts and things
incident to the position of chief executive officer and such other duties
as may be lawfully assigned to him/her from time to time by the Board
of Directors or the executive committee.
5.7 President. The President shall perform such duties as may be
assigned to him/her from time to time by the Board of Directors, by
the executive committee or by the Chairman of the Board. Unless the
Board of Directors otherwise determines, the President shall be chief
operating officer of the Corporation. He/she shall have such
responsibilities as are assigned to him/her by the Board. In the event
the President is designated as chief executive officer by the Board of
Directors, the President shall have and possess all of the powers and
discharge all of the duties of the chief executive officer, subject to the
control of the Board and the executive committee.
5.8 Vice Presidents. At the request of the Chairman of the Board, or in
his/her absence, at the request of the President, or in his/her
absence, at the request of the Board, the Vice President shall (in
such order as may be designated by the Board) perform all of the
duties of the President and so acting shall have all the powers of and
be subject to all restrictions upon the President. Any Vice President
may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of the
Corporation; may sign and execute, in the name of the Corporation,
deeds, mortgages, bonds, contracts or other instruments authorized
by the Board, except in cases where the signing and execution
thereof shall be expressly delegated by the Board or by the By-laws
to some other officer or agent of the Corporation, or shall be required
by law otherwise to be signed or executed; and shall perform such
other duties as from time to time may be assigned to him/her by the
Board or by the Chairman of the Board, or in his/her absence, by the
President.
5.9 Secretary. The Secretary, if present, shall act as Secretary of all
meetings of the shareholders and of the Board, and shall keep the
minutes thereof in the proper book or books to be provided for that
purpose; he/she shall see that all notices required to be given by the
Corporation are duly given and served; he/she may, with the
Chairman of the Board, the President or a Vice President, sign
certificates for shares of the Corporation; he/she shall be custodian
of the seal of the Corporation and may seal with the seal of the
Corporation or a facsimile thereof, all certificates for shares of the
Corporation and all documents the execution of which on behalf of
the Corporation under its corporate seal is authorized in accordance
with the provisions of the By-laws; he/she shall have charge of the
share records and also of the other books, records and papers of the
Corporation relating to its organization and management as a
Corporation, and shall see that the reports, statements and other
documents required by law are properly kept and filed; and shall, in
general perform all the duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him/her by
the Board or by the Chairman of the Board, or in his/her absence, by
the President.
5.10 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 or
other depositories as shall be selected in accordance with these
By-laws; 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 any
provisions of the by-laws, and be responsible for the accuracy of the
amounts of all moneys so disbursed; regularly enter or cause to be
entered in books to be kept by him/her under his/her direction full and
adequate account of all moneys received or paid by him/her the
account of the Corporation; have the right to require, from time to
time, reports or statements giving such information as he/she may
desire with respect to any and all financial transactions of the
Corporation from the officers or agents transacting the same; render
to the Chairman of the Board or the Board, whenever the Chairman
of the Board or the Board, respectively, shall require him/her so to do,
an account of the financial condition of the Corporation and of all
his/her transactions as Treasurer; exhibit at all reasonable times
his/her books of account and other records to any of the directors
upon application at the office of the Corporation where such books
and records are kept; and, in general, perform all the duties incident
to the office of Treasurer and such other duties as from time to time
may be assigned to him/her by the Board or by the Chairman of the
Board, or in his/her absence, by the President; and he/she may sign
with the Chairman of the Board or the President or a Vice President
certificates for shares of the Corporation.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as
shall be assigned to them by the Secretary or by the Treasurer,
respectively, or by the Board of by the Chairman of the Board or in
his/her absence, by the President. Assistant Secretaries and
Assistant Treasurers may, with the Chairman of the Board or
President or a Vice President, sign certificates for shares of the
Corporation.
ARTICLE VI
Contracts, Checks, Drafts, Bank Accounts, Etc.
6.1 Execution of Contracts. The Board may authorize any officer,
employee or agent, in the name and on behalf of the Corporation, to
enter into any contract or execute and satisfy any instrument, and any
such authority may be general or confined to specific instances, or
otherwise limited.
6.2 Loans. The Chairman of the Board or any other officer, employee or
agent authorized by the By-laws or by the Board may effect loans and
advances at any time for the Corporation from any bank, trust
company or other institution or from any firm, corporation or individual
and for such loans and advances may make, execute and deliver
promissory notes, bonds or other certificates or evidences of
indebtedness of the Corporation, and when authorized so to do may
pledge and hypothecate or transfer any securities or other property
of the Corporation as security for any such loans or advances. Such
authority conferred by the Board may be general or confined to
specific instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes
or other evidences of indebtedness of the Corporation shall be signed
on behalf of the Corporation in such manner as shall from time to time
be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall
be deposited rom time to time to the order of the Corporation in such
banks, trust companies or other depositories as the Board may select
or as may be selected by an officer, employee or agent of the
Corporation to whom such power may from time to time be delegated
by the Board.
ARTICLE VII
Shares and Dividends
7.1 Certificates Representing Shares. The shares of the Corporation
shall be represented by certificates in such form (consistent with the
provisions of Section 508 of the Business Corporation Law) as shall
be approved by the Board. Such certificates shall be signed by the
Chairman of the Board or the President or a Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and may be sealed with the seal of the
Corporation or a facsimile thereof. The signatures of the officers
upon a certificate may be facsimiles, if the certificate is countersigned
by a transfer agent or registered by a registrar other than the
Corporation itself or its employee. In case any officer who has signed
or whose facsimile signature has been placed upon any certificate
shall have ceased to be such officer before such certificate is issued,
such certificate may, unless otherwise ordered by the Board, be
issued by the Corporation with the same effect as if such person were
such officer at the date of issue.
7.2 Transfer of Shares. Transfers of shares shall be made only on the
books of the Corporation by the holder thereof or by his/her duly
authorized attorney appointed by a power of attorney duly executed
and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such
shares properly endorsed for transfer and uponpayment of all
necessary transfer taxes. Every certificate exchanged, returned or
surrendered to the Corporation shall be marked "Canceled", with the
date of cancellation, by the Secretary or an Assistant Secretary or the
transfer agent of the Corporation. A person in whose name shares
shall stand on the books of the Corporation shall be deemed the
owner thereof to receive dividends, to vote as such owner and for all
other purposes as respects the Corporation. No transfer of shares
shall be valid as against the Corporation, its shareholders and
creditors for any purpose, except to render the transferee liable for
the debts of the Corporation to the extent provided by law, until such
transfer shall have been entered on the books of the Corporation by
an entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined form time to
time by the Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any
shares shall immediately notify the Corporation of any loss,
destruction, theft or mutilation of the certificate representing such
shares, and the Corporation mayissue a new certificate to replace the
certificate alleged to have been lost, destroyed, stolen or mutilated.
The Board may, in its discretion, as a condition to the issue of any
such new certificate, require the owner of the lost, destroyed, stolen
or mutilated certificate, or his/her legal representatives, to advertise
such fact in such manner as the Board may require, and to give the
Corporation and its transfer agents and registrars, or such of them as
the Board may require, a bond in such form, in such sums and with
such surety or sureties as the board may direct, to indemnify the
Corporation and its transfer agents and registrars against any claim
that may be made against any of them on account of the continued
existence of any such certificate so alleged to have been lost,
destroyed, stolen or mutilated and against any expense in connection
with such claim.
7.5 Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with the By-laws or with the
Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares.
7.6 Limitation on Transfers. If any two or more shareholders or
subscribers for shares shall enter into any agreement whereby the
rights of any one or more of them to sell, assign, transfer, mortgage,
pledge, hypothecate, or transfer on the books of the Corporation, any
or all of such shares held by them shall be abridged, limited or
restricted, and if a copy of such agreement shall be filed with the
Corporation and shall contain a provision that the
certificatesrepresenting shares covered or affected by said
agreement shall have such reference thereto endorsed thereon; and
such shares shall not thereafter be transferred on the books of the
Corporation except in accordance with the terms and provisions of
such agreement.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions on the
outstanding shares in such amounts and at such time or times as, in
its discretion, the condition of the affairs of the Corporation shall
render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of the Corporation,
or purchase warrants therefor, in accordance with law, or any of its
bonds, debentures, notes, scrip or other securities or evidences of
indebtedness;
7.7.3 May set aside from time to time out of such surplus or net profits
such sum or sums as, in its discretion, it may think proper, as a
reserve fund to meet contingencies, or for equalizing dividends or for
the purpose of maintaining or increasing the property or business of
the Corporation, or for any other purpose it may think conducive to
the best interests of the Corporation.
ARTICLE VIII
Indemnification
8.1 Indemnification of Others. The Board in its discretion shall have
power on behalf of the Corporation to indemnify any person, other
than a director or officer, made a party to any action, suit or
proceeding by reason of the fact that he/she, his/her testator or
intestate, is or was an employee of the Corporation.
8.2 Insurance. The Board in its discretion shall have the power to
purchase and maintain insurance in accordance with, and subject to,
the provisions of Section 727 of the Business Corporation Law.
ARTICLE IX
Books and Records
9.1 Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of the shareholders, Board and executive committee, if
any. The Corporation shall keep at the office designated in the
Certificate of Incorporation or at the office of the transfer agent or
registrar of the Corporation in New York State, a recordcontaining the
names and addresses of all shareholders, the number and classof
shares held by each and the dates when they respectively became
the owners of record thereof. Any of the foregoing books, minutes or
records may be in written form or in any other form capable of being
converted into written form within a reasonable time.
9.2 Inspection of Books and Records. Except as otherwise provided by
law, the Board shall determine from time to time whether, and, if
allowed, when and under what conditions and regulations, the
accounts, books, minutes and other records of the Corporation, or
any of them, shall be open to the inspection of the shareholders.
ARTICLE X
Seal
The Board may adopt a corporate seal which shall be in the form of
a circle and shall bear the full name of the Corporation and the year of its
incorporation.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be determined, and may be
changed, by resolution of the Board.
ARTICLE XII
Voting of Shares Held
Unless otherwise provided in Section 3.17 hereof or by resolution of
the Board, the Chairman of the Board or in his/her absence the President
may, from time to time, appoint one or more attorneys or agents of the
Corporation, in the name and on behalf of the Corporation, to cast as a
shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation, and to consent in writing
to any action, by any such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed on behalf of the
Corporation and under its corporate seal, or otherwise, such written proxies,
consents, waivers or other instruments as he may deem necessary and
proper in the premises; or the Chairman of the Board or in his absence, the
President, may himself/herself attend any meeting of the holders of the
shares or other securities of any other such corporation and thereat vote or
exercise any or all other powers of the Corporation as the holder of such
shares or other securities of such other corporation.
ARTICLE XIII
Amendments
The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by vote of the holders
of a majority of the shares of the Corporation entitled to vote
in the election of directors or by vote of a majority of the
Board; provided, however, that any alteration, amendment,
supplement or repeal of (1) Section 3.3 of Article III of the
By-laws or of this proviso to Article XIII of the By-laws,
shall require the vote of not less than eighty percent (80%) of
the shares entitled to vote in the election of directors, or
the vote of at least eighty percent (80%) of the Entire Board,
for approval and (2) Section 3.2 of Article III or Section 4.1
of Article IV of the By-laws shall require the vote of not less
than seventy percent (70%) of the Entire Board for approval.
If any By-law regulating an impending election of directors is
adopted, altered, amended, supplemented or repealed by the
Board, such By-law shall be set forth in the notice of the next
meeting of shareholders for election of directors, together
with a concise statement of the changes made. Any By-laws
adopted, altered, amended, or supplemented by the Board may be
altered, amended, supplemented or repealed by the shareholders
entitled to vote thereon.