30
EXHIBIT 3.2b
AMENDED AND RESTATED
BYLAWS
-of-
FIRST ALBANY COMPANIES INC.
(herein called the "Corporation")
ARTICLE I
Shareholders
Section 1.01. Annual Meeting. The annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as may properly come before such meeting
shall be held at the principal office of the Corporation in the City of
Albany, New York, on such date and at such time as may be fixed by the
Board of Directors.
Section 1.02. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, may be called at any time by the
President or by resolution of the Board of Directors. Special meetings of
shareholders shall be held at such place as shall be fixed by the person or
persons calling the meeting and stated in the notice or waiver of notice of
the meeting. At any special meeting only such business may be transacted
which is related to the purpose or purposes set forth in the notice or
waiver of notice of the meeting.
Section 1.03. Notice of Meetings of Shareholders. Whenever
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 and shall be accompanied by a
copy of said Section 623 or an outline of its material terms. 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 vote at such meeting. If mailed, such notice is
given when deposited in the United States mail, with postage thereon
prepaid, directed to the shareholder at his address as it appears on the
record of shareholders, or, if he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some
other address, then directed to him at such other address.
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 on the original date of
the meeting. However, if after the adjournment, the Board of Directors
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 entitled to notice under the next preceding paragraph.
Section 1.04. 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.
Section 1.05. Quorum. The holders of a majority of the shares
entitled to vote thereat shall constitute a quorum at a meeting of
shareholders for the transaction of any business.
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholders.
The shareholders present may adjourn the meeting despite the
absence of a quorum and at any such adjourned meeting at which the
requisite amount of voting stock shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section 1.06. 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
of Directors 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.
When a determination of shareholders of record entitled to notice
of or to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof,
unless the Board of Directors fixes a new record date under this section
for the adjourned meeting.
Section 1.07. List of Shareholders at Meetings. A list of
shareholders as of the record date, certified by the corporate officer
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.
Section 1.08. Proxies. 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.
Every proxy must be signed by the shareholder or his attorney-in-
fact. No proxy shall be valid after the expiration of eleven months from
the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the shareholder executing it, except as
otherwise provided in this section. The authority of the holder of a proxy
to act shall not be revoked by the incompetence or death of the shareholder
who executed the proxy unless, before the authority is exercised, written
notice of an adjudication of such incompetence or of such death is received
by the corporate officer responsible for maintaining the list of
shareholders.
Except when other provision shall have been made by written
agreement between the parties, the record holder of shares which he holds
as pledgee or otherwise as security or which belong to another, shall issue
to the pledgor or to such owner of such shares, upon demand therefor and
payment of necessary expenses thereof, a proxy to vote or take other action
thereon.
A shareholder shall not sell his vote or issue a proxy to vote to
any person for any sum of money or anything of value, except as authorized
in this section and Section 620 of the Business Corporation Law.
A proxy which is entitled "irrevocable proxy" and which states
that it is irrevocable, is irrevocable when it is held by any of the
following or a nominee of any of the following:
(1) A Pledgee;
(2) A person who has purchased or agreed to purchase the
shares;
(3) A creditor or creditors of the Corporation who extend or
continue credit to the Corporation in consideration of
the proxy if the proxy states that it was given in
consideration of such extension or continuation of
credit, the amount thereof, and the name of the person
extending or continuing credit;
(4) A person who has contracted to perform services as an
officer of the Corporation, if a proxy is required by
the contract of employment, if the proxy states that it
was given in consideration of such contract of
employment, the name of the employee and the period of
employment contracted for;
(5) A person designated by or under an agreement under
paragraph (a) of said Section 620.
Notwithstanding a provision in a proxy, stating that it is
irrevocable, the proxy becomes revocable after the pledge is redeemed, or
the debt of the Corporation is paid, or the period of employment provided
for in the contract of employment has terminated, or the agreement under
paragraph (a) of said Section 620 has terminated; and, in a case provided
for in subparagraph (3) or (4) above, becomes revocable three years after
the date of the proxy or at the end of the period, if any, specified
therein, whichever period is less, unless the period of irrevocability is
renewed from time to time by the execution of a new irrevocable proxy as
provided in this section. This paragraph does not affect the duration of a
proxy under the second paragraph of this section.
A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the existence of
the provision unless the existence of the proxy and its irrevocability is
noted conspicuously on the face or back of the certificate representing
such shares.
Section 1.09. Selection and Duties of Inspectors. The Board of
Directors, in advance of any shareholders' meeting, 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 a shareholders' 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
of Directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the
best of his ability.
The inspectors 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 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 inspectors shall make a report in
writing of any challenge, question or matter determined by them and execute
a certificate of any fact found by them. Any report or certificate made by
them shall be prima facie evidence of the facts stated and of the vote as
certified by them.
Unless appointed by the Board of Directors or requested by a
shareholder, as above provided in this section, inspectors shall be
dispensed with at all meetings of shareholders.
Section 1.10. Qualification of Voters. Every shareholder of
record shall be entitled at every meeting of shareholders to one vote for
every share standing in his name on the record of shareholders, except as
expressly provided otherwise in this section and except as otherwise
expressly provided in the Certificate of Incorporation of the Corporation.
Treasury shares and shares held by another domestic or foreign
corporation of any type or kind, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held by the
Corporation, shall not be shares entitled to vote or to be counted in
determining the total number of outstanding shares.
Shares held by an administrator, executor, guardian, conservator,
committee, or other fiduciary, except a trustee, may be voted by him,
either in person or by proxy, without transfer of such shares into his
name. Shares held by a trustee may be voted by him; either in person or by
proxy, only after the shares have been transferred into his name as trustee
or into the name of his nominee.
Shares held by or under the control of a receiver may be voted by
him without the transfer thereof into his name if authority so to do is
contained in an order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, or a nominee of the pledgee.
Redeemable shares which have been called for redemption shall not
be deemed to be outstanding shares for the purpose of voting or determining
the total number of shares entitled to vote on any matter on and after the
date on which written notice of redemption has been sent to holders thereof
and a sum sufficient to redeem such shares has been deposited with a bank
or trust company with irrevocable instruction and authority to pay the
redemption price to the holders of the shares upon surrender of
certificates therefor.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or
proxy as the bylaws of such corporation may provide, or, in the absence of
such provision, as the board of directors of such corporation may
determine.
If shares are registered on the record of shareholders of the
Corporation in the name of two or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the secretary of the
Corporation is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting
shall have the following effect:
(1) If only one votes, the vote shall be accepted by the
Corporation as the vote of all;
(2) If more than one vote, the act of the majority so voting
shall be accepted by the Corporation as the vote of all,
(3) If more than one vote, but the vote is equally divided on any
particular matter, the vote shall be accepted by the Corporation as a
proportionate vote of the shares; unless the Corporation has evidence, on
the record of shareholders or otherwise, that the shares are held in a
fiduciary capacity. Nothing in this paragraph shall alter any requirement
that the exercise of fiduciary powers be by act of a majority, contained in
any law applicable to such exercise of powers (including Section 10-10.7 of
the Estates, Powers and Trusts Law of the State of New York);
(4) When shares as to which the vote is equally divided are
registered on the record of shareholders of the Corporation in the name of,
or have passed by operation of law or by virtue of any deed of trust or
other instrument to two or more fiduciaries, any court having jurisdiction
of their accounts, upon petition by any of such fiduciaries or by any party
in interest, may direct the voting of such shares for the best interest of
the beneficiaries. This paragraph shall not apply in any case where the
instrument or order of the court appointing fiduciaries shall otherwise
direct how such shares shall be voted; and
(5) If the instrument or order furnished to the Secretary of the
Corporation shows that a tenancy is held in unequal interests, a majority
or equal division for the purposes of this paragraph shall be a majority or
equal division in interest.
Notwithstanding the foregoing paragraphs of this section, the
Corporation shall be protected in treating the persons in whose names
shares stand on the record of shareholders as the owners thereof for all
purposes.
Section 1.11. Vote of Shareholders. Directors shall 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. Whenever any corporate
action, other than the election of directors, is to be taken by vote of the
shareholders, it shall, except as otherwise required by the Business
Corporation Law or by the Certificate of Incorporation of the Corporation,
be authorized by a majority of the votes cast at a meeting of shareholders
by the holders of shares entitled to vote thereon.
The vote upon any question before any shareholders' meeting need
not be by ballot.
Section 1.12. Written Consent of Shareholders. Whenever
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, signed by the holders of all outstanding shares entitled
to vote thereon. This paragraph shall not be construed to alter or modify
the provisions of any section of the Business Corporation Law or any
provision in the Certificate of Incorporation of the Corporation not
inconsistent with the Business Corporation Law under which the written
consent of the holders of less than all outstanding shares is sufficient
for corporate action.
Written consent thus given by the holders of all outstanding
shares entitled to vote shall have the same effect as a unanimous vote of
shareholders.
ARTICLE II
Directors
Section 2.01. Management of Business:
Qualifications of Directors. The business of the Corporation
shall be managed under the direction of its Board of Directors. Each
member of the Board of Directors shall be at least eighteen years of age.
Directors need not be stockholders.
The Board of Directors, in addition to the powers and authority
expressly conferred upon it by statute, by the Certificate of Incorporation
of the Corporation, by these Bylaws and otherwise, is hereby empowered to
exercise all such powers as may be exercised by the Corporation, except as
expressly provided otherwise by the Constitution and statutes of the State
of New York, by the Certificate of Incorporation of the Corporation and by
these Bylaws.
Section 2.02. Number. The number of directors which shall
constitute the entire Board of Directors shall be eight, but this number
may be increased and subsequently again increased or decreased by an
amendment to these Bylaws, except that the number shall never be less than
three nor more than nine and that no decrease shall shorten the term of any
incumbent director.
Section 2.03. Election and Term. At each annual meeting of
shareholders, directors shall be elected to hold office until the next
annual meeting, subject to the provisions of Section 2.05 hereof. Each
director shall hold office until the expiration of the term for which he is
elected, and until his successor has been elected and qualified.
Section 2.04. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board of Directors, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, if any, or if no time is specified
therein, then upon receipt of such notice by the addressee; and, unless
otherwise provided therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 2.05. Removal of Directors. Any or all of the directors
may be removed at any time (a) for cause by vote of the shareholders or by
action of the Board of Directors or (b) without cause by vote of the
shareholders, except as expressly provided otherwise by Section 706 of the
Business Corporation Law.
Section 2.06. Newly Created Directorships and Vacancies. Newly
created directorships resulting from an increase in the number of directors
and vacancies occurring in the Board of Directors for any reason except the
removal of directors without cause may be filled by vote of the Board of
Directors. If the number of directors then in office is less than a
quorum, such newly created directorships and vacancies may be filled by
vote of a majority of the directors then in office. The Board of Directors
shall fill vacancies occurring in the Board of Directors by reason of the
removal of directors without cause.
A director elected to fill a vacancy shall hold office until the
next meeting of shareholders at which the election of directors is in the
regular order of business, and until his successor has been elected and
qualified.
Section 2.07. Quorum and Vote of Directors. At all meetings of
the Board of Directors, a majority of the entire Board of Directors shall
be necessary and sufficient to constitute a quorum for the transaction of
business. 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 of Directors, except as expressly provided otherwise in these Bylaws
and by the statutes of the State of New York.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting of the Board of Directors to another time
and place. Notice of any adjournment need not be given if such time and
place are announced at the meeting.
Section 2.08. Annual Meeting. The newly elected Board of
Directors shall meet immediately following the adjournment of the annual
meeting of shareholders in each year at the same place and no notice of
such meeting shall be necessary.
Section 2.09. Regular Meetings. Regular meetings of the Board of
Directors may be held at such times and places as shall from time to time
be fixed by the Board of Directors and no notice thereof shall be
necessary.
Section 2.10. Special Meetings. Special meetings may be called
at any time by the President, or by resolution of the Board of Directors.
Special meetings shall be held at such places as shall be fixed by the
person or persons calling the meeting and stated in the notice or waiver of
notice of the meeting.
Special meetings of the Board of Directors shall be held upon
notice to the directors. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice whether before or after
the meeting, or who attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to him.
Unless waived, notice of each special meeting of the Board of
Directors, stating the time and place of the meeting, shall be given to
each director by delivered letter, by telegram or by personal communication
either over the telephone or otherwise, in each such case not later than
the third day prior to the meeting, or by mailed letter deposited in the
United States mail with postage thereon prepaid not later than the seventh
day prior to the meeting. Notices of special meetings of the Board of
Directors and waivers thereof need not state the purpose or purposes of the
meeting.
Section 2.11. Telephonic Meetings. A member of the Board of
Directors or any committee thereof may participate in a meeting of the
Board of Directors or of such committee by means of a conference telephone
or similar communications equipment allowing all persons participating in
the meeting to hear each other at the same time, and participation in a
meeting by such means shall constitute presence in person at such meeting.
Section 2.12. Compensation. Directors shall receive such fixed
sums and expenses of attendance for attendance at each meeting of the Board
of Directors or of any committee and such salary as may be determined from
time to time by the Board of Directors; provided that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.13(a)Committees. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, may designate from
among its members an Executive Committee and other committees, each
consisting of three or more directors, and each of which, to the extent
provided in the resolution, shall have all the authority of the Board of
Directors, except that no such committee shall have authority as to the
following matters:
(a) The submission to shareholders of any action that needs
shareholders' approval under the Business Corporation Law
(b) The filling of vacancies in the Board of Directors or in any
committee.
(c) The fixing of compensation of the directors for serving on
the Board of Directors or on any committee.
(d) The amendment or repeal of the Bylaws, or the adoption of
new Bylaws.
(e) The amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amenable or
repealable.
The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent member
or members at any meeting of such committee. Each such committee shall
serve at the pleasure of the Board of Directors.
Regular meetings of any such committee shall be held at such times
and places as shall from time to time be fixed by such committee and no
notice thereof shall be necessary. Special meetings may be called at any
time by any officer of the Corporation or any member of such committee.
Notice of each special meeting of each such committee shall be given (or
waived) in the same manner as notice of a special meeting of the Board of
Directors. A majority of the members of any such committee shall
constitute a quorum for the transaction of business and the act of a
majority of the members present at the time of the vote, if a quorum is
present at such time, shall be the act of the committee.
Section 2.13(b). Audit Committee. There shall be an Audit
Committee of the Board of Directors which shall serve at the pleasure of
the Board of Directors and be subject to its control. The Committee shall
have at least three members, two of whom shall be independent outside
directors. Members shall be appointed by the Chairman, subject to approval
of the Board. The committee shall recommend to the Board of Directors the
appointment or discharge of the corporation's independent auditors, shall
review and approve the scope and plan of the annual audit, shall review the
results of such audit, and shall perform such other duties as may be
lawfully delegated to it from time to time by the Board of Directors.
Section 2.13(c). Executive Compensation Committee.
There shall be an Executive Compensation Committee of the Board of
Directors which will serve at the pleasure of the Board of Directors and be
subject to its control. The Committee shall have at least three members,
all of whom shall be independent outside directors appointed by the
Chairman, subject to the approval of the Board of Directors. The Committee
shall approve the compensation of the executive officers of the company,
and shall have such other duties as may be lawfully delegated to it from
time to time by the Board of Directors.
Section 2.14. Interested Directors. No contract or other
transaction between the Corporation and one or more of its directors, or
between the Corporation and any other corporation, firm, association or
other entity in which one or more of the Corporation's directors are
directors or officers, or have a substantial financial interest, shall be
either void or voidable for this reason alone or by reason alone that such
director or directors are present at the meeting of the Board of Directors,
or of a committee thereof, which approves such contract or transaction, or
that his or their votes are counted for such purpose.
(1) If the material facts as to such director's interest in such
contract or transaction and as to any such common
directorship, officership or financial interest are
disclosed in good faith or known to the Board of Directors
or committee, and the Board of Directors or committee
approves such contract or transaction by a vote sufficient
for such purpose without counting the vote of such
interested director or, if the votes of the disinterested
directors are insufficient to constitute an act of the Board
of Directors as defined in Section 708 of the Business
Corporation Law, by unanimous vote of the disinterested
directors; or
(2) If the material facts as to such director's interest in such
contract or transaction and as to any such common
directorship, officership or financial interest are
disclosed in good faith or known to the shareholders
entitled to vote thereon, and such contract or transaction
is approved by vote of such shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee which approves such contract or transaction.
ARTICLE III
Officers
Section 3.01 Election or Appointment; Number. The officers of
the Corporation shall be elected or appointed by the Board of Directors.
The officers shall be a President, a Secretary, a Treasurer, and such
number of Vice Presidents, Assistant Secretaries and Assistant Treasurers,
and such other officers, as the Board of Directors may from time to time
determine. Any person may hold two or more offices at the same time,
except the offices of President and Secretary. Any officer may, but no
officer need, be chosen from among the Board of Directors.
Section 3.02. Term. Subject to the provisions of Section 3.03
hereof, all officers shall be elected or appointed to hold office for the
term for which he is elected or appointed or until his death and until his
successor has been elected or appointed and qualified.
The Board of Directors may require any officer to give security
for the faithful performance of his duties.
Section 3.03. Removal. Any officer elected or appointed by the
Board of Directors may be removed by the Board of Directors with or without
cause.
The removal of an officer without cause shall be without prejudice
to his contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
Regular meetings of any such committee shall be held at such times
and places as shall from time to time be fixed by such committee and no
notice thereof shall be necessary. Special meetings may be called at any
time by any officer of the Corporation or any member of such committee.
Notice of each special meeting of each such committee shall be given (or
waived) in the same manner as notice of a special meeting of the Board of
Directors. A majority of the members of any such committee shall
constitute a quorum for the transaction of business and the act of a
majority of the members present at the time of the vote, if a quorum is
present at such time, shall be the act of the committee.
Section 2.14. Interested Directors. No contract or other
transaction between the Corporation and one or more of its directors, or
between the Corporation and any other corporation firm, association or
other entity in which one or more of the Corporation's directors are
directors or officers, or have a substantial financial interest, shall be
either void or voidable for this reason alone or by reason alone that such
director or directors are present at the meeting of the Board of Directors,
or of a committee thereof, which approves such contract or transaction, or
that his or their votes are counted for such purpose.
Section 3.04. Authority. The President shall be the chief
executive officer of the. Corporation and shall direct the policy of the
Corporation on behalf of the Board of Directors. The other officers shall
have the authority, perform the duties and exercise the powers in the
management of the Corporation usually incident to the offices held by them,
respectively, and/or such other authority, duties and powers as may be
assigned to them from time to time by the Board of Directors or the
President.
ARTICLE IV
Capital Stock
Section 4.01. Certificates of Stock. Certificates representing
shares of the stock of the Corporation shall be in such form as shall be
approved by the Board of Directors. Every certificate shall be signed by
the President and the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer and sealed with the seal of the Corporation.
Such seal may be a facsimile engraved or printed. There shall be entered
upon the stock books of the Corporation the number of each certificate
issued, the name of the person owning the shares represented thereby, the
number of shares, and the date of issuance thereof.
Section 4.02. Transfer of Stock. A stock book shall be kept at
the principal office of the Corporation containing the names,
alphabetically arranged, of all persons who are stockholders of the
Corporation showing their places of residence, the number of shares of
stock held by them respectively, the time when they respectively became
owners thereof, and the amount paid thereon. Transfers of shares of the
stock of the corporation shall be made only on the books of the Corporation
by the holder of record thereof, or by his attorney thereunto duly
authorized by a power of attorney executed in writing and filed with the
Secretary, and upon the surrender of the certificate or certificates for
such shares properly endorsed and accompanied by all necessary Federal and
State stock transfer tax stamps. No stockholder, however, shall be
entitled to any transfer of his stock in violation of any restrictions
lawfully applicable thereto.
Section 4.03. Registered Holders. The Corporation shall be
entitled to treat and shall be protected in treating the persons in whose
names shares or any warrants, rights or options stand on the record of
shareholders, warrant holders, rights holders or option holders, as the
case may be, as the owners thereof for all purposes and shall not be bound
to recognize any equitable or other claim to, or interest in, any such
share, warrant, right or option on the part of any other person, whether or
not the Corporation shall have notice thereof, except as expressly provided
otherwise by the statutes of the State of New York.
Section 4.04. New Certificates. The Corporation may issue a new
certificate for shares in the place of any certificate theretofore issued
by it, alleged to have been lost or destroyed, and the Board of Directors
may, in its discretion, require the owner of the lost or destroyed
certificate, or his legal representatives, to give the Corporation a bond
sufficient (in the judgment of the directors) to indemnify the Corporation
against any claim that may be made against it on account of the alleged
loss or destruction of any such certificate or the issuance of such new
certificate. A new certificate may be issued without requiring any bond
when, in the judgment of the directors, it is proper so to do.
ARTICLE V
Financial Notices to Shareholders
Section 5.01. Dividends. When any dividend is paid or any other
distribution is made, in whole or in part, from sources other than earned
surplus, it shall be accompanied by a written notice (a) disclosing the
amounts by which such dividend or distribution affects stated capital,
capital surplus and earned surplus, or (b) if such amounts are not
determinable at the time of such notice, disclosing the approximate effect
of such dividend or distribution upon stated capital, capital surplus and
earned surplus and stating that such amounts are not yet determinable.
Section 5.02. Share Distribution and Changes. Every distribution
to shareholders of shares, whether certificated or uncertificated, or a
change of shares which affects stated capital, capital surplus or earned
surplus shall be accompanied by a written notice (a) disclosing the amounts
by which such distribution or change affects stated capital, capital
surplus and earned surplus, or (b) if such amounts are not determinable at
the time of such notice, disclosing the approximate effect of such
distribution or change upon stated capital, capital surplus and earned
surplus and stating that such amounts are not yet determinable.
When issued shares are changed in any manner which affects stated
capital, capital surplus or earned surplus, and no distribution to
shareholders of any shares, whether certificated or uncertificated,
resulting from such change is made, disclosure of the effect of such change
upon the stated capital, capital surplus and earned surplus shall be made
in the next financial statement covering the period in which such change is
made that is furnished by the Corporation to holders of shares of the class
or series so changed or, if practicable, in the first notice of dividend or
share distribution or change that is furnished to such shareholders between
the date of the change of shares and the next such financial statement, and
in any event within six months of the date of such change.
Section 5.03. Cancellation of Reacquired Shares.
When reacquired shares other than converted shares are cancelled,
the stated capital of the Corporation is thereby reduced by the amount of
stated capital then represented by such shares plus any stated capital not
theretofore allocated to any designated class or series which is thereupon
allocated to the shares cancelled. The amount by which stated capital has
been reduced by cancellation of reacquired shares during a stated period of
time shall be disclosed in the next financial statement covering such
period that is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share distribution that is
furnished to the holders of each class or series of its shares between the
end of the period and the next such financial statement, and in any event
to all its shareholders within six months of the date of the reduction of
capital.
Section 5.04. Reduction of Stated Capital. When a reduction of
stated capital has been effected under Section 516 of the Business
Corporation Law, the amount of such reduction shall be disclosed in the
next financial statement covering the period in which such reduction is
made that is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share distribution that is
furnished to the holders of each class or series of its shares between the
date of such reduction and the next such financial statement, and in any
event to all its shareholders within six months of the date of such
reduction.
Section 5.05. Application of Capital Surplus to Elimination of a
Deficit. The Corporation may apply any part or all of its capital surplus
to the elimination of any deficit in the earned surplus account, upon
approval by vote of the shareholders. The application of capital surplus
to the elimination of a deficit in the earned surplus account shall be
disclosed in the next financial statement covering the period in which such
elimination is made that is furnished by the Corporation to all its
shareholders or, if practicable, in the first notice of dividend or share
distribution that is furnished to holders of each class or series of its
shares between the date of such elimination and the next such financial
statement, and in any event to all its shareholders within six months of
the date of such action.
Section 5.06. Conversion of Shares. Should the Corporation
issue any convertible shares, then, when shares have been converted, they
shall be cancelled and disclosure of the conversion of shares during a
stated period of time and its effect, if any, upon stated capital shall be
made in the next financial statement covering such period that is furnished
by the Corporation to all its shareholders or, if practicable, in the first
notice of dividend or share distribution that is furnished to the holders
of each class or series of its shares between the end of such period and
the next such financial statement, and in any event to all its shareholders
within six months of the date of the conversion of shares.
ARTICLE VI
Miscellaneous
Section 6.01. Offices. The principal office of the Corporation
shall be in The City of Albany, County of Albany, State of New York. The
Corporation may also have offices at other places, within and/or without
the State of New York.
Section 6.02. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its incorporation and the
words "Corporate Seal New York" provided, that the form of such seal shall
be subject to alteration from time to time by the Board of Directors.
Section 6.03. Checks. All checks or demands for money shall be
signed by such person or persons as the Board of Directors may from time to
time determine.
Section 6.04. Fiscal Year. The fiscal year of the Corporation
shall be the calendar year ending on each December 31.
Section 6.05. Books and Records. The Corporation shall keep
correct and complete books and records of account and shall keep minutes of
the proceedings of its shareholders, Board of Directors and each committee
thereof, if any, and shall keep at the office of the Corporation in the
State of New York or at the office of its transfer agent or registrar in
the State of New York, a record containing the names and addresses of all
shareholders, the number and class of 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.
Section 6.06. Duty of Directors. A director shall perform his
duties as a director, including his duties as a member of any committee of
the Board of Directors upon which he may serve, in good faith and with that
degree of care which an ordinarily prudent person in a like position would
use under similar circumstances. In performing his duties, a director
shall be entitled to rely on information, opinions, reports, or statements
including financial statements and other financial data, in each case
prepared or presented by:
(a) one or more officers or employees of the Corporation or of
any other corporation of which at least fifty percentage of the outstanding
shares of stock entitling the holders thereof to vote for the election of
directors is owned directly or indirectly by the Corporation, whom the
director believes to be reliable and competent in the matters presented,
(b) counsel, public accountants or other persons as to matters
which the director believes to be within such person's professional or
expert competence, or
(c) a committee of the Board of Directors upon which he does not
serve, duly designated in accordance with a provision of the Certificate of
Incorporation or these Bylaws, as to matters within its designated
authority, which committee the director believes to merit confidence, so
long as in so relying he shall be acting in good faith and with such degree
of care which an ordinarily prudent person in a like position would use
under similar circumstances, but he shall not be considered to be acting in
good faith if he has knowledge concerning the matter in question that would
cause such reliance to be unwarranted. A person who so performs his duties
shall have no liability by reason of being or having been a director of the
Corporation.
Section 6.07. Indemnification of Directors and Officers.
(a) The Corporation shall indemnify any person made, or
threatened to be made, a party to an action or proceeding
(other than one by or in the right of the Corporation to
procure a judgment in its favor), whether civil or criminal,
including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or
other enterprise, which any Director or Officer of the
Corporation served in any capacity at the request of the
Corporation, by reason of the fact that he, his testator or
intestate, was a Director of the Corporation ("Director"),
or Officer of the Corporation appointed or elected by the
Board of Directors ("Officer"), or served such other
corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees actually and necessarily
incurred as a result of such action or proceeding, or any
appeal therein, to the maximum extent permitted and in the
manner prescribed by the Business Corporation Law.
(b) The Corporation shall indemnify any person made, or
threatened to be made, a party to an action by or in the
right of the Corporation to procure a judgment in its favor
by reason of the fact that he, his testator or intestate, is
or was a Director or Officer of the Corporation, or is or
was serving at the request of the Corporation as a Director
or Officer of any other corporation of any type or kind,
domestic or foreign, of any partnership, joint venture,
trust, employee benefit plan or other enterprise, against
amounts paid in settlement and reasonable expenses,
including attorneys' fees, actually and necessarily incurred
by him in connection with the defense or settlement of such
action, or in connection with an appeal therein, to the
maximum extent permitted and in the manner prescribed by the
Business Corporation Law.
(c) Expenses incurred by any party entitled to indemnification
under this Section 6.07 in defending a civil or criminal
action or proceeding shall be paid by the Corporation in
advance of the final disposition of such action or
proceeding to the maximum extent permitted and in the manner
prescribed by the Business Corporation Law.
(d) The Corporation shall pay the expenses (including attorney's
fees) of any person made a witness in a civil or criminal
action or proceeding, by reason of the fact that he is or
was a Director or Officer of the Corporation, or serves or
served any other corporation of any type or kind, domestic
or foreign, or any partnership, joint venture, trust,
employee benefit plan, or other enterprise in any capacity
at the request of the Corporation, subject to any
limitations required by the Business Corporation Law.
(e) The Corporation shall pay the expenses (including attorney's
fees) of any Director or Officer of the Corporation incurred
in prosecuting or defending an action or proceeding to
enforce any rights to indemnification or advancement of
expenses granted under these bylaws or otherwise, subject to
any limitations required by the Business Corporation Law.
(f) The foregoing provisions of this section shall be deemed to
be a contract between the Corporation and each Director and
Officer of the Corporation who serves in such capacity at
any time while this section and the relevant provisions of
the Business Corporation Law are in effect, and any repeal
or modification of this section or such provisions of the
Business Corporation Law shall not affect any rights or
obligations then existing with respect to any state of facts
then or theretofore existing as it relates to any action or
proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts;
provided, however, that the right of indemnification
provided in this section shall not be deemed exclusive of
any other rights to which any Director or Officer of the
Corporation may now be or hereafter become entitled apart
from this section, whether by a resolution of shareholders,
a resolution of Directors, or an agreement providing for
such indemnification. Subject to the foregoing, wherever
this section refers to the Business Corporation Law, it
shall mean the Business Corporation Law of the State of New
York, as the same exists or may hereafter be amended. The
rights of a Director or Officer hereunder shall continue
after such person has ceased to be a Director or Officer and
shall inure to the benefit of such person's heirs,
executors, administrators and personal representatives.
Section 6.08. When Notice or Lapse of Time Unnecessary; Notices
Dispensed with when Delivery Is Prohibited. Whenever, under the Business
Corporation Law or the Certificate of Incorporation of the Corporation or
these Bylaws or by the terms of any agreement or instrument, the
Corporation or the Board of Directors or any committee thereof is
authorized to take any action after notice to any person or persons or
after the lapse of a prescribed period of time, such addition may be taken
without notice and without the lapse of such period of time, if at any time
before or after such action is completed the person or persons entitled to
such notice or entitled to participate in the action to be taken or, in the
case of a shareholder, by his attorney-in-fact, submit a signed waiver of
notice of such requirements.
Whenever any notice or communication is required to be given to
any person by the Business Corporation Law, the Certificate of
Incorporation of the Corporation or these Bylaws, or by the terms of any
agreement or instrument, or as a condition precedent to taking any
corporate action and communication with such person is then unlawful under
any statute of the State of New York or of the United States or any
regulation, proclamation or order issued under said statutes, then the
giving of such notice or communication to such person shall not be required
and there shall be no duty to apply for license or other permission to do
so. Any affidavit, certificate or other instrument which is required to be
made or filed as proof of the giving of any notice or communication
required under the Business Corporation Law shall, if such notice or
communication to any person is dispensed with under this paragraph, include
a statement that such notice or communication was not given to any person
with whom communication is unlawful. Such affidavit, certificate or other
instrument shall be as effective for all purposes as though such notice or
communication had been personally given to such person.
Whenever any notice or communication is required or permitted to
be given by mail, it shall, except as otherwise expressly provided in the
Business Corporation Law, be mailed to the person to whom it is directed at
the address designated by him for that purpose or, if none is designated,
at his last known address. Such notice or communication is given when
deposited, with postage thereon prepaid, in a 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 except where
otherwise required by the Business Corporation Law.
Section 6.09. Entire Board of Directors. As used in these
Bylaws, the term entire "Board of Directors" means the total number of
directors which the Corporation would have if there were no vacancies.
Section 6.10. Amendment of Bylaws. These Bylaws may be amended
or repealed and new Bylaws adopted by the Board of Directors or by vote of
the holders of the shares at the time entitled to vote in the election of
any directors, except that any amendment by the Board changing the number
of directors shall require the vote of a majority of the entire Board of
Directors and except that any Bylaw adopted by the Board of Directors may
be amended or repealed by the shareholders entitled to vote thereon as
provided in the Business Corporation Law.
If any Bylaw regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set
forth in the notice of the next meeting of shareholders for the election of
directors the Bylaw so adopted, amended or repealed, together with a
concise statement of the changes made.
Section 6.11. Section Headings and Statutory References. The
headings of the Articles and Sections of these Bylaws have been inserted
for convenience of reference only and shall not be deemed to be a part of
these Bylaws.
Brd.459