EXHIBIT 3.2
BY-LAWS
OF
WORLD OF SCIENCE, INC.
(AS AMENDED THROUGH APRIL ____, 1997)
ARTICLE I -- OFFICES
Section 1. Registered Office. The registered office of World of Science,
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Inc. (the "Corporation") shall be in the City of Rochester, County of Monroe,
State of New York.
Section 2. Other Offices. The Corporation may also have offices at such
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other places both within and without the State of New York as the Board of
Directors may from time to time determine.
ARTICLE II -- MEETINGS OF STOCKHOLDERS.
Section 1 Place of Meeting. Meetings of the stockholders shall be held at
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such time and place, either within or without the State of New York, as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The annual meeting of stockholders shall be
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held on such date and at such time as shall be designated from time to time by
the Board of Directors, at which meetings the stockholders shall elect, in
accordance with Article III of these By-laws, by a plurality vote those
Directors belonging to the class or classes of directors to be elected at such
meeting, and transact such other business as may properly be brought before the
meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
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Restated Certificate of Incorporation (the "Certificate of Incorporation"),
special meetings of stockholders may be called only by the President, Chairman
or a Co-Chairman of the Board, if there be one, pursuant to a resolution adopted
by a majority of the entire Board of Directors, or the holders of 75% of the
outstanding stock of the Corporation entitled to vote on an issue proposed to be
considered at the special meeting. Notice of any special meeting shall indicate
that it is being issued by or at the direction of the person or persons calling
the special meeting and shall state the purposes for which such special meeting
is called. Business transacted at all special meetings shall be confined to the
matters specified in the notice of the meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law,
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written notice of each meeting of the stockholders, whether annual or special,
shall be given, either by personal delivery or by first class mail, not less
than 10 nor more than 50 days before the date of the meeting to each stockholder
of record entitled to notice of the meeting. If mailed, such notice shall be
deemed given when deposited in the United States mail, postage prepaid, directed
to the stockholder at such stockholder's address as it appears on the records of
the Corporation. Each such notice shall state the place, date and hour of the
meeting. Notice of any meeting of stockholders shall not be required to be given
to any stockholder who shall attend such meeting in person or by proxy without
protesting prior to the conclusion of the meeting the lack of proper notice to
such stockholder, or who shall in writing waive notice thereof. Notice of
adjournment of a meeting of stockholders need not be given if the time and place
to which it is adjourned are announced at such meeting, unless the adjournment
is for more than 30 days or, after adjournment, a new record date is fixed for
the adjourned meeting.
Section 5. Quorum. Except as otherwise provided by law or by the
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Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be presented or represented. At such adjourned meeting at which a
quorum shall be presented or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder entitled to vote at the meeting.
Section 6. Voting. Unless otherwise provided by law or by the Certificate
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of Incorporation, each stockholder of record of Common Stock shall be entitled
at each meeting of stockholders to one vote for each share of such stock, in
each case, registered in such stockholder's name on the books of the Corporation
(1) on the date fixed pursuant to Section 5 of Article V of these By-laws as the
record date for the determination of stockholders entitled to notice of and to
vote at such meeting; or (2) if no such record date shall have been so fixed,
then at the close of business on the day next preceding the day on which notice
of such meeting is given, or, if notice is waived, at the close of business on
the day on which the meeting is held. At each meeting of the stockholders, all
corporate actions to be taken by vote of the stockholders (except as otherwise
required by law and except as otherwise provided in the Certificate of
Incorporation or these By-laws) shall be authorized by a majority of the votes
cast affirmatively or negatively by the stockholders entitled to vote thereon
who are present in person or represented by proxy, and where a separate vote by
class is required, a majority of the votes cast affirmatively or negatively by
the stockholders of such class who are present in person or represented by proxy
shall be the act of such class. Unless required by law or determined by the
Chairman of the meeting to be advisable, the vote on any matter, including the
election of directors, need not be by written ballot. In the case of a vote by
written ballot, each ballot shall be signed by the stockholder voting, or by
such stockholder's proxy, and shall state the number of shares voted.
Section 7. List of Stockholders Entitled to Vote. The officer of the
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Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall be the
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only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 9. Notice of Business. No business may be transacted at an annual
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meeting of stockholders, 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 of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 9 of this Article II and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 9.
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In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than 90 days nor more than 120 days in advance of the date of the
Corporation's proxy statement and notice released to stockholders in connection
with the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within 30 days before or the date contemplated by that notice, notice by the
stockholder in order to be timely must be so received not later than the close
of the business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business proposed 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 stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder 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 stockholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 9 of this Article II; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 9 of this Article II shall be deemed to
preclude discussion by any stockholder of any such business. If the Chairman of
an annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, 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.
ARTICLE III -- DIRECTORS
Section 1. Number of Directors. The business and affairs of the
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Corporation shall be managed by or under the direction of a Board of Directors
consisting of a number of directors, divided into such classes and subject to
such other provisions as are set forth in the Certificate of Incorporation.
Except as otherwise provided in the Certificate of Incorporation, the exact
number of directors shall be fixed from time to time by the Board of Directors.
Section 2. Classified Board. The Board of Directors shall be divided into
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three classes in respect of term of office, each class to contain as near as may
be one-third of the whole number of the total number of directors, with the
terms of office of one class expiring each year. At each annual meeting of
stockholders, one class of directors shall be elected to serve until the annual
meeting of stockholders held three years next following and until their
successors shall be elected and shall qualify.
Section 3. Nomination of Directors. Only persons who are nominated in
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accordance with the following procedures shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Certificate of Incorporation. Nominations of persons for election to the Board
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of Directors may be made at any annual meeting of stockholders or at any special
meeting of stockholders called for the purpose of electing directors, (a) by or
at the direction of the Board of Directors or Nominating Committee thereof or
(b) by any stockholder of the Corporation (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 3 of this
Article III and on the record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies with the notice
procedures set forth in this Section 3 of this Article III.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an annual meeting, not less than 90 days nor more than 120 days
in advance of the date of the Corporation's proxy statement and notice released
to stockholders in connection with the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 30 days before or the date contemplated by
that notice, notice by the stockholder in order to be timely must be so received
not later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or public disclosure of
the date of the annual meeting was made, whichever first occurs; and (b) in the
case of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth day following the
day on which public disclosure of the date of the special meeting was made.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
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; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder 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 stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
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.
Subject to Section 5 of this Article III, 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 of this
Article III. If the Chairman of the 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.
Section 4. Removal of Directors. Directors of the Corporation may be
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removed only as provided in Paragraph A of Article 6 of the Certificate of
Incorporation.
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Section 5. Vacancies and Newly Created Directorships. Any newly created
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directorship resulting from an increase in the number of directors or any other
vacancy occurring in the Board of Directors may be filled by a majority vote of
the remaining directors, except as may be otherwise provided in the Certificate
of Incorporation. Any director of any class elected to fill a vacancy shall
hold office until the next meeting of stockholders at which the election of
directors is in the regular order of business, and until his or her successor
has been elected and shall qualify.
Section 6. Duties and Powers. The business of the Corporation shall be
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managed by or under the direction of the Board of Directors, except as may be
otherwise provided by statute or by the Certificate of Incorporation.
Section 7. Meetings. The Board of Directors of the Corporation may hold
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meetings, both regular and special, either within or without the State of New
York. Regular meetings of the Board of Directors may be held without notice at
such time and at such place as may from time to time be determined by the Board
of Directors. Special meetings of the Board of Directors may be called by the
Chairman or any Co-Chairman, if there be one, the Chief Executive Officer, the
President or any two directors. Notice thereof stating the place, date and hour
of the meeting shall be given to each director either by mail not less than 48
hours before the date of the meeting, by telephone, electronic facsimile or
telegram on 24 hours' notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the circumstances,
provided that notice need not be given to any director who shall, either before
or after the meeting, submit a signed waiver of such notice or who shall attend
such meeting without protesting, prior to or at its commencement, the lack of
notice to such director.
Section 8. Quorum. Except as may be otherwise specifically provided by
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law, the Certificate of Incorporation or these By-laws, at all meetings of the
Board of Directors, one-half of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 9 Actions of Board. Unless otherwise provided by the Certificate
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of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 10 Meetings by Means of Conference Telephone. Unless otherwise
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provided by the Certificate of Incorporation or these By-laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. Committees. The Board of Directors may, by resolution passed
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by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of three or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent
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or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee,
to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation.
Each committee shall keep regular minutes and report to the Board of Directors
when required.
Section 12. Compensation. The directors may be paid their expenses, if
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any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 13. Interested Directors. No contract or transaction between the
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Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorized the contract or transaction, or solely because the vote or votes of
such person or persons are counted for such purpose if (i) the material facts as
to the relationship or interest of such person or persons and as to the contract
or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the relationship or interest of such
persons or persons and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders.
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 authorizes
the contract or transaction.
Section 14. Meaning of "entire Board of Directors". As used in this
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Article III and in these Bylaws generally, the term "entire Board of Directors"
means the total number of directors which the Corporation would have if there
were no vacancies.
Section 15. Chairman and Co-Chairman of the Board of Directors. The Board
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of Directors may appoint one of its members as Chairman and one or more of its
members as Co-Chairmen of the Board of Directors. The Chairman or a Co-Chairman
of the Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or as
provided in these By-laws or as otherwise may normally be incident to such
office.
Section 16. Vice Chairman. The Board of Directors may also appoint one or
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more of its members as Vice Chairman of the Board of Directors, who shall
preside at all meetings of the stockholders and of the Board of Directors in the
absence of the Chairman or Co-Chairman, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or as
provided in these By-laws or as otherwise may normally be incident to such
office (including, without limitation, the power and authority to exercise the
authority of the Chairman or the Co-Chairmen in the absence or disability of
such person or persons).
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ARTICLE IV -- OFFICERS
Section 1. General. The officers of the Corporation shall be a Chief
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Executive Officer, a President, a Secretary and a Treasurer. The officers of the
Corporation may also include, at the discretion of the Board of Directors, a
Chief Financial Officer and one or more Vice Presidents (including, without
limitation, Assistant, Executive and Senior), Vice Chairmen, Assistant
Secretaries, Assistant Treasurers and other officers. The officers of the
Corporation shall be chosen by the Board of Directors, except that the Board may
from time to time authorize any officer to appoint and remove any other officer
or agent and to prescribe such person's authority and duties. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-laws. The officers of the Corporation
need not be stockholders of the Corporation nor need such officers be directors
of the Corporation.
Section 2. Election. Each Officer shall hold office for the term for
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which elected or appointed by the Board of Directors and shall exercise such
powers and perform such duties as are provided in these By-laws or as shall be
determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified,
or until their earlier death, resignation or removal. Any officer may be
removed, either with or without cause, by the Board of Directors, at any regular
or special meeting thereof, or by any officer upon whom such power of removal
may be conferred by the Board of Directors, except that an officer chosen by the
Board of Directors may be removed only by the Board of Directors. A vacancy
occurring in any office of the Corporation shall be filled in the manner
prescribed in these By-laws for regular appointments to such office. The
salaries and other compensation of all officers of the Corporation shall be
fixed by the Board of Directors or in accordance with procedures and approval
authorities established by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
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proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chief Executive Officer, the President or any
Vice President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
Section 4. Chief Executive Officer. The chief executive officer shall be
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the Chief Executive Officer of the Corporation and shall have the powers and
perform the duties incident to that position. Subject to the Board of Directors,
the Chief Executive Officer shall be in general and active charge of the entire
business and affairs of the Corporation, and shall be its chief policy-making
officer. The Chief Executive Officer shall see to it that all orders and
resolutions of the Board of Directors are carried into effect. The Chief
Executive Officer shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-laws, the Board of Directors or
the Chief Executive Officer. In the absence or disability of the Chairman of the
Board of Directors or any Co-Chairman or Vice Chairman, or if there be none, the
Chief Executive Officer shall preside at all meetings of the stockholders and
the Board of Directors. The Chief Executive Officer shall also perform such
other duties and may exercise such other powers as from time to time may be
assigned to the Chief Executive Officer by these By-laws or by the Board of
Directors.
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Section 5. President. The President shall perform such duties and exercise
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such powers as are incident to that position, and shall perform such other
duties and exercise such other powers as may from time to time be prescribed by
the Board of Directors.
Section 6 Vice Presidents. At the request of the Chief Executive Officer
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or in the absence of the Chief Executive Officer or in the event of the
inability or refusal to act of the Chief Executive Officer (and if there be no
Chairman or Co-Chairman or any Vice Chairman of the Board of Directors), the
Vice President or the Vice Presidents, if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the Chief
Executive Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman or
Co-Chairman or any Vice Chairman of the Board of Directors and no Vice
President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer or in the event of the
inability or refusal of the Chief Executive Officer to act, shall perform the
duties of the Chief Executive Officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chief Executive
Officer.
Section 7. Secretary. The Secretary shall attend all meetings of the
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Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
Chief Executive Officer, under whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of Directors or the
Chief Executive Officer may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his or her signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Chief Financial Officer. The Chief Financial Officer shall be
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the principal officer of the Corporation having responsibility for financial
matters and shall perform such duties as may be assigned to him by the Board of
Directors or the Chairman or any Co-Chairman.
Section 9. Treasurer. The Treasurer shall have the custody of the
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corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all the Treasurer's transactions as Treasurer and of the financial
condition of the Corporation.
Section 10. Assistant Secretaries. Except as may be otherwise provided in
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these By-laws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chief Executive Officer, the President, any Vice Chairman, if
there be one, or the Secretary, and in the absence of the Secretary or in the
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event of the disability of the Secretary or refusal of the Secretary to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers, if there be any,
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shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, any
Vice President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of the disability of the Treasurer or refusal of the
Treasurer to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of such office and for the restoration to the Corporation, in case of
such Assistant Treasurer's death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in the possession or under the control of such Assistant Treasurer
belonging to the Corporation.
Section 12. Other Officers. Such other officers as the Board of Directors
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may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
ARTICLE V -- STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
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shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the Co-Chairman of the Board of
Directors, the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares in the Corporation owned by such
holder.
Section 2. Signatures. Any or all the signatures on the certificate may
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be a facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
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certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or the legal representative of such person, to advertise the same
in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in
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the manner prescribed by law and in these By-laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by the person's attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
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Section 5. Record Date. In order that the Corporation may determine the
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stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 30 days nor less than ten days before the
date of such meeting, nor more than 30 days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
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recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise required by
law.
ARTICLE VI -- NOTICES
Section 1. Notices. Whenever written notice is required by law, the
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Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at the address
of such person as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Written notice may also
be given personally or by electronic facsimile, telegram, telex, cable or
overnight courier.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
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Certificate of Incorporation or these By-laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII -- GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
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Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, and may be paid in cash, in property, or in shares of the capital
stock. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of
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the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
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by resolution of the Board of Directors.
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Section 4. Corporate Seal. The corporate seal shall have inscribed
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thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal New York." The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification. Each person who was or is made a
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party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the New York Business Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceedings (or part thereof) was authorized by the
Board of Directors of the Corporation.
Section 2. Right to Advancement of Expenses. The right to indemnification
--------- --------------------------------
conferred in Section 1 of this ARTICLE VIII shall include the right to be paid
by the Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the New York Business
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 2 or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections 1 and 2 of this ARTICLE VIII shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
Section 3 Non-Exclusivity of Rights. The rights to indemnification and to
--------- -------------------------
the advancement of expenses conferred in this ARTICLE VIII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate of Incorporation, By-laws,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
--------- ---------
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the New York Business Corporation Law.
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Section 5. Indemnification of Employees and Agents of the Corporation. The
--------- ----------------------------------------------------------
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
ARTICLE IX -- AMENDMENTS
Except as otherwise provided in the Certificate of Incorporation, these By-laws
may be altered, amended or repealed, in whole or in part, or new By-laws may be
adopted (i) upon a vote of a majority of the entire Board of Directors or (ii)
by the affirmative vote of the holders of a majority of the combined voting
power of the then outstanding shares of stock of all classes and series of stock
the holders of which are entitled to vote generally in the election of
directors, voting together as a single class. Notwithstanding the foregoing,
the provisions of Article II, Section 3; Article III, Sections 1 through 4; and
Article IX of these By-Laws shall only be altered, amended, rescinded or
repealed by (A) vote of a majority of the entire Board of Directors of the
Corporation or (B) the affirmative vote of the holders of not less than seventy-
five percent (75%) of the shares of each class of the capital stock of the
Corporation entitled to vote.
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