AMENDED AND RESTATED
BYLAWS
of
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
as amended and restated on
February 14, 1996
ARTICLES I
OFFICES
The principal office of the Corporation in the State of New York shall be
located in the City of New York, County of New York. The Corporation may have
such other offices, either within or without the State of New York, as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the Shareholders shall be
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held on such date as the Board of Directors shall designate in each year for the
purpose of electing Directors and for the transaction of such other business as
may come before the meeting. If no designation is made for any year, the date of
meeting shall be the second Thursday in the month of May in such year. If the
day fixed for the annual meeting shall be a legal holiday in the State of New
York, such meeting shall be held on the next succeeding business day.
Section 2. Special Meetings. Special meetings of the Shareholders may be
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called by the Chairman, the President or the Board of Directors, and shall be
called by the Chairman, the President or the Secretary at the request of the
holders of not less than ten percent (10%) of the outstanding shares of the
Corporation entitled to vote at the meeting.
Section 3. Place of Meeting. The Chairman, the President or the Board of
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Directors may designate any place, either within or without the State of New
York, as the place of meeting for any annual meeting or for any special meeting
called by the Chairman, the President or the Board of Directors. A notice signed
by the holders of not less than ten percent (10%) of the outstanding shares of
the Corporation entitled to vote at the meeting may designate any place, either
within or without the State of New York, as the place for the holding of such
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be the registered office of the Corporation in the
State of New York.
Section 4. Notice of Meeting. Written notice of every meeting of
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Shareholders shall state the place, date and hour of the meeting and, unless it
is the annual meeting, indicate 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 statutory requirements 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 the relevant statutory provision 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 10 or more than 50 days before the date of the meeting, to
each Shareholder entitled to vote at such meeting. If mailed, such notice shall
be deemed given when deposited in the United States mail, postage 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.
Section 5. Adjournments. The Shareholders present at a meeting of
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Shareholders may adjourn the meeting despite the absence of a quorum. When a
determination of Shareholders entitled to notice of or to vote at any meeting of
Shareholders has been made, such determination shall apply to any adjournment
thereof, unless the Board of Directors fixes a new record date for the adjourned
meeting. 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 the Corporation may transact
any business 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 entitled to notice on the new record
date.
Section 6. Fixing of Record Date. For the purpose of determining
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Shareholders entitled to notice of or to vote at any meeting of Shareholders or
any adjournment thereof, or Shareholders entitled to receive payment of any
dividend, or in order to make a determination of Shareholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination of Shareholders, such date in any case to be not
more than 50 days and, in case of a meeting of Shareholders, not less than 10
days prior to the date on which the particular action requiring such
determination of Shareholders is to be taken. If no record date is fixed for the
determination of Shareholders entitled to notice of or to vote at a meeting of
Shareholders, the record date shall be at the close of business on the day next
preceding the day on which notice of the meeting is given, or if no notice is
given, the day on which the meeting is held. If no record date is fixed for the
determination of Shareholders for any other purpose, the record date shall be at
the close of business on the day on which the resolution of the Board of
Directors relating thereto is adopted. When a determination of Shareholders
entitled 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.
Section 7. Voting Lists. A list of Shareholders as of the record date,
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certified by the Secretary or by the 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 8. Quorum. The holders of a majority of the outstanding shares of
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the Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of Shareholders. If the holders of less than a
majority of the outstanding shares entitled to vote are represented at a
meeting, a majority of the shares so represented may adjourn the meeting. At any
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 9. Proxies. Every Shareholder entitled to vote may authorize
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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 more than
eleven months after it is executed, unless otherwise provided in the proxy.
Section 10. Voting of Shares by Corporate Holders. Shares standing in the
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name of another corporation may be voted by such officer, agent or proxy as the
Bylaws of such corporation may prescribe, or, in the absence of such provisions,
as the board of directors of such corporation may determine.
Section 11. Informal Action by Shareholders. Any action required or
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permitted to be taken at a meeting of the Shareholders, 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.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business of the Corporation shall be managed
under the direction of the Board of Directors.
Section 2. Number, Tenure and Qualifications.
(a) Number. the number of Directors constituting the entire Board of
Directors shall not be less than three nor more than 20. The number of
directors shall be determined by a majority vote of the entire Board of
Directors.
(b) Tenure. Except as provided in Sections 4 and 5 of this Article
III, 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.
(c) Qualifications. At all times a majority of the Directors shall be
citizens and residents of the United States. Each Director shall be at
least eighteen years of age.
Section 3. Election of Directors. Directors shall be elected at each annual
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meeting of the Shareholders.
Section 4. Resignation. Any Director of the Corporation may resign at any
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time by giving written notice to the Chairman, the President or the Secretary of
the Corporation. The resignation of any Director shall take effect at the time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Vacancies. Except as otherwise provided in the Certificate of
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Incorporation, newly created directorships resulting from an increase in the
number of Directors and vacancies occurring in the Board of Directors for any
reason, including the removal of a Director, may be filled by a majority vote of
the remaining directors then if office. A Director elected to fill a vacancy,
unless elected by the Shareholders, shall be elected to 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 6. Regular Meetings. Regular meetings of the Board of Directors may
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be held without notice immediately after, and at the same place as, the annual
meeting of Shareholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of New York, for the holding
of additional regular meetings thereof upon notice specified in such resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors may
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be called by or at the request of the Chairman, the President or any two
Directors. The persons authorized to call such special meetings may fix any
place, either within or without the State of New York, as the place for holding
any such special meeting.
Section 8. Notices for Special Meetings. Written notice of any special
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meeting of the Board of Directors shall be given at least one day in advance of
the day on which such special meeting shall be held. Any such notice may be
personally delivered, transmitted by telex, telegram or telecopy, or mailed to
each Director at his business address, postage prepaid. Any such notice
personally delivered shall be effective upon delivery. Any such notice
transmitted by telex, telegram or telecopy shall be effective one business day
after mailing. Any such notice shall state the place, date and hour of the
meeting and indicate that it is being issued by or at the direction of the
person calling the meeting. Neither the business to be transacted at, nor the
purpose of, any such special meeting need be specified in such notice.
Section 9. Quorum. A quorum shall consist of a majority of the Directors
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then in office.
Section 10. Manner of Acting. The vote of the majority of the Directors
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present at a meeting of the Board of Directors at the time of the vote, if a
quorum is present at such time, shall be the act of the Board of Directors.
Resolutions so adopted shall be filed with the minutes of the proceedings of the
Board or committee.
Section 11. Meeting by Telephone Conference. One or more members of the
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Board of Directors may participate in a meeting of the Board of Directors by
means of a conference telephone or similar communications equipment that allows
all persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
Section 12. Action by Written Consent. Any action required or permitted to
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be taken by the Board of Directors or any committee thereof may be taken without
a meeting if all members thereof consent in writing to the adoption of a
resolution authorizing the action. Resolutions so adopted shall be filed with
the minutes of the proceedings of the Board of Directors or any such committee.
Section 13. Compensation. By resolution of the Board of Directors, the
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Directors may be paid their expenses, if 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.
ARTICLE IV
COMMITTEES
Section 1. Executive Committee. The Board of Directors may, by resolution
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adopted by a majority of the entire Board of Directors, designate an Executive
Committee consisting of three or more Directors, which Committee shall have and
may exercise, when the Board is not in session, the power of the Board of
Directors in the management of the business and affairs of the Corporation, but
the Executive Committee shall not have the power to submit to the Shareholders
any action which requires Shareholders' approval, fill vacancies in the Board of
Directors or any committee thereof, fix compensation of Directors or committee
members, amend or repeal these Bylaws or adopt new bylaws, or amend or repeal
any resolution of the Board which by its terms shall not be so amendable or
repealable.
Section 2. Other Committees. The Board of Directors may establish such
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other committees having such duties and powers as the Board of Directors may
deem appropriate, but in no event shall any such committee have any of the
powers which may not be granted to the Executive Committee.
Section 3. Meeting by Telephone Conference. One or more members of any
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committee may participate in a meeting of such committee by means of a
conference telephone or similar communications equipment that allows all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
Section 4. Administrative Matters. Each committee may make rules for the
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conduct of its business and may appoint such committees and assistants as it
shall from time to time deem necessary. A majority of the members of each
committee shall constitute a quorum. Each committee shall keep written minutes
of their transactions and report such minutes to the Board of Directors at the
next regular meeting thereof.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation shall be a Chairman, a
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Vice Chairman, a President, one or more Managing Directors, one or more Vice
Presidents, a Secretary and a Treasurer, each of whom shall be elected by the
Board of Directors. The offices of the Chairman and Vice Chairman may be vacant.
Such other officers and assistant officers as may be deemed necessary may be
elected or appointed by the Board of Directors. Any two or more offices may be
held by the same person except the offices of President and Secretary; provided,
however, that if all of the issued and outstanding stock is held by one person,
that person may hold all or any combination of offices.
Section 2. Election and Term of Office. The officers of the Corporation to
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be elected annually by the Board of Directors shall be elected at the first
regular meeting of the Board of Directors held after each annual meeting of the
Shareholders. If the election shall not be held at such meeting, such election
shall be held as soon thereafter as practicable. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided.
Section 3. Resignations. Any officer may resign at any time by giving
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written notice of his or her resignation to the Board of Directors, or to
another officer of the Corporation, provided that such other officer is the
Chairman, the President or the Secretary of the Corporation. Subject to the
contractual obligations of the person so resigning, any such resignation shall
take effect at the time of the delivery of such notice.
Section 4. Removal. Any officer or agent elected or appointed by the Board
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of Directors may be removed by the Board of Directors with or without cause, but
any such removal shall be without prejudice to the contract rights, if any, of
the person so removed.
Section 5. Vacancies. A vacancy in any office, because of death,
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resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 6. Chairman. The Chairman shall preside at all meetings of the
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Board of Directors and shall have and perform such other duties as from time to
time may be assigned by the Board of Directors. The Chairman may execute, with
or without the Secretary, an Assistant Secretary or another proper officer of
the Corporation thereunto authorized by the Board of Directors, certificates for
shares of the Corporation, deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the execution thereof shall be expressly delegated by the Board
of Directors or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise executed.
Section 7. Vice Chairman. The Vice Chairman shall, in the absence of the
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Chairman, or in the event of the Chairman's death, disability or refusal to act,
preside at all meetings of the
Shareholders and the Board of Directors. The Vice Chairman shall perform such
other duties as from time to time may be assigned by these Bylaws or by the
Board of Directors.
Section 8. President. The President, unless the Board of Directors
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specifically determines otherwise, shall be the Chief Executive Officer of the
Corporation and, subject to the control of the Board of Directors, shall in
general supervise and control all of the business and affairs of the
Corporation. The President shall, in the absence of the Chairman and the Vice
Chairman, or in the event of their death, inability or refusal to act, preside
at all meetings of the Shareholders and the Board of Directors. The President
may execute, with or without the Secretary, an Assistant Secretary or another
proper officer of the Corporation thereunto authorized by the Board of
Directors, certificates for shares of the Corporation, deeds, mortgages, bonds,
contracts or other instruments which the Board of Directors has authorized to be
executed, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Corporation, or shall be required by law to be otherwise executed.
The President shall perform such other duties as from time to time may be
assigned by these Bylaws or by the Board of Directors.
Section 9. Managing Directors. The Managing Directors shall perform such
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duties as from time to time may be assigned by these Bylaws or by the Board of
Directors, the Chairman or the President of the Corporation. Any Managing
Director may be assigned the title and duties of Chief Operating Officer by the
Board of Directors or the President. The Managing Directors may execute, with or
without the Secretary, an Assistant Secretary or another proper officer of the
Corporation thereunto authorized by the Board of Directors, any contracts or
other instruments which the Board of Directors has authorized to be executed,
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise executed.
Section 10. Vice Presidents. The Vice Presidents shall perform such duties
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as from time to time may be assigned by these Bylaws or by the Board of
Directors, the Chairman or the President of the Corporation.
Section 11. The Secretary. The Secretary shall:
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(a) keep the minutes of the meetings of the Shareholders and the Board
of Directors in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law;
(c) be custodian of the corporate records and of the seal of the
Corporation and see that the seal of the Corporation is affixed to all
documents the execution of which on behalf of the Corporation under its
seal is duly authorized;
(d) keep a registration of the post office address of each Shareholder
which has been furnished to the Secretary by such Shareholder;
(e) execute with any other duly authorized officer of the Corporation,
certificates for shares of the Corporation, deeds, mortgages, bonds,
contracts or other instruments which the Board of Directors has authorized
to be executed, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation, or shall be required by law to
be otherwise executed;
(f) have general charge of the stock transfer books of the
Corporation; and
(g) in general perform all duties incident to the office of Secretary
and such other duties as from time to time may be assigned by these Bylaws
or by the Board of Directors, the Chairman or the President of the
Corporation.
Section 12. The Treasurer. The Treasurer shall have charge and custody of
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and be responsible for all funds and securities of the Corporation, receive and
give receipts of moneys due and payable to the Corporation, and deposit all such
moneys in the name of the Corporation in such banks, trust companies or other
depositories as shall be selected by the Corporation. The Treasurer shall also
perform all other duties incident to the office of the Treasurer and such other
duties as from time to time may be assigned by these Bylaws or by the Board of
Directors, the Chairman or the President of the Corporation. If required by the
Board of Directors, the Treasurer shall give a bond for the faithful discharge
of his or her duties in such sum and with such surety as the Board of Directors
shall determine.
Section 13. Assistant Secretaries and Assistant Treasurers. The Assistant
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Secretaries and Assistant Treasurers may execute, with any duly authorized
officer of the Corporation, certificates for shares of the Corporation, deeds,
mortgages, bonds, contracts or other instruments which the Board of Directors
has authorized to be executed, except in cases where the execution thereof shall
be expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation, or shall be required by law to be
otherwise executed. The Assistant Secretaries and Assistant Treasurers shall
also perform such other duties as shall be assigned by the Board of Directors or
any duly authorized officer of the Corporation, and in the absence of the
Secretary or Treasurer, respectively, shall have all of the powers and duties of
the Secretary and Treasurer, respectively. The Assistant Treasurers shall, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors shall
determine.
Section 14. Salaries. Except for any employees of the Corporation whose
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salary may be fixed in an employment agreement, the salaries of the officers
shall be fixed from time to time by the Board of Directors or a compensation
committee thereof. No officer shall be prevented from receiving such salary by
reason of the fact that he or she is also a Director of the Corporation.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer or
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officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation
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and no evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
Section 3. Checks, Drafts. All checks, drafts or other orders for the
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payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation, shall be signed by such officer or officers, agent or agents of
the Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation shall be deposited from
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time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board of Directors may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing shares of the
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Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the Chairman or the President or
any Managing Director of the Corporation and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation. When
such a certificate is countersigned by a transfer agent or registered by a
registrar, the signatures of such officers may be facsimile. All certificates
for shares shall be consecutively numbered or otherwise identified. Each
certificate shall state upon the face thereof that the Corporation is formed
under the laws of the State of New York, the name of the person or persons to
whom it is issued and the number of shares it represents. All certificates
surrendered to the Corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the Corporation as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the Corporation shall
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be made only on the stock transfer books of the Corporation by the holder of
record thereof or by his legal representative, who shall furnish proper evidence
of authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the Corporation, and on
surrender for cancellation of the certificate for such shares. The person in
whose name shares are registered on the books of the Corporation shall be deemed
by the Corporation to be the owner thereof for all purposes.
Section 3. Record Owner. The Corporation shall keep at its principal
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office, 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 of shares held by each and the dates when they respectively became the
owners of record thereof. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, unless the laws of the State of New York
expressly provide otherwise.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by law and its Certificate of Incorporation.
ARTICLE IX
SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation,
the state of incorporation and the words "Corporate Seal."
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given to any Shareholder or Director
of the Corporation, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the meeting shall be deemed
equivalent to the giving of such notice. 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. The attendance of any Director at a meeting without protesting,
prior thereto or at its commencement, the lack of notice to him shall constitute
a waiver of notice.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
Section 1. Indemnification.
(a) The Corporation shall indemnify any person made, or threatened to
be made, a party to an action or proceeding (including, without limitation,
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 or officer of the Corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise at the request of the Corporation 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, provided that no
indemnification may be made to or on behalf of such person if (i) his
acts were committed in bad faith or were the result of his active and
deliberate dishonesty and were material to such action or proceedings or
(ii) he personally gained in fact a financial profit or other advantage
to which he was not legally entitled.
(b) The termination of any such civil or criminal action or proceeding
by judgment, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not in itself create a presumption that any such
person did not act in good faith, for a purpose which he reasonably
believed to be in, or, in the case of service for any other corporation or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the Corporation or that
he had reasonable cause to believe that his conduct was unlawful.
Section 2. Other Indemnification. The Corporation may, to the fullest
extent permitted by law, indemnify or advance the expenses of any other person
including agents and employees to whom the Corporation is permitted by law to
provide indemnification or advancement of expenses.
Section 3. Payment of Expenses in Advance. To the fullest extent permitted
by the New York Business Corporation Law, the Corporation will advance to any
person who may be entitled to indemnification under Sections 1 or 2 sums with
which to pay expenses incurred by that person in defending against the claims,
actions or proceedings for which such person may become entitled to
indemnification, upon receipt of an undertaking by or on behalf of such person
to repay the sums which are advanced if it is ultimately determined that such
person is not entitled to indemnification under Sections 1 or 2 or to the extent
the sums which are advanced exceed the indemnification to which such person is
entitled.
Section 4. Enforcement, Defenses. The right to indemnification or
advancement of expenses granted by this Article shall be enforceable by the
person in any court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense to
any such action (other than an action brought to enforce a claim for the
advancement of expenses under Section 3 of this Article where the required
undertaking has been received by the Corporation) that the claimant has
conducted himself in a manner which would preclude the Corporation from
indemnifying him pursuant to Sections 1 or 2 of this Article, but the burden of
proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, and its Shareholders) to have made a determination
that indemnification of the claimant is proper in the circumstances, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its Shareholders)
that indemnification of the claimant is not proper in the circumstances shall
be a defense to the action or create a presumption that the claimant is not
entitled to indemnification.
Section 5. Survival: Savings Clause; Preservation of Other Rights.
(a) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each person who serves in such
capacity at any time while these provisions are in effect, and any repeal
or modification of the New York Business Corporation Law shall not affect
any right or obligation then existing with respect to any state of facts
then or previously existing or any action or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such
state of facts, except as provided by law. Such a contract right may not be
modified retroactively without the consent of such person, except as
provided by law.
(b) If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each person entitled to indemnification hereunder
against judgments, fines, amounts paid in settlement and expenses
(including attorneys' fees) incurred in connection with any actual or
threatened action or proceeding, whether civil or criminal, including any
actual or threatened action by or in the right of the Corporation, or any
appeal therein, to the full extent permitted by any applicable portion of
this Article that shall not have been invalidated and to the full extent
permitted by applicable law.
(c) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any other bylaw, agreement, vote of shareholders or directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a
person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
Corporation is hereby authorized to provide further indemnification if it
deems advisable by resolution of Shareholders or directors, by amendment of
these Bylaws or by agreement.
Section 6. New York Business Corporation Law. All references to the New
York Business Corporation Law in this Article XI shall mean such Law as it may
from time to time be amended.
Section 7. Insurance. The Corporation may purchase and maintain insurance
to indemnify officers, directors and others against costs or liabilities
incurred by them in connection with the performance of their duties and any
activities undertaken by them for, or at the request of, the Corporation, to the
fullest extent permitted by the New York Business Corporation Law.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended or repealed only by action of the Board of
Directors or by the affirmative vote of the holders of a majority of the
outstanding shares of the Corporation entitled to vote.