Exhibit 3.2
BY-LAWS
OF
REGENERON PHARMACEUTICALS, INC.
(Amended Through November 12, 2004)
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders of
the Corporation shall be held either within or without the State of New York, at
such place and at such time as the Board of Directors may designate and set
forth in the call or in a waiver of notice thereof, for the purpose of electing
directors and for the transaction of such other business as may properly be
brought before the meeting, provided that until changed by the Board of
Directors, the annual meeting of the shareholders shall be held on the first
Monday in June in each year, if not a legal holiday, and if a legal holiday,
then on the next business day following, at 10:00 a.m., at which meeting the
shareholders shall elect a Board of Directors for the ensuing year and transact
such other business as may properly be brought before the meeting.
Section 2. Proposed Business at Annual Meeting. No business may be
transacted at an annual meeting of shareholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), which shall include shareholder proposals contained in the
Corporation's proxy statement made in accordance with Rule 14a-8 of the
Securities and Exchange Act of 1934, as amended, or any successor thereto, (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 shareholder of the
Company (i) who is a shareholder of record on the date of the giving of the
notice provided for in this Section 2 and on the record date for the
determination of shareholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the Secretary of
the Company.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company not less than sixty (60) days nor more than ninety (90) days prior to
the date of the annual meeting; provided, however, that in the event that less
than seventy (70) days' notice or prior public disclosure of the date of the
annual meeting is given or made to shareholders, notice by the shareholder in
order to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth as to each matter such shareholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and record address of such shareholder,
(iii) the class or series and number of shares of capital stock of the Company
which are owned beneficially or of record by such shareholder, (iv) a
description of all arrangements or understandings between such shareholder and
any other person or persons (including their names) in connection with the
proposal of such business by such shareholder and any material interest of such
shareholder in such business and (v) a representation that such shareholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2, provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2 shall be deemed to preclude discussion by
any shareholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
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.
Section 3. Special Meetings. Special Meetings of the shareholders,
for any purpose or purposes, may be called at any time by resolution of the
Board of Directors or by the President, and shall be called by the President or
by the Secretary upon the written request of the holders of record of shares,
issued and outstanding the entitled to cast at least twenty-five percent (25%)
of the total number of votes entitled to be cast by shareholders at such
meeting, at such times and at such place either within or without the State of
New York as may be stated in the call or in a waiver of notice thereof.
Section 4. Notice of Meetings. Notice of the time, place and purpose
of every meeting of shareholders shall be delivered personally or by first class
mail, not less than ten days nor more than fifty days previous thereto, or by
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third class mail, not less than twenty four nor more than fifty days before the
meeting, to each shareholder of record entitled to vote, at his post office
address appearing upon the records of the Corporation or at such other address
as shall be furnished in writing by him to the Corporation for such purpose.
Such further notice shall be given as may be required by law or by these
By-Laws. Any meeting may be held without notice if all shareholders entitled to
vote are present in person or by proxy, or if notice is waived in writing,
either before or after the meeting, by those not present.
Section 5. Quorum. The holders of record of at least a majority of
the votes of shares of the stock of the Corporation, issued and outstanding and
entitled to vote, present in person or by proxy, shall, except as otherwise
provided by law, the Certificate of Incorporation or by these By-Laws,
constitute a quorum at all meetings of the shareholders; if there be no such
quorum, the holders of a majority of the votes of such shares so present or
represented may adjourn the meeting from time to time until a quorum shall have
been obtained.
Section 6. Organization of Meetings. Meetings of the shareholders
shall be presided over by the Chairman of the Board, if there be one, or if he
is not present by the President, or if he is not present by a chairman to be
chosen at the meeting. The Secretary of the Corporation, or in his absence an
Assistant Secretary, shall act as Secretary of the meeting, if present.
Section 7. Voting. At each meeting of shareholders, except as
otherwise provided by statute, every holder of record of stock entitled to vote
shall be entitled to cast the number of votes to which shares of such class or
series are entitled as set forth in the Certificate of Incorporation or any
Certificate of Designation with respect to any preferred stock, in person or by
proxy for each share of such stock standing in his name on the records of the
Corporation. Elections of directors shall be determined by a plurality of the
votes cast thereat and, except as otherwise provided by statute, the Certificate
of Incorporation, or these By-Laws, all other action shall be determined by a
majority of the votes cast at such meeting. Each proxy to vote shall be in
writing and signed by the shareholder or by his duly authorized attorney.
At all elections of directors, the voting shall be by ballot or in
such other manner as may be determined by the shareholders present in person or
by proxy entitled to vote at such election. With respect to any other matter
presented to the shareholders for their consideration at a meeting, any
shareholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the shareholders entitled to vote at each such
meeting, arranged in alphabetical order, with the address of each shareholder,
the number of shares registered in the name of each shareholder, the class or
series of such shares and the number of votes which such shares are entitled,
shall be prepared by the Secretary and shall be open to the examination of any
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shareholder, for any purpose, germane to the meeting, during ordinary business
hours, for a period of time 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 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 shareholder who is present.
Section 8. Action by Consent. Any action required or permitted to be
taken at any meeting of shareholders may be taken without a meeting, if, prior
to such action, a written consent or consents thereto setting forth such action,
is signed by the holders of record of all of the shares of the stock of the
Corporation, issued and outstanding and entitled to vote.
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. The number of
directors of the Corporation shall be fixed in the manner provided in the
Certificate of Incorporation.
A majority of the members of the Board of Directors then holding
office shall constitute a quorum for the transaction of business, but if at any
meeting of the Board there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum shall
have been obtained.
Except as otherwise provided in the Certificate of Incorporation,
Directors shall hold office until the next annual election at which the class to
which a director shall have been elected is scheduled to stand for reelection
and until their successors shall have been elected and shall have qualified,
unless sooner displaced.
Except as otherwise required by the Certificate of Incorporation,
whenever any vacancy shall have occurred in the Board of Directors, by reason of
death, resignation, or otherwise, other than removal of a director with cause by
a vote of the shareholders as provided in the Certificate of Incorporation, it
shall be filled by a majority of the remaining directors, though less than a
quorum (except as otherwise provided by law), and the person so chosen shall
serve for a term that coincides with the term of the class to which such
director shall have been elected and until his successor is duly elected and has
qualified.
Any one or more of the directors of the Corporation may be removed
with cause at any time by a vote of the shareholders as provided in the
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Certificate of Incorporation and thereupon the term of the director or directors
who shall have been so removed shall forthwith terminate and there shall be a
vacancy or vacancies in the Board of Directors, to be filled by a vote of the
directors as provided in these By-Laws.
Section 2. Nomination of Directors. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
directors of the Company, except as may be otherwise provided in the Certificate
of Incorporation of the Company with respect to the right of holders of certain
specified classes of preferred stock of the Company to nominate and elect a
specified number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any annual meeting of
shareholders, or at any special meeting of shareholders called for the purpose
of electing directors, (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) by any shareholder of the Company
(i) who is a shareholder of record on the date of the giving of the notice
provided for in this Section 2 and on the record date for the determination of
shareholders entitled to vote at such meeting and (ii) who complies with the
notice procedures set forth in this Section 2.
In addition to any other applicable requirements, for a nomination
to be made by a shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary of the Company.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Company (a) in the case of an annual meeting, not less than sixty (60) days nor
more than ninety (90) days prior to the date of the annual meeting; provided,
however, that in the event that less than seventy (70) days' notice or prior
public disclosure of the date of the annual meeting is given or made to
shareholders, notice by the shareholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs; and (b) in the case of a special meeting of shareholders called
for the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special
meeting was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth (a) as to each person whom the shareholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of 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 Company 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
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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 shareholder giving the
notice (i) the name and record address of such shareholder, (ii) the class or
series and number of shares of capital stock of the Company which are owned
beneficially or of record by such shareholder, (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such shareholder 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.
No person shall be eligible for election as a director of the
Company unless nominated in accordance with the procedures set forth in this
Section 2. 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 3. Meetings, Notice. Meetings of the Board of Directors
shall be held at such place either within or without the State of New York, as
may from time to time be fixed by resolution of the Board, or as may be
specified in the call or in a waiver of notice thereof. Regular meetings of the
Board of Directors shall be held at such times as may from time to time be fixed
by resolution of the Board, and special meetings may be held at any time upon
the call of one director, the Chairman of the Board, if one be elected, or the
President, by oral, telegraphic or written notice, duly served on or sent or
mailed to each director not less than two days before such meeting. A meeting of
the Board may be held without notice immediately after the annual meeting of
shareholders at the same place at which such meeting was held. Notice need not
be given of regular meetings of the Board. Any meeting may be held without
notice, if all directors are present, or if notice is waived in writing, either
before or after the meeting, by those not present.
Section 4. Committees. The Board of Directors may, in its
discretion, by resolution passed by a majority of the whole Board, designate
from among its members one or more committees which shall consist of one or more
directors. The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at
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any meeting of the committee. Such committees shall have and may exercise such
powers as shall be conferred or authorized by the resolution appointing them. A
majority of any such committee may determine its action and fix the time and
place of its meetings, unless the Board of Directors shall otherwise provide.
The Board shall have power at any time to change the membership of any such
committee, to fill vacancies in it, or to dissolve it.
Section 5. Action by Consent. 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 prior to such action a written consent or
consents thereto is signed by all members of the Board, or of such committee as
the case may be, and such written consent or consents is filed with the minutes
of proceedings of the Board or committee.
Section 6. Compensation. The Board of Directors may determine, from
time to time, the amount of compensation which shall be paid to its members. The
Board of Directors shall also have power, in its discretion, to allow a fixed
sum and expenses for attendance at each regular or special meeting of the Board,
or of any committee of the Board; in addition the Board of Directors shall also
have power, in its discretion, to provide for and pay to directors rendering
services to the Corporation not ordinarily rendered by directors, as such,
special compensation appropriate to the value of such services, as determined by
the Board from time to time.
Section 7. The Board of Directors from time to time may elect a
Chairman of the Board. The Chairman of the Board, if one is elected, shall
preside at all meetings of the Board of Directors and of the shareholders, and
he shall have and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
ARTICLE III
OFFICERS
Section 1. Titles and Election. The officers of the Corporation, who
shall be chosen by the Board of Directors at its first meeting after each annual
meeting of shareholders, shall be a President, a Treasurer and a Secretary. The
Board of Directors from time to time may elect one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers and such other officers and agents
as it shall deem necessary, and may define their powers and duties. Any number
of offices may be held by the same person, except that office of President and
Secretary may not be held by the same person.
Section 2. Terms of office. The officers shall hold office until
their successors are chosen and qualify.
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Section 3. Removal. Any officer may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of the Board
of Directors.
Section 4. Resignations. Any officer may resign at any time giving
written notice to the Board of Directors or to the Secretary. Such resignation
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. If the office of any officer or agent becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office or otherwise, the directors may choose a successor, who shall hold
office for the unexpired term in respect of which such vacancy occurred.
Section 6. President. The President shall be the chief executive
officer of the Corporation and, in the absence of the Chairman, shall preside at
all meetings of the Board of Directors, and of the shareholders. He shall
exercise the powers and perform the duties usual to the chief executive officer
and, subject to the control of the Board of Directors, shall have general
management and control of the affairs and business of the Corporation; he shall
appoint and discharge employees and agents of the Corporation (other than
officers elected by the Board of Directors) and fix their compensation; and he
shall see that all orders and resolutions of the Board of Directors are carried
into effect. He shall have the power to execute bonds, mortgages and other
contracts, agreements and instruments of the Corporation, and shall do and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
Section 7. Vice Presidents. If chosen, the Vice Presidents, in the
order of their seniority, shall, in the absence or disability of the President,
exercise all of the powers and duties of the President. Such Vice Presidents
shall have the power to execute bonds, notes, mortgages and other contracts,
agreements and instruments of the Corporation, and shall do and perform such
other duties incident to the office of Vice President and as the Board of
Directors or the President shall direct.
Section 8. Secretary. The Secretary shall attend all sessions of the
Board and all meetings of the shareholders and record all votes and the minutes
of the proceedings in a book to be kept for that purpose. He shall give, or
cause to be given, notice of all meetings of the shareholders and of the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors. The Secretary shall affix the seal of the Corporation to any
instrument requiring it, and when so affixed, it shall be attested by the
signature of the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer who may affix the seal to any such instrument in the event
of the absence or disability of the Secretary. The Secretary shall have and be
the
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custodian of the stock records and all other books, records and papers of the
Corporation (other than financial) and shall see that all books, reports,
statements, certificates and other documents and records required by law are
properly kept and filed.
Section 9. Treasurer. The Treasurer shall have the custody of the
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. He shall disburse the funds of the Corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the directors whenever they may require it, and account of all his transactions
as Treasurer and of the financial condition of the Corporation.
Section 10. Duties of Officers may be Delegated. In case of the
absence of disability of an officer of the Corporation, or for any other reason
that the Board may deem sufficient, the Board may delegate, for the time being,
the powers or duties, or any of them, of such officer to any other officer, or
to any director.
ARTICLE IV
INDEMNIFICATION
Section 1. Indemnification of Directors, Officers, Employees and
Agents in Actions by or in the Right of the Corporation.
(a) Subject to Section 3, 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, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent 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, if such director, officer, employee or
agent acted 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, except that no indemnification under this
paragraph shall be made in respect of (1) a threatened action, or a pending
action which is settled or otherwise disposed of,
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or (2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation, unless and only to the extent that the
court in which the action was brought, or, if no action was brought, any court
of competent jurisdiction, determines upon application that, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such portion of the settlement amount and expenses as the court
deems proper.
Section 2. Indemnification of Directors, Officer, Employees and
Agents in Other Actions or Proceedings.
(a) Subject to Section 3, 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, officer, employee or agent 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, officer, employee or agent of the Corporation, 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, if such director, officer, employee or agent of the
Corporation acted 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 and, in criminal actions or proceedings,
in addition, had no reasonable cause to believe that his conduct was unlawful.
(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 director, officer, employee or agent of the Corporation 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.
(c) For the purpose of this Section, the Corporation shall be
deemed to have requested a person to serve an employee benefit plan where the
performance by such person of his duties to the Corporation also imposes duties
on, or otherwise involves services by, such person to the plan or participants
or beneficiaries of the plan; excise taxes assessed on a person with
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respect to an employee benefit plan pursuant to applicable law shall be
considered fines; and action taken or omitted by a person with respect to an
employee benefit plan in the performance of such person's duties for a purpose
reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Corporation.
Section 3. Payment of Indemnification Other Than by Court Award.
(a) A person who has been wholly successful, on the merits or
otherwise, in the defense of a civil or criminal action or proceeding of the
character described in Section 1 or 2 shall be entitled to indemnification as
authorized in such sections.
(b) Except as provided in paragraph (a), any indemnification
under Section 1 or 2, unless ordered by a court under Section 724 of the
Business Corporation Law of New York, shall be made by the Corporation, only if
authorized in the specific case:
(1) by the Board acting by a quorum consisting of directors who are
not parties to such action or proceeding upon a finding that the director,
officer, employee or agent has met the standard of conduct set forth in
Section 1 or 2, as the case may be, or,
(2) if a quorum under subparagraph (1) is not obtainable or even if
obtainable, a quorum of disinterested directors so directs:
(A) by the Board upon the opinion in writing of independent
legal counsel that indemnification is proper in the circumstances
because the applicable standard of conduct set forth in such
sections has been met by such director, officer, employee or agent,
or
(B) by the shareholders upon a finding that the director,
officer, employee or agent has met the applicable standard of
conduct set forth in such sections.
It is the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 shall be made to the fullest extent
permitted by law.
(c) Expenses incurred in defending a civil or criminal action
or proceeding may be paid by the Corporation in advance of the final disposition
of such action or proceeding upon receipt of an undertaking by or on behalf of
such director, officer, employee or agent to repay such amount as, and to the
extent, required by Section 4(a).
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Section 4. Other Provisions Affecting Indemnification of Directors,
Officers, Employees and Agents.
(a) All expenses incurred in defending a civil or criminal
action or proceeding which are advanced by the Corporation under paragraph (c)
of Section 3 or allowed by a court shall be repaid in case the person receiving
such advancement or allowance is ultimately found, under the procedure set forth
in this Article IV or in Section 725 of the New York Business Corporation Law,
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advance by the Corporation or allowed by the court
exceed the indemnification to which he is entitled.
(b) No indemnification, advancement or allowance shall be made
under this Article IV in any circumstance where it appears:
(1) that the indemnification would be inconsistent with
a provision of the Certificate of Incorporation, a By-Law, a resolution of
the Board of Directors or of the shareholders, an agreement or other
proper corporation action, in effect at the time of the accrual of the
alleged cause of action asserted in the threatened or pending action or
proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(2) if there has been a settlement approved by the
court, that the indemnification would be inconsistent with any condition
with respect to indemnification expressly imposed by the court in
approving the settlement.
(c) If, under this Article IV, any expenses or other amounts
are paid by way of indemnification, otherwise than by court order or action by
the shareholders, the Corporation shall, not later than the next annual meeting
of shareholders unless such meeting is held within three months from the date
of such payment, and, in any event, within fifteen months from the date of such
payment, mail to its shareholders of record at the time entitled to vote for
the election of directors, a statement specifying the persons paid, the amounts
paid and the nature and status at the time of such payment of the litigation or
threatened litigation.
Section 5. Non-Exclusivity and Survival of Indemnification. The
provisions of this Article IV shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or 2 but whom
the Corporation has the power or obligation to indemnify under the provisions of
the Business Corporation Law of New York, or otherwise. The indemnification
provided by this Article IV
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shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors, and
administrators of such person. The indemnification provided by this Article IV
shall not be deemed exclusive of any other rights to which directors, officers,
employees or agents of the Corporation seeing indemnification or advancement of
expenses may be entitled under any By-Law, agreement, contract, vote of
shareholders or disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise, both as to
actions in their official capacity and as to actions in another capacity while
serving the Corporation provided that no indemnification may be made to or on
behalf of any director, officer, employee or agent if a judgment or other final
adjudication adverse to the officer, director, employee or agent establishes
that his acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of the action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Section 6. Insurance for Indemnification of Directors, Officers,
Employees and Agents.
(a) Subject to paragraph (b) below, the Corporation shall have
the power to purchase and maintain insurance:
(1) to indemnify the Corporation for any obligation
which it incurs as a result of the indemnification of directors, officers,
employees and agents under the provisions of this Article IV, and
(2) to indemnify directors, officers, employees and
agents in instances in which they may be indemnified by the Corporation
under the provisions of this Article IV, and
(3) to indemnify directors, officers, employees and
agents in instances in which they may not otherwise be indemnified by the
Corporation under the provisions of this Article IV provided the contract
of insurance covering such directors, officers, employees and agents
provides, in a manner acceptable to the superintendent of insurance, for a
retention amount and for co-insurance.
(b) No insurance under paragraph (a) may provide for any
payment, other than cost of defense, to or on behalf of any director, officer,
employee or agent:
(1) if a judgment or other final adjudication adverse to
the insured director, officer, employee or agent establishes that his acts
of active and deliberate dishonesty were material to the cause of action
so adjudicated, or that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled, or
(2) in relation to any risk the insurance of which is
prohibited under the insurance law of the State of New York.
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(c) Insurance under any or all subparagraphs of paragraph (a)
may be included in a single contract or supplement thereto. Retrospective rated
contracts are prohibited.
(d) The Corporation shall, within the time and to the persons
provided in paragraph (c) of Section 4, mail a statement in respect of any
insurance it has purchased or renewed under this Section, specifying the
insurance carrier, date of the contract, cost of the insurance, corporate
positions insured, and a statement explaining all sums, not previously reported
in a statement to shareholders, paid under any indemnification insurance
contract.
Section 7. Meaning of "Corporation" for Purposes of Article IV.
For purposes of this Article IV, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation of any type or kind, domestic or foreign, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article IV with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each shareholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. The certificates of
stock shall be signed by the President or a Vice President and by the Secretary,
or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed
with the seal of the Corporation or a facsimile thereof, and countersigned and
registered in such manner, if any, as the Board of Directors may by resolution
prescribe. Where any such certificate is countersigned by a transfer agent other
than the Corporation or its employee, or registered by a registrar other than
the Corporation or its employee, the signature of any such officer may be a
facsimile signature. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether
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because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of the Corporation.
Section 2. Transfer. Subject to any restrictions or transfer of
shares of stock of the Corporation of any class, series or designation contained
in the Certificate of Incorporation, the shares of stock of the Corporation
shall be transferred only upon the books of the Corporation by the holder
thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
Section 3. Record Dates. The Board of Directors may fix in advance a
date, not less than ten nor more than sixty days preceding the date of any
meeting of shareholders, or the date for the payment of any dividend, or the
date for the distribution or allotment of any rights, or the date when any
change, conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the shareholders entitled to notice of, and
to vote at, any such meeting or entitled to receive payment of any such
dividend, or to receive any distribution or allotment of such rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, and in such case only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend, or to receive such
distribution or allotment of rights or to exercise such rights, as the case may
be, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
Section 4. Lost Certificates. In the event that any certificate of
stock is lost, stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new certificate of the same tenor and for the same
number of shares in lieu thereof. The Board may in its discretion, before the
issuance of such new certificate, require the owner of the lost, stolen,
destroyed or mutilated certificate, or the legal representative of the owner to
make an affidavit or affirmation setting forth such facts as to the loss,
destruction or mutilation as it deems necessary, and to give the Corporation a
bond in such reasonable sum as it directs to indemnify the Corporation.
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ARTICLE VI
CHECKS, NOTES, ETC.
Section 1. Checks, Notes, Etc. All checks and drafts on the
Corporation's bank accounts, and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money, may
be signed by the President or any Vice President and may also be signed by such
other officer or officers, agent or agents, as shall be thereunto authorized
from time to time by the Board of Directors.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation shall
be located at 777 Old Saw Mill River Road, in the City of Tarrytown, in the
county of Westchester, in the State of New York, and the Corporate Secretary.
The Corporation may have other offices either within or without the State of New
York at such places as shall be determined from time to time by the Board of
Directors or the business of the Corporation may require.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 3. Corporate Seal. The seal of the Corporation shall be
circular in form and contain the name of the Corporation, and the year and state
of its incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors.
Section 4. Books. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of New York, correct books and records of account of all its business and
transactions, minutes of the proceedings of its shareholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
shareholders, the number of shares held by them and the class or series thereof,
respectively, and the dates when they respectively became the owners of record
thereof, and in which the transfer of stock shall be registered, and such other
books and records as the Board of Directors may from time to time determine.
Section 5. Voting of Stock. Unless otherwise specifically authorized
by the Board of Directors, all stock owned by the Corporation, other
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than stock of the Corporation, shall be voted, in person or by proxy, by the
President or any Vice President of the Corporation on behalf of the Corporation.
Section 6. Business Advisory Board. The Corporation shall establish
a Business Advisory Board which shall consist of the President of the
Corporation and such other members, who may or may not be Directors, officers,
or employees of the Corporation as shall be chosen by the President or the Board
of Directors. The Business Advisory Board will have advisory status, and will
not have the power to establish policy or procedure for the Corporation. It
shall meet at least quarterly.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments. These By-Laws may be amended or repealed, or
new By-Laws may be adopted, by the majority of the votes cast at the meeting of
shareholders by the holders of shares entitled to vote thereon. The vote of the
holders of at least a majority of the voting power of the Corporation, of the
shares that are issued and outstanding and entitled to vote, shall be necessary
at any meeting of shareholders to amend or repeal these By-Laws or to adopt new
by-laws. The By-Laws may also be amended or repealed, or new by-laws adopted, at
any meeting of the Board of Directors by the vote of at least a majority of the
entire Board; provided that any by-law adopted by the Board may be amended or
repealed by the shareholders in the manner set forth below.
Any proposal to amend or repeal these By-Laws or to adopt new
by-laws shall be stated in the notice of the meeting of the Board of Directors
or the shareholders, or in the waiver of notice thereof, as the case may be,
unless all of the directors or the holders of record of all of the shares of
stock of the Corporation, issued and outstanding and entitled to vote, are
present at such meeting.
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