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BY-LAWS
of
FRESENIUS NATIONAL MEDICAL CARE HOLDINGS, INC.
A New York Corporation
(As Amended)
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meetings. An annual meeting of the shareholders of
the Corporation, for the election of directors and the transaction of other
business, shall be held annually (a) on the tenth day of May, or (b) if such day
be a Saturday, Sunday or a holiday at the place where the meeting is to be held,
on the last business day preceding or on the first business day after such tenth
day of May, as may be fixed by the Board of Directors, or (c) on such other date
as may be fixed by the Board of Directors.
Section 1.2. Special Meetings. Except as otherwise expressly provided
by law, a special meeting of the shareholders may be called only by the Board of
Directors, by the Chairman or by the President at any time for such purpose or
purposes and held on such date as may be specified in the notice thereof.
Section 1.3. Place and Hour of Meeting. All meetings of shareholders
shall be held at such place within or without the State of New York and at such
hour as may be fixed by the Board of Directors or the officer calling the
meeting.
Section 1.4. Notice of Meeting. Except as otherwise expressly provided
by law, a notice in writing of each meeting of shareholders shall be given by or
at the direction of the Board of Directors or the officer calling the meeting to
each shareholder of record, personally or by first class mail, directed to him
at his address as it appears on the record of shareholders, not fewer than ten
nor more than fifty days before the date of the meeting. Each notice shall state
the place, date and hour of the meeting and, unless it is an annual meeting,
shall indicate that it is being issued by or at the direction of the Board of
Directors or the officer calling the meeting. If such notice relates to an
annual meeting it need not state the purposes thereof unless otherwise required
by law, the Certificate of Incorporation of the Corporation or these By-laws. If
such notice relates to a special meeting, it shall state the purpose or purposes
for which such meeting
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has been called, and no other business shall be transacted at such special
meeting.
No notice of an adjourned meeting of shareholders need be given unless
otherwise expressly required by law. At any adjourned meeting at which a quorum
is present, any business may be transacted which might have been transacted at
the meeting as originally noticed.
Notice of meeting need not be given to any shareholder who submits a
signed waiver of notice, in person or by proxy, whether before or after the
meeting. The attendance of any shareholder at a meeting, in person or by proxy,
without protesting prior to the conclusion of the meeting the lack of notice of
such meeting, shall constitute a waiver of notice by him.
Section 1.5. Quorum. The holders of the shares constituting a majority
in voting power entitled to vote, present in person or by proxy, shall
constitute a quorum at any meeting of shareholders, but no action required by
law, by the Certificate of Incorporation of the Corporation or by these By-laws
to be authorized or taken by the holders of a designated proportion of the
voting power of shares, of the shares of any particular class or series or of
each class or series may be authorized or taken by a lesser proportion.
Whether or not there is a quorum at any meeting of the shareholders,
the shareholders present in person or by proxy entitled to cast a majority of
the votes thereat may adjourn the meeting.
Section 1.6. Voting. Except as otherwise expressly provided by law,
every shareholder of record present in person or by proxy shall be entitled at
every meeting of shareholders to vote, in accordance with and subject to the
provisions of the Certificate of Incorporation of the Corporation, each and
every share of stock of the Corporation standing in his name on the record of
shareholders at the record date fixed as provided in Section 6.3 of these Bylaws
or, if no such record date shall have been fixed, then at the time provided by
law.
Except as otherwise expressly provided by law or by the Certificate of
Incorporation of the Corporation, the vote, at a meeting of the shareholders
duly held and at which a quorum is present, of a majority of the votes cast at
such meeting by the holders of shares entitled to vote shall be the act of the
shareholders.
Section 1.7. Business to be Transacted at Annual Meetings. No business
shall be transacted at any annual meeting of the shareholders, except as may be
(a) specified in the notice of the meeting given by or at the direction of the
Board of Directors (including,
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if so specified, any shareholder proposal submitted pursuant to the rules
and regulations of the Securities and Exchange Commission), (b) otherwise
brought before the meeting by or at the direction of the Board of Directors or
(c) otherwise brought before the meeting, in accordance with the procedure set
forth in the following paragraph, by a shareholder of record of the Corporation
entitled to vote at such meeting.
For business to be brought before an annual meeting by a shareholder
pursuant to clause (c) above, the shareholder must have given written notice
thereof to the Secretary of the Corporation, such notice to be delivered or
mailed to, and received at, the principal executive offices of the Corporation
not less than 60 days nor more than 90 days prior to the date of the meeting,
unless the meeting is to take place on a date other than that specified in
clause (a) or (b) of Section 1.1 of these By-laws, in which event such notice
must be received at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which the
Corporation's notice of the date of the meeting is first given or made to the
shareholders or disclosed to the general public (which disclosure may be
effected by means of a publicly available filing with the Securities and
Exchange Commission). A shareholder's notice to the Secretary shall set forth,
as to each matter the shareholder proposes to bring before the annual meeting,
(a) a brief description of the business proposed to be brought before the annual
meeting and of the reasons for bringing such business before the annual meeting
(including, but not limited to, the reasons why the shareholder deems such
business to be beneficial to the Corporation) and, if such business includes a
proposal to amend either the Certificate of Incorporation of the Corporation or
these By-laws, the text of the proposed amendment; (b) the name and address of
the shareholder proposing such business, of any beneficial owners of shares of
stock of the Corporation which are held of record by such shareholder and of any
other shareholders (including beneficial owners) known by such shareholder to
support such proposal; (c) the number of shares of each class of stock of the
Corporation that are held of record and beneficially owned by the shareholder,
any beneficial owners of its shares and any such other shareholders; (d) a
representation that the shareholder is or will be a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at such meeting to propose such business; and (e) any material
interest of the shareholder, any beneficial owner of its shares or any such
other shareholders in such business (other than any interest as shareholders of
the Corporation). No business shall be conducted at any annual meeting of the
shareholders (a) except as specified in this Section 1.7 or (b) unless, pursuant
to the law of the State of New York or any rule or regulation
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of the Securities and Exchange Commission, such business may properly be
brought before the meeting.
If it is determined that any business brought before an annual meeting
of the shareholders is not properly brought before the meeting, the presiding
officer at such meeting shall so declare to the meeting, in which event such
business shall not be acted upon.
ARTICLE II
Directors
Section 2.1. Management of Business; Qualifications. Except as
otherwise provided by law or the Certificate of Incorporation of the
Corporation, the business, property and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
Section 2.2. Number, Election and Term of Office. The number of
directors constituting the entire Board of Directors shall be such number, not
less than nine nor more than fifty, as may be fixed by a majority of the entire
Board of Directors. No person shall be nominated for election as a director if
such person will have attained the age of 70 prior to the expiration of his or
her term of office*. The directorships shall be divided into three classes,
designated Class I, Class II and Class III, and directors shall be elected and
serve in the manner provided in the Certificate of Incorporation and in these
By-laws.
No person shall be nominated for election as a director, except as may
be (a) approved by the Board of Directors or (b) nominated by a shareholder of
record of the Corporation entitled to vote at the meeting at which such person
is to be nominated in accordance with the procedure set forth in the following
paragraph.
A shareholder may nominate a person or persons for election as
directors only if the shareholder has given written notice of its intent to make
such nomination to the Secretary of the Corporation,such notice to be delivered
or mailed to, and received at, the principal executive offices of the
Corporation (a) with respect to an annual meeting of the shareholders, not less
than 60 days nor more than 90 days prior to the date of the meeting, unless the
meeting is to take place on a date other than that specified in clause (a) or
(b) of Section 1.1 of these By-laws, in which event
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*This sentence shall be effective immediately after the 1995 Annual
Meeting of Shareholders of the Corporation.
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such notice must be received at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which the Corporation's notice of the date of the meeting is first given
or made to the shareholders or disclosed to the general public (which disclosure
may be effected by means of a publicly available filing with the Securities and
Exchange Commission); or (b) with respect to an election to be held at a special
meeting of the shareholders, not later than the close of business on the tenth
day following the day on which the Corporation's notice of the date of the
meeting is first given or made to the shareholders or disclosed to the general
public (which disclosure may be effected by means of a publicly available filing
with the Securities and Exchange Commission). A shareholder's notice to the
Secretary shall set forth (a) the name and address of the shareholder who
intends to make such nomination, of any beneficial owners of shares of stock of
the Corporation which are held of record by such shareholder and of any other
shareholders (including beneficial owners) known by such shareholder to support
such nomination; (b) the name, age, business and residence addresses and
principal occupation of each person to be nominated, the class of directorship
to which each such person is to be nominated and the nominee, if any, against
whom each such person is to run; (c) the number of shares of each class of stock
of the Corporation that are held of record and beneficially owned by the
shareholder, any beneficial owners of its shares and any such other
shareholders; (d) a representation that the shareholder is or will be a holder
of record of stock of the Corporation entitled to vote with respect to the
election of directors at such meeting and intends to appear in person or by
proxy at such meeting to nominate such proposed nominee(s); (e) a description of
all material arrangements, relationships and understandings between the
shareholder, any beneficial owners of its shares or any such other shareholders
and each proposed nominee and between proposed nominees; (f) such other
information regarding each proposed nominee as the Corporation would be required
to include in a proxy statement filed pursuant to the rules and regulations of
the Securities and Exchange Commission; and (g) the written consent of each
proposed nominee to serve as a director of the Corporation if elected, together
with an undertaking, signed by each proposed nominee, to furnish to the
Corporation any information it may request upon the advice of counsel for the
purpose of determining such proposed nominee's eligibility to serve as a
director. No person may be nominated by a shareholder for election as a director
of the Corporation (a) if, pursuant to applicable law or any provision of these
By-laws, such person would be ineligible to serve as a director or (b) if the
election of such person would violate, or subject the Corporation to liability
under, any applicable law.
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If it is determined that the nomination of any person at any meeting of
the shareholders is not in compliance with this Section 2.2, the presiding
officer at such meeting shall so declare to the meeting, in which event such
nomination shall not be acted upon.
Section 2.3. Meetings. The Board of Directors shall hold an annual
organization meeting immediately after each annual meeting of shareholders, at
the place where such meeting of shareholders was held (or at such other place as
the Board of Directors shall have designated), for the purpose of electing
officers and for the transaction of such other business as may properly come
before such meeting.
The Board of Directors may provide for the holding of regular meetings
and may fix the time and place of such meetings. Special meetings may be called
by the Chairman, by the President or by a majority of the directors then in
office.
Except as hereinabove provided with respect to the annual organization
meeting, the Board of Directors shall hold its meetings at the principal
executive offices of the Corporation in New York, New York, or at such other
place, within or without the State of New York, as the Board of Directors from
time to time may determine, or as may be designated by waivers of notice thereof
signed by all the directors.
Section 2.4. Notice of Meeting. Notice need not be given with respect
to the annual organization meeting of the Board of Directors (unless such
meeting is to be held at a place other than where the annual meeting of
shareholders is to be held) or with respect to any adjourned meeting of the
Board of Directors. Notice of any regular meeting of the Board of Directors need
not be given unless there is a change in the time or place of such meeting.
Notice of any change in the place of the annual organization meeting or in the
time or place of any regular meeting, and notice of the time and place of any
special meeting of the Board of Directors (a) shall be sent to each director by
first class mail at least three days before the date on which the meeting is to
be held, or (b) shall be sent to each director by telegram, cablegram, telex or
other written form of telecommunication, or delivered or telephoned to him, at
least 24 hours before the time at which such meeting is to be held. Any notice
in writing shall be addressed to the director at his residence or usual place of
business, or at such other address as he may have designated in a written
request filed with the Secretary. Any notice by telephone shall be communicated
to the director or his representative or answering machine at the telephone
number of his residence or his usual place of business or at such other
telephone number as he may have so designated.
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Notice of a meeting of the Board of Directors need not state the purpose
thereof, except as otherwise expressly provided by law.
Notice of meeting need not be given to any director who submits a
signed waiver of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to him.
Section 2.5. Quorum and Manner of Acting. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, except that one-third of the entire Board
of Directors shall constitute a quorum for the transaction of any business
relating to any recommendation made by, or other action of, the Salary,
Incentive Compensation and Employee Benefits Committee of the Board of Directors
or the Stock Incentive Committee of the Board of Directors or any successor to
either of such Committees. Except as otherwise expressly provided by law or by
these By-laws, the act of the majority of the directors present at the time of a
vote, if a quorum is present at such time, shall be the act of the Board of
Directors.
Any one or more members of the Board of Directors may participate in a
meeting of the Board of Directors by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Whether or not there is a quorum at any meeting, a majority of the
directors who are present may adjourn the meeting to another time or place. At
any such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally called.
On any question, the names of those directors voting each way and those
directors abstaining shall be entered in the minutes if any director shall so
request.
Section 2.6. Action in Lieu of Meeting. If all the directors consent in
writing to the adoption of a resolution authorizing any action to be taken by
the Corporation, such action shall be as valid corporate action as though it had
been authorized at a meeting of the Board of Directors. Such resolution and the
written consents thereto by the directors shall be filed with the minutes of the
proceedings of the Board of Directors.
Section 2.7. Resignation and Removal. A director may resign at any time
by giving written notice to the Board of Directors, the Chairman, the President
or the Secretary. Such resignation shall
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take effect at the time specified therein or, if no time is specified,
immediately upon its receipt by the Corporation. The acceptance of such
resignation shall not be necessary to make it effective unless otherwise
specified therein. A director may be removed as provided in the Certificate of
Incorporation of the Corporation.
Section 2.8. Vacancies. Any vacancy in the Board of Directors that
results from an increase in the number of directorships may be filled by the
vote of directors constituting a majority of the entire Board of Directors prior
to such increase, and any other vacancy in the Board of Directors may be filled
by the vote of a majority of the directors then in office, even though the
number of directors is less than a quorum, or by the sole remaining director.
Any director elected by the Board of Directors shall hold office until the next
annual meeting of shareholders.
ARTICLE III
Executive Committee and Other Committees
Section 3.1. Appointment and Powers of Committee. The Board of
Directors, by resolution adopted by a majority of the entire Board of Directors,
may designate from its members one or more committees, each consisting of three
or more members. Subject to any limitations imposed by law or by the Certificate
of Incorporation of the Corporation, each committee shall have such authority as
the Board of Directors shall confer, which may include all the authority of the
Board of Directors (including, but not limited to, that provided for in the
Certificate of Incorporation of the Corporation or these By-laws); provided,
however, that no committee shall have authority as to (a) the submission to
shareholders of any action that needs shareholders' approval under applicable
law, (b) the filling of vacancies in the Board of Directors or any committee or
the designation of a committee, (c) the fixing of compensation of the directors
for serving on the Board of Directors or any committee, (d) the amendment or
repeal of these By-laws or the adoption of new by-laws or (e) the amendment or
repeal of any resolution of the Board of Directors which by its terms shall not
be so amendable or repealable.
Any reference in these By-laws to action taken or authorized by the
Board of Directors shall include action taken or authorized by a committee duly
designated by the Board of Directors and authorized to act pursuant to such
designation and this Section 3.l.
Section 3.2. Committee on Officers' Compensation. Pursuant to Section
3.1 of these By-laws, the Board of Directors shall designate a committee to
evaluate the performance of, and to recommend
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the appropriate level of compensation for, officers of the Corporation.
Such committee shall have access to an advisor not otherwise serving the
Corporation. Each member of such committee (other than any person who was a
member of the Salary, Incentive Compensation and Employee Benefits Committee of
the Board of Directors on March 7, 1991) shall be an "independent director", as
that term is defined in the following sentence. For purposes of this Section
3.2, an "independent director" shall mean a person who (a) has not been employed
by the Corporation within the past five years; (b) is not, and is not affiliated
with, a firm that is an advisor or consultant to the Corporation; (c) is not
affiliated with any customer or supplier of the Corporation whose purchases from
and/or sales to the Corporation exceed 3% of the sales and revenues of such
customer or supplier for its most recently completed fiscal year; (d) has no
personal services contract with the Corporation; (e) is not affiliated with a
tax-exempt entity, not otherwise affiliated with the Corporation, that receives
contributions from the Corporation that exceed 3% of such entity's gross
contributions for its most recently completed fiscal year; and (f) is not a
member of the "immediate family" (as defined in Item 404(a) of Securities and
Exchange Commission Regulation S-K) of any person described in clauses (a)
through (e).
Section 3.3. Meetings. Except as otherwise provided in these By-laws or
by resolution of the Board of Directors, each committee may adopt its own rules
governing the time and place of holding and the method of calling its meetings
and the conduct of its proceedings. Unless otherwise provided by such rules or
by resolution of the Board of Directors, notice of the time and place of each
meeting of a committee shall be mailed, sent or given to each member of such
committee when, and in the same manner as, required in Section 2.4 of these
By-laws with respect to notices of meetings of the Board of Directors.
Section 3.4. Quorum and Manner of Acting. Except as otherwise specified
by the Board of Directors, a majority of the members of each committee shall
constitute a quorum for the transaction of business at any meeting of such
committee, and the act of a majority of the members present at the time of a
vote, if a quorum is present at such time, shall be the act of such committee.
The members of each committee shall act only as a committee, and the individual
members shall have no power as such.
Any one or more members of a committee may participate in a meeting of
such committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
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If all the members of a committee consent in writing to the adoption of
a resolution authorizing any action to be taken by the Corporation, such action
shall be as valid as though it had been authorized at a meeting of such
committee. Such resolution and the written consents thereto by the members of
such committee shall be filed with the proceedings of such committee.
Section 3.5. Term of Office, Resignations, Removals and Vacancies. The
term of office of a committee member shall be as provided in the resolution of
the Board of Directors designating him but shall not exceed his term as a
director. If prior to the end of his term, a committee member should cease to be
a director, he shall cease to be a committee member. Any member of a committee
may resign at any time by giving written notice to the Board of Directors, the
Chairman, the President or the Secretary. Such resignation shall take effect as
provided in Section 2.7 of these By-laws in the case of resignations by
directors. Any member of a committee may be removed from such committee, either
with or without cause, at any time, by resolution adopted by a majority of the
entire Board of Directors. Any vacancy in a committee shall be filled by the
Board of Directors in the manner prescribed by these By-laws for the original
designation of the members of such committee.
ARTICLE IV
Officers
Section 4.1. Election, Term of Office and Qualifications. The officers
of the Corporation shall consist of a Chairman, a Chairman of the Executive
Committee, one or more Vice Chairmen, a President, one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a
Secretary, a Treasurer and a Controller. The foregoing officers shall be
elected, and one or more assistant officers may also be elected, by the Board of
Directors at its annual organization meeting. Each of such officers and
assistant officers shall hold office until the next annual election and until
his successor is elected and qualified, or until his earlier death, resignation,
disqualification or removal. Assistant officers may also be appointed by the
President, the Chairman of the Executive Committee or any Vice Chairman and
shall hold office for such term, which may be indefinite, as the person
appointing them shall determine.
The Chairman and the President shall be chosen from among the Board of
Directors, but the other officers need not be directors. One person may hold and
perform the duties of any two, but not more
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than two, offices, except that neither the Chairman nor the President may hold
the office of Secretary.
Section 4.2. Powers and Duties. In addition to any powers and duties
prescribed by other provisions of these By-laws, the officers and assistant
officers shall have such powers and duties as are usually incident to their
respective offices, with such additions and limitations thereto as may from time
to time be prescribed by the Board of Directors or by their respective superior
officers.
Section 4.3. Resignations, Removals and Vacancies. Any officer or
assistant officer may resign at any time by giving written notice to the Board
of Directors, the Chairman, the President or the Secretary. Such resignation
shall take effect at the time specified therein or, if no time is specified,
immediately upon its receipt by the Corporation. The acceptance of such
resignation shall not be necessary to make it effective unless otherwise
specified therein. Any officer or assistant officer may be removed at any time,
with or without cause, by the Board of Directors or by the person or persons who
appointed him to his office or position, but without prejudice to any applicable
contract rights. A vacancy in any office or position arising from any cause may
be filled for the unexpired portion of the term by the Board of Directors or by
the person or persons authorized to appoint such officer or assistant officer.
Section 4.4. Compensation. Subject to Section 3.2 of these By-laws, the
compensation of officers and, to the extent the Board of Directors shall deem
advisable, the compensation of all other employees, agents and representatives
of the Corporation, shall be determined by the Board of Directors or in
accordance with regulations or procedures adopted by it. Compensation may be
contingent or measured in whole or in part upon the profits of the Corporation
or a segment thereof. Provision may also be made for bonuses and other extra
compensation, for the deferment of compensation in whole or in part and for
pension and other retirement benefits. Subject to Section 3.2 of these By-laws,
the Board of Directors may delegate the authority contained in this Section 4.4
to such officers, employees or agents of the Corporation as the Board of
Directors deems advisable, except that any profit sharing, extra or deferred
compensation, pension and other similar plans or arrangements of general
application shall be approved by the Board of Directors.
Section 4.5. The Chairman. The Chairman shall preside at all meetings
of the shareholders and the Board of Directors at which he shall be present.
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Section 4.6. The President. The President shall be the chief executive
officer of the Corporation and shall have general charge and supervision of the
business of the Corporation and over its several officers, subject, however, to
the control of the Board of Directors. In the absence of the Chairman, the
President shall preside at all meetings of the shareholders and the Board of
Directors at which he shall be present.
Section 4.7. The Chairman of the Executive Committee. The Chairman of
the Executive Committee shall preside at all meetings of the Executive Committee
at which he shall be present and shall perform such other duties as from time to
time may be assigned to him by the President or by the Board of Directors.
Section 4.8. Vice Chairmen. A Vice Chairman shall perform such duties
as from time to time may be assigned to him by the President or by the Board of
Directors.
Section 4.9. Vice Presidents. An Executive Vice President, Senior Vice
President or Vice President shall perform such duties as from time to time may
be assigned to him by the President or by the Board of Directors.
Section 4.10. The Secretary. The Secretary shall keep or cause to be
kept a record in books provided for that purpose of all the meetings and
proceedings of the Board of Directors and the shareholders. He shall notify the
directors and shareholders of their respective meetings and shall have charge
and custody of the Corporation's seal.
Section 4.11. The Treasurer. The Treasurer shall have charge and
custody of, and be responsible for, all funds and securities of the Corporation
and shall deposit all such funds in the name of the Corporation in such
depositaries as shall be selected in accordance with the provisions of Section
5.1 of these By-laws. He shall, subject to the direction of the Board of
Directors or of a superior officer, pay out or cause to be paid out, and shall
supervise the disbursement of, moneys of the Corporation.
Section 4.12. The Controller. The Controller shall have general
control, charge and supervision of the accounts of the Corporation. He shall see
that proper accounts are maintained and that all accounts are properly audited
from time to time. He shall prepare or cause to be prepared the financial
statements of the Corporation.
ARTICLE V
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Deposits, Checks, etc.
Section 5.1. Deposits. Funds of the Corporation may be deposited from
time to time to the credit of the Corporation with such depositaries as may be
selected by the Board of Directors or by any officer or officers or agent or
agents of the Corporation to whom such power may be delegated from time to time
by the Board of Directors.
Section 5.2. Checks, etc. All checks and other orders for the payment
of money and promissory notes and other evidences of indebtedness are to be
signed by such officer or officers, employee or employees or agent or agents of
the Corporation, and in such manner, as are authorized by the Board of
Directors, or as are authorized by any officer or officers or employee or
employees of the Corporation to whom such power is delegated from time to time
by the Board of Directors. To the extent authorized by the Board of Directors,
such signature or signatures may be facsimiles.
ARTICLE VI
Stock and Stock Records
Section 6.1. Certificates Representing Shares. Subject to any
applicable law, the shares of the Corporation shall be represented by
certificates in such form as the Board of Directors may from time to time
approve, shall be signed by the Chairman, a Vice Chairman, the President or a
Vice President and by the Secretary or an Assistant Secretary and shall be
sealed with the seal or facsimile seal of the Corporation. Subject to applicable
law, the signature of any of the abovementioned officers or assistant officers
may be a facsimile. If any officer or assistant officer who has signed or whose
facsimile signature has been placed on any certificate ceases to serve the
Corporation in the capacity as to which his signature was so used before such
certificate is issued, the certificate may nevertheless be issued with the same
effect as if he were such officer or assistant officer at the date of issue.
Section 6.2. Lost Certificates. Subject to any applicable law, when any
certificate of stock is alleged to have been lost, destroyed or wrongfully
taken, and when the Corporation has received no notice that the certificate has
been acquired by a bona fide purchaser, the Corporation shall issue a new
certificate if the owner so requests and gives the Corporation sufficient
indemnity bond and satisfies any other reasonable requirements imposed by the
Corporation. The Board of Directors may waive the requirement of any such
indemnity bond.
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Section 6.3. Fixing Record Date. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any distribution, or
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 to be
not more than fifty days, and, in case of a meeting of shareholders, not less
than ten days, prior to the action requiring such determination of shareholders.
When a record date is so fixed and except as otherwise expressly provided by
law, such shareholders and only such shareholders as shall be shareholders of
record on the date so fixed shall be entitled to notice of or to vote at such
meeting and any adjournment thereof, or to receive the distribution or otherwise
participate in respect of the action to which the date relates.
ARTICLE VII
Indemnification
Section 7.1. Indemnification. The Corporation shall indemnify to the
fullest extent permitted, and in the manner provided, in the indemnification
provisions of the Business Corporation Law of the State of New York, as the same
may be amended from time to time, such persons as are described therein.
Section 7.2. Insurance. The Corporation may procure and maintain
insurance for the indemnification of such persons providing greater
indemnification than that authorized hereinabove.
Section 7.3. Nonexclusivity. The rights of indemnification under this
Article shall not be exclusive of other rights to which such persons may be
entitled as a matter of law.
ARTICLE VIII
Amendment and Repeal of By-laws
Section 8.1. By Shareholders. These By-laws may be amended or repealed
by the affirmative vote of the holders of a majority of the voting power of
shares entitled to vote in the election of directors.
Section 8.2. By the Board of Directors. These By-laws may be amended or
repealed by (a) the Board of Directors, at any meeting, by a majority of the
directors present at the time of a vote, if a
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quorum is present at that time, or (b) the unanimous written consent of the
directors.
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