Exhibit 3.3
SECOND RESTATED
BY-LAWS
OF
COLUMBUS MCKINNON CORPORATION
(THE "CORPORATION")
AS OF JANUARY 21, 2008
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ARTICLE I
SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The annual meeting of the shareholders may be
held at such time, date and place, within or without the State of New York, as
shall be determined by the Board of Directors and stated in the notice of the
meeting, or in a waiver of notice thereof.
SECTION 1.02. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, may be called at any time only by the Chairman of the
Board or the President or by resolution of the Board of Directors. Special
meetings of the shareholders shall be held at such time, date and place, within
or without the State of New York, as shall be fixed by the person or persons
calling the meeting and stated in the notice or waiver of notice of the meeting.
SECTION 1.03. NOTICE OF MEETINGS OF SHAREHOLDERS. Whenever the shareholders
are required or permitted to take any action at a meeting, written notice of the
meeting shall be given which shall state the place, date and time of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called and at whose direction it is being issued. The written notice
of any meeting shall be given, personally or by mail, not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each shareholder
entitled to vote at such meeting.
SECTION 1.04. QUORUM. At all meetings of the shareholders, the holders of a
majority of the shares issued and outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum for the transaction of
any business.
When a quorum is once present to organize a meeting, it is not broken by
the subsequent withdrawal of any shareholders. The shareholders present may
adjourn the meeting despite the absence of a quorum and at any such adjourned
meeting at which a quorum shall be present or represented, the Corporation may
transact any business which might have been transacted at the original meeting.
Except as otherwise provided by law, notice of the adjourned meeting shall not
be necessary if the time, date and place thereof are announced at the meeting.
SECTION 1.05. VOTING. At any meeting of the shareholders, every shareholder
entitled to vote thereat shall be entitled to vote in person or by proxy. Except
as otherwise provided by law or the Certificate of Incorporation, whenever the
shareholders are required or permitted to take any action at a meeting, each
shareholder of record entitled to vote thereat shall be entitled to one vote for
each share from which such shareholder's voting rights are derived standing in
his name on the books of the Corporation. All elections of directors shall be
determined by a plurality vote, and, except as otherwise provided by law or the
Certificate of Incorporation, all other matters shall be determined by vote of
the shares present or represented at such meeting and voting on such matters.
SECTION 1.06. PROXIES. Every proxy must be executed in writing by the
shareholder. No proxy shall be valid after the expiration of eleven (11) months
from the date of its execution unless it shall have specified therein its
duration. Every proxy shall be revocable at the pleasure of the person executing
it, except in those cases where an irrevocable proxy is permitted by law.
SECTION 1.07. CONSENTS. Whenever by any provision of law or the Certificate
of Incorporation or these By-laws, the vote of shareholders at a meeting thereof
is required or permitted to be taken in connection with any corporate action,
the meeting and vote of shareholders may be dispensed with, if all the
shareholders who would have been entitled to vote upon the action if such
meeting were held, shall consent in writing to such corporate action being
taken.
SECTION 1.08. SHAREHOLDERS LIST. A list of shareholders as of the record
date, certified by the corporate officer responsible for its preparation or by a
transfer agent, shall be produced at any meeting of shareholders upon the
request thereat or prior thereto of any shareholder. If the right to vote at any
meeting is challenged, the inspectors of election, or person presiding thereat,
shall require such list of shareholders to be produced as evidence of the right
of the persons challenged to vote at such meeting, and all persons who appear
from such list to be shareholders entitled to vote thereat may vote at such
meeting.
SECTION 1.09. APPOINTMENT OF INSPECTORS OF ELECTION. The Board of Directors
may, in advance of any meeting of the shareholders, appoint one (1) or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed in advance of the meeting, the person presiding at such meeting
may, and on the request of any shareholder entitled to vote thereat shall,
appoint one (1) or more inspectors. In case any inspector appointed fails to
appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector of election, before entering upon the discharge of his
or her duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his or her ability. No person who is a candidate for the office of director of
the Corporation shall act as an inspector at any meeting of the shareholders at
which directors are elected.
SECTION 1.10. DUTIES OF INSPECTORS OF ELECTION. Whenever one (1) or more
inspectors of election may be appointed as provided in these By-laws, he, she or
they shall determine the number of shares outstanding and entitled to vote, the
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all shareholders.
SECTION 1.11. ADVANCE NOTICE OF SHAREHOLDER PROPOSALS. The matters to be
considered and brought before any annual or special meeting of shareholders of
the Corporation shall be limited to only such matters, including the nomination
and election of directors, as shall be brought properly before such meeting in
compliance with the procedures set forth in this Section 1.11.
For any matter to be properly before any annual meeting of shareholders,
the matter must be (i) specified in the notice of annual meeting given by or at
the direction of the Board of Directors, (ii) otherwise brought before the
annual meeting by or at the direction of the Board of Directors or (iii) brought
before the annual meeting in the manner specified in this Section 1.11 by a
shareholder of record. In addition to any other requirements under applicable
law and the Certificate of Incorporation and By-laws of the Corporation, persons
nominated by shareholders for election as directors of the Corporation and any
other proposals by shareholders shall be properly brought before the annual
meeting only if notice of any such matter to be presented by a shareholder at
such meeting of shareholders (the "Shareholder Notice") shall be delivered to
the Secretary of the Corporation at the principal executive office of the
Corporation not less than one hundred twenty (120) nor more than one hundred
fifty (150) days prior to the first anniversary date of the annual meeting for
the preceding year; provided, however, if and only if the annual meeting is not
scheduled to be held within a period that commences thirty (30) days before such
anniversary date and ends thirty (30) days after such anniversary date (an
annual meeting date outside such period being referred to herein as an "Other
Meeting Date"), such Shareholder Notice shall be given in the manner provided
herein by the later of the close of business on (i) the date one hundred twenty
(120) days prior to such Other Meeting Date or (ii) the tenth day following the
date such Other Meeting Date is first publicly announced or disclosed. Any
shareholder desiring to nominate any person or persons (as the case may be) for
election as a director or directors of the Corporation shall deliver, as part of
such Shareholder Notice, a statement in writing setting forth the name of the
person or persons to be nominated, the number and class of all shares of each
class of stock of the Corporation owned of record and beneficially by each such
person, as reported to such shareholder by each such person, the information
regarding each such person required by paragraphs (a), (d), (e) and (f) of Item
401 and paragraph (a) of Item 404 of Regulation S-K adopted by the Securities
and Exchange Commission (or the corresponding provisions of any regulation
subsequently adopted by the Securities and Exchange Commission applicable to the
Corporation), each such person's signed consent to serve as a director of the
Corporation if elected, such shareholder's name and address and the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by such shareholder. Any shareholder who gives a Shareholder
Notice of any matter proposed to be brought before the annual meeting (not
involving nominees for director) shall deliver, as part of such Shareholder
Notice, the text of the proposal to be presented and a brief written statement
of the reasons why such shareholder favors the proposal and setting forth such
shareholder's name and address, the number and class of all shares of each class
of stock of the Corporation owned of record and beneficially by such shareholder
and, if applicable, any material interest of such shareholder in the matter
proposed (other than as a shareholder). As used herein, shares "beneficially
owned" shall mean all shares which such person is deemed to beneficially own
pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Only such matters shall be properly brought before a special meeting of
shareholders as shall have been brought before the special meeting pursuant to
the Corporation's notice of meeting. In the event the Corporation calls a
special meeting of shareholders for the purpose of electing one or more
directors to the Board of Directors, any shareholder may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the Corporation's notice of meeting, if the Shareholder Notice required by
Section 1.11 hereof shall be delivered to the Secretary of the Corporation at
the principal executive office of the Corporation not later than the close of
business on the tenth day following the day on which the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting is publicly announced or disclosed.
Notwithstanding the foregoing, in the case of a shareholder proposal made
pursuant to Rule 14a-8 under the Exchange Act (a "14a-8 Proposal"), to be
timely, a shareholder's notice of a 14a-8 Proposal shall be made in accordance
with the provisions of Section 14a-8 under the Exchange Act; provided that for
purposes thereof the phrase "a reasonable time before the company begins to
print and mail its proxy materials" shall be deemed to mean the later of the
close of business on (i) the date one hundred twenty (120) days prior to the
meeting of shareholders to which the 14a-8 Proposal relates or (ii) the tenth
day following the date on which the date of such meeting of shareholders is
first publicly announced or disclosed.
For purposes of this Section 1.11, a matter shall be deemed to have been
"publicly announced or disclosed" if such matter is disclosed in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission.
In no event shall the adjournment of an annual meeting, or any announcement
thereof, commence a new period for the giving of notice as provided in this
Section 1.11. The person presiding at any meeting of shareholders, in addition
to making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this Section 1.11 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
ARTICLE II
DIRECTORS
SECTION 2.01. MANAGEMENT OF BUSINESS. The business of the Corporation shall
be managed by or under the direction of its Board of Directors, which may
exercise all powers of the Corporation, and do all lawful acts and things,
except as otherwise provided by law, the Certificate of Incorporation or by
these By-laws.
SECTION 2.02. NUMBER AND TENURE. Except as otherwise required by law or in
the Certificate of Incorporation, the number of directors which shall constitute
the entire Board of Directors shall be not less than three (3) nor more than
nine (9) and shall be fixed, and may be increased or decreased, from time to
time by resolution adopted by a majority of the directors then in office
(inclusive of vacancies).
SECTION 2.03. ELECTION AND TERM. The directors shall be elected at the
annual meeting of the shareholders, and each director shall be elected to hold
office until the next succeeding annual meeting of the shareholders and until
his successor has been duly elected and qualified.
SECTION 2.04. RESIGNATION AND REMOVAL. Any director may resign at any time
by providing written notice thereof to the Chairman of the Board, the President
or the Board of Directors, stating the effective date thereof and no acceptance
thereof shall be necessary to make it effective. The Board of Directors only, by
majority vote of all of the directors then in office, may remove a director;
provided, however, that such removal may only be for cause.
SECTION 2.05. VACANCIES. Any vacancies in the Board of Directors occurring
for any reason other than from newly created directorships resulting from any
increase in the number of directors, shall be filled by a majority of the
directors then in office, even if said directors constitute less than a quorum,
and a director elected to fill any such vacancy shall serve until the next
annual meeting of shareholders and until his successor has been duly elected and
has qualified.
Newly created directorships resulting from any increase in the number of
directors shall be filled by a majority of the entire Board of Directors
(inclusive of vacancies) and a director elected to fill any such newly created
vacancy shall serve until the next annual meeting of shareholders and until his
successor has been duly elected and has qualified.
SECTION 2.06. QUORUM. At all meetings of the Board of Directors, a majority
of the entire Board of Directors (inclusive of vacancies) shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
SECTION 2.07. ANNUAL MEETING. The newly elected Board of Directors shall
meet immediately following the adjournment of the annual meeting of shareholders
in each year at the same place, within or without the State of New York, and no
notice thereof shall be necessary. At each annual meeting of such newly elected
Board of Directors, the directors, by majority vote of the directors present
thereat, shall elect one such director to serve as the Chairman of the Board,
whose powers and authority shall consist of presiding at all meetings of the
Board of Directors and the calling of special meetings of the Board of Directors
as provided in Section 2.09 hereof.
SECTION 2.08. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such time, date and place, within or without the State of New
York, as shall from time to time be fixed by the Board of Directors and no
notice thereof shall be necessary.
SECTION 2.09. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President on two (2) days'
notice by mail or on one days' notice orally or by personal delivery,
telecopier, telegram or electronic mail to each director. Special meetings of
the Board of Directors shall be called by the Chairman of the Board or the
President on like notice on the request of any two (2) directors. Special
meetings shall be held at such time, date and place, within or without the State
of New York, as shall be fixed by the person or persons calling the meeting and
stated in the notice or waiver of notice of the meeting.
SECTION 2.10. TELEPHONE CONFERENCE. Any one or more members of the Board of
Directors, or any committee thereof, may participate in a meeting of such Board
of Directors, or committee thereof, by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation in a meeting in
such manner shall constitute presence in person at such meeting.
SECTION 2.11. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the Board of Directors, or any committee thereof, may be taken
without a meeting if all of the members of the Board of Directors, or committee
thereof, consent in writing to the adoption of a resolution authorizing such
action. The resolution and written consents thereto by the members of the Board
of Directors, or committee thereof, taking such action shall be filed with the
minutes of the proceedings of the Board of Directors, or committee thereof.
SECTION 2.12. EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors (inclusive of vacancies),
may designate an Executive Committee to be composed of at least three (3)
directors, which Executive Committee shall have full charge of and direct the
business and affairs of the Corporation, subject to the Board of Directors. The
Executive Committee shall have the full powers of the Board of Directors, except
as otherwise provided herein, by law or in the Certificate of Incorporation,
between meetings of the Board of Directors, to transact all ordinary business
and affairs of the Corporation; shall adopt its own rules of procedure and its
place of meeting; and at every meeting of the Board of Directors shall report
the resolutions passed and business transacted by the Executive Committee since
the last meeting of the Board of Directors. Notwithstanding the foregoing, the
Executive Committee shall not have any authority as to any of the following
matters:
(1) The submission to the shareholders of any action requiring
shareholders' approval under law.
(2) The filling of vacancies in the Board of Directors or in any committee
thereof.
(3) The fixing of compensation of the directors for serving on the Board
of Directors or on any committee thereof.
(4) The amendment or repeal of the By-laws or the adoption of new By-laws.
(5) The amendment or repeal of any resolution of the Board of Directors
which by its terms shall not be so amendable or repealable.
Two (2) members of the Executive Committee shall constitute a quorum at any
meeting of the Executive Committee. Any member of the Executive Committee shall
be subject to removal from the Executive Committee at any time and for any
reason by the affirmative vote of a majority of the entire Board of Directors
(inclusive of vacancies).
SECTION
2.13. OTHER COMMITTEES. The Board of Directors may, by resolution or resolutions
adopted by a majority of the entire Board of Directors (inclusive of vacancies),
designate one or more other committees, each to be comprised of such number of
directors provided in said resolution or resolutions, which to the extent
provided in said resolution or resolutions and within the limitations prescribed
by law, shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation; provided, however,
that no such other committee shall have any authority as to any of the matters
set forth in Section 2.12 (1) through (5).
ARTICLE III
OFFICERS
SECTION 3.01. OFFICERS. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary and a Treasurer. Any two or
more offices may be held by the same person, except the offices of President and
Secretary. The Board of Directors may also elect or appoint such other officers
as it may from time to time determine.
SECTION 3.02. TERMS OF OFFICE. Unless otherwise determined by the Board of
Directors, all officers shall hold office until the first meeting of the Board
of Directors following the next annual meeting of shareholders and until his or
her successor has been elected and qualified or until his or her earlier death,
resignation or removal. Each additional officer appointed or elected by the
Board of Directors shall hold office for such term as shall be determined from
time to time by the Board of Directors and until his or her successor has been
elected or appointed and qualified or until his or her earlier death,
resignation or removal.
SECTION 3.03. REMOVAL. Any officer or agent elected by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 3.04. VACANCIES. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by
majority vote of the Board of Directors then in office for the unexpired portion
of the term.
SECTION 3.05. COMPENSATION. Compensation of all officers shall be fixed by
the Board of Directors, and no officer shall be prevented from receiving such
compensation by virtue of his also being a director of the Corporation.
SECTION 3.06. THE PRESIDENT. The President shall be the chief executive
officer of the Corporation; shall preside at all meetings of the shareholders;
in the absence of the Chairman of the Board, shall preside at all meetings of
the Board of Directors; subject to the powers of the Board of Directors, shall
have general charge of the business, affairs and property of the Corporation,
and control over its officers, agents and employees; and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The
President shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation. The President shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors or
as may be provided in these By-laws.
SECTION 3.07. VICE PRESIDENTS. The Vice President, or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the Chairman of the Board and
the President, act with all of the powers and be subject to all the restrictions
of the Chairman of the Board and the President. The Vice Presidents shall also
perform such other duties and have such other powers as the Board of Directors,
the President or these By-laws may from time to time prescribe.
SECTION 3.08. THE SECRETARY AND THE ASSISTANT SECRETARIES. The Secretary
shall attend all meetings of the Board of Directors, all meetings of the
committees thereof, and all meetings of the shareholders and shall record all
the proceedings of such meetings in a book or books to be kept for that purpose.
Under the Chairman of the Board and the President's supervision, the Secretary
shall give, or cause to be given, all notices required to be given by these
By-laws or by law; shall have such powers and perform such duties as the Board
of Directors, the President or these By-laws may from time to time prescribe;
and shall have custody of the corporate seal of the Corporation. The Secretary,
or an Assistant Secretary, shall have authority to affix the corporate seal to
any instrument requiring it and when so affixed, it may be attested by his or
her signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his or her signature. The
Assistant Secretary, or if there be more than one, the Assistant Secretaries in
the order determined by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors, the President or the Secretary may from time to time
prescribe.
SECTION 3.09. THE TREASURER AND THE ASSISTANT TREASURERS. The Treasurer
shall have the custody of the corporate funds and securities; shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation; shall deposit all moneys and other valuable effects in the name and
to the credit of the Corporation as may be ordered by the Board of Directors;
shall cause the funds of the Corporation to be disbursed when such disbursements
have been duly authorized, taking proper vouchers for such disbursements; and
shall render to the Chairman of the Board and the President and the Board of
Directors, at its regular meeting or when the Board of Directors so requires, an
account of the Corporation; and shall have such powers and perform such duties
as the Board of Directors, the President or these By-laws may from time to time
prescribe. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond (which shall be rendered every six years) in such sums and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of the office of the Treasurer and
for the restoration to the Corporation, in case of death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in the possession or under the control of the
Treasurer belonging to the Corporation. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors, shall in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer. The Assistant Treasurers
shall perform such other duties and have such other powers as the Board of
Directors, the President or the Treasurer may, from time to time, prescribe.
SECTION 3.10. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
SECTION 3.11. ABSENCE OR DISABILITY OF OFFICERS. In the case of the absence
or disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the Board of Directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any other
person whom it may select.
ARTICLE IV
CERTIFICATES OF STOCK
SECTION 4.01. FORM. The interest of each shareholder of the Corporation may
be evidenced either by certificates for shares of stock in such form (including
punch cards, magnetically coded or otherwise treated forms to facilitate machine
or automatic processing) as the Board of Directors may from time to time
prescribe or may be uncertificated. In the event that shares are certificated,
each certificate of stock shall in any event state upon its face all matters
required by law. Each certificate of stock issued at any time the Corporation is
authorized to issue shares of more than one class of stock shall set out on it
the designations, relative rights, preferences and limitations of each class and
series then authorized and the power of the Board of Directors to divide any
such shares and to change such designations, relative rights, preferences and
limitations. The certificates of stock shall be signed by the Chairman of the
Board, if any, or by the President or a Vice President and sealed with the seal
of the Corporation or a facsimile thereof, and countersigned by the Secretary,
or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, 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 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 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.
Subject to the restrictions, if any, stated or noted on the stock certificate or
on the transfer books of the Corporation's transfer agent, shares of stock may
be transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate therefore, properly
endorsed or accompanied by a written assignment and power of attorney properly
executed, with necessary transfer stamps affixed, and with such proof of the
authenticity of signature as the Board of Directors or the transfer agent of the
Corporation may reasonably require, or if such shares are uncertificated, by
book entry by the transfer agent, or any other means which are the usual and
customary means of evidencing the transfer of the shares by the transfer agent.
Except as may be otherwise required by law, by the certificate of incorporation
or by these by-laws, the Corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to receive notice and
to vote or to give any consent with respect thereto, regardless of any transfer,
pledge or other disposition of such stock until the shares have been properly
transferred on the books of the Corporation.
SECTION 4.02. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against the Corporation on account of the loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 4.03. FIXING A RECORD DATE FOR SHAREHOLDER MEETINGS. In order that
the Corporation may determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if no
notice is given, on the day on which the meeting is held. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 4.04. FIXING A RECORD DATE FOR OTHER PURPOSES. In order that the
Corporation may determine the shareholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the shareholders
entitled to exercise any rights in respect of any change, conversion or exchange
of shares, or for the purposes of any other lawful action, the record date shall
be the date upon which the resolution of the Board of Directors relating thereto
is adopted or such later date not more than sixty (60) days prior to such action
as may be specified in such resolution of the Board of Directors.
SECTION 4.05. REGISTERED SHAREHOLDERS. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares with a
request to record the transfer of such share or shares, the Corporation may
treat the registered owner as the person entitled to receive dividends, to vote,
to receive notifications and otherwise to exercise all the rights and powers of
an owner.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01. DIVIDENDS. Dividends upon the shares of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the
Corporation, subject to the provisions of the Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, deem proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or any other purpose and the directors may
modify or abolish any such reserve in the manner in which it was created.
SECTION 5.02. CHECKS, DRAFTS OR ORDERS. All checks, drafts or other orders
for the payment of money by or to the Corporation and all notes and 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 be determined by resolution of the Board of Directors or a duly
authorized committee thereof.
SECTION 5.03. CONTRACTS. The Board of Directors may authorize any officer
or officers, or any agent or agents, of the Corporation to enter into any
contract or to 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 5.04. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 5.05. CORPORATE SEAL. The Board of Directors shall provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, New York."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
SECTION 5.06. VOTING SECURITIES OWNED BY THE CORPORATION. Voting securities
in any other corporation held by the Corporation shall be voted by the
President, unless the Board of Directors specifically confers authority to vote
with respect thereto, which authority may be general or confined to specific
instances, upon some other person or officer. Any person authorized to vote
securities shall have the power to appoint proxies, with general power of
substitution.
SECTION 5.07. SECTION HEADINGS. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 5.08. INCONSISTENT PROVISIONS. In the event that any provision of
these By-laws is or becomes inconsistent with any provision of the Certificate
of Incorporation, the Business Corporation Law of the State of New York or any
other applicable law, the provisions of these By-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VII
AMENDMENTS
These By-laws may be amended, altered or repealed and new By-laws adopted
at any meeting of the Board of Directors by a majority vote of the entire Board
of Directors (inclusive of vacancies). The fact that the power to adopt, amend,
alter or repeal the By-laws has been conferred upon the Board of Directors shall
not divest the shareholders of the same powers.
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