EXHIBIT 3.2
THE NEW YORK TIMES COMPANY
BY-LAWS
As Amended by the
Board of Directors
October 21, 1968, February 26, 1969, March 24, 1971,
March 29, 1972, March 28, 1973, May 30, 1973, November 28,
1973, March 27, 1974, March 31, 1976, April 26, 1977,
January 30, 1978, October 25, 1978, April 3, 1979, July 23,
1979, March 20, 1980, May 15, 1980, March 19, 1981,
March 18, 1982, February 17, 1983, April 28, 1983,
February 16, 1984, July 18, 1985, February 20, 1986,
April 30, 1986, October 16, 1986, February 19, 1987,
February 18, 1988, March 16, 1989, February 15, 1990,
February 21, 1991, February 20, 1992, February 18, 1993,
October 21, 1993, December 16, 1993, February 17, 1994,
February 16, 1995, March 20, 1997, October 16, 1997,
February 19, 1998, May 21, 1998, and April 27, 2000.
As Ratified by the
Class B Stockholders
April 22, 1969
and the Class A and Class B Stockholders
(Article XI only)
April 19, 1988
BY-LAWS
OF
THE NEW YORK TIMES COMPANY
As Amended by the
Board of Directors
October 21, 1968 As Ratified by the
February 26, 1969 Class B Stockholders
March 24, 1971 April 22, 1969
March 29, 1972 and the Class A and
March 28, 1973 Class B Stockholders
May 30, 1973 (Article XI only)
November 28, 1973 April 19, 1988
March 27, 1974
March 31, 1976
April 26, 1977
January 30, 1978
October 25, 1978
April 3, 1979
July 23, 1979
March 20, 1980
May 15, 1980
March 19, 1981
March 18, 1982
February 17, 1983
April 28, 1983
February 16, 1984
July 18, 1985
February 20, 1986
April 30, 1986
October 16, 1986
February 19, 1987
February 18, 1988
March 16, 1989
February 15, 1990
February 21, 1991
February 20, 1992
February 18, 1993
October 21, 1993
December 16, 1993
February 17, 1994
February 16, 1995
March 20, 1997
October 16, 1997
February 19, 1998
May 21, 1998
April 27, 2000
INDEX
PAGE
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ARTICLE I. STOCKHOLDERS................................................ 1
1. Annual Meeting........................................... 1
2. Special Meetings......................................... 1
3. Notice of Meetings....................................... 1
4. Quorum................................................... 1
5. Voting................................................... 1
ARTICLE II. CLOSING TRANSFER BOOKS; SETTING RECORD DATE................. 2
1. Qualification of Voters.................................. 2
2. Determination of Stockholders of Record for Other 2
Purposes..................................................
ARTICLE III. BOARD OF DIRECTORS.......................................... 2
1. Number, Classification, Election and Qualifications...... 2
2. Vacancies................................................ 2
3. Regular Meetings......................................... 2
4. Special Meetings......................................... 3
5. Quorum................................................... 3
6. Committees............................................... 3
7. Salaries................................................. 3
8. Resignation.............................................. 4
9. Telephonic Meetings...................................... 4
ARTICLE IV. OFFICERS.................................................... 4
1. Appointment.............................................. 4
2. Term of Office........................................... 4
3. The Chairman of the Board................................ 4
4. The Vice Chairman of the Board........................... 4
5. The President............................................ 4
6. Vice Presidents.......................................... 5
7. The Secretary............................................ 5
8. The Treasurer............................................ 5
9. Duties of Officers may be Delegated...................... 5
ARTICLE V. STOCK CERTIFICATES.......................................... 5
1. Issuance of Stock Certificates........................... 5
2. Lost Stock Certificates.................................. 5
3. Transfers of Stock....................................... 5
4. Regulations.............................................. 6
ARTICLE VI. SEAL........................................................ 6
ARTICLE VII. CHECKS...................................................... 6
ARTICLE VIII. BOOKS OF ACCOUNT AND STOCK BOOK............................. 6
ARTICLE IX. FISCAL YEAR................................................. 6
ARTICLE X. VOTING SECURITIES........................................... 6
ARTICLE XI. INDEMNIFICATION............................................. 7
1. Directors and Officers................................... 7
2. Non-Exclusivity.......................................... 7
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PAGE
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3. Continuity of Rights..................................... 7
ARTICLE XII. INTEREST OF DIRECTORS AND OFFICERS IN CONTRACTS WITH THE 7
COMPANY.....................................................
ARTICLE XIII. NOTICES..................................................... 8
ARTICLE XIV. AMENDMENT................................................... 8
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THE NEW YORK TIMES COMPANY
BY-LAWS
ARTICLE I
STOCKHOLDERS
1. ANNUAL MEETING. The Annual Meeting of Stockholders for the election
of directors and for the transaction of such other business as may properly
come before the meeting shall be held on such date, at such time and place
either within or without the State of New York as may be specified by the
Board of Directors.
2. SPECIAL MEETINGS. Special meetings of the stockholders, to be held
at such place either within or without the State of New York and for the
purpose or purposes as may be specified in the notices of such meetings, may
be called by the Chairman of the Board or the President and shall be called
by the President or the Secretary at the request of a majority of the Board
of Directors or of stockholders owning 25 per cent or more of the shares or
stock of the Company issued and outstanding and entitled to vote on any
action proposed by such stockholders for such meetings. Such request shall
be in writing and shall state the purpose or purposes of the proposed
meeting.
3. NOTICE OF MEETINGS. Notice of the time, place and purpose or
purposes of every meeting of stockholders shall be in writing, signed by the
President or the Secretary, and shall be mailed by the Secretary, or the
person designated by him to perform this duty, at least ten, and not more
than sixty, days before the meeting, to each stockholder of record entitled
to vote at such meeting and to each stockholder of record who would be
entitled to have his stock appraised if the action proposed at such meeting
were taken. Such notice shall be directed to a stockholder at his address as
it appears on the stock book, unless he shall have filed with the Secretary
a written request that notices intended for him be mailed to some other
address, in which case it will be mailed to the address designated in such
request.
4. QUORUM. The holders of record of a majority of the shares of stock
issued and outstanding and entitled to vote thereat, present in person or by
proxy, shall be requisite and shall constitute a quorum at each meeting of
stockholders for the transaction of business, except as otherwise provided
by law, by the Certificate of Incorporation or by these By-laws; provided
that, when any specified action is required to be voted upon by a class of
stock voting as a class, the holders of a majority of the shares of such
class shall be requisite and shall constitute a quorum for the transaction
of such specified action. If, however, there shall be no quorum, the officer
of the Company presiding as chairman of the meeting shall have the power to
adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present, when any
business may be transacted which might have been transacted at the meeting
as first convened had there been a quorum.
5. VOTING. Each stockholder entitled to vote on any action proposed at
a meeting of stockholders shall be entitled to one vote in person or by
proxy for each share of voting stock held of record by him. Execution of a
proxy may be accomplished by the stockholder or the stockholder's authorized
officer, director, employee or agent. Proxies may be executed by facsimile
signature or transmitted by telegram, cablegram or other means of electronic
transmission authorized by the stockholder to the person who will be the
holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be reasonably
determined that the telegram, cablegram or other electronic transmission was
authorized by the
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stockholder. No proxy shall be valid after the expiration of eleven months
from the date of its execution, unless the person executing it shall have
specified therein its duration.
The vote for directors shall be by ballot, and the election of each director
shall be decided by a plurality vote. Except as otherwise provided by law,
by the Certificate of Incorporation, by other certificate filed pursuant to
law or by these By-laws, votes on any other matters coming before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the shares represented at such meeting, in person or by proxy,
and entitled to vote on the specific matter. Except as required by law, by
the Certificate of Incorporation, by other certificate filed pursuant to law
or by these By-laws, the chairman presiding at any meeting of stockholders
may rule on questions of order or procedure coming before the meeting or
submit such questions to the vote of the meeting, which vote may at his
direction be by ballot. The chairman shall submit any such questions to the
vote of the meeting at the request of any stockholder entitled to vote
present in person or by proxy at the meeting, which vote shall be by ballot.
ARTICLE II
CLOSING TRANSFER BOOKS; SETTING RECORD DATE
1. QUALIFICATION OF VOTERS. The Board of Directors may fix a date,
which shall not be more than sixty days, nor fewer than 10 days prior to the
date of any meeting of the stockholders or prior to the last day on which
the consent or dissent of stockholders may be effectively expressed for any
purpose without a meeting, as the record date for the determination of
stockholders entitled to notice of and to vote at such a meeting or whose
consent or dissent is required or may be expressed for any purpose, as the
case may be, shall be determined, and all persons who were holders of record
of voting stock on the date so fixed and no others shall be entitled to
notice of and to vote at such meeting or to express their consent or
dissent, as the case may be.
2. DETERMINATION OF STOCKHOLDERS OF RECORD FOR OTHER PURPOSES.The Board
of Directors may fix a date, which shall not be more than sixty days, nor
fewer than 10 days preceding the date fixed for the payment of any dividend
or for the making of any distribution or for the delivery of evidences of
rights or evidences of interests arising out of any change, conversion or
exchange of capital stock, as the record date for the determination of the
stockholders entitled to receive any such dividend, distribution, rights or
interests, and in such case only stockholders of record on the date so fixed
shall be entitled to receive such dividend, distribution, rights or
interests.
ARTICLE III
BOARD OF DIRECTORS
1. NUMBER, CLASSIFICATION, ELECTION AND QUALIFICATIONS.The affairs of
the Company shall be managed by a Board of Directors consisting of not fewer
than three nor more than eighteen members. The number of directors shall be
determined from time to time by resolution of a majority of the entire Board
of Directors then in office, provided that no decrease in the number of
directors shall shorten the term of any incumbent director. For the purpose
of election of directors only, and not for any other purpose, the directors
shall be divided into two classes, the holders of Class A Common Stock are
entitled to elect 30% of the Board of Directors proposed to be elected at
any meeting of stockholders held for that purpose (or the nearest larger
whole number if such percentage is not a whole number), to be designated the
Class A directors, and the holders of Class B Common Stock are entitled to
elect the balance of the Board of Directors proposed to be elected at any
such meeting, to be designated the Class B directors. The directors shall,
except as provided in Section 2 of this Article III, be elected by the
classes of shares entitled to elect them, by ballot at each annual meeting
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of stockholders, and shall hold office until the next annual meeting of
stockholders and until their successors shall be elected and qualified. All
directors must be at least eighteen years of age and at least one shall be a
citizen of the United States and a resident of New York State.
2. VACANCIES. Any vacancy in the Board of Directors, whether caused by
resignation, death, increase in the number of directors, disqualification or
otherwise, may be filled by a majority of the directors in office after the
vacancy has occurred, although less than a quorum. A director so elected
shall hold office for the unexpired term in respect of which such vacancy
occurred.
3. REGULAR MEETINGS. A regular meeting of the Board shall be held in
each year immediately following the Annual Meeting of Stockholders or if
such meeting be adjourned, the final adjournment thereof at the same place
as such meeting of stockholders. No notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute the
meeting. Other regular meetings of the Board may be held at such time and
place, either within or without the State of New York, as shall from time to
time be determined by a resolution of the Board. Any business may be
transacted at any regular meeting at which a quorum is present. The time and
place of any such regular meeting may be changed (i) at the preceding
regular meeting; or (ii) subsequent to the adjournment of the preceding
regular meeting by consent in writing signed by a majority of the whole
Board; provided, however, that in either case notice of such change be given
to each director personally or by telegram, facsimile transmission or
comparable means two days or by mail five days prior to the date originally
designated for such regular meeting.
4. SPECIAL MEETINGS. A special meeting of the Board of Directors may be
held at the time fixed by resolution of the Board or upon call of the
Chairman of the Board, the President or any two directors and may be held at
any place within or without the State of New York. Except as otherwise
provided by law, by the Certificate of Incorporation, by other certificate
filed pursuant to law or by these By-laws, notice of the time and place of
any special meeting of the Board shall be given by the Secretary or other
person designated by him to perform this duty by giving the same personally
or by telegram, facsimile transmission or comparable means to each director
at his address as the same shall appear on the books of the Company at least
two days previous to such meeting or by mailing a copy of such notice,
postage prepaid, to each director at such address at least five days
previous to such meeting; provided, however, that no notice need be given to
any director if waived by him either before or after the meeting or if he
shall be present at such meeting, and any meeting of the Board may be held
at any time without notice if all the directors then in office shall be
present thereat.
Any such notice shall also state the items of business which are expected to
come before the meeting, and the items of business transacted at any special
meeting of the Board shall be limited to those stated in such notice, unless
all the directors are present at the meeting, or all those absent consent in
writing either before or after the meeting, to the transaction of an item or
items of business not stated in such notice.
5. QUORUM. At all meetings of the Board, the presence of at least
one-third of the directors in office shall be necessary and sufficient to
constitute a quorum for the transaction of business, and, except as
otherwise required by law, by the Certificate of Incorporation, by other
certificate filed pursuant to law or by these By-laws, the affirmative vote
of a majority of the directors present at any meeting at which a quorum is
present shall be necessary for the adoption of any business or resolution
which may come before the meeting; provided, however, that in the absence of
a quorum a majority of the directors present or any director solely present
may adjourn any meeting from time to time until a quorum is present. No
notice of any adjournment to a later hour on the date originally designated
for the holding of a meeting need be given, but immediate notice by
telegram, facsimile transmission or comparable means shall be given by the
Secretary or other person designated by him to perform this duty to all
directors of any adjournment to any subsequent date, and such notice shall
be deemed sufficient, though less than the notice required by Section 3 if
such meeting be an adjourned regular meeting of the Board, or by Section 4
if such meeting be an adjourned special meeting of the Board.
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6. COMMITTEES. The Board of Directors may by resolution or resolutions
passed by a majority of the whole Board designate one or more committees,
each committee to consist of three or more of the directors, which, to the
extent provided in said resolution or resolutions, shall have and may
exercise powers of the Board of Directors in the management of the business
and affairs of the Company and may have power to authorize the seal of the
Company to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. All committees so
appointed shall keep regular minutes of the business transacted at their
meetings.
7. SALARIES. Directors, as such, shall not receive any stated salary
for their services, provided that, by resolution of the Board, the Board of
Directors shall have authority to fix the compensation of directors and
provide for the reimbursement of expenses of attending meetings; provided
further that nothing herein contained shall be construed to preclude any
director from serving the Company in any other capacity and receiving
compensation therefor. Members of committees may be allowed such
compensation as may be fixed from time to time by the Board for attending
committee meetings and reimbursement of expenses of attendance.
8. RESIGNATION. Any director may, at any time, resign, such resignation
to take effect upon receipt of written notice thereof by the President or
the Secretary, unless otherwise stated in the resignation.
9. TELEPHONIC MEETINGS. One or more directors may participate in a
meeting of the Board of Directors, or a committee designated pursuant to
Section 6 of this Article III, by a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear and speak to each other. Participation in a meeting
pursuant to this provision shall constitute actual attendance at such
meeting.
ARTICLE IV
OFFICERS
1. APPOINTMENT. The Board of Directors may appoint from their number a
Chairman of the Board and a Vice Chairman of the Board. The Board of
Directors shall appoint a President, a Secretary and a Treasurer and may
also appoint one or more Vice Presidents, none of whom need be members of
the Board, and may from time to time appoint such other officers as they may
deem proper. The Chairman, President or Vice Chairman may appoint one or
more Vice Presidents, the Secretary, the Treasurer, or any Assistant
Secretary or Assistant Treasurer. Any two of the aforesaid offices, except
those of President and Vice President, or President and Secretary, may be
filled by the same person. The compensation of all officers of the Company
shall be fixed by the Board.
2. TERM OF OFFICE. The officers of the Company shall hold office at the
pleasure of the Board of Directors. Any officer may be removed from office
at any time for or without cause by the affirmative vote of a majority of
the whole Board of Directors. Any officer may resign his office at any time,
such resignation to take effect upon receipt of written notice thereof by
the Company, unless otherwise stated in the resignation. If the office of
any officer becomes vacant for any reason, the vacancy may be filled by the
Board or in the case of any Vice President, the Secretary or the Treasurer,
or any Assistant Secretary or Assistant Treasurer, the vacancy may be filled
by any two of the Chairman, President or Vice Chairman.
3. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the Board of Directors and all meetings of the
stockholders. He shall have final authority, subject to the control of the
Board of Directors, over the general policy and business of the Company, and
shall have such other powers and duties as may from time to time be
prescribed by the Board of Directors.
4
4. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall
have such powers and duties as may from time to time be prescribed by the
Board of Directors or by the Chairman of the Board. In the absence or
inability to act of the Chairman of the Board, the Vice Chairman of the
Board shall preside at all meetings of the Board of Directors and all
meetings of the stockholders.
5. THE PRESIDENT. The President shall be the chief executive officer of
the Company and as such shall have the general control and management of the
business and affairs of the Company subject, however, to the control of the
Chairman of the Board. The President shall have the power, subject to the
control of the Chairman of the Board, to appoint or discharge and to
prescribe the duties and to fix the compensation of such agents and
employees of the Company as he may deem necessary. He shall have, as does
the Chairman of the Board, the authority to make and sign bonds, mortgages
and other contracts and agreements in the name and on behalf of the Company,
except when the Board of Directors by resolution instructs the same to be
done by some other officer or agent. He shall see that all orders and
resolutions of the Board of Directors are carried into effect and shall
perform all other duties necessary to his office or properly required of him
by the Board of Directors subject, however, to the right of the directors to
delegate any specific powers, except such as may by statute be exclusively
conferred upon the President, to any other officer or officers of the
Company. In the absence or inability to act of the Chairman of the Board,
the President shall have the duties prescribed for the Chairman of the Board
subject, however, to Section 4 of this Article IV.
6. VICE PRESIDENTS. Each Vice President shall have such powers and
perform such duties as may be assigned to him from time to time by the
Chairman of the Board or the President.
7. THE SECRETARY. The Secretary shall attend all sessions of the Board
and all meetings of the stockholders and record all votes and the minutes of
all proceedings in a book to be kept for that purpose, and shall perform
like duties for committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and meetings of the Board
of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the President. He shall keep in safe custody the
seal of the Company and shall see that it is affixed to all documents, the
execution of which, on behalf of the Company, under its seal, is necessary
or proper, and when so affixed may attest the same.
8. THE TREASURER. The Treasurer shall, if required by the Board of
Directors, give a bond for the faithful discharge of his duties in such
amount and with such surety or sureties as the Board of Directors may
determine; the cost of any such bond, and any expenses incurred in
connection therewith, shall be borne by the Company. He shall have the
custody of the corporate funds and securities, except as otherwise provided
by the Board, and shall cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall
deposit all moneys and other valuable effects in the name and to the credit
of the Company in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Company as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render
to the President and the directors, at the regular meetings of the Board, or
whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Company.
9. DUTIES OF OFFICERS MAY BE DELEGATED. In the case of the absence of
any officer, or for any other reason that the Board may deem sufficient, the
President or the Board may delegate for the time being the powers or duties
of such officer to any other officer or to any director.
ARTICLE V
STOCK CERTIFICATES
1. ISSUANCE OF STOCK CERTIFICATES. The Capital Stock of the Company
shall be represented by certificates signed by the Chairman or the President
or a Vice President and by the Secretary or an
5
Assistant Secretary or the Treasurer or an Assistant Treasurer and sealed
with the seal of the Company. Such seal may be a facsimile, engraved or
printed and where any such certificate is signed by a transfer agent
registered by a registrar other than the Company or an employee of the
Company or the shares represented by such certificate are listed on a
national security exchange, the signatures of any officers appearing thereon
may be facsimiles, engraved or printed.
2. LOST STOCK CERTIFICATES. The Board of Directors may by resolution
adopt, from time to time, such regulations concerning the issue of any new
or duplicate certificates for lost, stolen or destroyed stock certificates
of the Company as shall not be inconsistent with the provisions of the laws
of the State of New York as presently in effect or as they may hereafter be
amended.
3. TRANSFERS OF STOCK. Transfers of stock shall be made only on the
stock transfer books of the Company, and, except in the case of any such
certificate which has been lost, stolen or destroyed, in which case the
resolutions of the Board then in effect respecting lost, stolen or destroyed
stock certificates shall be complied with, such transfer shall only be made
upon surrender to the Company of a certificate for shares for cancellation
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer. Upon the issue of a new certificate to the person
entitled thereto, the Company shall cancel the old certificate and record
the transaction upon its books.
4. REGULATIONS. Except to the extent that the exercise of such power
shall be prohibited or circumscribed by these By-laws, by the Certificate of
Incorporation, or other certificate filed pursuant to law, or by statute,
the Board of Directors shall have power to make such rules and regulations
concerning the issuance, registration, transfer and cancellation of stock
certificates as it shall deem appropriate.
ARTICLE VI
SEAL
The seal of the Company shall be circular in form, shall bear the legend:
"The New York Times Company--1851 Inc. 1896" and shall contain in the center
the Roman letter T.
ARTICLE VII
CHECKS
All checks or demands for money and notes of the Company shall be signed by
such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
ARTICLE VIII
BOOKS OF ACCOUNT AND STOCK BOOK
The Company shall keep at its principal office correct books of account of
all its business and transactions. A book to be known as the stock book,
containing the names alphabetically arranged, of all persons who are
stockholders of the Company, showing their addresses, the number and class
of shares of stock held by them respectively and the times when they
respectively became the owners thereof shall be kept at the principal office
of the Company or its transfer agent.
6
ARTICLE IX
FISCAL YEAR
The fiscal year of the Company shall be the calendar year unless otherwise
provided by the Board of Directors.
ARTICLE X
VOTING SECURITIES
Unless otherwise ordered by the Board of Directors, the Chairman, the
President or the Vice Chairman, or, in the event of their absence or
inability to act, the Vice Presidents, in order of seniority or priority
established by the Board or by the President, unless and until the Board
shall otherwise direct, shall have full power and authority on behalf of the
Company to attend and to act and to vote, or to execute in the name and on
behalf of the Company a proxy authorizing an agent or attorney-in-fact for
the Company to attend and to act and to vote at any meetings of security
holders of corporations in which the Company may hold securities, and at
such meetings he or his duly authorized agent or attorney-in-fact shall
possess and may exercise any and all rights and powers incident to the
ownership of such securities, and which as the owner thereof the Company
might have possessed and exercised, if present. The Board of Directors by
resolution from time to time may confer like powers upon any other person or
persons.
ARTICLE XI
INDEMNIFICATION
1. DIRECTORS AND OFFICERS. The Company shall, to the fullest extent
permitted by applicable law as the same exists or may hereafter be in
effect, indemnify any person who is or was made or threatened to be made a
party to or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company to procure a judgment
in its favor and 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 any other entity, which any director or
officer of the Company is serving, has served or has agreed to serve in any
capacity at the request of the Company, by reason of the fact that such
person or such person's testator or intestate is or was or has agreed to
become a director or officer of the Company, or is or was serving or has
agreed to serve such other corporation, partnership, joint venture, trust,
employee benefit plan or other entity in any capacity, against judgments,
fines, amounts paid or to be paid in settlement, taxes or penalties, and
costs, charges and expenses, including attorneys' fees, incurred in
connection with such action or proceeding or any appeal therein; provided,
however, that no indemnification shall be provided to any such person if a
judgment or other final adjudication adverse to the director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated or (ii) he or she personally
gained in fact a financial profit or other advantage to which he or she was
not legally entitled.
2. NON-EXCLUSIVITY. Nothing contained in this Article XI shall limit
the right to indemnification and advancement of expenses to which any person
would be entitled by law in the absence of this Article, or shall be deemed
exclusive of any other rights to which such person seeking indemnification
or advancement of expenses may have or hereafter may be entitled under law,
any provision of the Certificate of Incorporation, or By-laws, any agreement
approved by the Board of Directors, or a resolution of stockholders or
directors; and the adoption of any such resolution or entering into of any
such agreement approved by the Board of Directors is hereby authorized.
7
3. CONTINUITY OF RIGHTS. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article XI shall
(i) apply with respect to acts or omissions occurring prior to the adoption
of this Article XI to the fullest extent permitted by law and (ii) survive
the full or partial repeal or restrictive amendment hereof with respect to
events occurring prior thereto.
ARTICLE XII
INTEREST OF DIRECTORS AND OFFICERS IN CONTRACTS WITH THE COMPANY
A director or officer of the Company shall not be disqualified by his office
from dealing or contracting with the Company either as a vendor, purchaser
or otherwise, nor shall any transaction or contract of the Company be void
or voidable by reason of the fact that any director or officer or any firm
of which any director or officer is a member or any corporation or other
entity of which any director or officer is a shareholder, officer or
director or has a substantial interest, is in any way interested in such
transaction or contract, provided that such transaction or contract is or
shall be authorized, ratified or approved either (1) by a vote of a majority
of a quorum of the Board of Directors, without counting in such majority any
director so interested or member of a firm so interested, or a shareholder,
officer or director or holder of substantial interest of a corporation so
interested, or, if the disinterested directors are less than a majority of
the directors present at such meeting, by unanimous vote of the
disinterested directors and, in each case, the common or interested
directors may be counted in determining the presence of a quorum at such
meeting, or (2) by the written consent, or by the vote at any stockholders'
meeting of the holders of record of a majority of all the outstanding shares
of stock of the Company entitled to vote on such transaction or contract;
nor shall any director or officer be liable to account to the Company for
any profits realized by or from or through any such transaction or contract
of the Company authorized, ratified or approved as aforesaid by reason of
the fact that he, or any firm of which he is a member or any corporation of
which he is a shareholder, officer or director, was interested in such
transaction or contract. Nothing herein contained shall create liability in
the events above described or prevent the authorization, ratification or
approval of such transactions or contracts in any other manner permitted by
law.
ARTICLE XIII
NOTICES
Whenever, under the provisions of these By-laws, notice is required to be
given to any director, officer, or stockholder, it shall not be construed to
mean personal notice, but unless otherwise expressly stated in these
By-laws, such notice may be given in writing by depositing the same, with
postage pre-paid, in a post office or official depositary under the
exclusive care and custody of the United States Postal Service, addressed to
such stockholder, officer or director, at such address as appears on the
books of the Company, and such notice shall be deemed to have been given at
the time when the same was thus mailed.
ARTICLE XIV
AMENDMENT
These By-laws may be amended, altered, changed, added to or repealed by a
majority vote of all the Class B Common Stock issued and outstanding and
entitled to vote at any annual or special meeting of the stockholders,
provided that such amendments are not inconsistent with any provisions of
the Company's Certificate of Incorporation.
The Board of Directors, at any regular or at any special meeting, by a
majority vote of the whole Board, may amend, alter, change, add to or repeal
these By-laws, provided that such amendments are
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not inconsistent with any provisions of the Company's Certificate of
Incorporation, and provided further that if any By-law regulating an
impending election of directors is adopted or amended or repealed by the
Board, there shall be set forth in the notice of the next stockholders
meeting for the election of directors the By-laws so adopted or amended or
repealed, together with a concise statement of the changes made.
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