Exhibit 3(ii)
AMENDED AND RESTATED BYLAWS
OF
GYRODYNE COMPANY OF AMERICA, INC.
(Incorporated Under the Laws of the State of New York)
These By-laws are supplemental to the New York Business Corporation
Law and other applicable provisions of law, as the same shall from time to time
be in effect.
ARTICLE I. OFFICES. The principal office shall be in the Village of St. James,
Town of Smithtown, County of Suffolk, State of New York. The Corporation may
have offices and places of business at such other places, both within and
without the State of New York, as may be determined by the Board of Directors.
ARTICLE II. MEETINGS OF STOCKHOLDERS.
Section 201. Place of Meetings. All meetings of the
stockholders shall be held at such place or places, within or without the State
of New York, as shall be determined by the Board of Directors from time to time.
Section 202. Annual Meetings. The annual meeting of the
stockholders for the election of Directors and the transaction of such other
business as may properly come before the meeting shall be held at such date or
hour as may be fixed by the Board of Directors. Any business which is a proper
subject for stockholder action may be transacted at the annual meeting,
irrespective of whether the notice of said meeting contains any reference
thereto, except as otherwise provided by applicable law or these By-Laws.
Section 203. Special Meetings. Special meetings of the
stockholders may be called at any time by the President, the Chairman of the
Board or by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation would have if
there were no vacancies (the "Whole Board").
Section 204. Notice of the Meetings.
(a) Written or printed notice, stating the place, day and hour
of the meeting and the purpose or purposes for which the meeting is called,
shall be given by the Corporation not less than ten (10) days nor more than
sixty (60) days before the date of the meeting, either personally or by first
class mail. Notice may be given by third class mail, in which event, the notice
shall be given not fewer than twenty-four (24) nor more than sixty (60) days
before the date of the meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at his address as it appears on the stock transfer
books of the Corporation or at such other address given by the stockholder in
accordance with law.
(b) Any previously scheduled meeting of the stockholders may
be postponed, and any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Section 205. Quorum. The holders of a majority of the votes of
shares entitled to vote thereat shall constitute a quorum at any meeting of
stockholders for the transaction of business except as otherwise provided by
law.
Section 206. Conduct of Stockholders' Meetings; Adjournment.
(a) The Chairman of the Board shall preside at all
stockholders' meetings. In the absence of the Chairman of the Board, the
President shall preside. The Officer presiding over the stockholders' meeting
may establish such rules and regulations for the conduct of the meeting as
he/she may deem to be reasonably necessary or desirable for the orderly and
expeditious conduct of the meeting, and shall fix and announce at the meeting
the date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at the stockholders' meeting. Subject to
Section 302 of these By-Laws, unless the Officer presiding over the
stockholders' meeting otherwise requires, stockholders need not vote by ballot
on any question.
(b) The presiding Officer at a stockholders' meeting or a
majority of the shares of the Corporation present thereat, represented in person
or by proxy, may adjourn the meeting from time to time, whether or not there is
a quorum. No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 207. Inspectors of Election. At least two inspectors
of election shall be appointed by the Board of Directors to serve at each annual
or special meeting of stockholders. Such inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives.
The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. If there are three or more inspectors,
the act of a majority shall govern. On request of the presiding Officer or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, question or matter determined by them. Any report made
by them shall be prima facie evidence of the facts therein stated, and such
report shall be filed with the minutes of the meeting.
Section 208. Action of Stockholders. Except as otherwise
provided by law, the Certificate of Incorporation, or these By-Laws, in all
matters other than the election of directors (which is governed by Section 302
of these By-Laws), the affirmative vote of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote on the matter
shall be the act of the stockholders.
Section 208. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (A) pursuant
to the Corporation's notice of meeting, (B) by or at the direction of the Board
of Directors or (C) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting, who complies with the notice procedures set
forth in this By-Law and who (in the case of nominations of persons for election
to the Board of Directors of the Corporation) has continuously held at least
$2000 in market value, or 1%, of the Corporation's outstanding capital stock
entitled to vote for at least one year by such date of giving of notice or who
is entitled to cast votes with respect to at least 5% percent of the outstanding
capital stock of the Corporation, and who complies with the notice procedures
set forth in this By-Law.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (C) of
paragraph (a)(1) of this By-Law, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
120th day nor earlier than the close of business on the 150th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reason for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made, (i) the name and
address of such stockholder, as they appear on the books of the Corporation, and
of such beneficial owner, and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner and the length of time such shares were held.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
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
stockholder's notice required by paragraph (a)(2) of this By-Law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to such special
meeting and not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible for serve as
directors and only such business shall be conducted at a meeting of the
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise required by law,
the Officer presiding over such stockholders' meeting shall have the power and
duty to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance with
the procedures set forth in this By-Law and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that such defective
proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones New Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-Law, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
ARTICLE III. DIRECTORS AND BOARD MEETINGS.
Section 301. Management by Board of Directors. The business
and affairs of the Corporation shall be managed by its Board of Directors. The
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute, regulation, the Articles of
Incorporation or these Bylaws directed or required to be exercised or done by
the stockholders.
Section 302. Procedure for Election of Directors; Required
Vote. Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of preferred stock to elect directors under specified
circumstances, a plurality of the votes cast thereat shall elect directors.
Section 303. Number of Directors. The Board of Directors shall
consist of not less than three (3) nor more than nineteen (19) directors, who
need not be stockholders. Within these limits, the number of directors of the
Corporation shall be fixed from time to time by resolution of the Board of
Directors.
Section 304. Classification of Directors. The directors in
office shall be divided, with respect to the time for which they severally hold
office, into three classes: Class I, Class II and Class III. The term of office
of the Class I directors will expire at the 1997 annual meeting of stockholders,
the term of office of the Class II directors will expire at the 1998 annual
meeting of stockholders and the term of office of the Class III directors will
expire at the 1999 annual meeting of stockholders following their election, and
shall hold office until their successors have been duly elected and qualified.
At each annual meeting of stockholders, commencing with the 1997 annual meeting,
directors elected to succeed the directors whose terms then expire shall be
elected for a term of office to expire at the third succeeding annual meeting of
stockholders following their election. Directors shall hold office until their
successors have been duly elected and qualified, provided, however, that a
director may resign. If the number of directors is not evenly divisible into
thirds, the Board shall determine which Class or Classes shall have one extra
director. Any additional director of any Class elected to the Board of Directors
to fill a vacancy from an increase in such Class shall hold office for the term
that expires as to that Class. The tenure of a director
shall not be affected by any decrease in the number of directors so made by the
Board.
Section 305. Removal and Vacancies. Any director or directors
may be removed at any time, but only for "cause" by the affirmative vote of
two-thirds (2/3) of the directors then in office or by vote of the stockholders
at a special meeting called for that purpose. "Cause" for purposes hereof shall
be defined as criminal acts, misfeasance of office or other similar acts. If the
office of any director or directors becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office, increase in the
authorized number of directors, or otherwise, the remaining directors, though
less than a quorum or by the sole remaining director shall choose a successor,
successors or additional directors who shall hold office for the remainder of
the term of the vacant office. In the event of a vacancy, the Board of
Directors, may, in its discretion, reduce the number of directors by allowing
the vacated office to remain vacant. In the event that the Board of Directors
increases the number of directors, such new directors will be elected by the
Board of Directors to a Class or Classes of directors so designated by the Board
for the term(s) to expire at the annual meeting(s) of the Corporation next
electing such Class or Classes, except as otherwise required by law.
Section 306. Quorum. A majority of the directors shall
constitute a quorum at any meeting except as otherwise provided by law but a
lesser number may adjourn any meeting from time to time and the meeting may be
held as so adjourned without further notice.
Section 307. Regular Meetings. Regular meetings of the Board
of Directors shall be held on such day, at such hour, and at such place,
consistent with applicable law, as the Board shall from time to time designate
or as may be designated in any notice from the Secretary calling the meeting.
The Board of Directors shall meet for reorganization at the first regular
meeting following the annual meeting of stockholders at which the Directors are
elected. Notice need not be given of regular meetings of the Board of Directors
which are held at the time and place designated by the Board of Directors. If a
regular meeting is not to be held at the time and place designated by the Board
of Directors, notice of such meeting, which need not specify the business to be
transacted thereat and shall be given (a) if by mail, at least five (5) days, or
(b) if by telecopy, facsimile, telegraph, cable or other recorded communications
or delivered personally or by telephone, not less than two (2) days before the
time of such meeting, excepting the Organization Meeting following the election
of Directors. Notices shall be given to each director at the addresses that
he/she has furnished to the Secretary as the address for such notices.
Except as otherwise provided by law or in these by-laws
herein, a majority of those directors present and voting at any meeting of the
Board of Directors, if a quorum is present at such time, shall decide each
matter considered. A director cannot vote by proxy, or otherwise act by proxy,
at a meeting of the Board of Directors.
Section 308. Special Meetings. Special meetings of the Board
of Directors may be called by the Chairman of the Board, or in his absence, by
the President, or at the request of three or more members of the Board of
Directors. A special meeting of the Board of Directors shall be deemed to be any
meeting other than the regular meeting of the Board of Directors. Notice of the
time and place of every special meeting, which need not specify the business to
be transacted thereat and which may be either verbal or in writing, shall be
given by the Secretary to each member of the Board (a) if by mail, at least
seventy-two (72) hours or (b) if by telecopy, facsimile, telegraph, cable or
other recorded communications or delivered personally or by telephone, not less
than eighteen hours before the time of such meeting, excepting the Organization
Meeting following the election of Directors. Notices shall be given to each
director at the addresses that he has furnished to the Secretary as the address
for such notices.
Waiver of Notice in writing by any director of any special
meeting of the Board or of any committee thereof, whether prior or subsequent to
such meeting, or attendance at such meeting by any director, shall be equivalent
to notice to such directors of such meeting.
Section 309. Report and Records. The reports of Officer and
Committees and the records of the proceedings of all Committees shall be filed
with the Secretary of the Corporation and presented to the Board of Directors,
if practicable, at its next regular meeting. The Board of Directors shall keep
complete records of its proceedings in a minute book kept for that purpose. When
a Director shall request it, the vote of each Director upon a particular
question shall be recorded in the minutes.
Section 310. Committees.
(a) Executive Committee. The Board of Directors shall appoint
three or more of its directors to act as an Executive Committee. The Committee
shall be comprised of the Chairman and other directors. Such Committee shall,
when the Board of Directors is not meeting, assume such duties and perform such
services as may be assigned to it by the Board of Directors, with the same force
and effect as though the Board of Directors had performed the same. A quorum of
the Executive Committee shall be constituted when a majority of the same are
present.
The Executive Committee has all the authority of the Board of
Directors, except with respect to certain matters that by statute may not be
delegated by the Board of Directors. The Committee acts only in the intervals
between meetings of the full Board of Directors. It acts usually in those cases
where it is not feasible to convene a special meeting of the Board or where the
agenda is the technical completion of undertakings already approved in principle
by the Board.
All action by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action, and shall be
subject to revision or alteration by the Board of Directors; provided that no
rights or acts of third parties shall be affected by any such revision or
alteration.
The Executive Committee shall fix its own rules of procedure
and shall meet where and as provided by such rules, or by resolution of the
Board of Directors, but in every case the presence of a majority of its members
shall be necessary to constitute a quorum.
In every case, the affirmative vote of a majority of all
members of the Committee present at the meeting shall be necessary to its
adoption of any resolution.
(b) Other Committees of this Board. The Board of Directors may
appoint directors to comprise one or more of the following Committees who shall
serve at the pleasure of the Board.
(1) Audit Committee. The Committee shall be comprised of
non-employee directors. The duties of the Committee include recommendation of
the independent accountants to be appointed by the Board; approval of the scope
of the accountants' examination and other services; review of financial
statements, including auditors' opinions and management letters, and reporting
to the Board the Committee's recommendation with respect thereto; review of
financial and/or fiscal policies and policy decisions; determination of the
duties and responsibilities of the officer with internal auditing
responsibility; approval of the scope of such officer's work and review of the
results thereof and, through review of the results of internal and external
audits, monitoring of internal programs to ensure compliance with laws,
regulations and the Company's responsibilities for financial reporting to the
public.
(2) Executive Compensation Committee. The Committee
shall be comprised of non-employee directors. The duties of the Committee
include approval of salaries to be paid to senior executive officers; approval
of or delegation to the President of the authority to approve the salaries of
all other officers; and the annual review of all significant financial
relationships which directors and officers have with the company, directly or
indirectly. The duties also include investigation of any complaints concerning
possible conflicts of interests involving directors or officers of the Company,
recommendations to the Board of actions to be taken to remove any such conflicts
and recommendation of policies or procedures designed to avoid any such
conflicts of interest.
(3) Stock Option Committee. The Committee shall be
comprised of non-employee directors not eligible to participate in the Company's
1993 Stock Incentive Plan or other stock option plans for the benefit of Company
employees. The duties of the Committee involve the review and administration of
employee stock option plans for the benefit of officers and employees maintained
by the Company, including the granting of options and awards with respect
thereto.
(4) Nominating Committee. The Committee shall be
comprised of the Chairman of the Board and non-employee directors. The duties of
the Committee include recommendation to the Board with respect to nominees for
election as directors; and recommendation to the Board with respect to the
composition of all Committees of the Board other than the Executive and
Nominating Committees.
A majority of the number of members of any Committee shall
constitute a quorum for the transaction of business. The action of a majority of
members present at a Committee meeting at which a quorum is present shall
constitute the act of the Committee.
ARTICLE IV. OFFICERS.
Section 401. Officers. The Officers of the Corporation shall
be a Chairman, a President, a Secretary, a Treasurer, and such other Officers
and Assistant Officers, as the Board of Directors may from time to time deem
advisable. Except for the President and Secretary, the Board may refrain from
filling any of the said offices at any time and from time to time. Except as
otherwise required by applicable law, the same individual may hold any two (2)
or more offices. The Officers shall be elected by the Board of Directors at the
time, in the manner and for such terms as the Board of Directors from time to
time shall determine. Any Officer may be removed at any time, with or without
cause, and regardless of the term for which such Officer was elected, but
without prejudice to any contract right of such Officer. Each Officer shall hold
his office for the current year for which he was elected or appointed by the
Board unless he shall resign, becomes disqualified, or be removed at the
pleasure of the Board of Directors.
Section 402. Chairman of the Board. The Board of Directors
shall elect a Chairman of the Board at the first regular meeting of the Board
following each annual meeting of stockholders at which Directors are elected.
The Chairman of the Board shall be a member of the Board of Directors and shall
preside at the meetings of the Board and perform such other duties as may be
prescribed by the Board of Directors.
Section 403. President. The President shall have general
supervision of all of the departments and business of the Corporation and shall
prescribe the duties of the other Officers and Employees and see to the proper
performance thereof. The President shall be responsible for having all orders
and resolutions of the Board of Directors carried into effect. The President
shall execute on behalf of the Corporation and may affix or cause to be affixed
a seal to authorized documents and instruments requiring such execution, except
to the extent that signing and execution thereof shall have been delegated to
some other Officer or Agent of the Corporation by the Board of Directors or by
the President. The President shall be a member of the Board of Directors. In the
absence or disability of the Chairman of the Board or his/her refusal to act,
the President shall preside at meetings of the Board. In general, the President
shall perform all the duties and exercise all of the powers and authorities
incident to such office or as prescribed by the Board of Directors.
Section 404. Secretary. The Secretary shall act under the
supervision of the President or such other Officers as the President may
designate. Unless the Board has elected a Secretary to the Board of Directors,
or unless a designation to the contrary is made at a meeting, the Secretary
shall attend all meetings of the Board of Directors and all meetings of the
stockholders and record all of the proceedings of such meetings in a book to be
kept for that purpose, and shall perform like duties for the standing Committees
when required by these By-laws or otherwise. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and of the Board of
Directors. The Secretary shall keep a seal of the Corporation, and, when
authorized by the Board of Directors or the President, cause it to be affixed to
any documents and instruments requiring it. The Secretary shall perform such
other duties as may be
prescribed by the Board of Directors, President, or such other Supervising
Officer as the President may designate.
Section 405. Treasurer. The Treasurer shall act under the
supervision of the President or such other Officer as the President may
designate. The Treasurer shall have custody of the Corporation's funds and such
other duties as may be prescribed by the Board of Directors, President or such
other Supervising Officer as the President may designate.
Section 406. General Powers. The Officers are authorized to do
and perform such corporate acts as are necessary in the carrying on of the
business of the Corporation, subject always to the direction of the Board of
Directors.
ARTICLE V. INDEMNIFICATION.
Section 501. Mandatory Indemnification.
(a) The Corporation shall, to the full extent permitted by the
New York Business Corporation Law, as amended from time to time (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceedings, whether civil, criminal, administrative
or investigative, by reason of the fact that he/she is or was a director,
officer or employee of the Corporation or any of its subsidiaries or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Corporation, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith, and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that except as provided in paragraph (c) of this Section 501,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors. Any
right of indemnification so provided shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition, such advances to be paid by
the Corporation within 20 days after receipt by the Corporation of a statement
or statements from the claimant requesting such advance or advances from time to
time; provided, however, that if the New York Business Corporation Law requires,
the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to any employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this By-Law or
otherwise.
(b) To obtain indemnification under this By-Law, a claimant
shall submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (b), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2) if no request is made by
the claimant for a determination by Independent Counsel, (i) by the Board of
Directors by a majority vote of a quorum consisting of Disinterested Directors
(as hereinafter defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or, even if obtainable,
such quorum of Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the Board of Directors unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceedings
for which indemnification is claimed a Change of Control (as hereinafter
defined), in which case the Independent Counsel shall be selected by the
claimant unless the claimant shall request that such selection be made by the
Board of Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within ten days after
such determination.
(c) If a claim under paragraph (a) of this Section 501 is not
paid in full by the Corporation within thirty days after a written claim
pursuant to paragraph (b) of this By-Law has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the New York Business Corporation Law
for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, Independent Counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
New York Business Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, Independent Counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(d) If a determination shall have been made pursuant to
paragraph (b) of this Section 501 that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to paragraph (c) of this Section 501.
(e) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (c) of this Section 501 that
the procedures and presumptions of this Section 501 are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this By-Law.
(f) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this By-Law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Section 501 shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
(g) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the New York Business Corporation Law. To the extent that the Corporation
maintains any policy or policies providing such insurance, each such director or
officer, and each such agent or employee to which rights to indemnification have
been granted as provided in paragraph (h) of this Section 501, shall be covered
by such policy or policies in accordance with its or their terms to the maximum
extent of the coverage thereunder for any such director, officer, employee or
agent.
(h) The Corporation may, to the extent authorized from time to
time by the Board of Directors or the stockholders of the Corporation by
resolution thereof, grant rights to indemnification, and
rights to be paid by the Corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this Section 501 with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation, or to any directors or officers of the Corporation
to the extent such rights are permitted by law and not available under this
Section 501.
(i) If any provision or provisions of this Section 501 shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (1)
the validity, legality and enforceability of the remaining provisions of this
Section 501 (including, without limitation, each portion of any paragraph of
this Section 501 containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this Section 501 (including, without
limitation, each such portion of any paragraph of this Section 501 containing
any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
(j) For purposes of this By-Law:
(1) "Change of Control" means
(A) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then outstanding shares of the
Corporation's Common Stock or (ii) the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote generally in
the election of directors (the "Corporation Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change of Control; (i) any acquisition directly from the
Corporation, (ii) any acquisition by the Corporation, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or (iv) any acquisition pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of paragraph (C) of this Section 501(j)(1); or
(B) Individuals who, as of August 1, 2001,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to August 1, 2001 whose election, or nomination
for election by the Corporation's stockholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(C) Consummation by the Corporation of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Corporation or the acquisition of assets
of another entity (a "Business Combination"), in each case, unless, following
such Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the outstanding common
stock and outstanding voting securities of the Corporation immediately prior to
such Business Combination beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Corporation's outstanding
common stock and outstanding voting securities, as the case may be, (ii) no
Person (excluding any employee benefit plan (or related trust) of the
Corporation or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(D) Approval by the stockholders of the
Corporation of a complete liquidation or dissolution of the Corporation.
(2) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the action or proceeding in
respect of which indemnification is sought by the claimant.
(3) "Independent Counsel" means a law firm, a member of
a law firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable standards
of professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to determine
the claimant's rights under this By-Law.
(k) Any notice, request or other communication required or
permitted to be given to the Corporation under this By-Law shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
ARTICLE VI. SHARES OF CAPITAL STOCK
Section 601. Authority to Sign Share Certificates. Every share
certificate of the Corporation shall be signed by the President or Vice
President and by the Secretary or one of the Assistant Secretaries. Certificates
may be signed by a facsimile signature of the President and the Secretary or one
of the Assistant Secretaries of the Corporation.
Section 602. Lost of Destroyed Certificates. Any person
claiming a share certificate to be lost, destroyed or wrongfully taken shall
receive a replacement certificate if such person shall have: (a) requested such
replacement certificate before the Corporation has notice that the shares have
been acquired by a bona fide purchaser; (b) provided the Corporation with an
indemnity agreement satisfactory in form and substance to the Board of
Directors, or the President or the Secretary; and (c) satisfied any other
reasonable requirements (including providing an affidavit and a surety bond)
fixed by the Board of Directors, or the President or the Secretary.
ARTICLE VII. GENERAL
Section 701. Corporate Seal. The seal of the corporation shall
be circular in form and shall contain the name of the Corporation, the year
"1946" and the words "Corporate Seal, New York."
Section 702. Fiscal Year. The fiscal year of the Corporation
shall begin on the first (1st) day of May in each year and end on the thirtieth
(30th) day of April in each year.
Section 703. Record Date. The Board of Directors may fix any
time whatsoever not less than ten (10) nor more than sixty (60) days prior to
the date of any meeting of stockholders, or the date for the payment of any
dividend or distribution, or the date for the allotment of rights, or the date
when any change or conversion or exchange of shares will be made or will go into
effect, as a record date for the determination of the stockholders entitled to
notice of, or to vote at, any such meetings, or entitled to receive payment of
any
such dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect to any such change, conversion or exchange of
shares.
Section 704. Emergency By-Laws. In the event of any emergency
resulting from a nuclear attack or similar disaster, and during the continuance
of such emergency, the following By-Laws provisions shall be in effect,
notwithstanding any other provisions of the By-Laws:
(a) A meeting of the Board of Directors or of any Committee
thereof may be called by any Officer or director upon one (1) hour's notice to
all persons entitled to notice whom, in the sole judgment of the notifier, it is
feasible to notify;
(b) The director or directors in attendance at the meeting of
the Board of Directors or of any Committee thereof shall constitute a quorum;
and
(c) These By-Laws may be amended or repealed, in whole or in
part, by a majority vote of the directors attending any meeting of the Board of
Directors, provided such amendment or repeal shall only be effective for the
duration of such emergency.
Section 705. Severability. If any provision of these By-Laws
is illegal or unenforceable as such, such illegality or unenforceability shall
not affect any other provision of these By-Laws and such other provisions shall
continue in full force and effect.
ARTICLE VIII. AMENDMENT OR REPEAL.
Section 801. Amendments. These By-Laws may be altered or
amended or repealed by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, at any annual meeting of the
stockholders or at any special meeting of the stockholders if notice of the
proposed alteration or amendment or repeal be contained in the notice of such
special meeting, or by the affirmative vote of a majority of the Board of
Directors at any regular meeting of the Board of Directors, or at any special
meeting of the Board of Directors if notice of the proposed alteration or
amendment or repeal be contained in the notice of such special meeting.
ARTICLE IX. APPROVAL OF RESTATED AND AMENDED BY-LAWS
Section 901. Approval and Effective Date. These Amended and
Restated By-laws have been approved as the By-laws of the Corporation this 6th
day of August, 2001, and shall be effective as of said date.
/s/
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Peter Pitsiokos, Secretary