Exhibit 3(i)
CERTIFICATE OF INCORPORATION
OF
VICTOR EBNER ENTERPRISES INC.
Under Section 402 of the Business Corporation Law
The undersigned, a natural person of the age of eighteen years or over, for
the purpose of forming a corporation pursuant to the Business Corporation Law of
the State of New York, does hereby certify and set forth:
FIRST: The name of the corporation is VICTOR EBNER ENTERPRISES INC.
SECOND: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the Business
Corporation Law, provided that it is not formed to engage in any act or activity
requiring the consent or approval of any state official, department, board,
agency or other body without such consent or approval first being obtained.
For the accomplishment of the aforesaid purpose, and in furtherance
thereof, the corporation shall have and may exercise all of the powers, rights
and privileges which are now and may hereafter be conferred by the Business
Corporation Law upon corporations formed thereunder, subject to any limitations
thereof contained in the laws of the State of New York.
THIRD: The office of the corporation is in the State of New York,
County of New York.
FOURTH: The aggregate number of shares which the corporation shall have
authority to issue shall be Two Hundred (200) shares, without par value, all of
which are of the same class.
FIFTH: No holder of any of the shares of any class of the corporation
shall be entitled as of right to subscribe for, purchase, or otherwise acquire
any shares of any class of the corporation which the corporation proposes to
issue or any rights or options which the corporation proposes to grant for the
purchase of any shares, bonds, securities, or obligations of the corporation
which are convertible into or exchangeable for, or which carry rights to
subscribe for, purchase, or otherwise acquire shares of any class of the
corporation; and any and all of such shares, bonds, securities, or obligations
of the corporation, whether now or hereafter authorized or created, may be
issued, or may be reissued or transferred if the same have been reacquired and
have treasury status, and any and all of such rights and options may be granted
by the Board of Directors to such persons, firms, corporations, and associations
and for such lawful consideration and on such terms as the Board of Directors in
its discretion may determine, without first offering the same, or any portion
thereof, to any such holder. Without limiting the generality of the foregoing
stated denial of any and all preemptive rights, no holder of shares of any class
of the corporation shall have any preemptive rights in respect of the matters,
proceedings, or transactions specified in Section 622 of the Business
Corporation Law.
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SIXTH: By-laws may be adopted, amended, or repealed by the vote at a
meeting of the Board of Directors of a majority of the directors present at the
time of the vote, if a quorum is present at such time, or by such greater vote
as may be required by the Business Corporation Law, or without a meeting if all
members of the board consent in writing to the adoption of a resolution
authorizing such action.
EIGHTH: The corporation, to the fullest extent permitted by the New
York Business Corporation Law, as the same may be amended and supplemented,
shall indemnify any and all persons whom it shall have power to indemnify under
said law from and against any and all of the expenses, liabilities, or other
matters referred to in, or covered by, said law. The indemnification provided
for herein shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of shareholders or
directors, or otherwise, both as to action in his or her official capacity and
as to action in any other capacity while holding such office. The
indemnification provided for herein shall continue as to a person who has ceased
to be a director, officer, or employee, or agent of the Corporation, and shall
inure to the benefit of the heirs, executors, and administrators of such person.
IN WITNESS WHEREOF, I have subscribed this Certificate and affirm that the
statements contained herein are true under the penalties of perjury this 10th
day of November, 1998.
Karen A. Monroe, Esq.
Incorporator
Shustak Jalil & Heller
545 Madison Avenue
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Exhibit 3(ii)
VICTOR EBNER ENTERPRISES, INC.
____________________________
BYLAWS
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ARTICLE I
The Corporation
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Section 1.01. Name. The legal name of this corporation (hereinafter
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called the "Corporation") is Victor Ebner Enterprises Inc.
Section 1.02. Offices. The Corporation shall have its principal
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office in the City of New York, County of New York, State of New York. The
Corporation may also have offices at such other places within and without the
State of New York as the Board of Directors may from time to time appoint or as
the business of the Corporation may require.
Section 1.03. Seal. The corporate seal shall have inscribed thereon
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the name of the Corporation, the year of its organization and the words
"Corporate Seal, New York." One or more duplicate dies for impressing such seal
may be kept and used.
ARTICLE II
Meetings of Shareholders
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Section 2.01. Place of Meetings. All meetings of the shareholders
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shall be held at the principal office of the Corporation in the State of New
York, or at such other place, within or without the State of New York, as may be
fixed in the notice of the meeting.
Section 2.02. Annual Meeting. An annual meeting of the shareholders
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of the Corporation for the election of directors and the transaction of such
other business as may properly come before the meeting shall be held at a date
and time fixed by the Board of Directors of the Corporation or at such other
time as may be fixed in the notice of the meeting. If for any reason any annual
meeting shall not be held at the time herein specified, the same may be held at
any time thereafter upon notice, as herein provided, or the business thereof may
be transacted at any special meeting called for the purpose.
Section 2.03. Special Meetings. Special meetings of shareholders may
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be called by the President whenever he deems it necessary or advisable, and
shall be called by the President or the Secretary upon the written request of a
majority of the entire Board of Directors or of the holders of one-third of the
number of outstanding shares of the Corporation entitled to vote at such
meeting.
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Section 2.04. Notice of Meetings. Written notice of all meetings
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stating the place, date and hour of the meeting shall be given personally or by
first class mail to each shareholder entitled to vote at such meeting, not less
than ten nor more than sixty days before the date of the meeting. Notice of
each special meeting shall state the purpose or purposes for which the meeting
is called and shall indicate that it is being called by or at the direction of
the person or persons calling the meeting. If, at any meeting, action is
proposed to be taken which would, if taken, entitle shareholders fulfilling the
requirements of Section 623 of the New York Business Corporation Law to receive
payment for their shares, the notice of such meeting shall include a statement
of that purpose and to that effect and shall be accompanied by a copy of Section
623 or an outline of its material tens. If mailed, a notice of meeting shall be
deemed given when deposited in the United States mail, with postage prepaid,
directed to the shareholder at his address as it appears on the record of
shareholders, or at such other address for mailing of notices as any shareholder
may in writing file with the Secretary of the Corporation. Notice of a meeting
need not be given to any shareholder who submits a signed waiver of notice
before or after the meeting. The attendance of a shareholder at a meeting
without protesting prior to its conclusion the lack of notice of such meeting
shall constitute a waiver of notice by him.
Section 2.05. Record Date for Shareholders. For the purpose of
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determining the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to or dissent
from any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of any
rights or for the purpose of any other action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed, 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, the day on which the meeting is held; the
record date for determining shareholders entitled to express consent to or
dissent from any proposal without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
or dissent, as the case may be, is expressed; and the record date for
determining shareholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to
vote at any meeting of share-holders 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 2.06. Proxy Representation. Every shareholder may authorize
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another person or persons to act for him by proxy in all matters in which a
shareholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the shareholder or by his
attorney-in-fact. No proxy shall be valid after the expiration of eleven months
from the date thereof unless such proxy provides for a longer period. Every
proxy shall be revocable at the pleasure of the shareholder executing it, except
as may be otherwise provided by law.
Section 2.07. Voting at Shareholders' Meetings. Each outstanding
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share of stock having voting power shall be entitled to one vote on each matter
submitted to a vote at a meeting of shareholders. Directors shall be elected by
the vote of the holders of a plurality of the shares present at a meeting and
entitled to vote in the election. Unless otherwise provided by statute, any
other corporate action shall be authorized by the vote of the holders of a
majority of the shares present at a meeting of shareholders and entitled to vote
thereon. Voting need not be by ballot.
Section 2.08. Quorum and Adjournment. Unless otherwise provided by
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statute, the holders of a majority of the shares of the Corporation shall
constitute a quorum for the transaction of any business. When a quorum is once
present to organize a meeting, it shall not be broken by the subsequent
withdrawal of any shareholders. If a quorum is not present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or rep-resented, any business may be transacted which might have been
transacted at the meeting as originally notified.
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Section 2.09. List of Shareholders. The officer who has charge of
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the record of shareholders of the Corporation shall prepare, make and certify,
at least ten days before every meeting of shareholders, a complete list of the
shareholders, as of the record date fixed for such meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in each shareholder's name. Such list shall be open to the
examination of any shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
at the principal office of the Corporation or at a place within the city,
municipality or community where the meeting is to be held, and shall be
available for the examination of any shareholder at the place and during the
time of the meeting. If the right of any shareholder to vote at any meeting is
challenged, the inspectors of election, if any, or the person presiding, shall
require such list of shareholders to be produced as evidence of the right of the
persons challenged to vote, and all persons who appear from such list to be
shareholders entitled to vote thereat may vote at such meeting.
Section 2.10. Action of the Shareholders Without Meeting. Whenever
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shareholders are required or permitted to take any action by vote, such action
may be taken without a meeting on written consent, setting forth the action so
taken, signed by the holders of all of the outstanding shares entitled to vote
thereon.
ARTICLE III
Directors
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Section 3.01. Number of Directors. The board of directors shall
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consist of one or more members. The number of directors may be fixed from time
to time by action of a majority of the entire Board of Directors or of the
shareholders at an annual or special meeting. The initial Board of Directors
elected by the incorporator shall consist of five (5) persons. No decrease in
the number of directors shall shorten the term of any incumbent director.
Section 3.02. Election and Term. The initial Board of Directors
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shall be elected by the incorporator and the initial director or directors so
elected shall hold office until the first annual meeting of shareholders and
until their respective successors have been elected and qualified. Thereafter,
each director who is elected at an annual meeting of shareholders, and each
director who is elected in the interim to fill a vacancy or a newly created
directorship, shall hold office until the next annual meeting of shareholders
and until his successor has been elected and qualified.
Section 3.03. Filling Vacancies, Resignation and Removal. Any
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director may be removed, with or without cause, by vote of the shareholders. In
the interim between annual meetings of shareholders or special meetings of
shareholders called for the election or removal of one or more directors, newly
created directorships and any vacancies in the Board of Directors, in-cluding
vacancies resulting from the resignation or removal of directors, may be filled
by the vote of a majority of the remaining directors then in office, although
less than a quorum, or by the sole remaining director.
Section 3.04. Qualifications and Powers. Each director shall be at
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least eighteen years of age. A director need not be a shareholder, a citizen of
the United States or a resident of the State of New York. The business of the
Corporation shall be managed under the direction of its Board of Directors,
subject to the provisions of the certificate of incorporation. In addition to
the powers and authorities expressly conferred upon it by these bylaws, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the certificate of incorporation or
by these bylaws directed or required to be exercised or done exclusively by the
shareholders.
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Section 3.05. Regular and Special Meetings of the Board. The Board
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of Directors may hold its meetings, regular or special, within or without the
State of New York. The annual meeting of the Board of Directors shall be held
immediately after, and at the same place as, the annual meeting of shareholders.
No notice shall be required for regular meetings of the Board of Directors for
which the time and place have been fixed. Special meetings of the Board may be
called by or at the direction of the President, any Vice President, the
Secretary or a majority of the directors in office, upon reasonable notice
(which shall not be required to be more than three days) to each director,
delivered personally, or mailed to each director at his residence or usual place
of business. Meet-ings of the Board, regular or special, may be held at any
time and place, and for any purpose, without notice, when all the directors are
present or when all directors not present, before or after such meeting, in
writing waive notice of the holding of such meeting. Any requirement of
furnishing a notice shall be waived by any director who attends any meeting of
the Board without protesting, prior thereto or at its commencement, the lack of
notice to him.
Section 3.06. Quorum and Action. A majority of the entire Board of
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Directors shall constitute a quorum except that when the entire Board consists
of two directors or less, one director shall constitute a quorum, and except
that when a vacancy or vacancies prevents such majority, a majority of the
directors in office shall constitute a quorum, provided, that such majority
shall constitute at least one-third of the entire Board. A majority of the
directors present, whether or not they constitute a quorum, may adjourn a
meeting to another time and place. Except as may be otherwise provided by these
bylaws or by the New York Business Corporation Law, the vote of the majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board.
Section 3.07. Telephonic Meetings. Any member or mem-bers of the
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Board of Directors, or of any committee designated by the Board, may participate
in a meeting of the Board, or any such committee, as the case may be, by means
of conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
Section 3.08. Action Without a Meeting. Any action required or
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permitted to be taken by the Board of Directors, or any committee thereof, may
be taken without a meeting if all members of the Board or committee, as the case
may be, consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the members of the
Board or committee shall be filed with the minutes of proceedings of the Board
or committee.
Section 3.09. Compensation of Directors. By resolution of the Board
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of Directors, the Directors may be paid their expenses, if any, for attendance
at each regular or special meeting of the Board or of any committee designated
by the Board and may be paid a fixed sum for attendance at such meeting, or a
stated salary as director, or. both. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
Committees
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Section 4.01. In General. The Board of Directors may, by resolution
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or resolutions passed by the affirmative vote of a majority of the entire Board,
designate an Executive Committee and such other committees as the Board may from
time to time determine, each to consist of three or more directors, and each of
which, to the extent provided in the resolution or in the certificate of
incorporation or in the bylaws, shall have all the powers of the Board, except
that no such committee shall have power to fill vacancies in the Board, or to
change the membership of or to fill vacancies in any committee, or to make,
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amend, repeal or adept bylaws of the Corporation, or to submit to the
shareholders any action that needs shareholder approval under these bylaws or
the New York Business Corporation Law, or to fix the compensation of the
directors for serving on the Board or any committee thereof, or to amend or
repeal any resolution of the Board which by its terms shall not be so amendable
or repealable. Each committee shall serve at the pleasure of the Board. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
ARTICLE V
Officers
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Section 5.01. Designation, Term, Removal and Vacancies. The officers
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of the Corporation shall be a President, a Secretary, and such other officers as
the Board of Directors may from time to time deem necessary. Such officers may
have and perform the powers and duties usually pertaining to their respective
offices, the powers and duties respectively prescribed by law and by these
bylaws, and such additional powers and duties as may from time to time be
prescribed by the Board. The same person may hold any two or more offices.
When all the issued and outstanding stock of the Corporation is owned by one
person, such person may hold all or any combination of offices.
The initial officers of the Corporation shall be appointed by the
initial Board of Directors. Thereafter, the officers of the Corporation shall
be appointed by the Board as soon as practicable after the election of the Board
at the annual meeting of shareholders, and shall hold office until the regular
annual meeting of the Board of Directors following their appoint-ment and until
their successors have been appointed and qualified; provided, however, that the
Board of Directors may remove any officer at any time, with or without cause.
Vacancies occurring among the officers of the Corporation shall be filled by the
Board of Directors. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
Section 5.02. President. The President shall preside at all meetings
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of the shareholders and at all meetings of the Board of Directors at which he
may be present. Subject to the direction of the Board of Directors, he shall be
the chief executive officer of the Corporation, and shall have general charge of
the entire business of the Corporation. He may sign certificates of stock and
sign and seal bonds, debentures, contracts or other obligations authorized by
the Board, and may, without previous authority of -the Board, make such
contracts as the ordinary conduct of the Corporation's business requires. He
shall have the usual powers and duties vested in the president of a corporation.
He shall have power to select, appoint and remove all necessary officers and
employees of the Corporation, except those selected by the Board of Directors,
and make new appointments to fill vacancies. He may delegate any of his powers
to a Vice President of the Corporation.
Section 5.03. Vice President. The Vice President or, if there be
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more than one, each Vice President, shall have such of the President's powers
and duties as the President may from time to time delegate to him, and shall
have such other powers and perform such other duties as may be assigned to him
by the Board of Directors. During the absence or incapacity of the President,
the Vice President, or, if there be more than one, the Vice President designated
by the Board of Directors, shall perform the duties of the President, and when
so acting shall have all the powers and be subject to all the responsibilities
of the office of President.
Section 5.04. Treasurer. The Treasurer shall have custody of such
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funds and securities of the Corporation as may come to his hands or be committed
to his care by the Board of Directors. Whenever necessary or proper, he shall
endorse on behalf of the Corporation, for collection, checks, notes, or other
obligations, and shall deposit the same to the credit of the Corporation in such
bank or banks or depositaries, approved by the Board of Directors, as the Board
of Directors or President may designate. He may sign receipts or vouchers for
payments made to the Corporation, and the Board of Directors may require that
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such receipts or vouchers shall also be signed by some other officer to be
designated by them. Whenever required by the Board of Directors, he shall
render a statement of his cash accounts and such other statements respecting the
affairs of the Corporation as may be required. He shall keep proper and
accurate books of account. He shall perform all acts incident to the office of
Treasurer, subject to the control of the Board.
Section 5.05. Secretary. The Secretary shall have custody of the
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seal of the Corporation and when required by the Board of Directors, or when any
instrument shall have been signed by the President or by any other officer duly
authorized to sign the same, or when necessary to attest any proceedings of the
shareholders or directors, shall affix it to any instrument requiring the same
and shall attest the same with his signature, provided that the seal may be
affixed by the President or any Vice President or other officer of the
Corporation to any document ex-ecuted by either of them respectively on behalf
of the Corporation which does not require the attestation of the Secretary. He
shall attend to the giving and serving of notices of meetings. He shall have
charge of such books and papers as properly belong to his office or as may be
committed to his care by the Board of Directors. He shall perform such other
duties as appertain to his office or as may be required by the Board of
Directors.
Section 5.06. Delegation. In case of the absence of any officer of
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the Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board may temporarily delegate the powers or duties, or any of
them, of such officer to any other officer or to any director.
ARTICLE VI
Shares
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Section 6.01. Certificates Representing Shares. All certificates
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representing shares of the Corporation shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, shall bear the seal of the Corporation and shall not
be valid unless so signed and sealed. Certificates countersigned by a duly
appointed transfer agent or registered by a duly appointed registrar shall be
deemed to be so signed and sealed whether the signatures be manual or facsimile
signatures and whether the seal be a facsimile seal or any other form of seal.
All certificates shall be consecutively numbered and the name of the person
owning the shares represented thereby, his residence, with the number of such
shares and the date of issue, shall be entered on the Corporation's books. All
certificates surrendered shall be canceled and no new certificates issued until
the former certificates for the same number of shares shall have been
surrendered and canceled, except as provided for herein.
In case any officer who signed or whose facsimile sig-nature was
affixed to any certificate shall have ceased to be such officer before such
certificate is issued, it nevertheless may be issued by the Corporation as if he
were such officer at the date of its issuance.
When the Corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the Corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designation, relative rights, preferences, and limitations of the shares of each
class authorized to be issued and, if the Corporation is authorized to issue any
class of preferred shares in series, the designation, relative rights,
preferences and limitations of each such series so far as the same have been
fixed and the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of other series.
Any restrictions on the transfer or registration of transfer of any
shares of any class or series shall be noted conspicuously on the certificate
representing such shares.
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Section 6.02. Addresses of Shareholders. Every shareholder shall
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furnish the Corporation with an address to which notices of meetings and all
other notices may be served upon mailed to him, and in default thereof notices
may be addressed to him at his last known post office address.
Section 6.03. Stolen, Lost or Destroyed Certificates. The Board of
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Directors may in its sole discretion direct that a new certificate for shares be
issued in place of any certificate for shares issued by the Corporation alleged
to have been stolen, lost or destroyed. When authorizing such issuance of a new
certificate, the Board of Directors may, in its discretion, and as a condition
precedent thereto, require the owner of such stolen, lost or destroyed
certificate or his legal representatives to give the Corporation a bond in such
sum as the Corporation may direct not exceeding double the value of the shares
represented by the certificate alleged to have been stolen, lost or destroyed.
Section 6.04. Transfers of Shares. Upon compliance with all
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provisions restricting the transferability of shares, if any, transfers of
shares shall be made only upon the books of the Corporation by the holder in
person or by his attorney thereunto authorized by power of attorney duly filed
with the Secretary of the Corporation or with a transfer agent or registrar, if
any, and upon the surrender and cancellation of the certificate or certificates
for such shares properly endorsed and the payment of all taxes due thereon. The
Board of Directors may appoint one or more suitable banks or trust companies as
transfer agents or registrars of transfers, for facilitating transfers of any
class or series of shares of the Corporation by the holders thereof under such
regulations as the Board of Directors may from time to time prescribe. Upon
such appointment being made, all certificates of shares of such class or series
thereafter issued shall be countersigned by one of such transfer agents or one
of such registrars of transfers, and shall not be valid unless so countersigned.
ARTICLE VII
Dividends and Finance
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Section 7.01. Dividends. The Board of Directors shall have power to
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fix and determine and to vary, from time to time, the amount of the working
capital of the Corporation before declaring any dividends among its
shareholders, to determine the date or dates for the declaration and payment of
dividends and the amount of any dividend, and the amount of any reserves
necessary in their judgment before declaring any dividends among its
shareholders, and to determine the amount of surplus of the Corporation from
time to time available for dividends.
Section 7.02. Fiscal Year. The fiscal year of the Corporation shall
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end on the last day of December in each year and shall begin on the next
succeeding day, or shall be for such other period as the Board of Directors may
from time to time designate.
ARTICLE VIII
Indemnification
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Section 8.01. To the extent permitted by law:
(a) the Corporation shall indemnify any person made, or threatened to
be made, a party to an action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against amounts paid in settlement
and reasonable expenses including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
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employee benefit plan or other enterprise, not opposed to, the best interests of
the Corporation, except that no indemnification under this paragraph shall be
made in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim issue or matter as to which such
person has been adjudged to be liable to the Corporation, unless and only to the
extent that the Court on which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement
(b) the Corporation shall indemnify any person made or threatened to
be made a party to an action or proceeding other than one by or in the right of
the Corporation to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the
Corporation served in any capacity at the request of the Corporation, by reason
of the fact that he, his testator or intestate, was a director or officer of the
Corporation or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys'
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, if such director or officer acted in good faith, for a
purpose which he reasonably believed to be in, or, in the case of service for
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interests of the Corporation
and in criminal actions or proceedings, in addition, had no reasonable cause to
believe that his conduct was unlawful; and
(c) in the discretion of and to the extent authorized by the Board of
Directors, the Corporation may indemnify any employee of the Corporation or his
personal representatives under circumstances similar to those hereinabove set
forth.
ARTICLE IX
Miscellaneous Provisions
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Section 9.0 1. Shares of Other Corporations. The Board of Directors
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shall have the right to authorize any director, officer or other person on
behalf of the Corporation to attend, act and vote at meetings of the
shareholders of any corporation in which the Corporation shall hold shares, and
to exercise thereat any and all rights and powers incident to the ownership of
such shares, and to execute waivers of notice of such meetings and calls
therefor; and authority may be given to exercise the same either on one or more
designated occasions, or generally on all occasions until revoked by the Board.
In the event that the Board shall fail to give such authority, such authority
may be exercised by the President in person or by proxy appointed by him on
behalf of the Corporation.
Any shares or other securities owned by this Corporation may, if so
determined by the Board of Directors, be registered either in the name of this
Corporation or in the name of any nominee or nominees appointed for that purpose
by the Board of Directors.
Section 9.02. Books and Records. Subject to the New York Business
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Corporation Law, the Corporation may keep its books and accounts outside the
State of New York.
Section 9.03. Notices. Whenever any notice is required by these
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bylaws to be given, personal notice is required only if it is expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in a post office box in a sealed post-paid wrapper,
addressed to the person entitled thereto at his last known post office address,
and such notice shall be deemed to have been given on the day of such mailing.
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Any person may waive the right to receive any notice by signing a
written waiver thereof.
Section 9.04. Amendment. Except as otherwise provided herein, these
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bylaws may be altered, amended or repealed and bylaws may be adopted by the
shareholders or by the Board of Directors but any bylaw adopted by the Board of
Directors may be amended or repealed by the shareholders entitled to vote
thereon.
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