Exhibit (3)(ii)
PALL CORPORATION
BY-LAWS
(AS AMENDED THROUGH NOVEMBER 14, 2006)
ARTICLE I
OFFICES
SECTION 1.01 OFFICES. The principal office of the corporation
shall be as stated in the certificate of incorporation. The corporation may also
have offices and places of business at such other places within and without the
State of New York as the board of directors may from time to time determine.
ARTICLE II
SHAREHOLDERS
SECTION 2.01 ANNUAL MEETING. The annual meeting of the
shareholders for the election of directors (and the transaction of such other
business as may properly come before it) shall be held on such date within six
months after the end of each fiscal year of the corporation, and at such time
and place within the State of New York, as are fixed by resolution of the board
of directors and stated in the notice of meeting.
SECTION 2.02 SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose or purposes may be called by the president (or, in
case of the absence or disability of the president, by any vice president) and
must be called by him on the written request of a majority of the directors in
office or of the holders of 50% of the shares then outstanding and entitled to
vote. Such request shall state the date and hour, the place within the City of
Glen Cove or the City of New York, and the purpose or purposes of the meeting,
and must be delivered or mailed to the president or such vice president not
later than fifteen days prior to the proposed date of the meeting.
SECTION 2.03 NOTICE OF MEETINGS. Written or printed notice of
each meeting of shareholders, stating the purpose or purposes for which the
meeting is called and the date and hour when and the place within the State of
New York where it is to be held, shall be signed by the president or a vice
president, or by the secretary or an assistant secretary, and a copy thereof
shall be mailed to each shareholder of record entitled to vote at such meeting
not less than ten nor more than forty days before the meeting, directed to his
or her address as it appears on the books of the corporation, but if a
shareholder shall have requested that notice be sent to another address in a
writing previously filed with the secretary, then to such address. Except as
required by statute, notice of any adjourned meeting shall not be required.
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SECTION 2.04 QUORUM. At any meeting of the shareholders, the
holders of a majority of the shares entitled to vote then issued and
outstanding, present in person or represented by proxy, shall constitute a
quorum except as otherwise provided by law or by the certificate of
incorporation. A lesser interest may adjourn any meeting from time to time, and
the meeting may be held as adjourned without further notice. When a quorum is
present or represented at any meeting, a majority of the stock represented
thereat shall, except where a larger vote is required by law, by the certificate
of incorporation or by these by-laws, decide any question brought before such
meeting.
SECTION 2.05 PROXIES AND VOTING. Each shareholder of record
shall be entitled to one vote for each share of stock registered in the name of
such shareholder on the books of the corporation, and such votes may be cast
either in person or by proxy. Except as otherwise expressly provided herein,
proxies and voting shall be governed by the provisions of the New York Business
Corporation Law to the extent not inconsistent with any provisions of federal
law which preempt state law or the requirements of any national securities
exchange on which the corporation's common stock is listed.
SECTION 2.06 INSPECTORS OF ELECTION. Elections of directors
shall be conducted by two inspectors of election, neither of whom shall be a
candidate for the office of director, appointed either by the chief executive
officer or, if he fails to appoint, by a per capita vote of the shareholders
personally present at the election. The inspectors, before entering on the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspectors with strict impartiality and according to the best of their ability,
and shall execute a written certificate of the results of the election.
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SECTION 2.07 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF SHAREHOLDERS.
(i) Nominations of persons for election to the board
of directors and the proposal of business to be considered by shareholders may
be made at an annual meeting of shareholders (A) pursuant to the corporation's
notice of the meeting; (B) by or at the direction of the board of directors; or
(C) by any shareholder of the corporation who (1) was a shareholder of record at
the time of giving of notice provided for in this Section and at the time of the
annual meeting; (2) is entitled to vote at the meeting; and (3) complies with
the procedures set forth herein.
(ii) For nominations or other business to be
properly brought before an annual meeting by a shareholder pursuant to
subsection (a)(i)(C) of this Section, the shareholder 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 shareholder action. To be timely,
a shareholder's notice shall be received by the secretary of the corporation at
the principal executive offices of the corporation not earlier than the close of
business on the 120th day and not later than the close of business on the 90th
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that if no annual meeting was held in the preceding year or
if the date of the applicable annual meeting has been changed by more than 30
days from the date of the preceding year's annual meeting, notice by the
shareholder to be timely must be received by the secretary of the corporation
not later than the close of business on the later of the 90th day prior to such
annual meeting and the 10th day following the day on which notice of the annual
meeting was mailed or a public announcement of the date of such meeting was
first made by the corporation. To be in proper form, a shareholder's notice to
the secretary of the corporation must:
(A) set forth, as to the shareholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination
or proposal is made (1) the name and address of such shareholder as it
appears on the books and records of the corporation and of such
beneficial owner; (2) the number of shares of common stock of the
corporation that are owned beneficially and of record as of the date of
such notice by such shareholder and such beneficial owner (which
information shall be supplemented by such shareholder, as of the record
date for such meeting, by notice received by the secretary of the
corporation not later than 10 days after such record date); and (3) any
other information relating to such shareholder and beneficial owner
that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with solicitations of proxies
for, as applicable, the proposal and / or the election of directors in
a contested election pursuant to Section 14 of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (the "Exchange
Act"));
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(B) if the notice relates to any business that the
shareholder proposes to bring before the meeting, other than the
nomination of a director, set forth (1) a brief description of such
business, including the text of any proposal or resolutions to be
proposed for consideration by shareholders and, if such business
includes a proposal to amend these by-laws, the text of the proposed
amendment, the reasons for conducting such business at the meeting and
any material interest of such shareholder or beneficial owner in such
business; and (2) a description of all agreements or other arrangements
between such shareholder and / or beneficial owner and any other person
or persons (including the names of such person(s)) in connection with
such business or the proposal thereof;
(C) set forth, as to each person whom the
shareholder proposes to nominate for election or reelection as a
director all information relating to such person as may be specified
from time to time in any policy of the Company relating to the
nomination (or recommendation for nomination) of directors.
(iii) Notwithstanding anything in the second
sentence of subsection (a)(ii) of this Section to the contrary, in the event
that 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 100 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by these
by-laws shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be received by the
secretary of the corporation 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 first made by the corporation.
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(b) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall
be conducted at a special meeting of shareholders 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 shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (i) by or at the direction of the board of
directors; or (ii) provided that the board of directors has determined that
directors shall be elected at such meeting, by any shareholder who (A) is a
shareholder of record at the time of giving of notice provided for in this
Section and at the time of the special meeting; (B) is entitled to vote at the
meeting; and (C) complies with the notice procedures set forth in this Section.
If the corporation calls a special meeting of shareholders for the purpose of
electing one or more directors to the board of directors, any shareholder may
nominate a person or persons for election to such position(s) as may be
specified in the corporation's notice of such special meeting, if the
shareholder's notice required by this Section shall be received by the secretary
of the corporation at the principal executive offices of the corporation not
later than the close of business on the later of the 90th day prior to such
special meeting and the 10th day following the day on which public announcement
is first made of the date of the special meeting.
(c) GENERAL.
(i) Only persons nominated in accordance with these
by-laws shall be eligible to serve as directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with this Section. Except as otherwise provided by law,
the certificate of incorporation or these by-laws, the chairman of any annual or
special meeting shall determine all matters relating to the conduct of the
meeting and any item of business or nomination determined not to be properly
brought before the meeting shall not be transacted or shall be disregarded.
(ii) If the shareholder (or a qualified
representative of the shareholder) does not appear at the applicable annual or
special meeting to present an item of business or nomination, such item of
business shall not be transacted at such meeting, and such nomination shall be
disregarded, notwithstanding that proxies in respect of such vote may have been
received by the corporation. To be considered a qualified representative of the
shareholder, a person must be authorized by a writing executed by such
shareholder or an electronic transmission delivered by such shareholder to act
for such shareholder as proxy at the meeting and such person must produce such
writing or electronic transmission, or a reliable reproduction thereof, at the
meeting.
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(iii) In no event shall any notice or public
announcement of an adjournment or postponement of an annual or special meeting
commence a new time period (or extend any time period) for the giving of a
shareholder's notice as provided in this Section.
(iv) Notwithstanding the foregoing provisions of
these by-laws, a shareholder 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 herein shall be deemed to affect any
right of shareholders to request inclusion of proposals in the corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01 NUMBER AND QUALIFICATIONS. Effective November 14,
2006, and until further action by the board of directors as hereinafter in this
paragraph authorized, the number of directors of the corporation shall be
eleven. The board of directors is hereby authorized to increase or decrease the
number of directors at any time and from time to time by amendment of these
by-laws, subject to the maximum and minimum number of directors specified in the
certificate of incorporation. Each director shall be at least 18 years of age;
directors need not be shareholders. An amendment of the by-laws to change the
number of directors requires the vote of a majority of the entire board. As used
in this paragraph, "entire board" means the total number of directors the
corporation would have if there were no vacancies. No decrease in the number of
directors shall shorten the term of any incumbent director. If the number of
directors is increased, the additional directors may be elected by a majority of
the directors in office at the time of the increase, or if not so elected prior
to the next annual meeting of the shareholders, they shall be elected thereat by
the shareholders. So long as the board of directors is classified, any increase
or decrease in the number of directors and any election of directors by the
board pursuant to this paragraph shall comply with the provisions of Section
3.06 hereof.
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SECTION 3.02 POWERS. The business of the corporation shall be
managed under the direction of the board of directors, which shall have and may
exercise all of the powers of the corporation except such as are expressly
conferred upon the shareholders by law, by the certificate of incorporation or
by these by-laws.
SECTION 3.03 REGULAR MEETINGS. Regular meetings of the board
of directors may be held without call or formal notice at such places either
within or without the State of New York and at such times as the board may from
time to time by vote determine. A regular meeting of the board of directors for
the election of officers and for such other business as may come before the
meeting may be held without call or formal notice immediately after, and at the
same place as, the annual meeting of shareholders or any special meeting of
shareholders at which a board of directors is elected.
SECTION 3.04 SPECIAL MEETINGS. Special meetings of the board
of directors may be held at any place either within or without the State of New
York at any time when called by the chief executive officer or secretary or a
majority of the directors, written notice of the time and place thereof having
been given to each director as follows: (a) by delivering a copy of such notice
to the director personally no later than the second day preceding the date of
the meeting, or (b) by sending a copy of such notice addressed to the director
at his or her mailing address as it appears on the books of the corporation,
such notice to be sent no less than ten days before the date of the meeting if
sent by ordinary mail or no later than the third business day before the date of
the meeting if sent by overnight mail or by a courier service (such as Federal
Express) which guarantees next day delivery, or (c) by transmitting such notice
to the director by telecopier or e-mail (to a telecopier number or e-mail
address which has been furnished by him or her to the secretary of the
corporation) no later than the second business day preceding the date of the
meeting.
SECTION 3.05 QUORUM. A majority of the entire board shall
constitute a quorum of the board of directors for the transaction of any
business but a lesser number may adjourn any meeting. As used in the preceding
sentence, "entire board" means the total number of directors which the
corporation would have if there were no vacancies. A quorum of any committee
shall be a majority of the members thereof except that any committee may, by
unanimous action, determine that a lesser number of members (not less than half)
shall constitute a quorum. A majority of the members in attendance at any
meeting shall, except where a larger number is required by law, by the
certificate of incorporation or by these by-laws, decide any question brought
before such meeting.
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SECTION 3.06 CLASSIFICATION OF DIRECTORS. Upon election of
directors at the annual meeting of shareholders in 1971, the board of directors
shall be divided into three classes, as nearly equal in number as possible, and
no class shall include less than three directors. The terms of office of the
directors initially classified shall be as follows: that of the first class
shall expire at the next annual meeting of shareholders in 1972, the second
class at the annual meeting next following July 31, 1973 and the third class at
the annual meeting next following July 31, 1974. At each annual meeting after
such initial classification and election in 1971, directors to replace those
whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting after their election. If after the initial
classification of directors the number of directors is changed:
(a) Any newly created directorships or any decrease in
directorships shall be so apportioned among the classes as to make all
classes as nearly equal in number as possible; and
(b) When the number of directors is increased by the board and
any newly created directorships are filled by the board, there shall be
no classification of the additional directors until the next annual
meeting of shareholders.
SECTION 3.07 ACTION BY THE BOARD WITHOUT A MEETING. Any action
required or permitted to be taken by the board or any committee thereof may be
taken without a meeting if all members of the board or the committee 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 the proceedings of the board or committee.
SECTION 3.08 PARTICIPATION IN MEETINGS BY TELEPHONE. Any one
or more members of the board or any committee thereof may participate in a
meeting of such board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting but the board may, by resolution, provide that
directors participating in a meeting other than by being present in person shall
receive lesser compensation than directors present at the meeting in person.
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SECTION 3.09 BOARD COMMITTEES. There may be an Audit
Committee, a Compensation Committee, a Nominating/Governance Committee and an
Executive Committee, each consisting of not less than three directors appointed
by the board, each of which Committees may meet from time to time on notice to
all members thereof by any member thereof. Such Committees shall keep regular
minutes of their proceedings and report the same to the board.
(a) AUDIT COMMITTEE. The Audit Committee shall have such
powers and perform such functions as are customarily performed by audit
committees of publicly owned corporations including but not limited to such
powers and functions as may be prescribed by applicable rules or requirements of
the Securities and Exchange Commission or other governmental regulatory body or
of any stock exchange on which securities of the corporation are listed. Without
limiting the generality of the preceding sentence, the Audit Committee shall
have supervisory authority over the corporation's Compliance and Ethics Program
including the right to require periodic reports from the officer in charge of
that Program and to make recommendations to the board and/or the chief executive
officer with respect to such Program.
(b) COMPENSATION COMMITTEE. The Compensation Committee shall
have the power and duty to fix the compensation of the Elected Officers (as
defined in Section 4.01(a) (i) hereof) and to authorize and approve the making
of employment contracts between the corporation and its Elected Officers and
shall have such other powers and duties as may be assigned to it by resolution
of the board of directors. Effective November 21, 1995, the Compensation
Committee shall also have, with respect to each Stock Option Plan of the
corporation, the powers and duties which, by the terms of such Plan, are
delegated to and imposed upon the Committee administering such Plan,
irrespective of whether the Plan denominates such Committee as the Stock Option
Committee or the Compensation Committee. In addition, any Management Employee
Benefit Plan (as hereinafter defined) which would otherwise require board of
director approval ("otherwise" meaning by virtue of a legal requirement imposed
by or arising from any source other than these by-laws) shall be within the
jurisdiction of the Compensation Committee; the adoption, amendment or
termination of any such plan shall require the approval of the Compensation
Committee and, except as limited by Business Corporation Law ss. 712 or any
other statutory or regulatory provision, action by the Compensation Committee
shall be deemed action by the board of directors for all purposes. As used
herein, the term "Management Employee Benefit Plan" shall mean any employee
benefit plan or arrangement as to which Elected Officers and Operating Committee
Members (as those terms are defined in Section 4.01 (a)(i) and (ii))
collectively constitute 15% or more of those eligible to participate in or under
such plan or arrangement.
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(c) NOMINATING/GOVERNANCE COMMITTEE. The Nominating/Governance
Committee shall have the power and duty to develop policy on the size and
composition of the board of directors and criteria for director nomination, to
establish procedures for the nomination process, to identify and recommend
candidates for election to the board of directors, and to evaluate participation
and contribution of current board members. The Committee shall also have the
power and duty to study and make recommendations to the board and/or management
with respect to corporate governance issues, including (i) the organization,
practices and performance of the board and its committees, including the board
meeting schedule, its agenda and the information furnished to the board, and
(ii) the performance of directors in both their board and any executive capacity
with the company, as well as the corporation's executive resources and
management development and succession plans. The Committee shall also have the
authority to identify, evaluate and monitor significant public policy issues, to
review the corporation's policies and practices with respect to such issues to
ensure that they are consistent with its social responsibility and to recommend
to the full board policies and strategies concerning such issues. The Committee
shall report to the board periodically on its work and its recommendations to
the board and management arising therefrom. The Committee shall also have such
other powers and duties as shall be assigned to it by resolution of the board
from time to time.
(d) EXECUTIVE COMMITTEE. The executive committee may consult
with and advise the officers of the corporation in the management of its
business and, when the board of directors is not in session, shall have all the
authority of the board, except with respect to those matters as to which Section
712 of the Business Corporation Law withholds authority from any committee of
the board. It may meet from time to time on notice to all by any one of their
own number.
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ARTICLE IV
OFFICERS
SECTION 4.01 (a) CORPORATE OFFICERS AND OPERATING COMMITTEE.
(i) The officers of the corporation shall (I) be a chairman, a president, a
chief operating officer, one or more group vice presidents, a secretary and a
treasurer and (II) may also include one or more executive vice presidents. The
officers hereinabove in this paragraph referred to (x) shall be elected annually
by the board of directors at the regular meeting of the board of directors held
immediately after the annual meeting of shareholders and (y) are referred to in
these by-laws as the "Elected Officers".
(ii) There may be an Operating Committee of the
corporation consisting of such officers (including Elected Officers) or other
employees of the corporation or any subsidiary as are designated by the chief
executive officer. Members of the Operating Committee shall serve on such
Committee at the pleasure of, and may be removed from such Committee at any time
by action of, the chief executive officer. The members of the Operating
Committee are referred to in these by-laws as "Operating Committee Members".
(iii) The salaries of the Elected Officers shall be
fixed by the Compensation Committee. The salaries of all other employees,
including the non-corporate officers appointed pursuant to Section 4.01 (b),
shall be fixed by the chief executive officer or by such other persons as may be
designated by the chief executive officer. In all cases where the duties of any
officer or other employee are not specifically prescribed by the by-laws or by
the board of directors, such officer or other employee shall follow the orders
and instructions of the chief executive officer or of such other persons as may
be designated by the chief executive officer.
(b). APPOINTMENT OF NON-CORPORATE VICE PRESIDENTS, ETC. In
addition to the Elected Officers, one or more employees may be appointed by the
chief executive officer as divisional or non-corporate vice presidents and as
controller and one or more persons (who may but need not be employees of the
corporation) as assistant secretaries, assistant treasurers and assistant
controllers. The chief executive officer may at his option also include as part
of the title of any such divisional or non-corporate vice president so appointed
a designation which will indicate the principal position or area of
responsibility of such appointee and/or the designation "senior vice president".
Persons so appointed in accordance with this paragraph (herein called "Appointed
Officers") shall report to, be under the supervision of and have such authority
and duties as may be specified from time to time by the chief executive officer
or by such other persons as the chief executive officer may designate. Such
appointed vice presidents, assistant secretaries, assistant treasurers and
assistant controllers shall not be or be deemed officers of the corporation.
Each such appointment shall be in writing filed with the secretary. Such
appointments shall remain in effect until terminated by the chief executive
officer.
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SECTION 4.02 CHAIRMAN. The chairman shall be the chairman of
the board of directors and the chief executive officer of the corporation. He
shall have supervision of its affairs and business subject to the direction of
the board of directors. The chairman shall preside at all meetings of the
shareholders, of the board of directors and of the executive committee unless he
shall designate another officer or director to preside at any such meeting. He
shall, unless otherwise directed by the board of directors, attend in person or
by substitute appointed by him, or shall execute on behalf of the corporation
written instructions appointing a proxy or proxies to represent the corporation
at, all meetings of the shareholders of any corporation in which the corporation
shall hold any stock and may, on behalf of the corporation, in person or by
substitute or by proxy, execute written waivers of notice and consents with
respect to any such meetings. At all such meetings and otherwise, the chairman
in person or by substitute or proxy as aforesaid, may vote the stock so held by
the corporation and may execute written consents and other instruments with
respect to such stock and may exercise any and all rights and powers incident to
the ownership of said stock, subject however to the instructions, if any, of the
board of directors. The chairman shall have custody of the treasurer's bond, if
any.
SECTION 4.03 PRESIDENT, CHIEF OPERATING OFFICER AND VICE
PRESIDENTS. The president, the chief operating officer and the vice presidents
shall assist the chairman and shall perform such duties as may be assigned to
them by the chairman or by the board of directors. If at any time the chairman
is unavailable (determined as set forth below), the president (or, if the
president is also unavailable, the chief operating officer) shall have the
powers and perform the duties of the chairman temporarily, pending and subject
to any action taken by the board of directors in response to such
unavailability. For purposes of the preceding sentence, the chairman or the
president, as the case may be, shall be deemed to be unavailable (a) if he or
she cannot be reached for a period of more than 72 hours after reasonable
efforts utilizing all available means of communication or (b) if he notifies the
secretary that he is incapacitated and expects such incapacity to continue for
not less than 15 days.
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Anything hereinabove in this Section 4.03 to the contrary
notwithstanding:
(a) If the chairman is unavailable (determined as set forth in
the preceding paragraph), the secretary, upon request by the lead or presiding
independent director (if there is then a director who has been so designated) or
by any three directors, shall call a special meeting of the board, on notice in
accordance with Section 3.04, for the purpose of considering what actions, if
any, should be taken in the light of the chairman's unavailability.
(b) No officer named in the preceding paragraph who is not a
member of the board of directors shall succeed to any of the duties or powers of
the chairman in his capacity of chairman of the board of directors.
(c) In the event of any inconsistency between the provisions
of this Section 4.03 and the provisions of Section 5.02, the latter shall
prevail.
SECTION 4.04 SECRETARY. The secretary (a) shall keep the
minutes of all proceedings of the directors and of the shareholders; (b) shall
attend to the giving of notices to the shareholders and directors, or of other
notices required by law or by these by-laws; (c) shall have custody of the seal
of the corporation and shall affix such seal to deeds, contracts and other
written instruments when authorized by the board of directors or when required
by law; (d) shall have charge of the stock certificate book and stock ledger and
such other books and papers as the board may direct, and (e) shall perform all
other duties incident to the office of secretary.
SECTION 4.05 TREASURER. The treasurer shall be the chief
financial officer of the corporation. The treasurer shall have the care and
custody of all funds, securities, evidences of indebtedness and other personal
property of the corporation and shall deposit the same in accordance with the
instructions of the board of directors. He shall receive and give receipts and
acquittances for moneys paid in on account of the corporation, and shall pay out
of the funds on hand all bills, payrolls and other just debts of the corporation
of whatever nature upon maturity of the same. He shall enter regularly in books
belonging to the corporation, to be kept by him for that purpose, full and
accurate accounts of all moneys received and paid out by him on account of the
corporation, and he shall perform all other duties incident to the office of the
treasurer and, upon request of the board, he shall make such reports to it as
may be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation in case of his death, resignation, retirement
or removal from office of all books, papers, vouchers, money and other property
of whatever kind in his possession, or under his control belonging to the
corporation.
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SECTION 4.06 CLASSIFIED INFORMATION AND CONTRACTS. If at any
time the person holding the office of President of the corporation is not a
citizen of the United States, such person shall not have access to any
information or control over any contract or program which information, contract
or program is classified top secret or secret under the regulations of the
Department of Defense relating to national security. (The preceding sentence has
no application to the positions of Chairman and Chief Executive Officer; the
regulations do not allow for the person or persons holding those offices to be
exempt from the requirement of U.S. citizenship.)
ARTICLE V
REMOVALS, RESIGNATIONS AND VACANCIES
SECTION 5.01 DIRECTORS. Any director may resign at any time by
giving written notice thereof to the chief executive officer, and such
resignation shall take effect at the time therein specified. Whenever any
vacancy shall occur in the board of directors by death, resignation or
otherwise, the same may be filled by a majority vote of the remaining members of
the board at any regular or special meeting. Any person so chosen shall hold
office until the next annual meeting or until his successor shall have been
chosen at a special meeting of the shareholders.
SECTION 5.02 OFFICERS. The board of directors may, at any
meeting called for the purpose, remove from office any Elected Officer with or
without cause. The chief executive officer may remove from office, with or
without cause, any Appointed Officer. The removal of an Elected Officer or
Appointed Officer without cause shall be without prejudice to his or her
contract rights, if any. The election or appointment of an officer shall not of
itself create contract rights. Any officer may resign at any time by giving
written notice thereof to the chief executive officer, and such resignation
shall take effect at the time therein specified. Any vacancy occurring in the
offices of chairman, president, chief operating officer, executive vice
president, group vice president, secretary or treasurer, whether owing to
removal, resignation, death or any other reason, may be filled by the board of
directors, and the officers so chosen shall hold office until the next regular
meeting of the board of directors held immediately after the annual meeting of
shareholders.
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ARTICLE VI
STOCK
SECTION 6.01 CERTIFICATES. Certificates of stock shall be
signed in the name of the corporation by the chairman or the president and by
the secretary or an assistant secretary and shall be sealed with the seal of the
corporation. Certificates for each class of authorized stock shall be
consecutively numbered, and the names and residences of the owners, the date of
issue, the number of shares and the amount paid therefor shall be entered in the
stock books. Certificates of stock shall be in such form consistent with law as
shall be prescribed by the board of directors. The seal of the corporation
attached to any stock certificate may be a facsimile, engraved or printed. Where
any stock certificate is signed by a transfer agent or transfer clerk and by a
registrar, the signatures of any officer of the corporation appearing upon such
certificate may be facsimiles, engraved or printed.
SECTION 6.02 LOST CERTIFICATES. In case of the alleged loss,
destruction or mutilation of a certificate or certificates of stock, the board
of directors may direct the issuance of a new certificate or certificates in
lieu thereof upon such terms and conditions in conformity with law as it may
prescribe.
SECTION 6.03 TRANSFER OF SHARES. Upon surrender to the
corporation or to a transfer agent of the corporation of a certificate of stock
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, and cancel the old certificate. The
corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as may be required by the laws of New York.
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SECTION 6.04 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD
DATE. The board of directors may prescribe a period not exceeding fifty days
prior to the date of a meeting of the shareholders or prior to the last day on
which the consent or dissent of shareholders may be effectively expressed for
any purpose without a meeting, during which no transfer of stock on the books
may be made; or in lieu of prohibiting the transfer of stock, may fix a time not
more than fifty days prior to the date of any meeting of shareholders or prior
to the last day on which the consent or dissent of shareholders may be
effectively expressed for any purpose without a meeting, as the time as of which
shareholders 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 at such time 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.
The board of directors may also fix a time not exceeding fifty days preceding
the time fixed for the payment of any dividend or 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
a record time for the determination of the shareholders entitled to receive any
such dividend, distribution, rights or interests, or, at its option, in lieu of
so fixing a record time, may prescribe a period not exceeding fifty days prior
to the date for such payment, distribution or delivery during which no transfer
of stock on the books of the corporation may be made.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 INDEMNIFICATION BY THE CORPORATION. The corporation shall,
to the fullest extent permitted by applicable law, indemnify any person made or
threatened to be made a party to any action or proceeding, whether civil,
criminal, administrative or investigative (and whether or not (i) by or in the
right of the corporation to procure a judgment in its favor or (ii) by or in the
right of any Other Entity (as defined below) which such person served in any
capacity at the request of the corporation, to procure a judgment in its favor),
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by reason of the fact that such person, or his or her testator or intestate, is
or was a director or officer of the corporation or served such Other Entity in
any capacity at the request of the corporation, against all judgments, fines,
amounts paid in settlement and all expenses, including attorneys' and other
experts' fees, costs and disbursements, actually and reasonably incurred by such
person as a result of such action or proceeding, or any appeal therein, or
actually and reasonably incurred by such person (a) in making an application for
payment of such expenses before any court or other governmental body, or (b) in
otherwise seeking to enforce the provisions of this Section 7.01, or (c) in
securing or enforcing such person's rights under any policy of director or
officer liability insurance provided by the corporation, if such person acted in
good faith, for a purpose which he or she reasonably believed to be in, or, in
the case of services for any Other Entity, 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 or her conduct was unlawful. The
termination of any action or proceeding by judgment, settlement, conviction or
upon a plea of nolo contendere, or its equivalent, shall not in itself create a
presumption that such person did not act in good faith, for a purpose which he
or she reasonably believed to be in, or, in the case of service for any Other
Entity, not opposed to, the best interests of the corporation or that he or she
had reasonable cause to believe that his or her conduct was unlawful.
However, (i) no indemnification may be made to or on behalf of any such
person if a judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled; (ii) no
indemnification may be made if there has been a settlement approved by the court
and the indemnification would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in approving the settlement; and
(iii) in the event of a proceeding by or in the right of the corporation to
procure a judgment in its favor, no indemnification may be made if it is settled
or otherwise disposed of or such person shall have been finally adjudged liable
to the corporation, unless (and only to the extent that) the court in which the
action was brought, or if no action was brought, any court of competent
jurisdiction, determines upon application that, in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
portion of the settlement amount and expenses as the court deems proper.
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Any expense described in the first paragraph of this Section 7.01 that
is incurred by any person entitled to indemnification under this Section 7.01
shall be paid or reimbursed to such person by the corporation in advance of the
final disposition of any related action or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount to the
corporation to the extent, if any, that such person (i) is ultimately found not
to be entitled to indemnification or (ii) receives reimbursement for such
expenses under a policy of insurance paid for by the corporation. Such advances
shall be paid by the corporation to such person within twenty days following
delivery of a written request therefor by such person to the corporation. No
payment made by the corporation pursuant to this paragraph shall be deemed or
construed to relieve the issuer of any insurance policy of any obligation or
liability which, but for such payment, such insurer would have to the
corporation or to any director or officer of the corporation or other individual
to whom or on whose behalf such payment is made by the corporation.
The indemnification and advancement of expenses provided by this
Section 7.01: (i) shall continue as to the person entitled to indemnification
hereunder even though he or she may have ceased to serve in the capacity that
entitles him or her to indemnification at the time of the action or proceeding
and (ii) shall inure to the benefit of the heirs, executors and administrators
of such person.
A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in this Section 7.01 shall be entitled to (i.e., has a legally binding right
against the corporation to) the indemnification authorized by this Section 7.01.
Except as provided in the immediately preceding sentence, any indemnification
provided for in this Section 7.01 (unless ordered by a court under Section 724
of the Business Corporation Law), shall be made by the corporation only if
authorized in the specific case:
(1) By the board of directors acting by a quorum consisting of
directors who are not parties to such action or proceeding for which
indemnification is sought, upon a finding that the person seeking
indemnification has met the standard of conduct set forth in the first two
paragraphs of this Section 7.01, or,
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(2) If a quorum under the immediately preceding subparagraph is not
obtainable or, even if obtainable, a quorum of disinterested directors so
directs:
(A) by the board upon the opinion in writing of independent
legal counsel that indemnification is proper in the circumstances because the
applicable standard of conduct set forth in said first two paragraphs has been
met by such person, or
(B) by the shareholders upon a finding that the person has met
the applicable standard of conduct set forth in said first two paragraphs.
Notwithstanding any other provision hereof, no amendment or repeal of
this Section 7.01, or any other corporate action or agreement which prohibits or
otherwise limits the right of any person to indemnification or advancement or
reimbursement of reasonable expenses hereunder, shall be effective as to any
person until the 60th day following notice to such person of such action, and no
such amendment or repeal or other corporate action or agreement shall deprive
any person of any right hereunder arising out of any alleged or actual act or
omission occurring prior to such 60th day.
The corporation is hereby authorized, but shall not be required, to
enter into agreements with any of its directors, officers or employees providing
for rights to indemnification and advancement and reimbursement of reasonable
expenses, including attorneys' fees, to the extent permitted by law, but the
corporation's failure to do so shall not in any manner affect or limit the
rights provided for by this Section 7.01 or otherwise.
For purposes of this Section 7.01, the term "the corporation" shall
include any legal successor to the corporation, including any corporation which
acquires all or substantially all of the assets of the corporation in one or
more transactions, and the term "Other Entity" shall mean a corporation (other
than the corporation) of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise.
For purposes of this Section 7.01, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation or any subsidiary thereof
also imposes duties on, or otherwise involves services by, such person to the
plan or participants or beneficiaries of the plan; excise taxes assessed on a
person with respect to an employee benefit plan pursuant to applicable law shall
be considered fines; and action taken or omitted by a person with respect to any
employee benefit plan in the performance of such person's duties for a purpose
reasonably believed by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the corporation.
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SECTION 7.02 NON-EXCLUSIVITY. The rights granted pursuant to or
provided by the provisions of Section 7.01 to any person shall be in addition to
and shall not be exclusive of any other rights to indemnification and expenses
to which any such person may otherwise be entitled by law, contract or
otherwise.
ARTICLE VIII
AMENDMENTS
SECTION 8.01 BY SHAREHOLDERS. The shareholders may make, amend
and repeal the by-laws of the corporation at any annual meeting or at any
special meeting called for the purpose.
SECTION 8.02 BY DIRECTORS. Subject to the provisions of
Section 8.03 hereof, the board of directors shall have power to make, amend and
repeal the by-laws of the corporation, by the vote of a majority of the entire
board (as the term "entire board" is defined in Section 3.01 hereof and in
Business Corporation Law Section 702), at any regular or special meeting of the
board.
SECTION 8.03 BY SHAREHOLDERS ONLY. The board of directors
shall have no power to amend or repeal any of the provisions of Sections 2.02,
2.03, 2.04, or this Section 8.03, and any such provisions may be amended or
repealed only in the manner provided in Section 8.01. Notwithstanding the
foregoing, however, the board of directors may amend this Section 8.03 if the
sole effect of such amendment is to add to the list of the provisions which may
only be amended in the manner set forth in Section 8.01.
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