EXHIBIT 3.1
AMENDED AND RESTATED BYLAWS
OF
GYRODYNE COMPANY OF AMERICA, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK)
AMENDED AND RESTATED AS OF JUNE 18, 2008
These Amended and Restated By-Laws ("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 of Gyrodyne Company of America, Inc. (the
"Corporation") 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 of the Corporation (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 shall
be held at such date or hour as may be fixed by the Board of Directors. At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting business must be: (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder in accordance with (i) Section 209. of Article II
of these By-Laws for any business other than the nomination of a person for
election as a director or (ii) Sections 312., 313. and 314. of Article III of
these By-Laws for any nomination of a person for election as a director.
Section 203. SPECIAL MEETINGS. Special meetings of the stockholders may be
called at any time by (i) the President, (ii) the Chairman of the Board, (iii)
the Board of Directors pursuant to a resolution adopted by a majority of the
total number of directors that the Corporation would have if there were no
vacancies, or (iv) by the President of the Corporation at the request of
Qualified Stockholders holding at least thirty percent (30%) of all the votes
entitled to be cast on any issue proposed to be considered at the special
meeting. For purposes of this Section, a Qualified Stockholder shall mean a
person who shall have been a stockholder of the Corporation for at least six (6)
months immediately preceding the request for a special meeting. In connection
with any request for a special meeting, each Qualified Stockholder must comply
with Section 209. of Article II of these By-Laws for any business proposed for
the special meeting other than the nomination of a person for election as a
director. Any stockholder nominating a director proposed to be elected at the
special meeting must comply with Sections 312., 313. and 314. of Article III of
these By-Laws. Business transacted at all special meetings shall be confined to
the objects stated in the notice of the special meeting.
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 Chairman
or 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 Chairman or the officer presiding over the stockholders'
meeting otherwise requires, stockholders need not vote by ballot on any
question.
(b) The Chairman or 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.
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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 209. NOTICE OF STOCKHOLDER PROPOSAL FOR BUSINESS OTHER THAN
NOMINATIONS. (a) For business to be properly brought before an annual meeting by
a stockholder or before a special meeting called at the request of a Qualified
Stockholder (other than, in either case, the nomination of a person for election
as a director, which is governed by Sections 312., 313. and 314. of Article III
of these By-Laws), the stockholder intending to propose the business at the
annual meeting or the Qualified Stockholder on whose behalf the special meeting
is called (each, a "Proponent") must have given timely notice in writing to the
Secretary of the Corporation of the intention to propose such business and such
business must otherwise be a proper matter for stockholder action. To be timely,
such notice shall be delivered to the Secretary at the principal executive
offices of the Corporation (1) in the case of an annual meeting, 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 disclosure of
the date of such meeting is first made by the Corporation; (2) in the case of a
special meeting called pursuant to Section 203.(i),(ii) or (iii) of this Article
II, not earlier than the close of business on the 120th day prior to the date of
such special meeting and not later than the close of business on the later of
the 90th day prior to the date of such special meeting or the 10th day following
the date of public disclosure of the date of such special meeting; and (3) in
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the case of a special meeting called at the request of a Qualified Stockholder
pursuant to Section 203.(iv) of this Article II, not earlier than the close of
business on the 120th day prior to the date of such special meeting and not
later than the close of business on the 90th day prior to the date of such
special meeting. In no event shall the public disclosure of an adjournment of an
annual meeting or special meeting (each, a "Stockholder Meeting") commence a new
time period for the giving of a stockholder's notice as described above. (For
purposes of these By-Laws, public disclosure shall be deemed to include a
disclosure made in a press release reported by the Dow Jones News Services,
Associated Press or a comparable national news service or in a document filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")). A Proponent's notice to the Secretary shall set forth as to
each matter the Proponent proposes to bring before the Stockholder Meeting: (A)
a brief description of the business desired to be brought before the Stockholder
Meeting and the reasons for conducting such business at the Stockholder Meeting,
(B) the name and address of the Proponent, and of any holder of record of the
Proponent's shares as they appear on the Corporation's books, (C) the class and
number of shares of the Corporation which are owned by the Proponent
(beneficially and of record) and owned by any holder of record of the
Proponent's shares, as of the date of the Proponent's notice, and a
representation that the Proponent will notify the Corporation in writing of the
class and number of such shares owned of record and beneficially as of the
record date for the meeting promptly following the later of the record date or
the date notice of the record date is first publicly disclosed, (D) any material
interest of the Proponent in such business, (E) a description of any agreement,
arrangement or understanding with respect to such business between or among the
Proponent and any of its affiliates or associates, and any others (including
their names) acting in concert with any of the foregoing, and a representation
that the Proponent will notify the Corporation in writing of any such agreement,
arrangement or understanding in effect as of the record date for the meeting
promptly following the later of the record date or the date notice of the record
date is first publicly disclosed, (F) a description of any agreement,
arrangement or understanding (including any derivative or short positions,
profit interests, options, hedging transactions, and borrowed or loaned shares)
that has been entered into as of the date of the Proponent's notice by, or on
behalf of, the Proponent or any of its affiliates or associates, the effect or
intent of which is to mitigate loss to, manage risk or benefit of share price
changes for, or increase or decrease the voting power of the Proponent or any of
its affiliates or associates with respect to shares of stock of the Corporation,
and a representation that the Proponent will notify the Corporation in writing
of any such agreement, arrangement or understanding in effect as of the record
date for the meeting promptly following the later of the record date or the date
notice of the record date is first publicly disclosed, (G) a representation that
the Proponent is a holder of record or beneficial owner of shares of the
Corporation entitled to vote at the Stockholder Meeting and intends to appear in
person or by proxy at the meeting to propose such business, and (H) a
representation whether the Proponent intends to deliver a proxy statement and
form of proxy to stockholders of the Corporation and/or otherwise solicit
proxies from stockholders in support of the proposal.
(b) If the chair of the Stockholder Meeting determines that any business
(other than the nomination of a person for election as a director, which is
governed by Sections 312., 313. and 314. of Article III of these By-Laws) was
not made in accordance with the applicable provisions of these By-Laws, such
business shall not be transacted. Notwithstanding anything in these By-Laws to
the contrary, unless otherwise required by law, if a Proponent intending to
propose business at a Stockholder Meeting pursuant to this Section 209. of
Article II does not provide the information required under subparagraphs (C),
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(E) and (F) of this Section 209. to the Corporation promptly following the later
of the record date or the date notice of the record date is first publicly
disclosed, or the Proponent (or a qualified representative of the Proponent)
does not appear at the meeting to present the proposed business, such business
shall not be transacted, notwithstanding that proxies in respect of such
business may have been received by the Corporation. The requirements of this
Section 209. of Article II shall apply to any business to be brought before a
Stockholder Meeting by a stockholder (other than the nomination of a person for
election as a director, which is governed by Sections 312., 313. and 314. of
Article III of these By-Laws) whether such business is to be included in the
Corporation's proxy statement pursuant to Rule 14a-8 of the Exchange Act or
presented to stockholders by means of an independently financed proxy
solicitation. The requirements of this Section 209. of Article II are included
to provide the Corporation notice of a stockholder's intention to bring business
before a Stockholder Meeting and shall in no event be construed as imposing upon
any stockholder the requirement to seek approval from the Corporation as a
condition precedent to bringing any such business before a Stockholder Meeting.
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
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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
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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,
in its discretion, may 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, or such other
committees as may be designated from time-to-time by the Board of Directors, who
shall serve at the pleasure of the Board:
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(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.
Section 311. 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.
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Section 312. ELIGIBILITY TO MAKE NOMINATIONS. Nominations of candidates
for election as directors at any meeting of stockholders called for election of
directors (an "Election Meeting") may be made (1) by any stockholder entitled to
vote at such Election Meeting only in accordance with the procedures established
by Section 313. of this Article III, or (2) by the Board of Directors. In order
to be eligible for election as a director, any director nominee must first be
nominated in accordance with the provisions of these By-Laws.
Section 313. PROCEDURES FOR NOMINATIONS BY STOCKHOLDERS. (a) Any
stockholder entitled to vote for the election of a director at an Election
Meeting may nominate one or more persons for such election only if written
notice of such stockholder's intent to make such nomination is delivered to or
mailed and received by the Secretary of the Corporation. Such notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
(1) with respect to an annual meeting of stockholders, 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 disclosure of the date of such
meeting is first made by the Corporation; and (2) with respect to a special
meeting, not earlier than the close of business on the 120th day prior to the
date of such special meeting and not later than the close of business on the
later of the 90th day prior to the date of such special meeting or the 10th day
following the date of public disclosure of the date of such special meeting. In
no event shall the public disclosure of an adjournment of an Election Meeting
commence a new time period for the giving of a stockholder's notice as described
above. The written notice of the stockholder intending to make the nomination
(the "Proponent") shall set forth: (i) the name, age, business address and
residence address of each nominee proposed in such notice, (ii) the principal
occupation or employment of each such nominee, (iii) the number of shares of
capital stock of the Corporation which are owned of record and beneficially by
each such nominee, (iv) with respect to each nominee for election or reelection
to the Board of Directors, the completed and signed questionnaire,
representation and agreement required by Section 314. of this Article III, (v)
such other information concerning each such nominee as would be required to be
disclosed in a proxy statement soliciting proxies for the election of such
nominee as a director in an election contest (even if an election contest is not
involved), or that is otherwise required to be disclosed, under the rules of the
United States Securities and Exchange Commission, and (vi) as to the Proponent:
(A) the name and address of the Proponent, and of any holder of record of the
Proponent's shares as they appear on the Corporation's books, (B) the class and
number of shares of the Corporation which are owned by the Proponent
(beneficially and of record) and owned by any holder of record of the
Proponent's shares, as of the date of the Proponent's notice, and a
representation that the Proponent will notify the Corporation in writing of the
class and number of such shares owned of record and beneficially as of the
record date for the meeting promptly following the later of the record date or
the date notice of the record date is first publicly disclosed, (C) a
description of any agreement, arrangement or understanding with respect to such
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nomination between or among the Proponent and any of its affiliates or
associates, and any others (including their names) acting in concert with any of
the foregoing, and a representation that the Proponent will notify the
Corporation in writing of any such agreement, arrangement or understanding in
effect as of the record date for the meeting promptly following the later of the
record date or the date notice of the record date is first publicly disclosed,
(D) a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
Proponent's notice by, or on behalf of, the Proponent or any of its affiliates
or associates, the effect or intent of which is to mitigate loss to, manage risk
or benefit of share price changes for, or increase or decrease the voting power
of the Proponent or any of its affiliates or associates with respect to shares
of stock of the Corporation, and a representation that the Proponent will notify
the Corporation in writing of any such agreement, arrangement or understanding
in effect as of the record date for the meeting promptly following the later of
the record date or the date notice of the record date is first publicly
disclosed, (E) a representation that the Proponent 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 written
notice or a representation that the Proponent is entitled to cast votes with
respect to at least 5% of the outstanding capital stock of the Corporation, (F)
a representation that the Proponent intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice, and (G) a
representation whether the Proponent intends to deliver a proxy statement and
form of proxy to stockholders of the Corporation and/or otherwise solicit
proxies from stockholders in support of the nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as an independent director of the Corporation or that could be material to
a reasonable stockholder's understanding of the independence, or lack thereof,
of such nominee.
(b) If the chair of the Election Meeting determines that a nomination of
any candidate for election as a director was not made in accordance with the
applicable provisions of these By-Laws, such nomination shall be void.
Notwithstanding anything in these By-Laws to the contrary, unless otherwise
required by law, if a Proponent intending to make a nomination at an Election
Meeting pursuant to this Section 313. of Article III does not provide the
information required under clauses (B) through (D) of subparagraph (vi) of
paragraph (a) of this Section 313. of Article III to the Corporation promptly
following the later of the record date or the date notice of the record date is
first publicly disclosed, or the Proponent (or a qualified representative of the
Proponent) does not appear at the meeting to present the nomination, such
nomination shall be disregarded, notwithstanding that proxies in respect of such
nomination may have been received by the Corporation.
Section 314. SUBMISSION OF QUESTIONNAIRE. To be eligible to be a nominee
for election or reelection as a director of the Corporation, a person must
deliver (in accordance with the time periods prescribed for delivery of notice
under Section 313. of this Article III of these By-Laws) to the Secretary of the
Corporation at the principal executive offices of the Corporation a written
questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination
is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the form
provided by the Secretary upon written request) that such person (i) is not and
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will not become a party to (A) any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to how
such person, if elected as a director of the Corporation, will act or vote on
any issue or question (a "Voting Commitment") that has not been disclosed to the
Corporation or (B) any Voting Commitment that could limit or interfere with such
person's ability to comply, if elected as a director of the Corporation, with
such person's fiduciary duties under applicable law, (ii) is not and will not
become a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement or indemnification in connection with service or
action as a director that has not been disclosed therein, and (iii) in such
person's individual capacity and on behalf of any person or entity on whose
behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with, applicable law and all
applicable publicly disclosed corporate governance, conflict of interest,
corporate opportunities, confidentiality and stock ownership and trading
policies and guidelines of the Corporation.
ARTICLE IV
OFFICERS
Section 401. OFFICERS. The officers of the Corporation shall be 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 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. 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 403. 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
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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, the President, or such other
supervising officer as the President may designate.
Section 404. 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 405. 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
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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.
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(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)
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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,
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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.
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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 January in each year and end on the thirty-first
(31st) day of December 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.
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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 AMENDED AND RESTATED 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 18th day of
June 2008, and shall be effective as of said date.
/s/ Peter A. Pitsiokos
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Peter A. Pitsiokos, Secretary
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