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8-K - FORM 8-K - COMVERSE TECHNOLOGY INC/NY/ | mm03-1210_8k.htm |
Exhibit
3.1
BY-LAWS
OF
COMVERSE
TECHNOLOGY, INC.
AMENDED
AND RESTATED
AS
OF MARCH 10, 2010
(A
New York Corporation)
ARTICLE
I
OFFICES
Section
1. The
principal office of the Corporation shall be located in the State of New
York.
Section
2. The
Corporation may also have offices at such other places, both within and without
the State of New York, as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1. All
meetings of stockholders for the election of directors shall be held at such
place within or without the State of New York as may be fixed from time to time
by the Board of Directors and stated in the notice of meeting or in a duly
executed waiver of notice thereof.
Section
2. Annual
meetings of stockholders shall be held on such date and at such time as may be
fixed from time to time by the Board of Directors and stated in the notice of
meeting or in a duly executed waiver of notice thereof, at which the
stockholders entitled to vote shall elect, by a plurality vote, a Board of
Directors, and transact such other business as may properly be brought before
the meeting.
Section
3. Special
meetings of stockholders may be held at such time and place within or without
the State of New York as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section
4. Special
meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation, may be called by
the Chairman of the Board of Directors, the Chief Executive
Officer,
the Board
of Directors or the holders of not less than a majority of all the shares
entitled to vote at the meeting.
Section
5. Written
notice of every meeting of stockholders, stating the purpose or purposes for
which the meeting is called and the date and time and the place where it is to
be held, shall be served not less than ten nor more than fifty days before the
meeting, either personally or by mail, upon each stockholder entitled to vote at
such meeting and upon each stockholder of record who, by reason of any action
proposed at such meeting, would be entitled to have his stock appraised if such
action were taken, and shall be sent by facsimile or electronic (e-mail)
transmission simultaneously to all members of the Board of
Directors. If mailed, such notice shall be deemed given when
deposited in the mail directed to a stockholder at his address as it shall
appear on the books of the Corporation unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to the address
designated in such request. The attendance of any stockholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by such stockholder.
Section
6. In order
to properly submit any business to an annual meeting of stockholders (other than
with respect to nominations for directors which are governed exclusively by
Article IV, Section 3), a stockholder must give timely notice in writing to the
Secretary of the Corporation of such stockholder's intention to present such
business, as set forth herein. To be considered timely, a
stockholder's notice must be delivered, either in person or by certified mail,
postage prepaid, and received at the principal executive office of the
Corporation, (a) not less than one hundred twenty (120) days prior to the first
anniversary date of the Corporation's proxy statement in connection with the
last annual meeting or (b) in the case of the first annual meeting following the
effective date of this Section 6 (March 10, 2010) or if no annual meeting was
held in the previous year, not later than the close of business on the tenth
(10th) day following the date on which public announcement of the date of such
meeting is first made by the Corporation. Each notice to the
Secretary shall set forth (a) as to any business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the by-laws of the Corporation, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (b) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation’s books, and of such beneficial owner, if any,
(ii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, (iii) a description of any agreement, arrangement or
understanding with respect to the proposal between or among such stockholder and
such beneficial owner,
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any of
their respective affiliates or associates, and any others acting in concert with
any of the foregoing, (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, stock appreciation or similar rights, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
stockholder’s notice by, or on behalf of, such stockholder and such beneficial
owners, 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,
such stockholder and such beneficial owner, with respect to shares of stock of
the Corporation (which information shall be supplemented by such stockholder and
beneficial owner, if any, not later than 10 days after the record date for the
meeting), (v) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business and (vi) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporation’s outstanding
capital stock required to approve or adopt the proposal or elect the nominee or
otherwise to solicit proxies from stockholders in support of such
proposal. In addition, the stockholder shall promptly provide any
other information reasonably requested by the Corporation. The
presiding officer of the meeting may, if the facts warrant, determine that a
proposal was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
proposal shall be disregarded. Notwithstanding the foregoing
provisions of this Section 6, a stockholder who seeks to have any proposal
included in the Corporation's proxy statement shall comply with applicable state
law and the requirements of the rules and regulations promulgated by the
Securities and Exchange Commission. The requirements of this Section
6 shall apply to any business to be brought before an annual meeting by a
stockholder (other than the nomination of a person for election as a director,
which is governed by Section 3 of Article IV) whether such business is to be
included in the Corporation's proxy statement or presented to stockholders by
means of an independently financed proxy solicitation.
Section
7. The
business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
ARTICLE
III
QUORUM
AND VOTING OF STOCK
Section
1. The
holders of a majority of the shares of stock issued and outstanding and entitled
to a vote, represented in person or by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as otherwise
provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders present in person or represented by proxy shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until
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a quorum
shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted on the original date of the meeting.
Section
2. If a
quorum is present, the affirmative vote of holders of a majority of the shares
of stock represented at the meeting and entitled to vote shall be the act of the
stockholders, unless the vote of a greater or lesser number of shares of stock
is required by law or the certificate of incorporation or pursuant to Article
II, Section 2, above.
Section
3. Each
outstanding share of stock having voting power shall entitle the holder thereof
to one vote on each matter submitted to a vote at a meeting of
stockholders. A stockholder may vote either in person or by proxy
executed in writing by the stockholder or by his duly authorized
attorney-in-fact.
Section
4. The Board
of Directors in advance of any stockholders’ meeting may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If
inspectors are not so appointed, the person presiding at a stockholders’ meeting
may, and, on the request of any stockholder entitled to vote thereat, shall,
appoint one or more inspectors. In case any person appointed as
inspector fails to appear or act, the vacancy may be filled by the Board of
Directors in advance of the meeting or at the meeting by the person presiding
thereat. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
Section
5. Whenever
stockholders are required or permitted to take any action by vote, such action
may be taken without a meeting on written consent, setting forth the action so
taken, signed by the holders of all outstanding shares.
ARTICLE
IV
DIRECTORS
Section
1. The Board
of Directors of the Corporation shall consist of such number of directors, not
less than three nor more than eleven, as shall be fixed from time to time by
resolution of the Board of Directors. The number of directors
constituting the entire Board may be changed from time to time by resolution
adopted by the Board of Directors, provided no decrease made in such number
shall shorten the term of any incumbent director.
Section
2. Directors
shall be at least eighteen years of age and need not be residents of the State
of New York nor stockholders of the Corporation. The directors shall
be elected at the annual meeting of the stockholders or a special meeting of the
stockholders called for the purpose of electing directors and, except as
hereinafter
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provided,
each director elected shall serve until the next succeeding annual meeting of
stockholders and until his successor shall have been elected and
qualified.
Section
3. (a) Nominations
for the election of directors may be made by a committee appointed by the Board
of Directors (or, in the absence of such committee, by the Board of Directors)
or by any stockholder entitled to vote generally in the election of
directors. However, any stockholder entitled to vote generally in the
election of directors may nominate one or more persons for election as directors
at an annual meeting or a special meeting called for the purpose of electing
directors only if written notice of such stockholder's intention to make such
nomination or nominations has been given, to the Secretary of the Corporation,
either by personal delivery or by- certified mail, postage prepaid, and received
at the principal executive office of the Corporation (1) with respect to an
election to be held at an annual meeting of stockholders, (a) not less than one
hundred twenty (120) days prior to the first anniversary date of the
Corporation's proxy statement in connection with the last annual meeting or (b)
in the case of the first annual meeting following the effective date of this
Section 3 (March 10, 2010) or if no annual meeting was held in the previous
year, not later than the close of business on the tenth (10th) day following the
date on which public announcement of the date of such meeting is first made by
the Corporation and (2) with respect to an election to be held at a special
meeting of stockholders, the close of business on the tenth (10th) day following
the date on which public announcement of the date of such meeting is first made
by the Corporation. Each such notice to the Secretary shall set forth
(i) the name and address of such stockholder, as they appear on the
Corporation’s books, and the name and address of such beneficial owner, if any,
and such stockholder’s nominees; (ii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially and of record
by such stockholder and such beneficial owner, (iii) a description of any
agreement, arrangement or understanding with respect to the proposal between or
among such stockholder and such beneficial owner, any of their respective
affiliates or associates, and any others acting in concert with any of the
foregoing, (iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights, hedging transactions, and
borrowed or loaned shares) that has been entered into as of the date of the
stockholder’s notice by, or on behalf of, such stockholder and such beneficial
owners, 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,
such stockholder and such beneficial owner, with respect to shares of stock of
the Corporation (which information shall be supplemented by such stockholder and
beneficial owner, if any, not later than 10 days after the record date for the
meeting), (v) a description of all arrangements or understandings between the
stockholder and each such nominee; (vi) a representation that the stockholder is
a holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (vii) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which
intends to deliver a proxy statement and/or form of proxy to holders of at least
the percentage of the Corporation’s outstanding capital stock required to
approve or adopt the
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proposal
or elect the nominee or otherwise to solicit proxies from stockholders in
support of such proposal; (viii) such other information as would be required to
be included in a proxy statement soliciting proxies for the election of the
nominees of such stockholder; and (ix) the consent of each nominee to serve as a
director of the Corporation if so elected. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation. The presiding
officer of the meeting may, if the facts warrant, determine that a nomination
was not made in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded.
(b) The
Corporation shall include in its proxy materials for a meeting of shareholders
at which directors are to be elected the name, together with the Disclosure and
Statement (both as defined below in this Section 3(b)), of any person nominated
for election (the “Nominee”) to the Board of Directors by a shareholder that
satisfies the requirements of this Section 3(b) (the "Nominator"), and allow
shareholders to vote with respect to such Nominee on the Corporation’s proxy
card. A Nominator may nominate one candidate for election at a
meeting. A Nominator must: (i) have
beneficially owned 5% or more of the Corporation’s outstanding common stock
continuously for at least two years as of both the date the written notice of
the nomination is submitted to the Corporation and the record date for the
meeting at which directors are to be elected (the "Required
Shares"); (ii) provide written notice that is received by
the Corporation’s Secretary within the time period specified in Article IV,
Section 3(a) of these by-laws containing (A) with respect to the Nominee,
(1) the information required by Article IV, Section 3 of these by-laws and
(2) such Nominee's consent to being named in the proxy statement and to
serving as a director if elected; and (B) with respect to the Nominator,
proof of ownership of the Required Shares (the information referred to in
clauses (i) and (ii) above being referred to as the “Disclosure”); and (iii)
execute an undertaking that the Nominator agrees to (A) assume all
liability stemming from any legal or regulatory violation arising out of the
Nominator's communications with the shareholders of the Corporation, including,
without limitation, the Disclosure and Statement, and (B) to the extent it
uses soliciting
material other
than the Corporation's proxy materials, comply with all applicable laws and
regulations. The Nominator may furnish, at the time the Disclosure is
submitted, a statement for inclusion in the Company’s proxy statement, not to
exceed 500 words, in support of the Nominee's candidacy (the
"Statement"). Notwithstanding anything to the contrary contained in
this Section 3(b), the Corporation may omit from its proxy materials any
information or Statement that it, in good faith, believes would violate any
applicable law or regulation. Any Nominator whose Nominee does not
receive at least 25% of the votes cast in the related election of directors will
be prohibited from serving as a Nominator for four years from the date of the
annual meeting in question.
Section
4. Any or
all of the directors may be removed, with or without cause, at any time by the
vote of the stockholders at a special meeting of stockholders
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called
for that purpose. Any director may be removed for cause by the action
of the directors at a special meeting of the Board of Directors called for that
purpose.
Section
5. Vacancies
and newly created directorships resulting from an increase in the authorized
number of directors may be filled by a majority vote of the directors in office,
although less than a quorum, or by election by the stockholders at any meeting
thereof. A director elected to fill a vacancy shall be elected for
the unexpired portion of the term of his predecessor in office. A
director elected to fill a newly created directorship shall serve until the next
annual meeting of stockholders and until his successor shall have been elected
and qualified.
Section
6. The
business and affairs of the Corporation shall be managed by its Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section
7. The
directors may keep the books of the Corporation, except such as are required by
law to be kept within the State, outside the State of New York, at such place or
places as they may from time to time determine.
Section
8. The Board
of Directors, by the affirmative vote of a majority of the directors then in
office, and irrespective of any personal interest of any of its members, shall
have authority to establish reasonable compensation of all directors for
services to the Corporation as directors, officers or otherwise.
ARTICLE
V
MEETINGS
OF THE BOARD OF DIRECTORS
Section
1. Meetings
of the Board of Directors, regular or special, may be held either within or
without the State of New York, at such places as the Board may from time to time
determine.
Section
2. Regular
meetings of the Board of Directors may be held without notice at such time as
the Board may from time to time determine. Special meetings of the
Board of Directors may be called by the Chairman of the Board of Directors or
the Chief Executive Officer, and shall be called by the Chairman of the Board of
Directors, the Chief Executive Officer or the Secretary on the written request
of a majority of the Board of Directors. Notice of special meetings
of the Board of Directors shall be given personally, by mail, telephone,
facsimile or electronic (e-mail) transmission, to each director at least 48
hours prior to the time fixed for meeting, provided that, if notice is given by
the Chairman of the Board of Directors and the Chief Executive Officer of the
Company, acting jointly, notice shall be given at least 36 hours prior to the
time fixed for meeting.
7
Section
3. Notice of
a meeting need not be given to any director who submits a signed waiver of
notice, whether before or after the meeting, or who attends the meeting without
protesting prior thereto or at its commencement, the lack of
notice. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
Section
4. A
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business unless a greater or lesser number is required by law or
by the certificate of incorporation. The vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors, unless the vote of a greater number is required by
law or by the certificate of incorporation. If a quorum shall not be
present at any meeting of directors the directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section
5. Any
action required or permitted to be taken by the Board of Directors, or any
committee thereof, may be taken without a meeting if all members of the Board of
Directors, or the committee, consent in writing to the adoption of a resolution
authorizing the action. Any such resolution and the written consents
thereto by the members of the Board of Directors or the committee shall be filed
with the minutes of the proceedings of the Board of Directors or the
committee.
Section
6. Any one
or more members of the Board of Directors, 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.
ARTICLE
VI
COMMITTEES
OF THE BOARD OF DIRECTORS
The Board of Directors, by resolution
adopted by a majority of the entire Board, shall designate, from among its
members, an Audit Committee, a Compensation Committee and a Corporate Governance
and Nominating Committee, and may designate, from any of its members, an
Executive Committee or other committees, each consisting of one or more
directors, unless otherwise required under applicable law or regulation or under
any rule of a national stock exchange or over-the-counter market on which the
Company’s securities are then traded or quoted (a “Listing Rule”), and each of
which, to the extent provided in the applicable resolution, shall have all the
authority of the Board to the fullest extent permitted by
law. Vacancies in the membership of each committee shall be filled by
the Board of Directors at a regular or special meeting of the Board of
Directors. The Board of Directors shall have power, at any time, to
change or remove the members of any committee created pursuant to these by-laws,
either with or without
8
cause. All
committees created by the Board shall keep regular minutes of their proceedings
and report such proceedings to the Board at the regular meeting of the Board
immediately subsequent to any such committee proceeding.
ARTICLE
VII
NOTICES
Section
1. Whenever,
under applicable law or the provisions of the certificate of incorporation or of
these by-laws, notice is required to be given to any director or stockholder, it
shall not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be
given by facsimile or electronic (e-mail) transmission, and shall be given by
facsimile or electronic (e-mail) transmission simultaneously to each director to
whom notice is sent by mail.
Section
2. Whenever
any notice of a meeting is required to be given under applicable law or the
provisions of the certificate of incorporation or these by-laws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE
VIII
OFFICERS
Section
1. The Board
of Directors shall appoint the officers of the Corporation, which may include a
Chief Executive Officer, one or more Vice-Presidents, a Secretary and a
Treasurer, and such other officers and agents as the Board of Directors may from
time to time deem proper.
Section
2. The
officers of the Corporation, unless removed by the Board of Directors as herein
provided, shall hold office until their successors are chosen and
qualify. Any officer elected or appointed by the Board of Directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of
Directors.
CHIEF
EXECUTIVE OFFICER
Section
3. The Chief
Executive Officer shall, subject to the oversight of the Board of Directors,
have general supervision of the business of the Corporation
9
and shall
see that all orders and resolutions of the Board of Directors are carried into
effect.
VICE-PRESIDENTS
Section
4. A
Vice-President may execute and deliver in the name of the Corporation contracts
and other obligations and instruments pertaining to the regular course of the
duties of said office, and shall have such other authority as from time to time
may be assigned by the Board of Directors or the Chief Executive
Officer.
SECRETARY
AND ASSISTANT SECRETARIES
Section
5. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
Corporation and of the Board of Directors in a book to be kept for that purpose
and shall perform like duties for any committee appointed by the Board when
required. The Secretary shall give, or cause to be given, notice of
all meetings of the stockholders, and shall perform such other duties as may be
prescribed by these by-laws or the Board of Directors. The Secretary
shall have custody of the corporate seal of the Corporation and the Secretary,
or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and, when so affixed, it may be attested by signature of
the Secretary or by the signature of such Assistant Secretary. The
Board of Directors may give the general authority to any other officer to affix
the seal of the Corporation and to attest the affixing by such officer’s
signature.
Section
6. The
Assistant Secretary or, if there be more than one, the Assistant Secretaries in
the order determined by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
TREASURER
AND ASSISTANT TREASURERS
Section
7. The
Treasurer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors.
Section
8. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer, the Chairman of the Board of Directors
and the Board of Directors at its regular meetings, or when the Board of
Directors so requires, an account of all the transactions performed as Treasurer
and of the financial condition of the Corporation.
10
Section
9. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of such office
and for the restoration to the Corporation, in case of the Treasurer’s death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under the
Treasurer’s control belonging to the Corporation.
Section
10. The
Assistant Treasurer, or, if there be more than one, the Assistant Treasurers in
the order determined by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE
IX
INDEMNIFICATION
Section
1. The
Corporation shall indemnify and advance the expenses of each person to the full
extent permitted by the New York Business Corporation law (the “BCL”) as the
same now exists or may hereafter be amended.
Section
2. The
indemnification and advancement of expenses granted pursuant to this Article IX
shall not be exclusive of any other rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, when
authorized by (i) a resolution of shareholders, (ii) a resolution of directors,
or (iii) an agreement providing for such indemnification, provided that no
indemnification may be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director or officer
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. Nothing
contained in this Article IX shall affect any rights to indemnification to which
corporate personnel other than directors and officers may be entitled by
contract or otherwise under law.
Section
3. No
amendment, modification or rescission of this Article IX shall be effective to
limit any person’s right to indemnification with respect to any alleged cause of
action that accrues or other incident or matter that occurs prior to the date on
which such modification, amendment or rescission is adopted.
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ARTICLE
X
SHARES
Section
1. Every holder of shares of stock in the
Corporation that is represented by certificates shall be entitled to have a
certificate certifying the number of shares owned by him in the Corporation and
registered in certificated form. Such certificates shall be numbered
and entered in the books of the Corporation as they are issued. They
shall exhibit the holder’s name and the number of shares and shall be signed by
the Chairman of the Board or the Chief Executive Officer, and the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer of the
Corporation and may be sealed with the seal of the Corporation or a facsimile
thereof. When the Corporation is authorized to issue sharers of more
than one class, every certificate issued and every statement that may be sent to
a holder of uncertificated shares shall set forth a statement that the
Corporation will furnish to any stockholder upon request and without charge, a
full statement of the designation, relative rights, preferences, and limitations
of the shares of each class authorized to be issued, and, if the Corporation is
authorized to issue any class of preferred shares in series, the designation,
relative rights, preferences and limitations of each such series so far as the
same have been fixed, and the authority of the Board of Directors to designate
and fix the relative rights, preferences and limitations of other
series.
Section
2. The
signatures of the officers of the Corporation upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar other than the Corporation itself or an employee of the
Corporation. In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer at the date of
issue.
LOST
CERTIFICATES
Section
3. The Board
of Directors may direct a new certificate or certificates or uncertificated
shares to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate has been lost,
stolen or destroyed. When authorizing such issue of a new certificate
or uncertificated shares, the Board of Directors, in its discretion and as a
condition precedent to the issuance thereof, may prescribe such terms and
conditions as it deems expedient, and may require such indemnities as it deems
adequate, to protect the Corporation from any claim that may be made against it
with respect to any such certificate alleged to have been lost, stolen or
destroyed.
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TRANSFERS
OF SHARES
Section
4. Transfers of shares of stock of the Corporation shall be
made on the books of the Corporation after receipt of a request with proper evidence of succession, assignation, or authority to
transfer by the record holder of such
stock, or by an attorney lawfully constituted in writing, and in the case of
stock represented by a certificate, upon surrender of the
certificate. Subject to the foregoing, the Board of Directors may
make such rules and regulations as it shall deem necessary or appropriate
concerning the issue, transfer and registration of shares of stock of the
Corporation, and to appoint and remove transfer agents and registrars of
transfers.
FIXING
RECORD DATE
Section
5. For the
purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or for the purpose of determining
stockholders entitled to receive payment of any dividend or the allotment of any
rights, or for the purpose of any other action, the Board of Directors shall
fix, in advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than fifty nor less than
ten days before the date of any meeting nor more than fifty days prior to any
other action. When a determination of stockholders of record entitled
to notice of or to vote at any meeting of stockholders has been made as provided
in this section, such determination shall apply to any adjournment thereof,
unless the Board fixes a new record date for the adjourned meeting.
REGISTERED
STOCKHOLDERS
Section
6. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, and shall be entitled to hold liable for calls and assessments a
person registered on its books as the owner, and the Corporation 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 otherwise provided by the laws of New
York.
LIST OF
STOCKHOLDERS
Section
7. A list of
stockholders as of the record date, certified by the corporate officer
responsible for its preparation or by a transfer agent, shall be produced at any
meeting upon the request thereat or prior thereto of any
stockholder. If the right to vote at any meeting is challenged, the
inspectors of election, or person presiding thereat, shall require such list of
stockholders to be projected as evidence of the right of the persons challenged
to vote at such meeting and all persons who appear from such list to be
stockholders entitled to vote thereat may vote at such meeting.
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ARTICLE
XI
GENERAL
PROVISIONS
DIVIDENDS
Section
1. Subject
to the provisions of the certificate of incorporation relating thereto, if any,
dividends may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in shares of
the capital stock or in the Corporation’s bonds or its property, including the
shares or bonds of other corporations, subject to any provisions of law and of
the certificate of incorporation.
Section
2. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
deem to be in the best interest of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
CHECKS
Section
3. All
checks or demands for money and notes of the Corporation shall be signed by the
Chairman of the Board of Directors, the Chief Executive Officer and/or such
other officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
FISCAL
YEAR
Section
4. The
fiscal year of the Corporation shall be fixed by resolution of the Board of
Directors.
SEAL
Section
5. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal, New York.” The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any manner reproduced.
ARTICLE
XII
AMENDMENTS
Section
1. These
by-laws may be amended or repealed or new by-laws may be adopted by majority
vote at any regular or special meeting of stockholders at
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which a
quorum is present or represented, provided notice of the proposed alteration,
amendment or repeal shall have been contained in the notice of such
meeting.
Section
2. Subject
to the by-laws adopted by the stockholders, these by-laws may be amended by the
affirmative vote of a majority of the Board of Directors, at any regular
meeting, or at any special meeting of the Board if notice of the proposed
amendment shall have been given. If any by-law regulating an
impending election of directors is adopted or amended or repealed by the Board,
there shall be set forth in the notice of the next meeting of the stockholders
for the election of directors the by-law so adopted or amended or repealed
together with a concise statement of the changes made. The directors
may repeal by-laws passed by them but may not repeal the by-laws passed by the
stockholders.
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