Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
MOTORCAR PARTS OF AMERICA, INC.
(formerly known as Motorcar Parts & Accessories, Inc.)
AMENDED AND RESTATED AS OF AUGUST 18, 2010
ARTICLE I.
SHAREHOLDERS
1.1
Time of Shareholder Meetings
.
The annual meeting of shareholders of the Company for the election of directors and for the
transaction of such other business as may properly come before the meeting shall be held on such
date and at such time and place as designated by the Board of Directors, or if no such designation
is made, at 10:00 a.m. on the fifteenth (15
th
) day of the eleventh (11
th
)
month following the close of the Companys fiscal year (or if that is not a business day, then on
the preceding business day at 10:00 a.m.).
Special meetings of shareholders shall be held on the date fixed by the Board of Directors,
Chairman of the Board or the President calling the special meeting of shareholders pursuant to
Section 1.3.
For the purposes of these By-Laws, business day shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of New York are not required to be open.
1.2
Place of Shareholder Meetings
.
Annual meetings and special meetings of shareholders shall be held at such place, within or
without the State of New York, as the Board of Directors, or in the case of special meetings of
shareholders, at such place as the Board of Directors or the Chairman of the Board or the President
of the Company calling the special meeting of shareholders pursuant to Section 1.3, may from time
to time fix, either by resolution or by inclusion in notice of meeting. In the event of a failure
to fix such place, the meeting shall be held at the principal executive offices of the Company in
Torrance, California.
1.3
Calling of Shareholder Meetings
.
Annual meetings of shareholders will be called by the Board of Directors, by an officer
instructed by the Board of Directors to call meetings or by the Chairman of the Board or President
of the Company. Special meetings of shareholders may be called only by the Board of Directors, the
Chairman of the Board or President of the Company.
1.4
Notice of Shareholder Meetings, Waiver
.
The notice of all meetings shall be written or printed, shall state the place, date, and hour
of the meeting, and in case of a special meeting of shareholders, shall indicate the purpose or
purposes for which the meeting is called. A copy of the notice of all meetings shall be given,
personally or by mail, not less than ten (10) days nor more than sixty (60) days before the date of
the meeting, to each shareholder of record entitled to vote at such meeting, and, if mailed, it
shall be directed to such shareholder at his record address or at such other address which he may
have furnished in writing to the Secretary of the Company. If action is proposed to be taken that
might entitle shareholders to payment for their shares, the notice shall include a statement of
that purpose and to that effect. If a meeting is adjourned to another time or place, and, if any
announcement of the adjourned time or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date
for the adjourned meeting.
Notice of any meeting need not be given to any shareholder who submits a signed waiver of
notice before or after the meeting. The attendance of a shareholder at a meeting without protesting
the lack of notice of such meeting prior to the conclusion of the meeting shall constitute a waiver
of notice by him.
1.5
Record Date for Shareholders
.
For the purpose of determining the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any
proposal without a meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the distribution or allotment of any rights or evidences of interests
arising out of any change, conversion, or exchange of capital stock, or for the purpose of any
other action, the Board of Directors may fix, in advance, a date as the record date for any such
determination of shareholders. Such date shall not be more than sixty (60) days nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior to any other action.
When a determination of shareholders of record entitled to notice of or to vote at any meeting has
been made as provided in this Section 1.5, such determination shall apply to any adjournment
thereof, unless the Board of Directors fix a new record date under this Section 1.5 for the
adjourned meeting. Only shareholders of record on a record date fixed for determining shareholders
entitled to receive payment of any dividend or the distribution or allotment of any rights or
evidences of interests arising out of any change, conversion, or exchange of capital stock, shall
be entitled to receive such dividend, rights or interests.
1.6
Conduct of Meetings
.
Meetings of the shareholders shall be presided over by the Chairman of the Board, or in his
absence, by the President, or in the Presidents absence, by any Vice President as directed by the
Chairman of the Board or the President. The chairman of the meeting shall determine all matters
relating to the efficient conduct of the meeting, including, but not limited to, the items of
business, as well as the maintenance of order and decorum. The chairman shall, if the facts
warrant, determine and declare that any putative business was not properly brought before the
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meeting in accordance with the procedures prescribed by Sections 1.11 and 1.12 hereof, in
which case such business shall not be transacted.
The Secretary of the Company, or in his absence, any Assistant Secretary selected by the
chairman of the meeting, shall act as secretary of the meeting.
1.7
Proxy Representation
.
Every shareholder may authorize another person or persons to act for him by proxy in all
matters in which a shareholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting or expressing consent or dissent without a meeting.
Every proxy must be in writing and signed by the shareholder or his attorney-in-fact. No proxy
shall be valid after the expiration of eleven months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing
it, except as otherwise provided by the New York Business Corporation Law.
1.8
Quorum
.
The holders of record of a majority of the shares of stock issued and outstanding and entitled
to vote thereat, present in person or by proxy, shall be requisite and shall constitute a quorum at
each meeting of shareholders for the transaction of business, except as otherwise provided by law,
by the Certificate of Incorporation or by these By-Laws; provided that, when any specified action
is required to be voted upon by a class of stock voting as a class, the holders of a majority of
the shares of such class shall be requisite and shall constitute a quorum for the transaction of
such specified action. When a quorum is once present to organize a meeting, it is not broken by
the subsequent withdrawal of any shareholders. The shareholders present may adjourn the meeting
despite the absence of a quorum. At the meeting to which such adjourned meeting is reconvened, any
business may be transacted which might have been transacted at the meeting as first convened had
there been a quorum.
1.9
Voting
.
Each shareholder entitled to vote on any action proposed at a meeting of shareholders shall be
entitled to one (1) vote in person or by proxy for each share of voting stock held of record by
such shareholder, unless otherwise provided in the Certificate of Incorporation. Directors shall,
except as otherwise required by law or by the Certificate of Incorporation, be elected by a
plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote
in the election. Any corporate action, other than the election of directors, to be taken by vote of
shareholders shall, except as otherwise required by law or the Certificate of Incorporation, be
authorized by a majority of the votes cast in favor of or against such action at a meeting of
shareholders by the holders of shares entitled to vote thereon. Except as otherwise required by
law, these By-Laws, the Certificate of Incorporation or other certificate filed pursuant to law,
the chairman presiding at any meeting of shareholders may rule on questions of order or procedure
coming before the meeting or submit such questions to the vote of the meeting, with each
shareholder entitled to one (1) vote in person or by proxy for each share of voting stock held of
record by such shareholder, which vote may at the direction of the chairman of the meeting be by
ballot.
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1.10
Written Consent of Shareholders
.
(a) Any action required or permitted to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, (i) shall be signed by
holders of record on the record date (established as provided below) of all of the
outstanding shares of the Company entitled to vote thereon and (ii) shall be delivered to
the Company at its registered office in the State of New York, at its principal place of
business or to an officer or agent of the Company having custody of the minute books in
which proceedings of meetings of shareholders are recorded. Delivery shall be made by hand
or by certified or registered mail, return receipt requested. Every written consent shall
bear the date of the signature of each shareholder who signs the consent, and no written
consent shall be effective to take corporate action unless, within sixty (60) days of the
earliest dated valid consent delivered in the manner described in this Section 1.10,
written consents from all holders to take such action are delivered to the Company in the
manner described in this Section 1.10. Only shareholders of record on the record date
shall be entitled to consent to corporate action in writing without a meeting.
(b) Without qualification, any shareholder of record seeking to have the shareholders
authorize or take any action by written consent shall first request in writing that the
Board of Directors fix a record date for the purpose of determining the shareholders
entitled to take such action, which request shall be in proper form and delivered to, or
mailed and received by, the Secretary of the Company at the principal executive offices of
the Company. Within ten (10) days after receipt of a request in proper form and otherwise
in compliance with this Section 1.10(b) from any such shareholder, the Board of Directors
may adopt a resolution fixing a record date for the purpose of determining the shareholders
entitled to take such action, which date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no resolution fixing a record date
has been adopted by the Board of Directors within such ten (10) day period after the date
on which such a request is received, (i) the record date for determining shareholders
entitled to consent to such action, when no prior action of the Board of Directors is
required by applicable law, shall be the first date on which a valid signed written consent
setting forth the action taken or proposed to be taken is delivered to the Company in the
manner described in this Section 1.10, and (ii) the record date for determining
shareholders entitled to consent to such action, when prior action by the Board of
Directors is required by applicable law, shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such prior action.
(c) To be in proper form for purposes of this Section 1.10, a request by a shareholder
for the Board of Directors to fix a record date shall set forth:
(i) As to each Soliciting Person (as defined below), the Shareholder Information (as defined
in Section 1.11(c)(i), except that for purposes of this Section 1.10 the term Soliciting Person
shall be substituted for the term Proposing Person in all places it appears in Section
1.11(c)(i));
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(ii) As to each Soliciting Person, any Disclosable Interests (as defined in Section
1.11(c)(ii), except that for purposes of this Section 1.10 the term Soliciting Person shall be
substituted for the term Proposing Person in all places it appears in Section 1.11(c)(ii) and the
disclosure in clause (L) of Section 1.11(c)(ii) shall be made with respect to the action or actions
proposed to be taken by written consent);
(iii) As to the action or actions proposed to be taken by written consent, (A) a reasonably
brief description of the action or actions, the reasons for taking such action or actions and any
material interest in such action or actions of each Soliciting Person, (B) the text of the
resolutions or consent proposed to be acted upon by written consent of the shareholders, and (C) a
reasonably detailed description of all agreements, arrangements and understandings (x) between or
among any of the Soliciting Persons and (y) between or among any Soliciting Person and any other
person or entity (including their names) in connection with the request or such action or actions;
and
(iv) If directors are proposed to be elected by written consent, the Nominee Information for
each person whom a Nominating Person (as defined below) proposes to elect as a director by written
consent.
For purposes of this Section 1.10, the term Soliciting Person shall mean (i) the shareholder
making a request for the Board of Directors to fix a record date and proposing the action or
actions to be taken by written consent, (ii) the beneficial owner or beneficial owners, if
different, on whose behalf such request is made, (iii) any affiliate or associate of such
shareholder or beneficial owner, and (iv) any other person with whom such shareholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in Concert) (as defined in
Section 1.11(c)).
(d) In connection with an action or actions proposed to be taken by written consent in
accordance with this Section 1.10, the shareholder or shareholders seeking such action or
actions shall further update and supplement the information previously provided to the
Company in connection therewith, if necessary, so that the information provided or required
to be provided pursuant to this Section 1.10 shall be true and correct as of the record
date for determining the shareholders eligible to take such action and as of the date that
is five (5) business days prior to the date the consent solicitation is commenced, and such
update and supplement shall be delivered to, or mailed and received by, the Secretary at
the principal executive offices of the Company not later than five (5) business days after
the record date for determining the shareholders eligible to take such action (in the case
of the update and supplement required to be made as of the record date), and not later than
three (3) business days prior to the date that the consent solicitation is commenced (in
the case of the update and supplement required to be made as of five (5) business days
prior to the commencement of the consent solicitation).
(e) Notwithstanding anything in these By-Laws to the contrary, no action may be taken
by the shareholders by written consent except in accordance with this Section 1.10. If the
Board of Directors shall determine that any request to fix a record date or to take
shareholder action by written consent was not properly made in
5
accordance with this Section 1.10, or the shareholder or shareholders seeking to take
such action do not otherwise comply with this Section 1.10, then the Board of Directors
shall not be required to fix a record date and any such purported action by written consent
shall be null and void to the fullest extent permitted by applicable law. In addition to
the requirements of this Section 1.10 with respect to shareholders seeking to take an
action by written consent, each Soliciting Person shall comply with all requirements of
applicable law, including all requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (as so amended and inclusive of such
rules and regulations, the Exchange Act), with respect to such action.
1.11
Notice of Business to be Brought Before a Meeting.
(a) At an annual meeting of the shareholders, 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 (i) brought before the meeting by the Company and
specified in the notice of meeting given by or at the direction of the Board of Directors,
(ii) brought before the meeting by or at the direction of the Board of Directors, or
(iii) otherwise properly brought before the meeting by a shareholder who (A) was a
shareholder of record (and, with respect to any beneficial owner, if different, on whose
behalf such business is proposed, only if such beneficial owner was the beneficial owner of
shares of the Company) both at the time of giving the notice provided for in this Section
1.11 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has
complied with this Section 1.11 as to such business. Except for proposals properly made in
accordance with Rule 14a-8 under the Exchange Act, and included in the notice of meeting
given by or at the direction of the Board of Directors, the foregoing clause (iii) shall be
the exclusive means for a shareholder to propose business to be brought before an annual
meeting of the shareholders. Except as otherwise provided for under New York Business
Corporation Law, shareholders shall not be permitted to propose business to be brought
before a special meeting of the shareholders, and the only matters that may be brought
before a special meeting are the matters specified in the notice of meeting given by or at
the direction of the person calling the meeting pursuant to Section 1.3. Shareholders
seeking to nominate persons for election to the Board of Directors must comply with Section
1.12 and this Section 1.11 shall not be applicable to nominations except as expressly
provided in Section 1.12.
(b) Without qualification, for business to be properly brought before an annual
meeting by a shareholder, the shareholder must (i) provide Timely Notice (as defined below)
thereof in writing and in proper form to the Secretary of the Company and (ii) provide any
updates or supplements to such notice at the times and in the forms required by this
Section 1.11. To be timely, a shareholders notice must be delivered to, or mailed and
received at, the principal executive offices of the Company not less than ninety (90) days
nor more than one hundred twenty (120) days prior to the one-year anniversary of the
preceding years annual meeting; provided, however, that if the date of the annual meeting
is more than thirty (30) days before or more than sixty (60) days after such anniversary
date, notice by the shareholder to be timely must be so delivered, or mailed and received,
not later than the ninetieth (90
th
) day prior to such annual meeting or, if
later, the tenth (10
th
) day following the day on which public disclosure of the
date of
6
such annual meeting was first made (such notice within such time periods, Timely
Notice). In no event shall any adjournment of an annual meeting or the announcement
thereof commence a new time period for the giving of Timely Notice as described above.
(c) To be in proper form for purposes of this Section 1.11, a shareholders notice to
the Secretary shall set forth:
(i) As to each Proposing Person (as defined below), (A) the name and address of such Proposing
Person (including, if applicable, the name and address that appear on the Companys books and
records); and (B) the class or series and number of shares of the Company that are, directly or
indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act) by such Proposing Persons, except that such Proposing Person shall in all events be
deemed to beneficially own any shares of any class or series of the Company as to which such
Proposing Person has a right to acquire beneficial ownership at any time in the future (the
disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as
Shareholder Information);
(ii) As to each Proposing Person, (A) any derivative, swap or other transaction or series of
transactions engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of
which is to give such Proposing Person economic risk similar to ownership of shares of any class or
series of the Company, including due to the fact that the value of such derivative, swap or other
transactions are determined by reference to the price, value or volatility of any shares of any
class or series of the Company, or which derivative, swap or other transactions provide, directly
or indirectly, the opportunity to profit from any increase in the price or value of shares of any
class or series of the Company (Synthetic Equity Interests), which Synthetic Equity Interests
shall be disclosed without regard to whether (x) the derivative, swap or other transactions convey
any voting rights in such shares to such Proposing Person, (y) the derivative, swap or other
transactions are required to be, or are capable of being, settled through delivery of such shares
or (z) such Proposing Person may have entered into other transactions that hedge or mitigate the
economic effect of such derivative, swap or other transactions, (B) any proxy (other than a
revocable proxy or consent given in response to a solicitation made pursuant to, and in accordance
with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A),
agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has
or shares a right to vote any shares of any class or series of the Company, (C) any agreement,
arrangement, understanding or relationship, including any repurchase or similar so-called stock
borrowing agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person,
the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or
otherwise) of shares of any class or series of the Company by, manage the risk of share price
changes for, or increase or decrease the voting power of, such Proposing Person with respect to the
shares of any class or series of the Company, or which provides, directly or indirectly, the
opportunity to profit from any decrease in the price or value of the shares of any class or series
of the Company (Short Interests), (D) any rights to dividends on the shares of any class or
series of the Company owned beneficially by such Proposing Person that are separated or separable
from the underlying shares of the Company, (E) any performance related fees (other than an asset
based fee) that such Proposing Person is entitled to based on any increase or decrease in the price
or value of shares of any class or series of the Company, or any Synthetic Equity Interests or
Short Interests, if any,
7
(F)(x) if such Proposing Person is not a natural person, the identity of the natural person or
persons associated with such Proposing Person responsible for the formulation of and decision to
propose the business to be brought before the meeting (such person or persons, the Responsible
Person), the manner in which such Responsible Person was selected, any fiduciary duties owed by
such Responsible Person to the equity holders or other beneficiaries of such Proposing Person, the
qualifications and background of such Responsible Person and any material interests or
relationships of such Responsible Person that are not shared generally by any other record or
beneficial holder of the shares of any class or series of the Company and that reasonably could
have influenced the decision of such Proposing Person to propose such business to be brought before
the meeting, and (y) if such Proposing Person is a natural person, the qualifications and
background of such natural person and any material interests or relationships of such natural
person that are not shared generally by any other record or beneficial holder of the shares of any
class or series of the Company and that reasonably could have influenced the decision of such
Proposing Person to propose such business to be brought before the meeting, (G) any significant
equity interests or any Synthetic Equity Interests or Short Interests in any principal competitor
of the Company held by such Proposing Persons, (H) any direct or indirect interest of such
Proposing Person in any contract with the Company, any affiliate of the Company or any principal
competitor of the Company (including, in any such case, any employment agreement, collective
bargaining agreement or consulting agreement), (I) any pending or threatened litigation in which
such Proposing Person is a party or material participant involving the Company or any of its
officers or directors, or any affiliate of the Company, (J) any material transaction occurring
during the prior twelve months between such Proposing Person, on the one hand, and the Company, any
affiliate of the Company or any principal competitor of the Company, on the other hand, (K) a
summary of any material discussions regarding the business proposed to be brought before the
meeting (x) between or among any of the Proposing Persons or (y) between or among any Proposing
Person and any other record or beneficial holder of the shares of any class or series of the
Company (including their names), and (L) any other information relating to such Proposing Person
that would be required to be disclosed in a proxy statement or other filing required to be made in
connection with solicitations of proxies or consents by such Proposing Person in support of the
business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act
(the disclosures to be made pursuant to the foregoing clauses (A) through (L) are referred to as
Disclosable Interests); provided, however, that Disclosable Interests shall not include any such
disclosures with respect to the ordinary course business activities of any broker, dealer,
commercial bank, trust company or other nominee who is a Proposing Person solely as a result of
being the shareholder directed to prepare and submit the notice required by these By-Laws on behalf
of a beneficial owner; and
(iii) As to each item of business that the shareholder proposes to bring before the annual
meeting, (A) a reasonably brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of each Proposing Person, (B) the text of the proposal or business (including the
text of any resolutions proposed for consideration), and (C) a reasonably detailed description of
all agreements, arrangements and understandings (x) between or among any of the Proposing Persons
or (y) between or among any Proposing Person and any other person or entity (including their names)
in connection with the proposal of such business by such shareholder.
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For purposes of this Section 1.11, the term Proposing Person shall mean (i) the shareholder
providing the notice of business proposed to be brought before an annual meeting, (ii) the
beneficial owner or beneficial owners, if different, on whose behalf the notice of the business
proposed to be brought before the annual meeting is made, (iii) any affiliate or associate (each
within the meaning of Rule 12b-2 under the Exchange Act for purposes of these By-Laws) of such
shareholder or beneficial owner, and (iv) any other person with whom such shareholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in Concert (as defined
below).
A person shall be deemed to be Acting in Concert with another person for purposes of these
By-Laws if such person knowingly acts (whether or not pursuant to an express agreement, arrangement
or understanding) in concert with, or towards a common goal relating to the management, governance
or control of the Company in parallel with, such other person where (A) each person is conscious of
the other persons conduct or intent and this awareness is an element in their decision-making
processes and (B) at least one additional factor suggests that such persons intend to act in
concert or in parallel, which such additional factors may include, without limitation, exchanging
information (whether publicly or privately), attending meetings, conducting discussions, or making
or soliciting invitations to act in concert or in parallel; provided, that a person shall not be
deemed to be Acting in Concert with any other person solely as a result of the solicitation or
receipt of revocable proxies or consents from such other person in response to a solicitation made
pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a proxy or consent
solicitation statement filed on Schedule 14A. A person Acting in Concert with another person shall
be deemed to be Acting in Concert with any third party who is also Acting in Concert with such
other person.
(d) A shareholder providing notice of business proposed to be brought before an annual
meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section
1.11 shall be true and correct as of the record date for the meeting and as of the date
that is ten (10) business days prior to the meeting or any adjournment or postponement
thereof, and such update and supplement shall be delivered to, or mailed and received by,
the Secretary at the principal executive offices of the Company not later than five (5)
business days after the record date for the meeting (in the case of the update and
supplement required to be made as of the record date), and not later than eight (8)
business days prior to the date for the meeting or, if practicable, any adjournment or
postponement thereof (and, if not practicable, on the first practicable date prior to the
date to which the meeting has been adjourned or postponed) (in the case of the update and
supplement required to be made as of ten (10) business days prior to the meeting or any
adjournment or postponement thereof).
(e) Notwithstanding anything in these By-Laws to the contrary, no business shall be
conducted at an annual meeting except in accordance with this Section 1.11. The presiding
officer of the meeting shall, if the facts warrant, determine that the business was not
properly brought before the meeting in accordance with this Section 1.11, and if he or she
should so determine, he or she shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
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(f) This Section 1.11 is expressly intended to apply to any business proposed to be
brought before an annual meeting of shareholders other than any proposal made pursuant to
Rule 14a-8 under the Exchange Act. In addition to the requirements of this Section 1.11
with respect to any business proposed to be brought before an annual meeting, each
Proposing Person shall comply with all applicable requirements of the Exchange Act with
respect to any such business. Nothing in this Section 1.11 shall be deemed to affect the
rights of shareholders to request inclusion of proposals in the Companys proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
(g) For purposes of these By-Laws, public disclosure shall mean disclosure in a
press release reported by a national news service or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of
the Exchange Act.
1.12
Notice of Nominations for Election to the Board of Directors.
(a) Nominations of any person for election to the Board of Directors at an annual
meeting or at a special meeting (but only if the election of directors is a matter
specified in the notice of meeting given by or at the direction of the person calling such
special meeting) may be made at such meeting only (i) by or at the direction of the Board
of Directors, including by any committee or persons appointed by the Board of Directors, or
(ii) by a shareholder who (A) was a shareholder of record (and, with respect to any
beneficial owner, if different, on whose behalf such nomination is proposed to be made,
only if such beneficial owner was the beneficial owner of shares of the Company) both at
the time of giving the notice provided for in this Section 1.12 and at the time of the
meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section
1.12 as to such nomination. The foregoing clause (ii) shall be the exclusive means for a
shareholder to make any nomination of a person or persons for election to the Board of
Directors at an annual meeting or special meeting.
(b) Without qualification, for a shareholder to make any nomination of a person or
persons for election to the Board of Directors at an annual meeting, the shareholder must
(i) provide Timely Notice (as defined in Section 1.11) thereof in writing and in proper
form to the Secretary of the Company and (ii) provide any updates or supplements to such
notice at the times and in the forms required by this Section 1.12. Without qualification,
if the election of directors is a matter specified in the notice of meeting given by or at
the direction of the person calling such special meeting, then for a shareholder to make
any nomination of a person or persons for election to the Board of Directors at a special
meeting, the shareholder must (i) provide timely notice thereof in writing and in proper
form to the Secretary of the Company at the principal executive offices of the Company, and
(ii) provide any updates or supplements to such notice at the times and in the forms
required by this Section 1.12. To be timely, a shareholders notice for nominations to be
made at a special meeting must be delivered to, or mailed and received at, the principal
executive offices of the Company not earlier than the one hundred twentieth
(120
th
) day prior to such special meeting and not later than the ninetieth
(90
th
) day prior to such special meeting or, if later, the tenth
(10
th
) day following the day on which public disclosure (as defined in Section
1.11) of the date of such special
10
meeting was first made. In no event shall any adjournment of an annual meeting or
special meeting or the announcement thereof commence a new time period for the giving of a
shareholders notice as described above.
(c) To be in proper form for purposes of this Section 1.12, a shareholders notice to
the Secretary shall set forth:
(i) As to each Nominating Person (as defined below), the Shareholder Information (as defined
in Section 1.11(c)(i), except that for purposes of this Section 1.12 the term Nominating Person
shall be substituted for the term Proposing Person in all places it appears in Section
1.11(c)(i));
(ii) As to each Nominating Person, any Disclosable Interests (as defined in Section
1.11(c)(ii), except that for purposes of this Section 1.12 the term Nominating Person shall be
substituted for the term Proposing Person in all places it appears in Section 1.11(c)(ii) and the
disclosure in clause (L) of Section 1.11(c)(ii) shall be made with respect to the election of
directors at the meeting);
(iii) As to each person whom a Nominating Person proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee that would be required to be
set forth in a shareholders notice pursuant to this Section 1.12 if such proposed nominee were a
Nominating Person, (B) all information relating to such proposed nominee that is required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors in a contested election pursuant to Section
14(a) under the Exchange Act (including such proposed nominees written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), (C) a description of all
direct and indirect compensation and other material monetary agreements, arrangements and
understandings during the past three years, and any other material relationships, between or among
any Nominating Person, on the one hand, and each proposed nominee, his or her respective affiliates
and associates and any other persons with whom such proposed nominee (or any of his or her
respective affiliates and associates) is Acting in Concert (as defined in Section 1.11(c)), on the
other hand, including, without limitation, all information that would be required to be disclosed
pursuant to Item 404 under Regulation S-K if such Nominating Person were the registrant for
purposes of such rule and the proposed nominee were a director or executive officer of such
registrant (the disclosures to be made pursuant to the foregoing clauses (A) through (C) are
referred to as Nominee Information), and (D) a completed and signed questionnaire, representation
and agreement as provided in Section 1.12(f); and
(iv) The Company may require any proposed nominee to furnish such other information (A) as may
reasonably be required by the Company to determine the eligibility of such proposed nominee to
serve as an independent director of the Company in accordance with the charter of the Companys
Nominating and Corporate Governance Committee or (B) that could be material to a reasonable
shareholders understanding of the independence or lack of independence of such proposed nominee.
11
For purposes of this Section 1.12, the term Nominating Person shall mean (i) the shareholder
providing the notice of the nomination proposed to be made at the meeting, (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to
be made at the meeting is made, (iii) any affiliate or associate of such shareholder or beneficial
owner, and (iv) any other person with whom such shareholder or such beneficial owner (or any of
their respective affiliates or associates) is Acting in Concert.
(d) A shareholder providing notice of any nomination proposed to be made at a meeting
shall further update and supplement such notice, if necessary, so that the information
provided or required to be provided in such notice pursuant to this Section 1.12 shall be
true and correct as of the record date for the meeting and as of the date that is ten (10)
business days prior to the meeting or any adjournment or postponement thereof, and such
update and supplement shall be delivered to, or mailed and received by, the Secretary at
the principal executive offices of the Company not later than five (5) business days after
the record date for the meeting (in the case of the update and supplement required to be
made as of the record date), and not later than eight (8) business days prior to the date
for the meeting or, if practicable, any adjournment or postponement thereof (and, if not
practicable, on the first practicable date prior to the date to which the meeting has been
adjourned or postponed) (in the case of the update and supplement required to be made as of
ten (10) business days prior to the meeting or any adjournment or postponement thereof).
(e) Notwithstanding anything in these By-Laws to the contrary, no person shall be
eligible for election as a director of the Company unless nominated in accordance with this
Section 1.12. The presiding officer at the meeting shall, if the facts warrant, determine
that a nomination was not properly made in accordance with this Section 1.12, and if he or
she should so determine, he or she shall so declare such determination to the meeting and
the defective nomination shall be disregarded.
(f) To be eligible to be a nominee for election as a director of the Company, the
proposed nominee must deliver (in accordance with the time periods prescribed for delivery
of notice under this Section 1.12) to the Secretary at the principal executive offices of
the Company a written questionnaire with respect to the background and qualification of
such proposed nominee (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in form provided by the Secretary upon
written request) that such proposed nominee (i) is not and 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 proposed nominee, if elected as a
director of the Company, will act or vote on any issue or question (a Voting Commitment)
that has not been disclosed to the Company or (B) any Voting Commitment that could limit or
interfere with such proposed nominees ability to comply, if elected as a director of the
Company, with such proposed nominees 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 Company 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 to the Company and (iii) in such proposed nominees individual
capacity and
12
on behalf of the shareholder (or the beneficial owner, if different) on whose behalf
the nomination is made, would be in compliance, if elected as a director of the Company,
and will comply with applicable publicly disclosed corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies and guidelines of the
Company.
(g) In addition to the requirements of this Section 1.12 with respect to any
nomination proposed to be made at a meeting, each Nominating Person shall comply with all
applicable requirements of the Exchange Act with respect to any such nominations.
ARTICLE II.
BOARD OF DIRECTORS
2.1
Qualifications and Number
.
Each director shall be at least 21 years of age. A director need not be a shareholder, a
citizen of the United States, or a resident of the State of New York. The number of directors
constituting the entire Board of Directors shall consist of not less than three (3) nor more than
seven (7) directors (except that where all of the shares are owned beneficially and of record by
less than three (3) shareholders, the number of directors may be less than three (3) but not less
than the number of shareholders), the exact number to be determined from time to time by resolution
of the Board of Directors; provided, however, that the number of directors shall be increased
beyond the foregoing limit, to the extent required, in the event that (and for so long as the
holders of any Preferred Stock of the Company, voting as a separate class or series under any
provisions of the Certificate of Incorporation, shall be entitled to elect any directors.
2.2
Election and Term
.
At each annual meeting of shareholders, the shareholders shall elect directors to hold office
until the next annual meeting of shareholders and until a successor shall have been duly elected
and qualified, or until his prior death, resignation or removal.
2.3
Vacancies
.
Any vacancy in the Board of Directors, whether caused by resignation, death, increase in the
number of directors, removal, disqualification or otherwise, may be filled by a majority of the
directors then in office after the vacancy has occurred, although less than a quorum (except that a
vacancy created by the removal of a director by shareholders for cause may be filled by the
shareholders at the meeting at which the director is removed or, if not so filled, then by the
remaining directors) and provided that any vacancies with respect to directors elected by holders
of any Preferred Stock of the Company voting as a separate class or series under any provisions of
the Certificate of Incorporation shall be filled as provided in the provisions of the Certificate
of Incorporation relating to any such Preferred Stock. Any director elected by the Board of
Directors to fill a vacancy shall hold office until the next meeting of shareholders at which the
election of directors is in the regular order of business, and until his successor has been elected
and qualified.
13
2.4
Time of Board of Directors Meetings
.
Regular meetings of the Board of Directors may be held without notice at such time and place
as shall from time to time be fixed by the Board of Directors.
Special meetings of the Board of Directors may be called pursuant to Section 2.6 hereof.
2.5
Place of Board of Directors meetings
.
Regular and special meetings of the Board of Directors, except as otherwise provided in the
Companys Certificate of Incorporation or in these By-Laws, shall be held at such place within or
without the State of New York as shall be fixed by the Board of Directors.
2.6
Calling of Board of Directors Meetings
.
No call shall be required for any regular meetings of the Board of Directors for which the
time and place have been fixed by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or by the Secretary on written
request of two (2) directors.
2.7
Notice of Board of Directors Meetings
.
No notice shall be required for regular meetings of the Board of Directors for which the time
and place have been fixed by the Board of Directors. Except as otherwise provided by law, oral,
telegraphic, electronic or written notice of any special meeting of the Board of Directors shall be
given, sent, transmitted or mailed not less than one (1) day before the special meeting and shall
state the date, place and hour of such special meeting. The notice of any meeting need not specify
the purpose of the meeting. Any requirement of furnishing notice shall be waived by any director
who signs a waiver of notice before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, a lack of notice to him.
2.8
Quorum and Action
.
A majority of the entire Board of Directors shall constitute a quorum except when a vacancy or
vacancies prevent such majority, whereupon a majority of the directors then in office shall
constitute a quorum, provided, such majority shall constitute at least one-third of the entire
Board of Directors. A majority of the directors present, whether or not a quorum is present, may
adjourn a meeting to another time and place. Notice need not be given of any adjourned meeting.
Except as otherwise provided herein, the act of the Board of Directors shall be the act, at a
meeting duly assembled, by vote of a majority of the directors present at the time of the vote, a
quorum being present at such time.
2.9
Chairman of the Meeting
.
The Chairman of the Board or, in his absence or inability to act, the President of the Company
or, in his absence or inability to act, another director chosen by a majority of the directors
present shall act as chairman of meetings of the Board of Directors and preside at all
14
such meetings. The Secretary of the Company or, in his absence or inability to act, any
person appointed by the chairman of the meeting, shall act as secretary of the meeting.
2.10
Resignation or Removal of Directors
.
Any director may resign at any time and such resignation shall take effect upon receipt
thereof by the Chairman of the Board, the President or the Secretary unless otherwise specified in
the resignation. No director of the Company shall be removed from office as a director except for
cause by the vote of (A) the holders of at least a majority of the outstanding shares of capital
stock of the Company entitled to vote at an election of directors (considered for this purpose as
one class) or (B) a majority of the entire Board of Directors, provided that this provision shall
not apply to any directors elected by holders of any Preferred Stock voting as a separate class or
series under any provisions of the Certificate of Incorporation, which directors may be removed
only by the vote of the holders of at least a majority of the outstanding shares of such Preferred
Stock.
2.11
Committees
.
By resolution adopted by a majority of the entire Board of Directors, the directors may
designate from their number three (3) or more directors, to constitute an Executive Committee and
other committees, each of which, to the extent provided in the resolution designating shall have
the authority of the Board of Directors with the exception of any authority the delegation of which
is prohibited by the New York Business Corporation Law. All committees so appointed shall keep
regular minutes of the business transacted at their meeting. Each committee established by the
Board of Directors shall serve at the pleasure of the Board of Directors, which may fill vacancies
in any such committee.
In addition to the foregoing, the Board of Directors may, by resolution adopted by a majority
of the Board of Directors, create a committee of indeterminate membership and duration and not
subject to the limitations as to the membership, quorum and manner of meeting and acting prescribed
by these By-Laws, which committee, in the event of a major disaster or catastrophe or national
emergency which renders the Board of Directors incapable of action by reason of death, physical
incapacity or inability to meet of some or all of its members, shall have, and may exercise all the
powers of the Board of Directors in the management of the business and affairs of the Company
(including, without limitation, the power to authorize the seal of the Company to be affixed to all
papers with may require it and the power to fill vacancies in the Board of Directors). An act of
such committee taken within the scope of its authority shall be an act of the Board of Directors.
2.12
Action in Lieu of Meeting
.
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. The resolution and the
written consents thereto shall be filed with the minutes of the proceedings of the Board of
Directors or committee.
15
2.13
Telephone Participation
.
One (1) or more members of the Board of Directors or any committee thereof may participate in
a meeting of the Board of Directors or committee by means of a 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 III.
OFFICERS
3.1
Election
.
The Board of Directors at its first meeting after the annual meeting of shareholders, or as
soon as practicable after the election of directors in each year, shall elect or appoint from their
number a Chairman of the Board. The Board of Directors shall elect or appoint a President, a
Secretary and a Treasurer, none of whom need be members of the Board of Directors, and may also
elect or appoint one (1) or more Vice Presidents and such other officers as they may deem proper
setting forth the powers and duties of said officers in the resolution by which they are elected or
appointed. Any two (2) or more of the aforesaid offices, except those of President and Vice
President, or President and Secretary, may be held by the same person.
3.2
Term of Office
.
Each officer shall hold office at the pleasure of the Board of Directors. The Board of
Directors may remove any officer for cause or without cause. Any officer may resign his office at
any time, such resignation to take effect upon receipt of written notice thereof by the Company
unless otherwise specified in the resignation. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors.
3.3
The Chairman of the Board
.
The Chairman of the Board, if any, shall, if present, preside at all meetings of the Board of
Directors and shall have such other powers and duties as the Board of Directors may from time to
time assign to him or her.
3.4
The President
.
(a) The Chief Executive Officer shall, subject to the direction of the Board of
Directors, have general and active control of the affairs and business of the Company and
general supervision of its officers, officials, employees and agents. In the absence of the
Chairman of the Board, the Chief Executive Officer shall preside at all meetings of
shareholders and, if he or she is also a director, meetings of the Board of Directors at
which he or she is present.
(b) The President may be the Chief Executive Officer if so designated by the Board of
Directors. If not, the President shall have such powers and perform such duties as are
prescribed by the Chief Executive Officer and the Board of Directors, and in
16
the absence of the Chief Executive Officer, the President shall have the powers and
perform the duties of the Chief Executive Officer, except to the extent that the Board of
Directors shall have otherwise provided.
3.5
Vice Presidents
.
Each Vice President shall have such powers and perform such duties as from time to time may be
assigned to him by the Board of Directors.
3.6
The Treasurer
.
The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and securities
of the Company;
(b) keep full and accurate accounts of receipts. and disbursements in books belonging
to the Company;
(c) cause all moneys and other valuables to be deposited to the credit of the Company
in such depositaries as may be designated by the Board of Directors;
(d) receive, and give receipts for, moneys due and payable to the Company from any
source whatsoever;
(e) disburse the funds of the Company and supervise the investment of its funds as
ordered or authorized by the Board of Directors, taking proper vouchers therefor; and
(f) in general, have all the powers and perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned to him by the Board
of Directors, the Chairman of the Board or the President.
3.7
The Secretary
.
The Secretary shall:
(a) keep or cause to be kept, in one or more books provided for the purpose, the
minutes of all meetings of the Board of Directors, the committees of the Board of Directors
and the shareholders;
(b) see that all notices are duly given in accordance with the provisions of these
By-Laws and as required by law;
(c) be custodian of the records and the seal of the Company and affix and attest the
seal to all stock certificates of the Company (unless the seal of the Company on such
certificates shall be a facsimile, as hereinafter provided) and affix and
17
attest the seal to all other documents to be executed on behalf of the Company under
its seal;
(d) see that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and
(e) in general, have all the powers and perform all the duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him by the Board
of Directors, the Chairman of the Board or the President.
3.8
Duties of Officers may be Delegated
.
In the case of the absence of any officer, or for any other reason that the Board of Directors
may deem sufficient, the Chairman of the Board, the President or the Board of Directors may
delegate for the time being the powers or duties of such officer to any other officer or to any
director.
ARTICLE IV.
STOCK CERTIFICATES
4.1
Issuance of Stock Certificates
.
The capital stock of the Company shall be represented by certificates signed by the Chairman
of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or any Assistant Treasurer and sealed with the seal of the Company. Such seal may be
a facsimile, engraved or printed and where any such certificate is signed by a transfer agent or
transfer clerk and by a registrar, the signatures of any officers appearing thereon may be
facsimiles, engraved or printed.
4.2
Lost Stock Certificates
.
The Board of Directors may issue or cause to be issued new or duplicate certificates for lost,
stolen or destroyed stock certificates of the Company upon written notification of the facts of
such loss, theft or destruction and subject, in the discretion of the Board of Directors, to the
deposit of a bond or other indemnity by the shareholder seeking the new certificate in such form
and with such sureties and in such sum as the Board of Directors may require.
4.3
Transfers of Stock
.
Transfers of stock shall be made only on the stock transfer books of the Company, and, except
in the case of any such certificate which has been lost, stolen or destroyed, such transfer shall
only be made upon surrender to the Company of a certificate for shares for cancellation duly
endorsed or accompanied by proper evidence of succession, assignment or authority to transfer.
Upon the issue of a new certificate to the person entitled thereto, the Company shall cancel the
old certificate and record the transaction upon its books.
18
4.4
Regulations
.
Except to the extent that the exercise of such power shall be prohibited or circumscribed by
these By-Laws, by the Certificate of Incorporation, or other certificate filed pursuant to law, or
by statute, the Board of Directors shall have power to make such rules and regulations concerning
the issuance, registration, transfer and cancellation of stock certificates as it shall deem
appropriate.
ARTICLE V.
SEAL
The seal of the Company shall be circular in form, shall bear the name of the Company and
shall contain in the center the year in which the Company was incorporated and the words Corporate
Seal, New York.
ARTICLE VI.
FISCAL YEAR
The fiscal year of the Company shall end on such date and shall consist of such accounting
periods as may be fixed by the Board of Directors.
ARTICLE VII.
VOTING SECURITIES
Unless otherwise directed by the Board of Directors, the Chairman of the Board, or, in the
case of his absence or inability to act, the President, or, in the case of the Presidents absence
or inability to act, the Vice Presidents, in order of their seniority, shall have full power and
authority on behalf of the Company to attend and to act and to vote, or to execute in the name or
on behalf of the Company a proxy authorizing an agent or attorney-in-fact for the Company to attend
and vote at any meetings of security holders of corporations in which the Company may hold
securities, and at such meetings he or his duly authorized agent or attorney-in-fact shall possess
and may exercise any and all rights and powers incident to the ownership of such securities and
which, as the owner thereof, the Company might have possessed and exercised if present. The Board
of Directors by resolution from time to time may confer like power upon any other person or
persons.
ARTICLE VIII.
BOOKS AND RECORDS
The Company shall keep correct and complete books and records of account and shall keep
minutes of the proceedings of the shareholders, the Board of Directors, and any committee which the
directors may appoint, and shall keep at the office of the Company in the State of New York or at
the office of the transfer agent or registrar, if any in said State, a record containing the names
and addresses of all shareholders, the number of shares held by each, and the dates when they
respectively became the owners of record thereof. Any of the foregoing books, minutes, or records
may be in written form or in any other form capable of being converted into written form within a
reasonable time.
19
ARTICLE IX.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
9.1
General
.
The Company shall indemnify any officer or director of the Company made, or threatened to be
made, a party to an action or proceeding, whether civil, criminal, administrative or investigative
and including an action by or in the right of a Company or by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the Company served in
any capacity at the request of the Company (any such action or proceeding being hereinafter
referred to as an Action), by reason of the fact that he, his testator or intestate was a
director or officer of the Company, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts
paid in settlement and reasonable expenses, including attorneys fees incurred as a result of such
Action, or any appeal therein, provided that no indemnification shall be made to or on behalf of
any director or officer if a judgment or other final adjudication adverse to such director or
officer establishes that (i) his or her acts were committed in bad faith or were the result of
active and deliberate dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he or she personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled. The Company may indemnify and advance expenses to any
other person to whom the Company is permitted to provide indemnification or the advancement of
expenses to the fullest extent permitted by applicable law, whether pursuant to rights granted
pursuant to, or provided by, the New York Business Corporation Law or other law, or other rights
create by an agreement approved by the Board of Directors, or resolution of shareholders or the
Board of Directors, and the adoption of any such resolution or the entering into of any such
agreement approved by the Board of Directors is hereby authorized.
9.2
Expense Advances
.
The Company shall, from time to time, advance to any director or officer of the Company
expenses (including attorneys fees) incurred in defending any Action in advance of the final
disposition of such Action; provided that no such advancement shall be made until receipt of any
undertaking by or on behalf of such director or officer to repay such amount as and to the extent
required by law.
9.3
Procedure for Indemnification
.
Indemnification and advancement of expenses under this Article IX shall be made promptly and,
in any event, no later than thirty (30) days in the case of indemnification and fifteen (15) days
in the case of expense advancement following the request of the person entitled to such
indemnification or advancement of expenses hereunder, as the case may be. The Board of Directors
shall promptly (but, in any event, within such thirty (30) or fifteen (15) day period, as the case
may be) take all such actions (including, without limitation, any authorizations and findings
required by law) as may be necessary to indemnify, and advance expenses to, each person entitled
thereto pursuant to this Article IX. If the Board of Directors is or may be disqualified by law
from granting any authorization, making any finding or taking any other
20
action necessary or appropriate for such indemnification or advancement, then the Board of
Directors shall use its best efforts to cause appropriate person(s) to promptly so authorize, find
or act.
9.4
Insurance
.
The Company shall be permitted to purchase and maintain insurance for its own indemnification
and that of its directors and officers and any other proper persons to the maximum extent permitted
by law.
9.5
Non-Exclusivity
.
Nothing contained in this Article IX shall limit the right to indemnification and advancement
of expenses to which any person would be entitled by law in the absence of this Article IX, or
shall be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may have or hereafter be entitled under any law, provision of the Certificate of
Incorporation, By-Law, agreement approved by the Board of Directors, or resolution of shareholders
or directors; and the adoption of any such resolution or entering into of any such agreement
approved by the Board of Directors is hereby authorized.
9.6
Continuity of Rights
.
The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article IX shall (i) continue as to a person who has ceased to serve in a capacity which would
entitle such person to indemnification or advancement of expenses pursuant to this Article IX with
respect to acts or omissions occurring prior to such cessation, (ii) inure to the benefit of the
heirs, executors and administrators of a person entitled to the benefits of this Article IX,
(iii) apply with respect to acts or omissions occurring prior to the adoption of this Article IX to
the fullest extent permitted by law and (iv) survive the full or partial repeal or restrictive
amendment hereof with respect to events occurring prior thereto.
9.7
Enforcement
.
The right to indemnification and advancement of expenses provided by this Article IX shall be
enforceable by any person entitled to indemnification or advancement of expenses hereunder in any
court of competent jurisdiction. In such an enforcement action, the burden shall be on the Company
to prove that the indemnification and advancement of expenses being sought are not appropriate.
Neither the failure of the Company to determine whether indemnification or the advancement of
expenses is proper in the circumstances nor an actual determination by the Company thereon adverse
to the person seeking such indemnification or advancement shall constitute a defense to the action
or create a presumption that such person is not so entitled. Without limiting the scope of
Section 9.1, (a) a person who has been successful on the merits or otherwise in the defense of an
Action shall be entitled to indemnification as authorized in Section 9.1 and (b) the termination of
any Action by judgment, settlement, conviction or plea of nolo contendere or its equivalent shall
not in itself create a presumption that such person has not met the standard of conduct set forth
in Section 9.1. Such persons reasonable expenses incurred in connection with successfully
establishing such persons right to
21
indemnification or advancement or expenses, in whole or in part, in any such proceeding shall
also be indemnified by the Company.
9.8
Severability
.
If this Article IX or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Company nevertheless shall indemnify and advance expenses to each
person otherwise entitled thereto to the fullest extent permitted by any applicable portion of this
Article IX that shall not have been invalidated.
ARTICLE X.
AMENDMENT
Except as otherwise provided in the Companys Certificate of Incorporation, these By-Laws may
be amended, altered, changed, added to or repealed by the affirmative vote of the holders of a
majority of the outstanding shares of capital stock of the Company entitled to vote at an election
of directors (considered for this purpose as one class).
Except as otherwise provided in the Companys Certificate of Incorporation, the Board of
Directors, at any regular or special meeting, by a majority vote of the whole Board of Directors,
may amend, alter, change, add to or repeal these By-Laws.
ARTICLE XI.
NOTICES
Whenever under the provisions of these By-Laws, notice is required to be given to any
director, officer or shareholder, such notice may be delivered personally or by mail, unless
otherwise expressly stated in these By-Laws. If mailed, such notice shall be given by depositing
the same, with postage pre-paid, in a post office or official depositary under the exclusive care
and custody of the United States Postal Service, addressed to such shareholder, officer or
director, at such addresses as appears on the books of the Company, and such notice shall be deemed
to have been given at the time when the same was thus mailed
22