<PAGE> FORM 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended.................September 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from............to...................
Commission file number.................................333-52797
CH ENERGY GROUP, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 14-1804460
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
284 SOUTH AVENUE, POUGHKEEPSIE NEW YORK 12601-4879
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (914) 452-2000
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the
issuer's classes of common stock as of the latest practicable
date. Common stock, par value $.10 per share; 100 shares
outstanding as of September 30, 1998.
The Company meets the conditions set forth in General
Instructions H(1)(a) and (b) to Form 10-Q and is therefore filing
this form with the reduced disclosure format.
CH ENERGY GROUP, INC.
FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1998
INDEX
PART I - FINANCIAL INFORMATION PAGE
Item 1 - Financial Statements
Statement of Income -
Three Months Ended September 30, 1998 1
Statement of Income -
Nine Months Ended September 30, 1998 1
Balance Sheet - September 30, 1998 2
Statement of Cash Flows -
Nine Months Ended September 30, 1998 3
Notes to Financial Statements 4
PART II - OTHER INFORMATION
Item 6 - Exhibits and Reports on Form 8-K 6
Signatures 7
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
CH ENERGY GROUP, INC.
STATEMENT OF INCOME
(UNAUDITED)
For the Period Ended
September 30, 1998
3 Months 9 Months
Operating Revenues.................... $ - $ -
Expenses
Start-up Costs........................ - 67,370
Federal income tax (Credit)........... - (23,580)
Net Loss............................... - (43,790)
Dividends Declared on
Common Stock.......................... - -
Balance Retained in the Business....... $ - $(43,790)
See Notes to Financial Statements.
CH ENERGY GROUP, INC.
BALANCE SHEET
September 30,
1998
(Unaudited)
ASSETS
Current Assets
Cash and cash equivalents.................. -
Prepayments............................... 300
Total Current Assets..................... 300
Total Assets................................ $ 300
CAPITALIZATION and LIABILITIES
Capitalization
Common Stock Equity
Common stock, 30,000,000 shares
authorized; shares issued
($.10 par value):
1998 - 100................................ $ 10
Paid-in capital............................ -
Retained earnings.......................... (43,790)
Total Common Stock Equity
and Capitalization................... (43,780)
Current Liabilities
Due to parent.............................. 44,080
Total Current Liabilities................ 44,080
Total Capitalization and
Liabilities................................ $ 300
See Notes to Financial Statements.
CH ENERGY GROUP, INC.
STATEMENT OF CASH FLOWS
(UNAUDITED)
For the
9 Months Ended
September 30,
1998
Operating Activities
Net (Loss)................................ $ (43,790)
Changes in current assets and
liabilities, net:
Prepayments............................. (300)
Due to parent........................... 44,080
Net cash used by operating
activities............................... (10)
Investing Activities........................ -
Financing Activities
Common stock issued..................... 10
Net cash provided by financing
activities............................... 10
Net Change in Cash and Cash
Equivalents................................. -
Cash and Cash Equivalents -
Beginning of Year........................... -
Cash and Cash Equivalents -
End of Period............................... $ -
Supplemental Disclosure of
Cash Flow Information
Interest paid............................. $ -
Federal income tax paid................... -
See Notes to Financial Statements.
CH ENERGY GROUP, INC.
Notes to Financial Statements
NOTE 1 - GENERAL
The accompanying financial statements of CH Energy Group, Inc.
(herein "the Company") are unaudited. Preparation of the
financial statements in accordance with generally accepted
accounting principles requires the use of estimates and
assumptions by management that effect the reported amounts of
assets and liabilities and disclosures of contingent assets and
liabilities at the date of the financial statements and reported
amount of revenues and expenses during the reporting period.
Actual results may differ from those estimates.
NOTE 2 - FORMATION OF THE COMPANY
Effective April 24, 1998, CH Energy Group, Inc. was formed as a
wholly-owned subsidiary of Central Hudson Gas & Electric
Corporation, ("Central Hudson"), a New York State gas and
electric corporation (Commission file number 1-3268), which upon
a one-for-one share exchange will become the holding company
owner of Central Hudson. The registration statement
("Registration Statement") relating to the securities to be
issued to effect the share exchange was effective on July 28,
1998. Initially, the holding company ("CH Energy Group, Inc.")
will own as first tier subsidiaries Central Hudson and its
existing subsidiaries, with the exception of one subsidiary
(Phoenix Development Company, Inc.) which holds real property for
future use by Central Hudson. Phoenix Development Company, Inc.
will remain a wholly owned subsidiary of Central Hudson. CH
Energy Group, Inc., following the share exchange, may also
establish other subsidiaries over time.
A special meeting of Central Hudson shareholders was held on
September 25, 1998, at which meeting Central Hudson shareholders
approved the share exchange which would result in the formation
of a holding company structure. While no specific date has been
set, it is expected that the share exchange will occur during the
first half of 1999. This will allow the Company to coordinate
closely with such restructuring the transfer of up to $100
million in equity from Central Hudson to CH Energy Group, Inc.
and/or one of its prospective first tier subsidiaries.
The Company is a start-up company and as such, has only incurred
expenses. Costs incurred to date primarily relate to the
Registration Statement.
NOTE 3 - FORWARD-LOOKING STATEMENTS
This quarterly report on Form 10-Q may contain statements which,
to the extent they are not recitations of historical fact,
constitute "forward-looking statements" within the meaning of the
Securities Litigation Reform Act of 1995 (Reform Act). These
statements will contain words such as "believes", "expects",
"intends", "plans", and other similar words. All such forward-looking
statements are intended to be subject to the safe harbor
protection provided by the Reform Act. A number of important
factors affecting the Company's business and financial results
could cause actual results to differ materially from those stated
in the forward-looking statements. Those factors include
weather, energy supply and demand, developments in the
legislative, regulatory and competitive environment, electric and
gas industry restructuring and cost recovery and certain
environmental matters.
Given these uncertainties, undue reliance should not be placed
on these forward-looking statements.
<PAGE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are furnished in accordance
with the provisions of Item 601 of Regulation S-K:
Exhibit No.
Regulation S-K
Item 601
Designation Exhibit Description
(3)(i) Restated Certificates of
Incorporation.
(ii) By-Laws of the Company as
amended September 23, 1998.
(27) Financial Data Schedule, pursuant
to Item 601 of Regulation S-K.
(b) Reports on Form 8-K. During the period covered by
this Report on Form 10-Q, the Company filed the following Current
Reports on Form 8-K:
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned hereunder duly authorized.
CH ENERGY GROUP, INC.
(Registrant)
By: (SGD.) DONNA S. DOYLE
Donna S. Doyle
Controller
Authorized Officer and Chief
Accounting Officer
Dated: November 12, 1998
</PAGE>
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FOR THE
CONSOLIDATED BALANCE SHEET, CONSOLIDATED STATEMENT OF INCOME AND CONSOLIDATED
STATEMENT OF CASH FLOWS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> $0
<OTHER-PROPERTY-AND-INVEST> $0
<TOTAL-CURRENT-ASSETS> $300
<TOTAL-DEFERRED-CHARGES> $0
<OTHER-ASSETS> $0
<TOTAL-ASSETS> $300
<COMMON> $10
<CAPITAL-SURPLUS-PAID-IN> $0
<RETAINED-EARNINGS> $(43,790)
<TOTAL-COMMON-STOCKHOLDERS-EQ> $(43,780)
$0
$0
<LONG-TERM-DEBT-NET> $0
<SHORT-TERM-NOTES> $0
<LONG-TERM-NOTES-PAYABLE> $0
<COMMERCIAL-PAPER-OBLIGATIONS> $0
<LONG-TERM-DEBT-CURRENT-PORT> $0
$0
<CAPITAL-LEASE-OBLIGATIONS> $0
<LEASES-CURRENT> $0
<OTHER-ITEMS-CAPITAL-AND-LIAB> $44,080
<TOT-CAPITALIZATION-AND-LIAB> $300
<GROSS-OPERATING-REVENUE> $0
<INCOME-TAX-EXPENSE> $(23,580)
<OTHER-OPERATING-EXPENSES> $67,370
<TOTAL-OPERATING-EXPENSES> $43,790
<OPERATING-INCOME-LOSS> $(43,790)
<OTHER-INCOME-NET> $0
<INCOME-BEFORE-INTEREST-EXPEN> $(43,790)
<TOTAL-INTEREST-EXPENSE> $0
<NET-INCOME> $(43,790)
$0
<EARNINGS-AVAILABLE-FOR-COMM> $(43,790)
<COMMON-STOCK-DIVIDENDS> $0
<TOTAL-INTEREST-ON-BONDS> $0
<CASH-FLOW-OPERATIONS> $(10)
<EPS-PRIMARY> $0
<EPS-DILUTED> $0
</TABLE>
<PAGE>
EXHIBIT (3) (i)
RESTATED CERTIFICATE OF INCORPORATION
OF
CH ENERGY GROUP, INC.
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
_______________________________________________
The undersigned, being respectively, the Chairman of the
Board and the Secretary of CH Energy Group, Inc., a New York
corporation, in accordance with Section 807 of the Business
Corporation Law of the State of New York, do hereby certify that:
FIRST: The name under which the corporation was
originally incorporated was CH Energy Group, Inc. (the
"Corporation").
SECOND: The Certificate of Incorporation of the
Corporation was filed by the Department of State on April 27,
1998.
THIRD: The Certificate of Incorporation is amended to
effect one or more amendments authorized by the Business
Corporation Law of the State of New York, namely: Article 4 is
amended to provide for the issuance of preferred stock and for
the establishment of the relative rights limitations and
preferences related thereto; Article 5 is amended to provide a
new post office address upon which the Secretary of State shall
mail a copy of any process in any action or proceeding commenced
against the Corporation; new Article 7 is added to provide
provisions for the election and removal of directors of the
Corporation; new Article 8 is added to require a super-majority
vote for certain changes in the Certificate of Incorporation; new
Article 9 is added to provide for amendment of the Corporation's
By-Laws and to require a super-majority vote for changes in
certain provisions thereof; and new Article 10 is added to
require a super-majority vote of shareholders with respect to
certain Business Combinations. The text of the Certificate of
Incorporation is hereby restated as so amended to read in its
entirety as follows:
1. The name of the Corporation is CH Energy Group,
Inc. (the 'Corporation').
2. The purpose for which the Corporation is formed is
to engage in any lawful act or activity for which corporations
may be formed under the Business Corporation Law of the State of
New York; provided that the Corporation is not formed to engage
in any act or activity which requires the consent or approval of
any state official, department, board, agency or other body,
without such consent or approval first being obtained.
3. The office of the Corporation in the State of New
York is to be located in the City of Poughkeepsie, County of
Dutchess.
4. The aggregate number of shares which the
Corporation shall have authority to issue is (a) 30,000,000
shares of Common Stock, with a par value of $.10 per share (the
"Common Stock"), and 1,200,000 shares of Preferred Stock, with a
par value of $.10 per share (the "Preferred Stock").
The relative rights, preferences and limitations
of the shares of such classes of stock are as follows:
A. The Preferred Stock may be issued from time to time by
the Board of Directors as shares of one or more series of
Preferred Stock, and the Board of Directors is expressly
authorized, prior to issuance, in the resolution or resolutions
providing for the issue of shares of each particular series, to
establish and designate each particular series and to fix before
issuance the designations, rights, preferences, privileges,
voting powers, limitations, restrictions or qualifications of
each particular series, and the relative rights, preferences and
limitations between series, including, but without limitation of
the foregoing general powers:
(i) The distinctive serial designation of
such series which shall distinguish it from other
series;
(ii) The number of shares included in such
series, which number may be increased or decreased from
time to time unless otherwise provided by the Board of
Directors in creating such series;
(iii) The annual or other dividend rate or
rates (or method of determining such rate or rates) for
shares of such series and the date or dates upon which
such dividends shall be payable;
(iv) Whether dividends on the shares of such
series shall be cumulative and, in the case of shares
of any series having cumulative dividend rights, the
date or dates (or method for determining such date or
dates) from which dividends on the shares of such
series shall be cumulative;
(v) The amount or amounts which shall be
paid out of the assets of the Corporation to the
holders of the shares of such series upon voluntary or
involuntary liquidation, dissolution, or winding up of
the Corporation;
(vi) The price or prices (cash or otherwise)
at which, the period or periods within which and the
terms and conditions upon which the shares of such
series may be purchased, redeemed or acquired (by
exchange or otherwise), in whole or in part, at the
option of the Corporation;
(vii) Provision or provisions, if any, for the
Corporation to purchase, redeem or acquire (by exchange
or otherwise), in whole or in part, shares of such
series pursuant to a sinking or other similar fund, and
the price or prices (cash or otherwise) at which, the
period or periods within which and the terms and
conditions upon which the shares of such series shall
be so purchased, redeemed or acquired, in whole or in
part, pursuant to such provision or provisions;
(viii) The period or periods within which and
the terms and conditions, if any, including the price
or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustment
thereof, upon which the shares of such series shall be
convertible or exchangeable at the option of the holder
or the Corporation or both into shares of any class of
stock or into shares of any other series of Preferred
Stock, except into shares having rights or preferences
as to dividends or the distribution of assets upon
liquidation, dissolution or winding up of the
Corporation which are prior or superior in rank to
those of the shares being converted or exchanged;
(ix) The voting rights, if any, of the shares
of such series in addition to those required by law,
including the number of votes per share (which may be
fractional or more or less than one) and any
requirement for the approval by the holders of up to
two-thirds of the shares of Preferred Stock, or of the
shares of one or more series, or of both, as a
condition to specified corporate action or amendments
to the Certificate of Incorporation; and
(x) Any other relative rights, preferences
or limitations of the shares of such series not
inconsistent herewith or with applicable law.
B. All issued and outstanding series of Preferred Stock
(i) shall rank prior or superior to the Common Stock in respect
of the right to receive dividends and the right to receive
payments out of the assets of the Corporation upon voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, (ii) shall be of equal rank, regardless of series,
and (iii) shall be identical in all respects except as provided
in Paragraph A of this Article 4. The shares of any particular
series of the Preferred Stock shall be identical with each other
in all respects except as to the date from and after which
dividends thereupon shall be cumulative or accrue if declared.
In case dividends or amounts payable on liquidation, dissolution
or winding up of the Corporation are not paid in full on the
Preferred Stock, the shares of all series of the Preferred Stock
shall share ratably in the payment of dividends, including
accumulations, if any, in accordance with the sums which would be
payable on such shares if all dividends were declared and paid in
full, and in any distribution of assets other than by way of
dividends in accordance with the sums which would be payable on
such distributions if all sums payable were discharged in full.
All Preferred Stock redeemed, purchased or otherwise acquired by
the Corporation (including shares surrendered for conversion or
exchange or acquired by conversion or exchange or otherwise)
shall be canceled and thereupon restored to the status of
authorized and unissued shares of Preferred Stock undesignated as
to series.
C. No holder of shares of the Corporation of any class or
series, now or hereafter authorized, shall have any preferential
or preemptive right to subscribe for, purchase or receive, or
have any preferential or preemptive right with respect to, any
shares of the Corporation of any class or series whatsoever, now
or hereafter authorized, or any options or warrants for any such
shares, or any rights to subscribe for or purchase any such
shares, or any securities convertible into or exchangeable for
any such shares whatsoever, whether now or hereafter authorized
and whether issued for cash or other consideration or by way of
dividend or otherwise, which may at any time be issued, sold,
delivered or offered by the Corporation.
D. Except as may from time to time be required by law and
except as otherwise may be provided by the Board of Directors in
accordance with Paragraph A of this Article 4 in respect of any
particular series of Preferred Stock, all voting rights of the
Corporation shall be vested exclusively in the holders of the
Common Stock who shall be entitled to one vote per share on all
matters.
5. The Secretary of State of the State of New York is
designated as the agent of the Corporation upon whom any process
in any action or proceeding against it may be served. The post
office address to which the Secretary of State shall mail a copy
of any such process served upon such Secretary is CH Energy
Group, Inc., 284 South Avenue, Poughkeepsie, New York 12601-4879,
Attention: Corporate Secretary.
6. No director of the Corporation shall have personal
liability to the Corporation or its shareholders for damages for
any breach of duty in such capacity, provided that the foregoing
shall not eliminate or limit the liability of any director if a
judgment or other final adjudication adverse to such director
establishes that such director's acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation
of law or that such director personally gained in fact a
financial profit or other advantage to which such director was
not legally entitled or that such director's act violated Section
719 of the Business Corporation Law of New York. No amendment to
or repeat of this Article 6 shall apply to or have any effect on
the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. If the
Business Corporation Law of the State of New York is amended
hereafter to expand or limit the liability of a director, then
the liability of a director of the Corporation shall be expanded
to the extent required or limited to the extent permitted by the
Business Corporation Law of the State of New York, as so amended.
7. The following provisions shall relate to the Board of
Directors of the Corporation:
A. The size of the Board of Directors shall be fixed by or
pursuant to the By-Laws. At the first annual meeting of
shareholders following the adoption of this Restated Certificate
of Incorporation, or any special meeting in lieu thereof, the
Board of Directors shall be divided into three classes designated
Class I, Class II and Class III, which classes shall be as nearly
equal in number as the then total number of directors
constituting the entire Board permits. Class I, Class II and
Class III directors shall be so elected for terms expiring at the
next succeeding annual meeting, the second succeeding annual
meeting and the third succeeding annual meeting, respectively,
and until their respective successors are elected and qualified.
At each annual meeting of shareholders after such first annual
(or special) meeting of shareholders following the adoption of
this Restated Certificate of Incorporation, the directors chosen
to succeed those in the class whose terms then expire shall be
elected by shareholders for terms expiring at the third
succeeding annual meeting after election, or for such lesser term
for which one or more may be nominated in a particular case in
order to assure that the number of directors in each class shall
be appropriately constituted, and until their respective
successors are elected and qualified. Newly created directorships
or any decrease in directorships resulting from increases or
decreases in the number of directors shall be so apportioned
among the classes of directors as to make all the classes as
nearly equal in number as possible. Vacancies on the Board of
Directors at any time for any reason may be filled by a majority
of the directors then in office, although less than a quorum.
Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of stock (other than the Common
Stock), now or hereafter authorized, shall have the right, voting
separately or by class or series, to elect directors at an annual
or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships
shall be governed by any provisions of the Certificate of
Incorporation applicable thereto, and such directors so elected
shall not be divided into one or more classes pursuant to this
Article 7A unless expressly provided by such provisions.
B. Subject to the rights of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation to elect directors under specified circumstances, any
director may be removed from office by a vote of the shareholders
entitled to vote thereon only for cause and any director may be
removed from office by action of the Board of Directors only for
cause.
8. In addition to any vote that may be required by law or
in the Certificate of Incorporation in respect of any class or
series of stock, now or hereafter authorized, ranking prior or
superior in right of payment to the Common Stock in respect of
the right to receive dividends or the right to receive payments
out of the assets of the Corporation upon any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the provisions of Articles 4C, 4D, 6, 7, 8, 9 and 10
of the Certificate of Incorporation shall not be amended or
repealed, or a new provision adopted inconsistent therewith,
without the approval of not less than 75% of the entire Board of
Directors at any regular or special meeting of directors and the
affirmative vote of not less than 75% of the shares entitled to
vote thereon at such annual or special meeting of shareholders at
which any such action is proposed.
9. Except as otherwise provided in the Certificate of
Incorporation in respect of any class or series of stock, now or
hereafter authorized, ranking prior or superior in right of
payment to the Common Stock in respect of the right to receive
dividends or the right to receive payments out of the assets of
the Corporation upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the By-Laws of the
Corporation may be amended or repealed, or new By-Laws may be
adopted, either (a) by a vote of shareholders entitled to vote at
any annual or special meeting of shareholders, or (b) by a vote
of the majority of the entire Board of Directors at any regular
or special meeting of directors; provided, however, that any
amendment or repeal of, or the adoption of any new By-Law or
provision inconsistent with, Article I (Section 1.2 - "Special
Meetings", 1.4 - "Presiding at Meetings" or 1.12 - "Notice of
Shareholder Business and Nominations"), Article II (Section 2.1 -
"Number of Directors", 2.2 - "Elections, Terms and Vacancies" or
2.8 - "Removal of Directors"), Article VI - "Indemnification", or
Article VIII - "Amendments to By-Laws" of the By-Laws, if by
action of such shareholders, shall be only upon the affirmative
vote of not less than 75% of the shares entitled to vote thereon
at such annual or special meeting of shareholders at which any
such action is proposed and, if by action of the Board of
Directors, shall be only upon the approval of not less than 75%
of the entire Board of Directors at any regular or special
meeting of directors.
10. The vote of the shareholders of the Corporation
required to approve any Business Combination shall be as set
forth in this Article 10. The term "Business Combination" shall
mean any transaction that is referred to in any one or more
clauses (A) through (E) of subparagraph (a) of this Article 10.
Each other capitalized term shall have the meaning ascribed to it
in subparagraph (c) of this Article 10.
(a) In addition to any affirmative vote
required by law or this Certificate of Incorporation
and except as otherwise expressly provided in
subparagraph (b) of this Article 10:
(A) any merger, consolidation or
binding share exchange of the Corporation or any
Subsidiary with (i) any Interested Shareholder or
(ii) any other person (whether or not itself an
Interested Shareholder) which is, or after such
merger, consolidation or binding share exchange
would be, an Affiliate of an Interested
Shareholder; or
(B) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition
(in one transaction or a series of transactions)
to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of assets
of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $5,000,000 or more;
or
(C) the issuance or transfer by the
Corporation or any Subsidiary (in one transaction
or a series of transactions) of any securities of
the Corporation or any Subsidiary to any
Interested Shareholder or any Affiliate of any
Interested Shareholder in exchange for cash,
securities or other property (or a combination
thereof) having an aggregate Fair Market Value of
$5,000,000 or more, other than the issuance of
securities upon the conversion of convertible
securities of the Corporation or any Subsidiary
which were not acquired by such Interested
Shareholder (or such Affiliate) from the
Corporation or a Subsidiary; or
(D) the adoption of any plan or
proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an
Interested Shareholder or any Affiliate of any
Interested Shareholder; or
(E) any transaction involving the
Corporation or any Subsidiary (whether or not with
or into or otherwise involving an Interested
Shareholder), and including, without limitation,
any reclassification of securities (including any
reverse stock split), or recapitalization or
reorganization of the Corporation, or any merger
or consolidation of the Corporation with any of
its Subsidiaries or any self tender offer for or
repurchase of securities of the Corporation by the
Corporation or any Subsidiary or any other
transaction (whether or not with or into or
otherwise involving an Interested Shareholder),
which in any such case has the effect, directly or
indirectly, of increasing the proportionate share
of the outstanding shares of any class of equity
securities or securities convertible into equity
securities of the Corporation or any Subsidiary
which is directly or indirectly beneficially owned
by any Interested Shareholder or any Affiliate of
any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80
percent of the combined voting power of the then outstanding
shares of the Voting Stock, in each case voting together as a
single class, which vote shall include the affirmative vote of at
least two-thirds (2/3) of the combined voting power of the
outstanding shares of Voting Stock held by shareholders other
than the Interested Shareholder. Such affirmative vote shall be
required notwithstanding any provision of law or any other
provision of this Restated Certificate of Incorporation or any
agreement with any national securities exchange or otherwise
which might permit a lesser vote or no vote and in addition to
any affirmative vote required of the holders of any class or
series of Voting Stock pursuant to law, this Restated Certificate
of Incorporation or any class or series of Preferred or
Preference Stock Designation (a "Preferred or Preference Stock
Designation") being any designation of the rights, powers and
preferences of any class or series of Preferred or Preference
Stock made pursuant to Paragraph 4A of this Restated Certificate
of Incorporation).
(b) The provisions of subparagraph (a) of
this Article 10 shall not be applicable to any
particular Business Combination, and such Business
Combination shall require only such affirmative
vote as may be required by law, any other
provision of this Restated Certificate of
Incorporation, any Preferred or Preference Stock
Designation and any agreement with any national
securities exchange, if, in the case of a Business
Combination that does not involve any cash or
other consideration being received by the
shareholders of the Corporation, solely in their
respective capacities as shareholders of the
Corporation, the condition specified in the
following subparagraph (1) is met, or, in the case
of any other Business Combination, the conditions
specified in the following subparagraph (1) or the
conditions specified in the following subparagraph
(2) are met:
(1) such Business Combination shall have
been approved by a majority of the Disinterested
Directors; or
(2) each of the five conditions specified in
the following clauses (A) through (E) shall have
been met:
(A) the aggregate amount of
the cash and the Fair Market Value as of
the Consummation Date of any
consideration other than cash to be
received per share by holders of Common
Stock in such Business Combination shall
be at least equal to the highest of the
following (it being intended that the
requirements of this clause (2)(A) shall
be required to be met with respect to
all shares of Common Stock outstanding
whether or not the Interested
Shareholder has acquired any shares of
the Common Stock):
(i) if applicable, the highest per
share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any
shares of Common Stock beneficially owned by
the Interested Shareholder which were
acquired beneficially by such Interested
Shareholder (x) within the two-year
period immediately prior to the
Announcement Date or (y) in the
transaction in which it became an
Interested Shareholder, whichever is
higher; or
(ii) the Fair Market Value per
share of Common Stock on the
Announcement Date or on the
Determination Date, whichever is higher;
or
(iii) the amount which bears the
same percentage relationship to the Fair
Market Value of the Common Stock on the
Announcement Date as the highest per
share price determined in (2)(A)(i)
above bears to the Fair Market Value of
the Common Stock on the date of the
commencement of the acquisition of the
Common Stock by such Interested
Shareholder; and
(B) the aggregate amount of the cash and the
Fair Market Value as of the Consummation Date of
any consideration other than cash to be received
per share by holders of the shares of any class or
series of Voting Stock (other than Common Stock)
shall be at least equal to the highest of the
following (it being intended that the requirements
of this clause (2)(B) shall be required to be met
with respect to every class and series of such
outstanding Voting Stock, whether or not the
Interested Shareholder has previously acquired any
shares of a particular class or series of Voting
Stock):
(i) if applicable, the highest per
share price (including any brokerage
commissions, transfer taxes and soliciting
dealers' fees) paid in order to acquire any
shares of such class or series of Voting
Stock beneficially owned by the Interested
Shareholder which were acquired beneficially
by such Interested Shareholder (x) within the
two-year period immediately prior to the
Announcement Date or (y) in the transaction
in which it became an Interested Shareholder,
whichever is higher; or
(ii) if applicable, the highest
preferential amount per share to which
the holders of shares of such class or
series of Voting Stock are entitled in
the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation; or
(iii) the Fair Market Value per
share of such class or series of Voting
Stock on the Announcement Date or the
Determination Date, whichever is higher;
or
(iv) the amount which bears the
same percentage to the Fair Market Value
of such class or series of Voting Stock
on the Announcement Date as the highest
per share price in (2)(B)(i) above bears
to the Fair Market Value of such Voting
Stock on the date of the commencement of
the acquisition of such Voting Stock by
such Interested Shareholder; and
(C) the consideration to be received by
holders of a particular class or series of
outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as was
previously paid in order to acquire beneficially
shares of such class or series of Voting Stock
that are beneficially owned by the Interested
Shareholder and, if the Interested Shareholder
beneficially owns shares of any class or series of
Voting Stock that were acquired with varying forms
of consideration, the form of consideration to be
received by each holder of such class or series of
Voting Stock shall be, at the option of such
holder, either cash or the form used by the
Interested Shareholder to acquire beneficially the
largest number of shares of such class or series
of Voting Stock beneficially acquired by it prior
to the Announcement Date; and
(D) after such Interested Shareholder has
become an Interested Shareholder and prior to the
consummation of such Business Combination:
(i) such Interested Shareholder
shall not have become the beneficial
owner of any additional shares of Voting
Stock of the Corporation, except as part
of the transaction in which it became an
Interested Shareholder or upon
conversion of convertible securities
acquired by it prior to becoming an
Interested Shareholder or as a result of
a pro rata stock dividend or stock
split; and
(ii) such Interested Shareholder
shall not have received the benefit,
directly or indirectly (except
proportionately as a shareholder), of
any loans, advances, guarantees, pledges
or other financial assistance or tax
credits or other tax advantages provided
by the Corporation or any Subsidiary,
whether in anticipation of or in
connection with such Business
Combination or otherwise; and
(iii) such Interested Shareholder
shall not have caused any material
change in the Corporation's business or
capital structure, including, without
limitation, the issuance of shares of
capital stock of the Corporation to any
third party; and
(iv) there shall have been (x) no
failure to declare and pay at the
regular date therefor the full amount of
dividends (whether or not cumulative) on
any outstanding Preferred or Preference
Stock, except as approved by a majority
of the Disinterested Directors, (y) no
reduction in the rate of dividends,
annualized on the basis of the last
dividend declaration, paid on Common
Stock (except as necessary to reflect
any subdivision of the Common Stock),
except as approved by a majority of the
Disinterested Directors and (z) an
increase in such annual rate of
dividends (as necessary to prevent any
such reduction) in the event of any
reclassification (including any reverse
stock split), recapitalization,
reorganization, self tender offer or any
similar transaction which has the effect
of reducing the number of outstanding
shares of the Common Stock, unless the
failure so to increase such annual rate
was approved by a majority of the
Disinterested Directors; and
(E) a proxy or information statement
describing the proposed Business Combination and
complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing
such Act, rules and regulations), whether or not
the Corporation is then subject to such
requirements, shall be mailed by and at the
expense of the Interested Shareholder at least 30
days prior to the Consummation Date of such
Business Combination to the public shareholders of
the Corporation (whether or not such proxy or
information statement is required to be mailed
pursuant to such Act or subsequent provisions),
and shall contain at the front thereof in a
prominent place (i) any recommendations as to the
advisability (or inadvisability) of the Business
Combination which the Disinterested Directors, if
any, may choose to state, and (ii) the opinion of
a reputable national investment banking firm as to
the fairness (or not) of such Business Combination
from the point of view of the remaining public
shareholders of the corporation (such investment
banking firm to be engaged solely on behalf of the
remaining public shareholders, to be paid a
reasonable fee for their services by the
Corporation upon receipt of such opinion, to be
unaffiliated with such Interested Shareholder,
and, if there are at the time any Disinterested
Directors, to be selected by a majority of the
Disinterested Directors).
(c) For purposes of this Article 10:
(1) A "person" shall include, without limitation,
any individual, firm, corporation, group (as such term
is used in Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934,
as in effect on October 1, 1998) or other entity.
(2) "Interested Shareholder" shall mean any
person (other than the Corporation or any Subsidiary or
any employee benefit plan of the Corporation or any
Subsidiary) who or which:
(A) is the beneficial owner, directly
or indirectly, of more than 10 percent of the
combined voting power of the then outstanding
shares of Voting Stock; or
(B) is an Affiliate of the Corporation and
at any time within the two-year period immediately
prior to the date in question was the beneficial
owner, directly or indirectly, of 10 percent or
more of the combined voting power of the then
outstanding shares of Voting Stock; or
(C) is an assignee of or has otherwise
succeeded to the beneficial ownership of any
shares of Voting Stock that were at any time
within the two-year period immediately prior to
the date in question beneficially owned by an
Interested Shareholder, if such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not
involving a public offering within the meaning of
the Securities Act of 1933.
(3) A person shall be a "beneficial owner" of any
Voting Stock:
(A) which such person or any of its
Affiliates or Associates beneficially owns,
directly or indirectly; or
(B) which such person or any of its
Affiliates or Associates has (a) the right to
acquire (whether or not such right is exercisable
immediately) pursuant to any agreement,
arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants or
options, or otherwise, or (b) the right to vote or
direct the vote pursuant to any agreement,
arrangement or understanding; or
(C) which are beneficially owned, directly
or indirectly, by any other person with which such
person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock.
(4) For the purposes of determining whether a
person is an Interested Shareholder pursuant to
subparagraph (c)(2) of this Article 10, the number of
shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by such Interested
Shareholder through application of subparagraph (c)(3)
of this Article 10, but shall not include any other
shares of Voting Stock that may be issuable pursuant to
any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or
otherwise.
(5) "Affiliate" and "Associates" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on
October 1, 1998.
(6) "Subsidiary" shall mean any company more that
50 percent of whose outstanding equity securities
having ordinary voting power in the election of
directors is owned, directly or indirectly, by the
Corporation or by a Subsidiary or by the Corporation
and one or more Subsidiaries; provided, however, that
for the purposes of the definition of Interested
Shareholder set forth in subparagraph (c)(2) of this
Article 10, the term "Subsidiary" shall mean only a
company of which a majority of each class or series of
capital stock entitled to vote generally in the
election of directors of such company is owned,
directly or indirectly, by the Corporation.
(7) "Disinterested Director" shall mean any
member of the Board of Directors of the Corporation who
is unaffiliated with, and not a nominee of, the
Interested Shareholder and was a member of the Board
prior to the time that the Interested Shareholder
became an Interested Shareholder, and any successor of
a Disinterested Director who is unaffiliated with, and
not a nominee of, the Interested Shareholder and who is
recommended to succeed a Disinterested Director by a
majority of Disinterested Directors then on the Board
of Directors.
(8) "Fair Market Value" shall mean (1) in the
case of stock, the highest closing sale price during
the 30-day period commencing on the 40th day preceding
the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not quoted on the New York
Stock Exchange-Composite Tape, on the principal United
States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing sale price or bid
quotation with respect to a share of such stock during
the 30-day period commencing on the 40th day preceding
the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System
or any system then in use, or if no such quotations are
available, the fair market value on the date in
question of a share of such stock as determined by a
majority of the Disinterested Directors in good faith;
and (2) in the case of property other than cash or
stock, the fair market value of such property on the
date in question as determined by a majority of the
Disinterested Directors in good faith.
(9) In the event of any Business Combination in
which the Corporation survives, the phrase "any
consideration other than cash to be received" as used
in subparagraph (b)(2)(A) and (B) of this Article 10
shall include the shares of Common Stock and/or the
shares of any other class or series of outstanding
Voting Stock retained by the holders of such shares.
(10) "Announcement Date" shall mean the date of
first public announcement of the proposed Business
Combination.
(11) "Determination Date" shall mean the date on
which the Interested Shareholder became an Interested
Shareholder.
(12) "Consummation Date" shall mean the date of
the consummation of the Business Combination.
(13) The term "Voting Stock" shall mean all
outstanding shares of capital stock of all classes and
series of the Corporation entitled to vote generally in
the election of directors of the Corporation, in each
case voting together as a single class.
(d) A majority of the Disinterested Directors
shall have the power and duty to determine, on the
basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance
with this Article 10 including, without limitation:
(1) whether a person is an Interested
Shareholder;
(2) the number of shares of Voting Stock
beneficially owned by any person;
(3) whether a person is an Affiliate or
Associate of another person;
(4) whether the requirements of subparagraph
(b)(2) of this Article 10 have been met with
respect to any Business Combination;
(5) whether the assets which are the subject of
any Business Combination have, or the
consideration to be received for the issuance or
transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $5,000,000 or more;
and
(6) such other matters with respect to which a
determination is required under this Article 10.
The good faith determination of a majority of the
Disinterested Directors on such matters shall be
conclusive and binding for all purposes of this
Article 10.
(e) Nothing contained in this Article 10 shall be construed
to relieve any Interested Shareholder from any fiduciary
obligation imposed by law.
(f) Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the
holders of at least 80 percent of the combined voting power of
the Voting Stock, voting together as a single class, shall be
required to alter, amend or repeal this Article 10 or to adopt
any provisions inconsistent therewith; provided, however, that if
there is an Interested Shareholder on the record date for the
meeting at which such action is submitted to the shareholders for
their consideration, such 80 percent vote must include the
affirmative vote of at least tow-thirds (2/3) of the combined
voting power of the outstanding shares of Voting Stock held by
shareholders other than the Interested Shareholder.
(g) Nothing contained in this Article 10 is intended, or
shall be construed, to affect any of the relative rights,
preferences or limitations, within the meaning of such terms
under Section 801(b)(12) of the New York Business Corporation Law
or any successor statute, of any shares of any authorized class
or series thereof of the Corporation, whether issued or unissued.
FOURTH: The foregoing Restated Certificate of
Incorporation was authorized by the Board of Directors of the
Corporation at a meeting of the Board of Directors held on
October 5, 1998, followed by the written consent of the sole
shareholder of the Corporation, dated October 5, 1998.
IN WITNESS WHEREOF, I have subscribed and affirm the
statements contained in this Restated Certificate of
Incorporation as true under the penalties of perjury this 5th day
of October, 1998.
________________________________
John E. Mack, III
Chairman of the Board &
Chief Executive Officer
________________________________
Ellen Ahearn
Secretary
</PAGE>
<PAGE>
EXHIBIT (ii)
BY-LAWS
CH ENERGY GROUP, INC.
POUGHKEEPSIE, NEW YORK
INDEX
PAGE
ARTICLE I MEETINGS OF SHAREHOLDERS
Section 1.1 Annual Meetings . . . . . . . . . . . . . . 1
Section 1.2 Special Meetings. . . . . . . . . . . . . . 1
Section 1.3 Place of Meetings . . . . . . . . . . . . . 1
Section 1.4 Presiding at Meetings . . . . . . . . . . . 1
Section 1.5 Quorum. . . . . . . . . . . . . . . . . . . 2
Section 1.6 Adjournment . . . . . . . . . . . . . . . . 2
Section 1.7 Notice of Meetings. . . . . . . . . . . . . 2
Section 1.8 Waiver and Consent. . . . . . . . . . . . . 3
Section 1.9 Fixing Record Date. . . . . . . . . . . . . 4
Section 1.10 List of Shareholders at Meetings. . . . . . 4
Section 1.11 Proxies . . . . . . . . . . . . . . . . . . 4
Section 1.12 Notice of Shareholder Business and Nominations 5
Section 1.13 Inspectors of Elections . . . . . . . . . . 9
Section 1.14 Vote of Shareholders. . . . . . . . . . . . 9
ARTICLE II BOARD OF DIRECTORS
Section 2.1 Number of Directors . . . . . . . . . . . . 10
Section 2.2 Elections, Terms and Vacancies. . . . . . . 10
Section 2.3 Meetings of the Board . . . . . . . . . . . 11
Section 2.4 Notice and Adjournment . . . . . . . . . . 11
(i)
PAGE
ARTICLE II BOARD OF DIRECTORS (Continued)
Section 2.5 Quorum. . . . . . . . . . . . . . . . . . . 12
Section 2.6 Unanimous Written Consent . . . . . . . . . 12
Section 2.7 Resignation of Directors. . . . . . . . . . 12
Section 2.8 Removal of Directors. . . . . . . . . . . . 12
Section 2.9 Compensation of Directors . . . . . . . . . 13
Section 2.10 Time and Place of Meetings. . . . . . . . . 13
Section 2.11 Special Meetings. . . . . . . . . . . . . . 13
Section 2.12 Telephonic Meetings . . . . . . . . . . . . 13
ARTICLE III COMMITTEES
Section 3.1 Organization and Authority. . . . . . . . . 13
Section 3.2 Executive Committee . . . . . . . . . . . . 14
Section 3.3 Action by a Committee . . . . . . . . . . . 14
Section 3.4 Quorum. . . . . . . . . . . . . . . . . . . 15
Section 3.5 Reports to Board of Directors . . . . . . . 15
Section 3.6 Compensation of Committee Members . . . . . 15
Section 3.7 Resignation and Removal of Committee Members 15
Section 3.8 Unanimous Written Consent . . . . . . . . . 15
Section 3.9 Place of Committee Meetings . . . . . . . . 15
Section 3.10 Notice. . . . . . . . . . . . . . . . . . . 16
ARTICLE IV OFFICERS AND THEIR DUTIES
Section 4.1 Officers. . . . . . . . . . . . . . . . . . 16
Section 4.2 Term of Office; Resignation; Removal; Vacancies 16
Section 4.3 Powers and Duties . . . . . . . . . . . . . 17
Section 4.4 Salaries. . . . . . . . . . . . . . . . . . 17
Section 4.5 Chairman. . . . . . . . . . . . . . . . . . 17
Section 4.6 Vice Chairman . . . . . . . . . . . . . . . 18
Section 4.7 President . . . . . . . . . . . . . . . . . 18
Section 4.8 Vice President. . . . . . . . . . . . . . . 18
Section 4.9 Secretary . . . . . . . . . . . . . . . . . 19
Section 4.10 Treasurer . . . . . . . . . . . . . . . . . 19
Section 4.11 Controller. . . . . . . . . . . . . . . . . 20
Section 4.12 Other Officers. . . . . . . . . . . . . . . 20
(ii)
PAGE
ARTICLE V SHARES CERTIFICATED SHARES
Section 5.1 Certificates, Registrar and Transfer Agent. 20
Section 5.2 Authorization of Facsimile Signatures and Seal 21
Section 5.3 Transfer of Certificated Shares . . . . . . 21
Section 5.4 Lost, Stolen or Destroyed Share Certificates 21
ARTICLE VI INDEMNIFICATION
Section 6.1 General Applicability . . . . . . . . . . . 22
Section 6.2 Scope of Indemnification. . . . . . . . . . 22
Section 6.3 Other Indemnification Provisions. . . . . . 23
Section 6.4 Survival of Indemnification . . . . . . . . 23
Section 6.5 Inability to Limit Indemnification. . . . . 23
Section 6.6 Severability. . . . . . . . . . . . . . . . 24
ARTICLE VII OTHER MATTERS
Section 7.1 Books to be Kept. . . . . . . . . . . . . . 24
Section 7.2 Corporate Seal. . . . . . . . . . . . . . . 25
Section 7.3 When Notice or Lapse of Time Unnecessary. . 25
Section 7.4 Contracts, etc., How Executed . . . . . . . 25
Section 7.5 Loans . . . . . . . . . . . . . . . . . . . 25
Section 7.6 Deposits. . . . . . . . . . . . . . . . . . 26
Section 7.7 General and Special Bank Accounts . . . . . 26
Section 7.8 Fiscal Year . . . . . . . . . . . . . . . . 26
ARTICLE VIII AMENDMENTS TO BY-LAWS
Section 8.1 By Directors. . . . . . . . . . . . . . . . 27
Section 8.2 By Shareholders . . . . . . . . . . . . . . 27
(iii)
<PAGE>
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETINGS
The annual meeting of the shareholders, for the election of
directors and the transaction of such other business as may be
brought before the meeting, shall be held each year on the fourth
Tuesday in April (or if said day be a legal holiday, then on the
next succeeding business day), at such time of day as the
directors may determine.
SECTION 1.2 SPECIAL MEETINGS
Subject to the rights of the holders of any series of stock
having a preference over the Common Stock of the Company as to
dividends or upon liquidation ("Preferred Stock") with respect to
such series of Preferred Stock, special shareholders' meetings
may be called by holders of a majority of the votes of the
outstanding shares of common stock of the Company entitled to
vote or act with respect thereto upon the business to be brought
before such meeting, or by the Chairman of the Board of Directors
pursuant to a resolution adopted by a majority of the total
number of directors which the Company would have if there were no
vacancies. At any special meeting, only such business may be
transacted which is related to the purpose(s) set forth in the
notice of such special meeting given pursuant to Section 1.7 of
these By-laws.
SECTION 1.3 PLACE OF MEETINGS
Shareholders' meetings shall be held at the principal office
of the Company or at such other place as designated by the Board
of Directors and stated in the notice of such meeting.
SECTION 1.4 PRESIDING AT MEETINGS
At all shareholders' meetings, the Chairman of the Board of
Directors, Vice Chairman, the President or a Vice President,
shall act as Chairman of the meeting as provided for in Sections
4.5, 4.7 and 4.8 and the Secretary or Assistant Secretary shall
act as Secretary of the meeting as provided for in Section 4.9.
SECTION 1.5 QUORUM
Holders of a majority of the votes of the shares of the
Company entitled to vote must be present, in person or by proxy,
at each shareholders' meeting to constitute a quorum at such
meeting. When a specified item of business is required to be
voted on by a class or series, voting as a class, the holders of
a majority of the votes of the shares of such class or series
shall constitute a quorum for the transaction of such specified
item of business. When a quorum is once present to organize a
meeting, it is not broken by the subsequent withdrawal of any
shareholders.
Except as may be provided by or pursuant to the Certificate
of Incorporation, at all shareholders' meetings each shareholder
entitled to vote shall be entitled to one vote for each share
held by him or her, and may vote and otherwise act either in
person or by proxy, as provided for in Section 1.11.
SECTION 1.6 ADJOURNMENT
The Chairman of the meeting, or a majority of the shares so
represented at the meeting, may adjourn the meeting despite the
absence of a quorum. When a shareholders' meeting is adjourned
to another time or place, it shall not be necessary to give any
notice of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted on the
original date of the meeting. However, if after the adjournment
the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to notice
under this Section 1.6.
SECTION 1.7 NOTICE OF MEETINGS
Written notice of the date, time and place of every
shareholders' meeting shall be given personally, or by first
class mail (not less than ten (10) nor more than sixty (60) days
before the date of the meeting) or by third class mail (not less
than twenty-four (24) nor more than sixty (60) days before the
date of the meeting) or as otherwise may be permitted by law, to
each shareholder of record as of the date fixed by the Board of
Directors, pursuant to Section 1.9 hereof, and such other notice
shall be given as may be required by law.
Notice of a special shareholders' meeting shall indicate
that it is being issued by or at the direction of the person or
persons calling the meeting and shall state the purpose(s) for
which the meeting is called.
If mailed, such notice shall be deemed given when deposited
in the United States mail, with postage thereon prepaid, directed
to the shareholder at his or her address as it appears on the
shareholders' list or record, or, if he or she shall have filed
with the Secretary of the Company a written request that notices
to him or her be mailed to some other address, then directed to
him or her at such other address.
An affidavit of the Secretary of the Corporation or other
person giving the notice or of a transfer agent of the
Corporation that the notice required by this Section 1.7 has been
given shall be supplied at the meeting to which it relates.
SECTION 1.8 WAIVER AND CONSENT
Notice of meeting need not be given to any shareholder who
submits a signed waiver of notice, in person or by proxy, whether
before or after the meeting. The attendance of any shareholder
at a meeting, in person or by proxy, without objecting to the
lack of notice of such meeting prior to the conclusion of the
meeting, shall constitute a waiver of notice by such shareholder.
The transactions of any shareholders' meeting, however
called and noticed, are as valid as though had at a meeting duly
held after regular call and notice, if a quorum is present either
in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in
person or by proxy, signs a written waiver of notice, or a
consent to the holding of the meeting, or an approval of the
minutes thereof.
All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the
meeting. Executors, administrators, guardians, trustees, and
other fiduciaries entitled to vote shares may sign such waivers,
consents and approvals.
SECTION 1.9 FIXING RECORD DATE
For the purpose of determining the shareholders entitled to
notice of or to vote at any shareholders' meeting or any
adjournment thereof, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the
allotment of any rights, or for the purpose of any other action,
the Board of Directors may fix, in advance, a date as the record
date for any such determination. Such date shall not be more
than sixty (60) nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days before the date of
such action.
SECTION 1.10 LIST OF SHAREHOLDERS AT MEETINGS
A list of shareholders as of the record date, certified by
the Secretary or any Assistant Secretary or by a transfer agent,
shall be produced at any shareholders' meeting upon the request
thereat or prior thereto of any shareholder. If the right to
vote at any meeting is challenged, the inspectors, or the person
presiding thereat, shall require such list of shareholders to be
produced as evidence of the right of the persons challenged to
vote at such meeting, and all persons who appear from such list
to be shareholders entitled to vote thereat may vote at such
meeting.
SECTION 1.11 PROXIES
(a) Generally. Every person entitled to vote or execute
consents shall have the right to do so either in person or by one
or more agents authorized by a written proxy executed by such
person or his duly authorized agent and filed with the Secretary
of the Company. Any executor, administrator, guardian, trustee
or other fiduciary, may give proxies.
(b) Term of Proxies. A proxy is not valid after the
expiration of eleven (11) months from the date of its execution,
unless the length of time for which such proxy is to continue in
force is otherwise specified therein, which in no case shall
exceed seven (7) years from the date of its execution.
(c) Revocation and Suspension of Proxies. Any proxy duly
executed continues in full force and effect and is not revoked
until an instrument revoking it, or until a duly executed proxy
bearing a later date, is filed with the Secretary of the Company.
A proxy is not revoked by the death or incapacity of the maker
unless, before the vote is counted or the authority is exercised,
written notice of the death or incapacity is given to the
Company. Notwithstanding that a valid proxy is outstanding, if
the person executing the proxy is present at the meeting and
elects to vote in person, then the powers of the proxy holder are
suspended, except in the case of a proxy coupled with an interest
(which states that fact on its face).
(d) Voting by Two or More Proxies. If any instrument of
proxy designates two or more persons to act as proxy, in the
absence of any provision in the proxy to the contrary, the
persons designated may represent and vote the shares in
accordance with the vote or consent of the majority of the
persons named as such proxies. If only one such proxy is
present, such proxy may vote all the shares, and all the shares
standing in the name of the principal(s) for whom such proxy acts
shall be deemed represented for the purpose of obtaining a
quorum. The foregoing provisions shall apply to the voting of
shares by proxies for any two or more administrators, executors,
trustees, or other fiduciaries, unless an instrument or order of
court appointing them otherwise directs.
(e) Directors' Determination of Execution and Use of
Proxies. The Board of Directors may, in advance of any annual or
special meeting of the shareholders, prescribe additional
regulations concerning the manner of execution and filing of
proxies and the validation of the same, which are intended to be
voted at any such meeting.
SECTION 1.12 NOTICE OF SHAREHOLDER BUSINESS AND
NOMINATIONS
A. Annual Shareholders' Meetings
(1) Nominations of persons for election to the Board of
Directors of the Company and the proposal of business to be
considered by the shareholders may be made at an annual
shareholders' meeting (a) pursuant to the Company's notice of
meeting, (b) by or at the direction of the Board of Directors or
(c) by any shareholder of the Company who was a shareholder of
record at the time of giving of notice provided for in this
Section 1.12 who is entitled to vote at the meeting and who
complies with the notice of procedures set forth in this Section
1.12.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c)
of paragraph A.(1) of this Section 1.12, the shareholder must
have given timely notice thereof in writing to the Secretary of
the Company and such other business must otherwise be a proper
matter for shareholder action. To be timely, a shareholder's
notice shall be delivered to the Secretary at the principal
executive offices of the Company not later than the close of
business on the 60th day nor earlier than the close of business
on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than
the close of business on the 90th day prior to such annual
meeting and no later than the close of business on the later of
the 60th day prior to such annual meeting or the 10th day
following the day on which the date of such meeting is first
publicly announced or disclosed (in a public filing or otherwise)
by the Company. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for
the giving of a shareholder's notice as described above. Such
shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or reelection
as a Director all information relating to such person that is
required to be disclosed in solicitations of proxies for election
of Directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving as
a Director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting
and any material interest in such business of such shareholder
and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such shareholder, as
they appear on the Company's books, and of such beneficial owner
and (ii) the class and number of shares of the Company which are
owned beneficially and of record by such shareholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph A.(2) of this Section 1.12 to the contrary, in the
event that the number of Directors to be elected to the Board of
Directors of the Company is increased and there is no public
announcement by the Company naming all of the nominees for
Director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required
by paragraph A. of Section 1.12 shall also be considered timely,
but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Company not later than the
close of business on the 10th day following the day on which such
public announcement is first made by the Company.
B. Special Shareholders' Meetings
Only such business shall be conducted at a special
shareholders' meeting as shall have been brought before the
meeting pursuant to the Company's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at
a special shareholders' meeting at which Directors are to be
elected pursuant to the Company's notice of meeting (a) by or at
the direction of the Board of Directors or (b) provided that the
Board of Directors has determined that Directors shall be elected
at such meeting, by any shareholder of the Company who is a
shareholder of record at the time of giving of notice provided
for in this Section 1.12 who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this
Section 1.12. In the event the Company calls a special
shareholders' meeting for the purpose of electing one or more
Directors to the Board of Directors, any such shareholder may
nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Company's notice of
meeting, if the shareholder's notice required by paragraph A.(2)
of this Section 1.12 shall be delivered to the Secretary at the
principal executive offices of the Company not earlier than the
close of business on the 90th day prior to such special meeting
and not later than the close of business on the later of the 60th
day prior to such special meeting or the 10th day following the
day on which public announcement or other disclosure (in a public
filing or otherwise) is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to
be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a
new time period for the giving of a shareholder's notice as
described above.
C. General
(1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 1.12 shall be eligible
to serve as Directors and only such business shall be conducted
at a shareholders' meeting as shall have been brought before the
meeting in accordance with the procedures set forth in this
Section 1.12. Except as otherwise provided by law, the Chairman
of the meeting shall have the power and duty to determine whether
a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this Section 1.12 and, if any
proposed nomination or business is not in compliance with this
Section 1.12, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Section 1.12, "public
announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 1.12, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
1.12. Nothing in this Section 1.12 of Article I shall be deemed
to affect any rights (i) of shareholders to request inclusion of
proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect Directors under specified circumstances.
SECTION 1.13 INSPECTORS OF ELECTIONS
The Board of Directors by resolution shall appoint, or shall
authorize an officer of the Company to appoint, one or more
inspectors, which inspector or inspectors may include individuals
who serve the Company in other capacities, including, without
limitation, as officers, employees, agents or representatives, to
act at the meetings of shareholders and make a written report
thereof. One or more persons may be designated as alternate
inspector(s) to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act or is able to
act at a meeting of shareholders, the Chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging such person's duties, shall take
and sign an oath to execute faithfully the duties of inspector
with strict impartiality and according to the best of such
person's ability. The inspector(s) shall have the duties
prescribed by law. The Chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the shareholders
will vote at a meeting.
SECTION 1.14 VOTE OF SHAREHOLDERS
Subject to the rights of holders of any series of Preferred
Stock, Directors shall, except as otherwise required by law or by
the Certificate of Incorporation or by a specific provision of
these Bylaws adopted by the shareholders, 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. Subject to
the rights of holders of any series of Preferred Stock, whenever
any corporate action, other than the election of Directors, is to
be taken by vote of the shareholders, it shall, except as
otherwise required by law or by the Certificate of Incorporation,
be authorized by a majority of the votes cast at a meeting of
shareholders by the holders of shares entitled to vote thereon.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 NUMBER OF DIRECTORS
The affairs of this Company shall be managed by no less than
one (1) nor more than twenty-five (25) Directors as fixed by
resolution adopted by a majority of the entire Board. Each
director shall be at least 18 years of age. No person who has
reached age 70 shall stand for election as a Director.
SECTION 2.2 ELECTIONS, TERMS AND VACANCIES
The Board of Directors shall be divided into three classes
designated Class I, Class II and Class III. Such classes shall
be as nearly equal in number as the then total number of
Directors constituting the entire Board permits. At the first
annual meeting of shareholders, or any special meeting in lieu
thereof, Class I, Class II and Class III Directors shall be
elected for terms expiring at the next succeeding annual meeting,
the second succeeding annual meeting and the third succeeding
annual meeting, respectively, and until their respective
successors are elected and qualified. At each annual
shareholders' meeting after such first annual (or special)
meeting of shareholders, the Directors chosen to succeed those in
the class whose terms then expire shall be elected by
shareholders for terms expiring at the third succeeding annual
meeting after election, or for such lesser term for which one or
more may be nominated in a particular case in order to assure
that the number of Directors in each class shall be appropriately
constituted and until their respective successors are elected and
qualified. Newly created Directorships or any decrease in
Directorships resulting from increases or decreases in the number
of Directors shall be so apportioned among the classes of
Directors as to make all the classes as nearly equal in number as
possible. Vacancies on the Board at any time may be filled by a
majority of the Directors then in office, although less than a
quorum exists. A Director elected to fill a vacancy, unless
elected by the shareholders, 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 or her successor has
been elected and qualified.
Notwithstanding the foregoing, whenever the holders of any
one or more classes or series of Stock (other than the Common
Stock) shall have the right, voting separately by class or
series, to elect Directors at an annual or special shareholders'
meeting, the election, term of office, filling of vacancies and
other features of such Directorships shall be governed by any
terms of the Certificate of Incorporation of the Company
applicable thereto, and such Directors so elected shall not be
divided into classes pursuant to this Section 2.2 unless
expressly provided by such terms.
SECTION 2.3 MEETINGS OF THE BOARD
An annual meeting of the Board of Directors shall be held in
each year as soon as practicable after the annual meeting of
shareholders. Regular meetings of the Board shall be held at
such times as may be fixed by the Board. No notice need be given
of annual or regular meetings of the Board of Directors.
SECTION 2.4 NOTICE AND ADJOURNMENT
Notice of each special meeting of the Board shall be given
to each director either by mail not later than noon, New York
time, on the fifth business day prior to the meeting or by
telegram, by facsimile transmission, by written message or orally
to the Directors not later than noon, New York time, on the day
prior to the meeting. Notices shall be deemed to have been given
by mail when deposited in the United States mail, by telegram at
the time of filing, by facsimile transmission upon confirmation
of receipt, and by messenger at the time of delivery by the
messenger. Notices by mail, telegram, facsimile transmission or
messenger shall be sent to each Director at the address or
facsimile number designated by him or her for that purpose, or,
if none has been so designated, at his or her last known
residence or business address. Notice of a meeting of the Board
of Directors 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 to him or her. A notice or
waiver of notice need not specify the purpose of any meeting of
the Board of Directors. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting to
another time and place. Notice of any adjournment of a meeting
to another time or place shall be given in the manner described
above to the Directors who were not present at the time of the
adjournment and, unless such time and place are announced at the
meeting, to the other Directors.
SECTION 2.5 QUORUM
Unless a greater quorum is required by law, a majority of
the number of directors at the time serving on the Board of
Directors shall constitute a quorum for the transaction of
business, or of any specified item of business, provided,
however, that a quorum shall not consist of less than one-third
of the entire Board of Directors. Except where otherwise provided
by law or in the Certificate of Incorporation or these By-Laws,
the vote of a majority of the Directors present at a meeting at
the time of such vote, if a quorum is then present, shall be the
act of the Board.
SECTION 2.6 UNANIMOUS WRITTEN CONSENT
Any action authorized, in writing, by all of the Directors
entitled to vote thereon and filed with the minutes of the
Company shall be the act of the Board with the same force and
effect as if the same had been passed by unanimous vote
at a duly called meeting of the Board.
SECTION 2.7 RESIGNATION OF DIRECTORS
Any Director of the Company may resign at any time. Such
resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time
of its receipt by the Chairman of the Board or Secretary. The
acceptance of a resignation shall not be necessary to make it
effective unless so specified therein.
SECTION 2.8 REMOVAL OF DIRECTORS
Subject to the rights of any class or series of stock having
a preference over the Common Stock as to dividends or upon
liquidation to elect Directors under specified circumstances, any
Director may be removed from office only for cause by a vote of
the shareholders entitled to vote thereon.
SECTION 2.9 COMPENSATION OF DIRECTORS
Members of the Board shall receive such fees and
compensation fixed from time to time by the Board and shall be
reimbursed for reasonable expenses for attending Board Meetings.
SECTION 2.10 TIME AND PLACE OF MEETINGS
Meetings of the Board of Directors shall be held in such
month on such day at such hour and at such place as the Board may
from time to time direct.
SECTION 2.11 SPECIAL MEETINGS
Special meetings of the Board may be held on the call of the
Chairman of the Board of Directors, the President or the
Secretary or upon written request of a majority of the Directors
at the time serving on the Board addressed to the Secretary.
SECTION 2.12 TELEPHONIC MEETINGS
Any one or more members of the Board or any committee of the
Board may participate in a meeting of the 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; and participation by such means
shall constitute presence in person at a meeting.
ARTICLE III
COMMITTEES
SECTION 3.1 ORGANIZATION AND AUTHORITY
The Board of Directors, by resolution adopted by a majority
of the entire Board, may designate from among its members, such
committees as the Board of Directors may from time to time
determine, including the committee created by Section 3.2 of this
Article III, each consisting of three or more Directors, and each
of which, to the extent provided in the resolution, shall have
all the authority of the Board, except that no such committee
shall have authority as to (1) the submission to shareholders of
any action that needs shareholders' approval; (2) the filling of
vacancies in the Board or in any committee thereof; (3) the
fixing of compensation of the Directors for serving on the Board
or on any committee thereof; (4) the amendment or repeal of the
By-Laws, or the adoption of new By-Laws; (5) the amendment or
repeal of any resolution of the Board which, by its terms, shall
not be so amendable or repealable; (6) the fixing or changing of
the size of the Board; or (7) the removal or indemnification of
Directors. In the event of the absence of any member(s) from a
meeting of a committee, replacements may be made from Directors
designated as alternate members of such committee by the Board.
The Chairman of the Board of Directors, or in his absence or
should he so direct, the President, or in his absence, a Vice
President, if such officers are members of the committee, shall
preside at meetings of the committee, otherwise the presiding
officer shall be designated by majority vote of the committee.
Vacancies in the membership of the committee shall be filled by
the Board of Directors at a regular or special meeting of the
Board of Directors. Unless the Board of Directors otherwise
provides, each committee designated by the Board may adopt, amend
and repeal rules for the conduct of its business.
SECTION 3.2 EXECUTIVE COMMITTEE
There shall be an Executive Committee of two (2) or more of
the Directors to be designated by the Board, which, together with
the Chairman of the Board of Directors and the President, shall
constitute an Executive Committee. The Executive Committee shall
have and may exercise all of the authority and powers of the
Board subject to limitations prescribed by law or these by-laws.
The Secretary of the Company shall be the Secretary of the
Executive Committee.
SECTION 3.3 ACTION BY A COMMITTEE
The act of a majority of the members of a committee present
at any meeting at which a quorum is present shall be the act of
such committee. The members of a committee shall act only as a
committee, and the individual members thereof shall have no
individual powers as such. Each committee may make such rules as
it may deem expedient for the regulation and carrying on of its
meetings and proceedings.
SECTION 3.4 QUORUM
A majority of the members of a committee shall constitute a
quorum.
SECTION 3.5 REPORTS TO BOARD OF DIRECTORS
Each such committee shall keep a record of its proceedings
and make reports to the Board at its next regular meeting.
SECTION 3.6 COMPENSATION OF COMMITTEE MEMBERS
Members of committees of the Board shall receive such fees
and compensation as fixed from time to time by the Board and
shall be reimbursed for reasonable expenses for attending
committee meetings.
SECTION 3.7 RESIGNATION AND REMOVAL OF COMMITTEE MEMBERS
Any member of any committee may resign at any time. Such
resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time
of its receipt by the Chairman of the Board of Directors or
Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
Committee members may be removed by action of the Board of
Directors, with or without cause.
SECTION 3.8 UNANIMOUS WRITTEN CONSENT
Any action authorized in writing, by all of the members of a
committee and filed with the minutes of the Company shall be the
act of that committee with the same force and effect as if the
same had been passed by unanimous vote at a duly called meeting
of such committee.
SECTION 3.9 PLACE OF COMMITTEE MEETINGS
Meetings of each committee shall be held in such month on
such day at such hour and at such place as such committee may
from time to time direct.
SECTION 3.10 NOTICE
Unless otherwise provided by resolution of the Board or by
vote of a majority of the members of the relevant committee,
notice of committee meetings shall be given in the same manner as
notice of special meetings of the Board is to be given under
Section 2.4 of these By-Laws.
ARTICLE IV
OFFICERS AND THEIR DUTIES
SECTION 4.1 OFFICERS
The Board of Directors, at its regular annual meeting, shall
elect or appoint from their number a Chairman of the Board of
Directors, the Chairmen of Committees of the Board and may elect
or appoint a Vice Chairman of the Board of Directors and Vice
Chairmen of Committees of the Board, which officers shall be
officers of the Board; and it shall elect or appoint a President,
one or more Vice Presidents, a Secretary, a Treasurer, and a
Controller which officers shall be officers of the Company. Each
of said officers, subject to the provisions of Sections 4.2 and
4.3 hereof, shall hold officer, if elected, until the meeting of
the board following the next Annual Meeting of shareholders and
until his or her successor has been elected and qualified, or, if
appointed, for the term specified in the resolution appointing
him or her and until his or her successor has been elected or
appointed. Any two or more offices may be held by the same
person. Should any of the officers of the Board or the President
cease to be a director, he shall ipso facto cease to be such
officer.
SECTION 4.2 TERM OF OFFICE; RESIGNATION; REMOVAL;
VACANCIES
Except as otherwise provided in the resolution of the Board
of Directors electing or appointing any officer, all officers
shall be elected or appointed to hold office until the meeting of
the Board of Directors following the next succeeding annual
meeting of shareholders. Each officer shall hold office for the
term for which he or she is elected or appointed, and until his
or her successor has been elected or appointed and qualified.
Any officer may resign at any time by giving written notice to
the Board or to the Chairman of the Board of Directors, if any,
or the President or the Secretary of the Company. Such
resignation shall take effect at the time specified therein, and
unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. Any officer
may be removed by the Board, with or without cause, at any time.
Removal of an officer without cause shall be without prejudice to
his or her contract rights, if any, with the Company, but the
election or appointment of an officer shall not of itself create
contract rights. Any vacancy occurring in any office of the
Company by death, resignation, removal or otherwise may be filled
for the unexpired portion of the term by the Board.
SECTION 4.3 POWERS AND DUTIES
The officers of the Company shall have such authority and
perform such duties in the management of the Company as may be
prescribed by the Board of Directors and, to the extent not so
prescribed, as generally pertain to their respective offices,
subject to the control of the Board. Securities of other
companies held by the Company may be voted by any officer
designated by the Board and, in the absence of any such
designation, by the Chairman of the Board of Directors, the
President, any Vice President, the Secretary or the Treasurer.
The Board may require any officer, agent or employee to give
security for the faithful performance of his duties.
SECTION 4.4 SALARIES
Salaries of all officers of the Company shall be fixed by
the Board from time to time; and salaries of all other employees
of the Company shall be regulated by the Chief Executive Officer.
SECTION 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS
The Chairman of the Board of Directors shall preside at all
meetings of the shareholders and the Board of Directors at which
he or she shall be present. When the Chairman of the Board of
Directors is also designated the Chief Executive Officer, he or
she shall have general and active management of the business of
the Company and shall see that all orders and policies of the
Board of Directors are carried into effect.
SECTION 4.6 VICE CHAIRMAN
The Vice Chairman shall do and perform all such duties as
shall be assigned to him or her by the Chairman of the Board of
Directors or required by the Board of Directors.
SECTION 4.7 PRESIDENT
In the absence of a Chairman of the Board of Directors or
should the Chairman of the Board of Directors so direct, the
President shall preside at meetings of the shareholders and of
the Board of Directors at which he or she shall be present. In
the case of the Chairman of the Board of Directors having been
designated as Chief Executive Officer, the President shall
(subject to the direction of the Chairman of the Board of
Directors) exercise general control and supervision over all the
affairs of the Company and generally do and perform those duties
as usually appertain to the office of the President, or which may
be assigned to him or her by the Board of Directors. Should
there be no Chairman of the Board of Directors or should the
President be designated Chief Executive Officer of the Company,
the President shall have general and active management of the
business of the Company and shall see that all orders and
policies of the Board of Directors are carried into effect; and
the salaries of all employees of the Company, other than
officers, shall be regulated by him or her. If the office of the
Chairman of the Board of Directors is vacated, due to the
incumbent's death, retirement, or inability to act, or should the
Directors elect to leave such office vacant, the President shall
be the Chief Executive Officer and shall assume all the duties as
outlined in Section 4.5, until directed otherwise by the Board of
Directors.
SECTION 4.8 VICE PRESIDENT
The Vice Presidents, respectively, shall do and perform all
such duties as shall be assigned to them by the Chairman of the
Board of Directors or the President or required of them by the
Board of Directors. If designated by the Board of Directors as a
member of the Executive Committee, a Vice President shall perform
the duties of President in case of the President's absence or
inability to act or in case of a vacancy in that office. An
Assistant Vice President in the absence or disability of a Vice
President may at the discretion of the Chairman of the Board of
Directors or the President perform the duties of a Vice President
and shall perform such other duties as may be assigned to him or
her.
SECTION 4.9 SECRETARY
It shall be the duty of the Secretary to keep and attest
true records of the proceedings of all meetings of the Board and
Executive Committee, to see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by
law and safely keep and account for all documents, papers and
property of the Company which may come into his or her
possession. He or she shall be the custodian of the Corporate
Seal of the Company and shall affix and attest the same whenever
it is necessary and proper so to do, and shall perform such other
duties as may be assigned to him by the Board. In the absence or
disability of the Secretary, an Assistant Secretary or any Vice
President shall perform his duties and such other duties as may
be assigned to him or her.
SECTION 4.10 TREASURER
The Treasurer shall have the custody of all money, funds and
securities of the Company. He or she shall furnish such security
for the faithful performance of his or her duties as may be
required by the Board of Directors. He or she shall receive all
money due to the Company and deposit the same in its corporate
name in such banks or trust companies as the Board of Directors
shall determine. He or she shall sign all checks, drafts or
orders for the payment of money; and perform such other duties as
may be required of him or her by the Board of Directors. An
Assistant Treasurer shall, in the absence or disability of the
Treasurer, perform his or her duties and such other duties as may
be assigned to him or her. In the absence or disability of the
Treasurer and Assistant Treasurers, any Vice President shall
perform his or her duties and such other duties as may be
assigned to him or her. The Treasurer shall, when directed by
the Board of Directors, open special accounts in the Company's
depositories; all checks, drafts or orders for the payment of
money out of such special accounts shall be signed in such manner
and by such officers or employees of the Company as the Board of
Directors shall designate; such checks, drafts or orders for the
payment of money shall also be signed, if, as and when so
directed by resolution of the Board of Directors, by such persons
and in such manner as the Board of Directors shall determine.
SECTION 4.11 CONTROLLER
The Controller shall:
(a) Keep at the office of the Company correct books of
account of all its business and transactions;
(b) Exhibit at all reasonable times his books of accounts
and records to any of the directors upon application during
business hours at the office of the Company where such books and
records are kept;
(c) Render a full statement of the financial condition of
the Company whenever requested so to do by the Board of
Directors, the Chairman of the Board or the President; and
(d) In general, perform such duties as may be from time to
time assigned to him by the Board of Directors, the Chairman of
the Board or the President.
SECTION 4.12 OTHER OFFICERS
Other officers, including one or more additional Vice
Presidents, may from time to time be appointed by the Board of
Directors or by any officer or committee upon whom a power of
appointment may be conferred by the Board of Directors, which
other officers shall have such powers and perform such duties as
may be assigned to them by the Board of Directors, the Chairman
of the Board of Directors or the President and shall hold office
for such terms as may be designated by the Board of Directors or
the officer or committee appointing them.
ARTICLE V
SHARES
CERTIFICATED SHARES
SECTION 5.1 CERTIFICATES, REGISTRAR AND TRANSFER
AGENT
Certificates for shares of the capital stock of the Company
shall be in such form as shall be approved by the Board of
Directors. They shall be numbered, as nearly as may be, in the
order of their issue and shall be signed by the Chairman of the
Board of Directors or by the President or a Vice President, and
by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and sealed with the seal of the Company.
SECTION 5.2 AUTHORIZATION OF FACSIMILE SIGNATURES
AND SEAL
The signatures of the officers upon a certificate, and the
seal of the Company, may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar
other than Company itself or its employee.
SECTION 5.3 TRANSFER OF CERTIFICATED SHARES
Shares of the capital stock of the Company shall be
transferable by the holder thereof in person or by duly
authorized attorney upon surrender of the certificate or
certificates for such shares properly endorsed. Every
certificate of stock exchanged or returned to the Company shall
be appropriately canceled. A person in whose name shares of
stock stand on the books of the Company shall be deemed the owner
thereof as regards the Company. The Board of Directors may make
such other and further rules and regulations as they may deem
necessary or proper concerning the issue, transfer and
registration of stock certificates.
SECTION 5.4 LOST, STOLEN OR DESTROYED SHARE
CERTIFICATES
The Company may issue a new certificate for shares in place
of any certificate theretofore issued by it, alleged to have been
lost or destroyed, and the Company may require the owner of the
lost or destroyed certificate, or such owner's legal
representative, to give the Company a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss or destruction of any such
certificate or the issuance of any such new certificate.
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ARTICLE VI
INDEMNIFICATION
SECTION 6.1 GENERAL APPLICABILITY
Except to the extent expressly prohibited by the New York
Business Corporation Law, the Company shall indemnify each person
made, or threatened to be made, a party to any action or
proceeding, whether criminal or civil, by reason of the fact that
such person or such person's testator or intestate is or was a
Director or Officer of the Company, against judgments, fines,
penalties, amounts paid in settlement and reasonable expenses,
including attorney's fees and expenses, reasonably incurred in
enforcing such person's right to indemnification, incurred in
connection with such action or proceeding, or any appeal therein,
provided that no such indemnification shall be made if a judgment
or other final adjudication adverse to such person establishes
that such person's 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 such person
personally gained in fact a financial profit or other advantage
to which such person was not legally entitled, and provided
further that no such indemnification shall be required with
respect to any settlement or other nonadjudicated disposition of
any threatened or pending action or proceeding unless the Company
has given its prior consent to such settlement or other
disposition.
SECTION 6.2 SCOPE OF INDEMNIFICATION
The Company shall advance or promptly reimburse upon request
to any person entitled to indemnification hereunder all
reasonable expenses, including attorney's fees and expenses,
reasonably incurred in defending any action or proceeding in
advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such person to repay such amount
if such person is ultimately found not to be entitled to
indemnification or, where indemnification is granted, to the
extent the expenses so advanced or reimbursed exceed the amount
to which such person is entitled; provided, however, that such
person shall cooperate in good faith with any request by the
Company that common counsel be used by the parties to an action
or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests
between or among such parties.
SECTION 6.3 OTHER INDEMNIFICATION PROVISIONS
Nothing herein shall limit or affect any right of any
Director, Officer or other corporate personnel otherwise than
hereunder to indemnification or expenses, including attorney's
fees, under any statute, rule, regulation, certificate of
incorporation, by-law, insurance policy, contract or otherwise;
without affecting or limiting the rights of any Director, Officer
or other corporate personnel pursuant to this Article VI, the
Company is authorized to enter into agreements with any of its
Directors, Officers or other corporate personnel extending rights
to indemnification and advancement of expenses to the fullest
extent permitted by applicable law.
Unless limited by resolution of the Board of Directors or
otherwise, the Company shall advance the payment of expenses to
the fullest extent permitted by applicable law to, and shall
indemnify, any Director, Officer or other corporate person who is
or was serving at the request of the Company, as a director,
officer, partner, trustee, employee or agent of another
corporation, whether for profit or not-for-profit, or a
partnership, joint venture, trust or other enterprise, whether or
not such other enterprise shall be obligated to indemnify such
person.
SECTION 6.4 SURVIVAL OF INDEMNIFICATION
Anything in these By-laws to the contrary notwithstanding,
no elimination or amendment of this Article VI adversely
affecting the right of any person to indemnification or
advancement of expenses hereunder shall be effective until
the 60th day following notice to such person of such action, and
no elimination of or amendment to this Article VI shall deprive
any such person's rights hereunder arising out of alleged or
actual occurrences, acts or failures to act prior to such 60th
day.
SECTION 6.5 INABILITY TO LIMIT INDEMNIFICATION
The Company shall not, except by elimination or amendment of
this Article VI in a manner consistent with the preceding Section
6.4 and with the provisions of Article VIII ("Amendments to
By-Laws"), take any corporate action or enter into any agreement
which prohibits, or otherwise limits the rights of any person to,
indemnification in accordance with the provisions of this Article
VI. The indemnification of any person provided by this Article
VI shall continue after such person has ceased to be a Director
or Officer of the Company and shall inure to the benefit of such
person's heirs, executors, administrators and legal
representatives.
SECTION 6.6 SEVERABILITY
In case any provision in this Article VI shall be determined
at any time to be unenforceable in any respect, the other
provisions of this Article VI shall not in any way be affected or
impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the
intention of the Company to afford indemnification and
advancement of expenses to its Directors or Officers, acting in
such capacities or in the other capacities mentioned herein, to
the fullest extent permitted by law.
ARTICLE VII
OTHER MATTERS
SECTION 7.1 BOOKS TO BE KEPT
The Company shall keep (a) correct and complete books and
records of account, (b) minutes of the proceedings of the
shareholders, Board of Directors and Executive Committee, if any,
and (c) a current list of the Directors and Officers and their
residence addresses. The Company shall also keep, at its office
located in the County of Dutchess in the State of New York or at
the office of its transfer agent or registrar in the State of New
York, if any, a record containing the names and addresses of all
shareholders, the number and class 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. The Board of Directors shall,
subject to the laws of the State of New York, have power to
determine from time to time, whether, to what extent, and under
what conditions and regulations the accounts and books of the
Corporation or any of them shall be open to the inspection of the
shareholders, and no shareholder shall have any right to inspect
any account book or document of the Corporation except as
conferred by the laws of the State of New York unless and until
authorized so to do by resolution of the Board of Directors or
shareholders of the Corporation.
SECTION 7.2 CORPORATE SEAL
The Board of Directors may adopt a corporate seal, alter
such seal at pleasure, and authorize it to be used by causing it
or a facsimile to be affixed or impressed or reproduced in any
other manner.
SECTION 7.3 WHEN NOTICE OR LAPSE OF TIME UNNECESSARY
Whenever for any reason the Company or the Board of
Directors or any committee thereof is authorized to take any
action after notice to any person or persons or after the lapse
of a prescribed period of time, such action may be taken without
notice and without the lapse of such period of time if at any
time before or after such action is completed the person or
persons entitled to such notice or entitled to participate in the
action to be taken or, in the case of a shareholder, his or her
attorney-in-fact, submit a signed waiver of notice of such
requirements.
SECTION 7.4 CONTRACTS, ETC., HOW EXECUTED.
The Board of Directors, except as in these by-laws otherwise
provide, may authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the Company, and such authority
may be general or confined to specific instances, and, unless so
authorized by the Board of Directors, no officer or agent or
employee shall have any power or authority to bind the Company by
any contract or engagement or to pledge its credits or to render
it liable pecuniarily for any purpose or to any amount.
SECTION 7.5 LOANS.
No loans shall be contracted on behalf of the Company and no
negotiable paper shall be issued in its name, unless authorized
by the vote of the Board of Directors. When so authorized, any
officer or agent of the Company may effect loans and advances for
the Company from any bank, trust company or other institution, or
from any firm, Company or individual and for such loans and
advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the Company. When so
authorized any officer or agent of the Company, as security for
the payment of any and all loans, advances, indebtedness and
liabilities of the Company, may pledge, hypothecate or transfer
any and all stocks, securities and other personal property at any
time held by the Company, and to that end endorse, assign and
deliver the same. Such authority may be general or confined to
specific instances. The Board of Directors may authorize any
mortgage or pledge of, or the creation of a security interest in,
all or any part of the corporate property, or any interest
therein, wherever situated.
SECTION 7.6. DEPOSITS.
All funds of the Company shall be deposited from time to
time to its credit in such banks, trust companies or other
depositaries as the Board of Directors may select, or as may be
selected by an officer or officers, agent or agents of the
Company to whom such power, from time to time, may be delegated
by the Board of Directors and, for the purpose of such deposit,
checks, drafts and other orders for the payment of money which
are payable to the order of the Company may be endorsed, assigned
and delivered by the President or a Vice President, or the
Treasurer or the Secretary, or by any officer, agent or employee
of the Company to whom any of said officers, or the Board of
Directors, by resolution, shall have delegated such power.
SECTION 7.7 GENERAL AND SPECIAL BANK ACCOUNTS.
The Board of Directors may from time to time authorize the
opening and keeping of general and special bank accounts with
such banks, trust companies or other depositaries as the Board
may select and may make such special rules and regulations with
respect thereto, as it may deem expedient.
SECTION 7.8 FISCAL YEAR.
The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
SECTION 8.1 BY DIRECTORS
By-laws may be adopted, amended, or repealed or new By-laws
may be adopted by the vote of a majority of the entire Board of
Directors at any regular or special meeting of the Board at which
a quorum is present; provided, however, that any adoption of,
amendment to or repeal of any new By-law or provision
inconsistent with Article I (Section 1.2 - "Special meetings",
1.4 - "Presiding at Meetings" or 1.12 - "Notice of Shareholder
Business and Nominations"), Article II (Section 2.1 - "Number of
Directors", 2.2 - "Elections, Terms and Vacancies" or 2.8 -
"Removal of Directors"), Article VI - "Indemnification" or this
Article VIII -"Amendments to By-Laws" hereof, if by action of the
Board, shall be only upon the approval of not less than
two-thirds of the entire Board at any such regular or special
meeting of the Board of Directors.
SECTION 8.2 BY SHAREHOLDERS
By-laws may be adopted, amended, or repealed by the vote of
a majority of the shareholders entitled to vote in the election
of any Directors (as herein provided) at any annual or special
shareholders' meeting at which a quorum is present, if notice of
such proposed action shall have been given in accordance with the
notice requirements of Section 1.12 of these By-laws; provided,
however, that any adoption of, amendment to or repeal of any new
By-laws or provision inconsistent with Article I (Section 1.2
- -"Special meetings", 1.4 - "Presiding at Meetings" or 1.12 -
"Notice of Shareholder Business and Nominations"), Article II
(Section 2.1 - "Number of Directors", 2.2 - - "Elections, Terms
and Vacancies" or 2.8 - "Removal of Directors"), Article VI - -
"Indemnification" or this Article VIII - "Amendments to By-Laws"
hereof, if by action of shareholders, shall be only upon the
affirmative vote of not less than 80% of the shares entitled to
vote thereon at such annual or special shareholders' meeting at
which any such action is proposed.
11/12/98
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