(As amended - 8/31/00)
BY-LAWS
OF
PSC INC.
(hereinafter called the "Corporation")
ARTICLE I.
MEETINGS OF SHAREHOLDERS
SECTION 1. Annual Meeting. The Annual Meeting of the Shareholders of
the Corporation shall be held on such dates and as may be fixed from time to
time by the Board of Directors and stated in the notice of meeting, for the
election of Directors and for the transaction of such other business as may
properly be brought before such meeting.
SECTION 2. Special Meetings. Special Meetings of the Shareholders of
the Corporation may be held at any time in the interval between Annual Meetings.
Special Meetings may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors.
SECTION 3. Place of Meetings. Annual and Special Meetings of the
Shareholders of the Corporation shall be held at the principal office of the
Corporation or at such other place within or without the State of New York as
the Board of Directors may from time to time determine.
SECTION 4. Notice of Meetings. Written or printed notice of the time
and place and purpose or purposes of all meetings of the Shareholders shall be
given personally, or by mail, not less than ten (10) days nor more than fifty
(50) days before the day fixed for the meeting, to each Shareholder entitled to
vote at said meeting, and such notice must indicate that it is being issued by
or at the direction of the person or persons calling the meeting. Such notice
must also be given to any Shareholder who, by reason of any action proposed at
such meeting, would be entitled to have his stock appraised, if such action were
taken, and such notice must specify the proposed action and state the fact that
if the action is taken, the dissenting Shareholder shall have appraisal rights.
Such notice shall be given to the Shareholder by leaving the same with him or at
his residence or usual place of business or by mailing it, postage prepaid and
addressed to him at his address as it appears on the books of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices intended for him be mailed to some other address, in which
event it shall be mailed to the address designated in such request. Notices of
every Annual or Special Meeting shall state the place, day, hour and purpose or
purposes of such meeting; and, in case of any Special Meeting, no business shall
be acted upon which has not been stated in the notice of the meeting. The
notices, as provided for in this Section, are not required to 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 protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him. No notice of an adjourned meeting of Shareholders need be given,
unless the Board of Directors fixes a new record date for the adjourned meeting.
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SECTION 5. Record Dates. For the purpose of determining the
Shareholders entitled to notice of or to vote at a Shareholders' meeting or any
adjournment thereof, the Board of Directors may fix a date of record which shall
not be more than fifty (50) days nor less than ten (10) days before said meeting
date. For the purpose of determining Shareholders entitled to express consent to
or dissent from any proposal without a meeting, or for determining Shareholders
entitled to receive payment of a dividend or the allotment of any rights, or for
any other action, the Board of Directors may fix a date of record which shall
not be more than fifty (50) days prior to such action.
SECTION 6. Quorum. At all Meetings of Shareholders, except as otherwise
provided by law or by the Certificate of Incorporation, there shall be present
in person or represented by proxy, Shareholders owning a majority in number of
the shares of the Corporation issued and outstanding and entitled to vote
thereat, in order to constitute a quorum; but if there be no quorum, the holders
of such shares so present or represented may by majority vote adjourn the
meeting from time to time, but not for a period of over thirty (30) days at any
one time, without notice other than by announcement at the meeting, until a
quorum shall attend, any business may be transacted which might have been
transacted at the meeting as originally called. When a quorum is once present,
it is not broken by the subsequent withdrawal of any Shareholder.
SECTION 7. Voting. At all meetings of the Shareholders, each
Shareholder, entitled to vote thereat, may vote in person or by proxy, and shall
have one (1) vote for each share standing in his name on the books of the
Corporation, unless otherwise required by law, the Certificate of Incorporation
or any amendments thereto, or these By-Laws. Upon demand of the Shareholders
holding ten percent (10%), in interest of the shares, present in person or by
proxy, and entitled to vote, voting shall be by ballot. A plurality of votes
cast shall be sufficient to elect Directors, and a majority of votes cast shall
be sufficient to take any other corporate action, except as otherwise provided
by law or these By-Laws.
SECTION 8. Proxies. Every proxy shall be in writing, subscribed by the
Shareholder or his duly authorized attorney and dated. No proxy which is dated
more than eleven (11) months before the meeting at which it is offered shall be
accepted, unless such proxy shall, on its face, name a longer period for which
it is to remain in force.
SECTION 9. Conduct of Meetings. Meetings of Shareholders shall be
presided over by the Chief Executive Officer of the Corporation, or in his
absence, by the Chairman of the Board of Directors, if any, or in his absence by
the President, or in his absence, by an Executive Vice President, if any, or in
the absence of all such officers, by a Chairman to be chosen at the Meeting. The
Secretary of the Corporation shall act as Secretary of the Meeting, if present.
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The Board of Directors of the Corporation shall be entitled to make
such rules or regulations for the conduct of Meetings of Shareholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the Chairman of the Meeting shall
have the right and authority to prescribe such rules, regulations and procedures
an to do all such acts as, in the judgment of such Chairman, are necessary,
appropriate or convenient for the proper conduct of the Meeting, including,
without limitation, establishing an agenda or order of business for the Meeting,
rules and procedures for maintaining order at the Meeting and the safety of
those present, limitations on participation in such Meeting to Shareholders of
record of the Corporation and their duly authorized and constituted proxies, and
such other persons as the Chairman shall permit, restrictions on entry to the
Meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comment by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot, unless, and to the extent, determined by the Board of Directors or
the Chairman of the Meeting, Meetings of Shareholders shall not be required to
be held in accordance with rules of parliamentary procedure.
SECTION 10. Notification of Nominations. Nominations for election of
Directors may be made by the Board of Directors or by any shareholder entitled
to vote for the election of Directors. Any Shareholder entitled to vote for the
election of Directors at such a Meeting may nominate persons for election as
Directors only if written notice of such Shareholder's intent to make such
nomination is given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i) with
respect to an election to be held at an Annual Meeting of Shareholders, 90 days
in advance of such Meeting, and (ii) with respect to an election to be held at a
Special Meeting of Shareholders for the election of Directors, the close of
business on the seventh day following the date on which notice of such Meeting
is first given to Shareholders. Each such notice shall set forth: (a) the name
and address of the Shareholder who intends to make the nomination and of the
person or persons to be nominated, (b) a representation that such Shareholder is
a holder of record of stock of the Corporation entitled to vote at such Meeting
and intends to appear in person or by proxy at the Meeting to nominate the
person or persons specified in the notice, (c) a description of all arrangements
or understandings between such Shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such Shareholder, (d) such other information
regarding each nominee proposed by such Shareholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been nominated, or intended
to be nominated by the Board of Directors, and (e) the consent of each nominee
to serve as a Director of the Corporation if elected. The Chairman of a
Shareholder Meeting may refuse to acknowledge the nomination of any person not
made in compliance with the foregoing procedure.
<PAGE>
SECTION 11. Notification of Proposals for Corporate Action. Any
Shareholder entitled to vote at a Meeting may make a proposal for corporate
action at such Meeting only if written notice of such Shareholder's intent to
make such a proposal is given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Corporation not later than (i)
with respect to an annual Meeting of Shareholder, 90 days in advance of such
Meeting, and (ii) with respect to a Special Meeting of Shareholders, the close
of business on the seventh day following the date on which notice of such
Meeting is first given to Shareholders. Each such notice shall set forth: (a)
the name and address of the Shareholder who intends to make the proposal, (b) a
representation that such Shareholder is a holder of record of stock of the
Corporation entitled to vote at such Meeting and intends to appear in person or
by proxy at the Meeting to make the proposal, (c) a description of the proposal,
(d) such other information regarding the proposal as would have been required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission. The Chairman of a Shareholder Meeting may
refuse to acknowledge the proposal of any person not made in compliance with the
foregoing procedure.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Number, Election and Terms. The business and affairs of the
Corporation shall be managed and controlled by a Board of Directors consisting
of not less than nine (9) nor more than twenty (20) persons. The exact number of
Directors within the minimum limitations specified in the preceding sentence
shall be fixed from time to time by the by-laws pursuant to a resolution adopted
by a majority of the entire Board of Directors.* At the 1989 Annual Meeting of
Shareholders, the Directors shall be divided into three (3) classes, as nearly
equal in number as possible, with the term of office of the first class to
expire at the 1990 Annual Meeting of Shareholders, the term of office of the
second class to expire at the 1991 Annual Meeting of Shareholders, and the term
of office of the third class to expire at the 1992 Annual Meeting of
Shareholders. At each Annual Meeting of Shareholders following such initial
classification and election, Directors elected to succeed those Directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding Annual Meeting of Shareholders after their election. Each Director
shall serve until his successor is elected and qualified, unless his
directorship be theretofore vacated by resignation, death, removal or otherwise.
Directors need not be shareholders.
SECTION 2. Newly Created Directorships and Vacancies. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
Directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the Directors then in office, and
Directors so chosen shall hold office for a term expiring at the next Annual
Meeting of Shareholders and until his successor is elected and qualified. No
decrease in the number of Directors constituting the Board of Directors shall
shorten the term of any incumbent director.
SECTION 3. Removal. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any Director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 66-2/3% of the voting power
of all of the shares of the Corporation entitled to vote for the election of
Directors.
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* At a meeting of the Board of Directors held on September 3, 1997, the number
of directors was fixed at ten (10) persons.
<PAGE>
SECTION 4. Meetings. Regular Meetings of the Board of Directors shall
be held at such times as the Directors may from time to time determine. Special
Meetings of the Board of Directors shall be held at any time, upon call from the
Chairman of the Board, the Chief Executive Officer or at least one-third (1/3)
of the Directors.
SECTION 5. Place of Meetings. Regular and Special Meetings of the Board
of Directors shall be held at the principal office of the Corporation or at such
other place, within or without the State of New York, as the Board of Directors
may from time to time determine.
SECTION 6. Notice of Meetings. Notice of the place, day and hour of
every Regular and Special Meeting shall be given to each Director at least one
(1) day before the meeting by delivering the same to him personally or sending
the same to him by facsimile, telegraph or leaving the same at his residence or
usual place of business or by mailing, at least three (3) days before the
meeting, such known Post Office address according to the records of the
Corporation. No notice of any adjourned meeting of the Board of Directors need
be given other than by announcement at the meeting, subject to the provisions of
Section 8 of this Article.
SECTION 7. Waiver of Notice. Notice of the meeting need not be given to
any Director who submits a signed written waiver thereof whether before, during
or after the meeting nor to any Director who attends the meeting without
protesting, prior thereto or at it commencement, the lack of notice to him.
SECTION 8. Quorum. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, a majority of the Board
of Directors shall be necessary to constitute a quorum for the transaction of
business at each meeting of the Board of Directors; but if at any meeting there
be less than a quorum present, a majority of those present may adjourn the
meeting from time to time without notice other than by announcement at the
meeting, until a quorum shall attend. At any such adjournment, at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 9. Compensation. Directors as such shall not receive any stated
compensation for their services, but by resolution of the Board of Directors, a
fixed sum and expense of attendance may be allowed for attendance at each
Special or Regular Meeting thereof. Nothing in this Section will be construed to
preclude a Director from serving the Corporation in any other capacity and from
receiving compensation therefor.
<PAGE>
SECTION 10. Executive Committee and Other Committees. The Board of
Directors may, in its discretion, by an affirmative vote of a majority of the
whole Board appoint an Executive Committee, or any other committee, to consist
of three (3) or more Directors as the Board of Directors in the management of
the business and affairs the Corporation, and other committees shall have those
powers conferred upon them by the Board, except that no committee shall have
power:
(a) To recommend to Shareholders any action requiring Shareholder approval;
(b) To fill vacancies in the Board or in any committee thereof;
(c) To fix compensation of Directors for service on the Board or any committee
thereof;
(d) To repeal, amend or adopt By-Laws;
(e) To amend or repeal any Board resolution which does not, by its terms, make
it amendable or repealable by such committee;
(f) To remove, or fix the compensation of, officers who are elected by the
Board.
In the absence of any member of the Executive Committee or of any other
committee, the members thereof present at any meeting may appoint a member of
the Board of Directors previously designated by the Board as a committee
alternate to act in place of such absent member. The Board of Directors shall
have the power at any time to change the membership of any committee, to fill
vacancies in it, or dissolve it. The Executive Committee and any other committee
may make rules for the conduct of its business, and may appoint such committees
and assistants as may from time to time be necessary, unless the Board shall
provide otherwise. A majority of the members of the Executive Committee and of
any other committee shall constitute a quorum. Each committee shall keep regular
minutes and report to the Board of Directors when required.
SECTION 11. Action Without a Meeting. Any action required or permitted
to be taken by the Board of Directors or any committee thereof at a duly held
meeting may be taken without a meeting if all members of the Board of Directors
or the committee consent in writing to the adoption of a resolution authorizing
the action. Such resolution and the written consents thereto by the members of
the Board of Directors or the committee shall be filed with the minutes of the
proceedings of the Board of Directors or the committee.
SECTION 12. Participation in Meetings by Conference Telephone. Any one
or more members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participating by such means
shall constitute presence in person at a meeting.
<PAGE>
ARTICLE III
OFFICERS
SECTION 1. Election of Officers. The Board of Directors (or the
Executive Committee), at any duly held meeting thereof, shall elect a President,
a Secretary and Treasurer of the Corporation, and may elect a Chairman of the
Board of Directors and a Vice Chairman of the Board of Directors from among the
Directors of the Corporation, one or more Vice Presidents and any other
officers. Unless otherwise provided by resolution of the Board, the President
shall be the Chief Executive Officer of the Corporation. Each such officer shall
serve at the pleasure of the Board of Directors or until his successor shall
have been duly elected or appointed and qualifies, or until he shall have been
removed in the manner provided in Section 3 of this Article. Any two offices may
be held by the same person, except that no person shall hold the office of
President and Secretary concurrently. Any one office may be held jointly by more
than one person. Any vacancies in the above offices shall be filled in the same
manner.
SECTION 2. Assistant and Subordinate Officers. The Board of Directors
(or the Executive Committee) may elect one or more Assistant Treasurers, one or
more Assistant Secretaries and such other subordinate officers or agents as it
may deem proper from time to time, who shall hold office only at the pleasure of
the Board of Directors (or the Executive Committee). The Board of Directors may
from time to time authorize the Chief Executive Officer to appoint and remove
such assistant and subordinate officers and agents and prescribe the powers and
duties thereof.
SECTION 3. Removal. Any officer of the Corporation may be removed with
or without cause by a vote of the majority of the entire Board of Directors of
the Corporation then in office at a meeting called for that purpose (or, except
in the case of an officer elected by the Board of Directors, by the Executive
Committee) whenever in its judgment the best interests of the Corporation will
be served thereby.
SECTION 4. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation who are appointed by the Board
of Directors. The Board of Directors or the Executive Committee shall fix the
compensation of all other officers of the Corporation, except that the Board of
Directors may authorize the Chief Executive Officer to fix the compensation of
such assistant and subordinate officers and agents as he is authorized to
appoint and remove.
SECTION 5. Chairman of the Board and Vice Chairman of the Board. The
Chairman of the Board and in his absence the Vice Chairman if there be one shall
preside at all meetings of the directors and shall perform such other duties as
the Board may direct. The Chairman of the Board shall select and charter Board
committees, establish board agendas, direct that management prepares and
presents informative reports to the Board, monitor and review the performance of
the President and Chief Executive Officer, and perform such other duties as the
Board may from time to time direct.
<PAGE>
SECTION 6. President. The President shall, subject to the control of
the Board of Directors (or the Executive Committee), have general supervision of
the business of the Corporation and shall see that all orders and resolutions of
the Board of Directors (or the Executive Committee) are carried into effect. He
shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a signature under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and execute documents
when so authorized by these By-Laws, the Board of Directors or the President. In
the absence or disability of the Chairman of the Board of Directors, or if there
be none, the President shall preside at all meetings of the Board of Directors.
The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these By-Laws or by the
Board of Directors (or the Executive Committee).
SECTION 7. Vice Presidents. Any one or more of the Vice Presidents may
be designated by the Board of Directors (or the Executive Committee) as an
Executive Vice President. At the request of the President to whom that Executive
Vice President reports, or in his absence or during his disability, the
Executive Vice President shall perform the duties and exercise the functions of
that President.
SECTION 8. Secretary. The Secretary shall keep full Minutes of all
meetings of the Shareholders and of the Board of Directors in books provided for
the purpose. He shall see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law. He shall be the custodian of
the records and of the Seal or Seals of the Corporation. He shall affix the
Corporate Seal to all documents, the execution of which on behalf of the
Corporation, under the Seal, is duly authorized by the Board of Directors (or
the Executive Committee), and when so affixed may attest the same. He shall have
such other powers and duties as may be properly designated by the Board of
Directors (or the Executive Committee) and the Chief Executive Officer.
SECTION 9. Treasurer. The Treasurer shall keep correct and complete
books and records of account for the Corporation. Subject to the control and
supervision of the Board of Directors (or the Executive Committee) and the Chief
Executive Officer, or such other officers as the Chief Executive Officer may
designate, the Treasurer shall establish and execute programs for the provision
of the capital required by the Corporation, including negotiating the
procurement of capital and maintaining adequate sources for the Corporation's
current borrowings from lending institutions. He shall maintain banking
arrangements to receive, have custody of and disburse the Corporation's monies
and securities. He shall invest the Corporation's funds as required, establish
and coordinate policies for investment in pension and other similar trusts, and
provide insurance coverage as required. He shall direct the granting of credit
and the collection of accounts due the Corporation, including the supervision of
special arrangements for financing sales, such as time payment and leasing
plans. He shall have such other powers and duties as may be properly designated
by the Board of Directors (or the Executive Committee) and the Chief Executive
Officer.
<PAGE>
SECTION 10. Securities of Other Corporation. Unless otherwise provided
by resolution adopted by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer, the President of the Corporation or any Vice President
may, with respect to any shares of stock or other securities issued by any other
corporation or other business organization and held by the Corporation, exercise
voting and similar rights on behalf of the Corporation and execute any ballots,
consents, powers of attorney or proxies for that purpose. In addition, any such
officer may endorse for sale or transfer and may sell or transfer for and on
behalf of the Corporation any such stock or securities and may appoint proxies
or attorneys for such purpose.
SECTION 11. Non-corporate Officers. The Chairman of the Board or the
President may from time to time appoint one or more vice presidents who shall
not be considered officers of the Corporation for any purpose. Such vice
presidents shall be clearly designated as non-corporate officers, shall hold
office for such period, have such authority, and perform such duties as the
Chairman of the Board, or the President may from time to time prescribe.
ARTICLE IV
SHARE CERTIFICATES
SECTION 1. Form and Signatures. The interest of each Shareholder of the
Corporation shall be evidenced by certificates for shares in such form not
inconsistent with law or the Certificate of Incorporation, and any amendments
thereof, as the Board of Directors may from time to time prescribe. The share
certificates shall be signed by the Chief Executive Officer, a President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, sealed with the seal of the Corporation, and
countersigned and registered in such manner, if any, as the Board of Directors
may by resolution prescribe. Where any share certificate is countersigned by a
transfer agent or registered by a registrar, other than the Corporation itself
or its employee, the signatures of any such Chief Executive Officer, President,
Vice President, Secretary, Assistant Secretary, Treasurer, or Assistant
Treasurer and such corporate seal, may be facsimiles engraved or printed. In
case any officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before the share
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if such person had not ceased to be such officer.
SECTION 2. Transfer of Shares. The shares of the Corporation shall be
transferred on the books of the Corporation by the registered holder thereof, in
person or by his attorney, upon surrender for cancellation of certificates for
the same number of shares, with a proper assignment and powers of transfer
endorsed thereon or attached thereto, duly signed by the person appearing by the
certificate to be the owner of the shares represented thereby, with such proof
of the authenticity of the signature as the Corporation, or its agents, may
reasonably require. Such certificate shall have affixed thereto all stock
transfer stamps required by law. The Board of Directors shall have power and
authority to make all such other rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
the Corporation.
<PAGE>
SECTION 3. Mutilated, Lost, Stolen or Destroyed Certificates. The
holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any mutilation, loss, theft or destruction
thereof, and the Board of Directors may, in its discretion, cause one or more
new certificates, for the same number of shares in aggregate, to be issued to
such holder upon satisfactory proof of such loss, theft or destruction and the
deposit of indemnity by way of bond or otherwise in such form and amount and
with such sureties or securities as the Board of Directors may require to
indemnify the Corporation and transfer agent and registrar, if any, against loss
or liability by reason of the issuance of such new certificates; but the Board
of Directors may, in its discretion, refuse to issue such new certificates save
upon the order of some court having jurisdiction in such matters.
SECTION 4. Stock Ledgers. The stock ledgers of the Corporation
containing the names and addresses of the Shareholders and the number of shares
held by them respectively shall be maintained at the principal office of the
Corporation, or if there be a transfer agent, at the office of such transfer
agent, as the Board of Directors shall determine.
SECTION 5. Transfer Agents and Registrars. The Corporation may have one
or more transfer agents and one or more registrars of its stock or of any class
or classes of its shares whose respective duties the Board of Directors may from
time to time determine.
ARTICLE V
INDEMNIFICATION
SECTION 1. Indemnification of Directors and Officers. To the full
extent authorized or permitted by law, the Corporation shall indemnify any
person ("Indemnified Person") made, or threatened to be made, a party to any
action or proceeding, whether civil, at law, in equity, criminal,
administrative, investigative or otherwise, including any action by or in the
right of the Corporation, by reason of the fact that he, his testator or
intestate ("Responsible Person"), whether before or after adoption of this
Article: (a) is or was a director or officer of the Corporation, or (b) if a
director or officer of the Corporation, is serving or served, in any capacity,
at the request of the Corporation, any other corporation, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, or (c) if not a
director or officer of the Corporation, is serving or served, in any capacity,
at the request of the Corporation, any other corporation, or any partnership,
joint venture, trust, employee benefit play or other enterprise, against all
judgments, fines, penalties, amounts paid in settlement (provided the
Corporation shall have consented to such settlement, which consent shall not be
unreasonably withheld by it) and reasonable expenses, including attorneys' fees
and costs of investigation, incurred by such Indemnified Person with respect to
any such threatened or actual action or proceeding, and any appeal therein,
provided only that the following standard of conduct is met (x) the acts of the
Reasonable Person which were material to the cause of action so adjudicated or
otherwise disposed of were not committed in bad faith or were not the result of
active and deliberate dishonesty, and (y) the Responsible Person did not
personally gain in fact a financial profit or other advantage to which he was
not legally entitled.
<PAGE>
SECTION 2. Advancement of Expenses. All expenses reasonably incurred by
an Indemnified Person in connection with a threatened or actual action or
proceeding with respect to which such person is or may be entitled to
indemnification under this Article shall be advanced or promptly reimbursed by
the Corporation to him in advance of the final disposition of such action or
proceeding, upon receipt of an undertaking by him or on his behalf to repay the
amount of such advances, if any, as to which he is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
such advances exceed the indemnification to which he is entitled.
SECTION 3. Procedure for Indemnification
(a) Not later than thirty (30) days following final
disposition of an action or proceeding with respect to which the Corporation has
received written request by an Indemnified Person for indemnification pursuant
to this Article, if such indemnification has not been ordered by a court, the
Board of Directors shall meet and find whether the Responsible Person met the
standard of conduct set forth in Section 1 of the Article, and, if it finds that
he did, or to the extent it so finds, shall authorize such indemnification.
(b) Such standard of conduct shall be found to have been met
unless (i) a judgment or other final adjudication adverse to the Indemnified
Person establishes that (A) acts of the Responsible Person 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 (B) the Responsible Person personally
gained in fact a financial profit or other advantage to which he was not legally
entitled; or (ii) if the action or proceeding was disposed of other than by
judgment or other final adjudication, the Board finds in good faith that, if it
had been disposed of by judgment or other final adjudication, such judgment or
other final adjudication would have been adverse to the Indemnified Person and
would have established (A) or (B) above.
(c) If indemnification is denied, in whole or part, because of
such a finding by the Board in the absence of a judgment or other final
adjudication, or because the Board believes the expenses for which
indemnification is requested to be unreasonable, such action by the Board shall
in no way affect the right of the Indemnified Person to make application
therefor in any court having jurisdiction thereof, and in such action or
proceeding the issue shall be whether the Responsible Person met the standard of
conduct set forth in Section 1, or whether the expenses were reasonable, as the
case may be; not whether the finding of the Board with respect thereto was
correct; and the determination of such issue shall not be affected by the
Board's finding. If the judgment or other final adjudication in such action or
proceeding establishes that the Responsible Person met the standard of conduct
set forth in Section 1, or that the disallowed expenses were reasonable, or to
the extent that it does, the Board shall then find such standard to have been
met if it has not done so, and shall grant such indemnification, and shall also
grant to the Indemnified Person indemnification of the expenses incurred by him
in connection with the action or proceeding resulting in the judgment or other
final adjudication that such standard of conduct was met, or if pursuant to such
court determination such person is entitled to less than the full amount of
indemnification denied by the Corporation, the portion of such expenses
proportionate to the amount of such indemnification so awarded.
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(d) A finding by the Board pursuant to this Section that the
standard of conduct set forth in Section 1 has been met shall mean a finding (i)
by a quorum consisting of directors who are not parties to such action or
proceeding or, (ii) if such a quorum is not obtainable or, if obtainable, such a
quorum is unable to make such a finding and so directs: (A) by the Board upon
the written opinion of independent legal counsel that indemnification is proper
in the circumstances because the applicable standard of conduct has been met, or
(B) by the shareholders upon a finding that such standard has been met, such
action by the Board or shareholders to be taken as promptly as is practicable.
SECTION 4. Contractual Article. This Article shall be deemed to
constitute a contract between the Corporation and person who serves as a
Responsible Person at any time while this Article is in effect. No repeal or
amendment to this Article, insofar as it reduces the extent of the
indemnification of any person who could be a Responsible Person shall, without
his written consent, be effective as to such person with respect to any event,
act or omission occurring or allegedly occurring prior to: (a) the date of such
repeal or amendment if on that date he is not serving in any capacity in which
he is serving on the date of such repeal or amendment, other than as a director
or officer of the Corporation, for which he could be a Responsible Person, or
(b) the later of the thirtieth (30th) day following the end of the term of
office (for whatever reason) if he is serving as director or officer of the
Corporation on the date of such repeal or amendment, with respect to being a
Responsible Person in that capacity. No amendment of the Business Corporation
Law shall, insofar as it reduces the permissible extent of the right of
indemnification of a Responsible Person under this Article, be effective as to
such person with respect to any event, act or omission occurring or allegedly
occurring prior to the effective date of such amendment.
SECTION 5. Insurance. The Corporation may, but need not, maintain
insurance insuring the corporation or Responsible Persons for any obligation of
the Corporation for indemnification of Responsible Persons or for liabilities
against which Responsible Persons are entitled to indemnification under this
Article or insuring Responsible Persons for liabilities against which they are
not entitled to indemnification under this Article.
SECTION 6. Non-Exclusivity. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which director or
officer of the Corporation or other corporate personnel may be entitled under
law other than pursuant to this Article. If the standard of conduct set forth in
Section 1 of this Article is met, the Corporation is authorized to provide such
persons rights to indemnification or advancement of expenses in addition to the
provisions therefor in this Article, to the full extent permitted by law,
pursuant to (a) a resolution of shareholders, (b) a resolution of directors, or
(c) an agreement providing for such indemnification.
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ARTICLE VI
FINANCES
SECTION 1. Dividends. Subject to law and to the provisions of the
Certificate of Incorporation, and any amendments thereof, the Board of Directors
may declare dividends on the stock of the Corporation, payable upon such dates
as the Board of Directors may designate.
SECTION 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sums or
sums, as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall deem conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
SECTION 3. Bills, Notes, Etc. All checks or demands for money and notes
or other instruments evidencing indebtedness or obligations of the Corporation
shall be made in the name of the Corporation and shall be signed by such officer
or officers or such other person or persons as the Board of Directors may from
time to time designate.
ARTICLE VII
AMENDMENTS
SECTION 1. Power to Amend. The Board of Directors shall have the power
to adopt, amend or repeal the By-Laws of the Corporation by a majority vote of
the entire Board of Directors at any meeting. Any By-Law adopted by the Board of
Directors may be amended or repealed at any meeting of Shareholders by a
majority of the votes cast at such meeting by the holders of shares entitled to
vote thereon. However, the affirmative vote of the holders of at least 66 2/3%
of the voting power of all of the shares of the Corporation entitled to vote for
the election of Directors shall be required to amend or repeal Article 8 of the
Restated Certificate of Incorporation, the related amendments to these By-Laws,
or to adopt any provision inconsistent therewith.
SECTION 2. Notice of Amendment Affecting Election of Directors. If any
By-Law regulating an impending election of Directors is adopted, amended or
repealed by the Board of Directors, there shall be set forth in the Notice for
the next Meeting of Shareholders for the election of Directors the By-Law so
adopted, amended or repealed, together with a concise statement of the changes
made.
