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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM 8-A/A AMENDMENT NO. 4
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
--------------------------
XEROX CORPORATION
(Exact Name of Registrant as specified in its Charter)
New York 16-0468020
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
P.O. Box 1600, 800 Long Ridge Road, Stamford, Connecticut 06904-1600
(Address of principal executive offices) (zip code)
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A(c)(1)
please check the following box. / /
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933
pursuant to General Instruction A(c)(2) please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, New York Stock Exchange
par value $1.00 per share Chicago Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Item 1. Description of Securities to be Registered.
Pursuant to the resolutions adopted on January 25, 1999, the Board of
Directors of Xerox Corporation (the "Company") declared a two-for-one stock
split (the "Stock Split") on the Company's Common Stock, par value $1.00
per share ("Common Stock"). The Stock Split will be effected in the form of
a 100% stock dividend to be distributed on or about February 23, 1999 to the
holders of record of Common Stock, as of 5 p.m., E.S.T., February 4, 1999,
and an equivalent distribution upon treasury shares of the same class, such
shares so distributed to also constitute treasury shares. In order to reflect
the effects of the Stock Split on the Rights described below, Item 1 of the
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission (the "Commission") on April 6, 1987, as amended by Amendment No. 1
thereto on Form 8 filed with the Commission on February 6, 1989, as amended
and restated by Amendment No. 2 and Amendment No. 3 thereto on Form 8-A filed
with the Commission on June 4, 1996 and April 7, 1997, respectively, is
hereby further amended and restated in
its entirety as follows:
DESCRIPTION OF COMMON STOCK
Certain statements under this heading are summaries of the provisions
with respect to Common Stock of the Company contained in the Company's
Restated Certificate of Incorporation. Such summaries do not purport to be
complete and are qualified in their entirety by reference to the Company's
Restated Certificate of Incorporation, which is incorporated herein by
reference.
Authorized shares, issued and outstanding shares, and reserved shares
- ---------------------------------------------------------------------
The Company has the authority to issue 1,050,000,000 shares of Common
Stock. As of December 31, 1998, there were 328,597,847 shares of Common
Stock issued, of which 328,393,288 shares were then outstanding. Also as of
such date, there were 663,966,516 authorized but unissued shares of Common
Stock, of which 57,640,196 shares were held in reserve for issuance in
connection with (i) conversion of Convertible Subordinated Debentures due
2018, (ii) conversion of notes due in 2014, (iii) various executive
incentive plans, (iv) employees' stock option and similar plans, (v) exchange
of non-voting exchangeable Class B Shares of Xerox Canada Inc., a majority-
owned subsidiary of the Company ("XCI"), and exercise of rights granted under
XCI's Executive Rights Plan and (vi) conversion of the Series B Convertible
Preferred Stock held by the Trustee for the Company's Employee Stock
Ownership Plan (the "Series B Convertible Preferred Stock"). Upon
effectiveness of the Stock Split, the foregoing numbers of shares of Common
Stock are projected to be as follows on a pro forma basis: 657,195,694
shares issued, of which 656,786,576 shares would then be outstanding, and
335,368,669 authorized but unissued shares, of which 115,280,392 shares
would then be held in reserve for issuance.
Dividend rights and restrictions
- --------------------------------
The holders of Common Stock are entitled to dividends as and when
declared by the Board of Directors out of the net assets of the Company
legally available therefor and there are no restrictions on the purchase
or redemption of such stock by the Company under its charter or by-laws or
any instrument to which it is a party, provided all dividends for past
periods and the dividends for the current quarter on any outstanding
cumulative preferred stock and retirement, purchase or sinking fund
requirements thereon, if any, have been paid or provided for, and subject
further to the restrictions referred to below.
Voting rights and noncumulative voting
- --------------------------------------
Except as otherwise prescribed by law and except as provided below, the
holders of Common Stock possess voting rights for all purposes equal with
Series B Convertible Preferred Stock, one vote per share. Notwithstanding
the foregoing, if six quarterly dividends on the Cumulative Preferred Stock
of any series are in default (whether or not consecutive), the holders of
any outstanding Cumulative Preferred Stock of the Company, including the
Series B Convertible Preferred Stock, have the right to elect, voting as a
class, two members of the Board of Directors of the Company, which right
continues until such default is cured. Certain mergers and consolidations,
sales, leases and pledges of assets are restricted by the provisions
relating to several of the Company's debt securities and credit agreements
to which the Company is a party. In addition, the separate vote or consent
of the holders of any outstanding Cumulative Preferred Stock of the Company,
including the Series B Convertible Preferred Stock, may be required to
authorize certain corporate action. Since the Common Stock does not have
cumulative voting rights, if they choose to do so, the holders of more than
50% of the Common Stock and Series B Convertible Preferred Stock can elect
all of the Directors and the holders of the remaining shares cannot elect any
Directors.
Liquidation rights
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Upon the dissolution, liquidation or winding up of the Company, after
the payment in full of all preferential amounts to which the holders of
outstanding shares of all classes of stock having prior rights shall be
entitled, the remainder of the assets available for distribution to
shareholders will be distributed ratably among the holders of shares of
Common Stock.
Preemptive rights
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Holders of Common Stock do not possess preemptive rights as to any
class of the Company's stock or as to any other securities of the Company.
Liability to further calls or assessments
- -----------------------------------------
The outstanding Common Stock is fully paid and nonassessable.
Shareholder Rights Plan
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On April 7, 1997, the Board of Directors of the Company approved a
Rights Agreement (the "Rights Agreement") between the Company and The First
National Bank of Boston, as Rights Agent (the "Rights Agent") and declared a
dividend distribution of one Right (collectively, the "Rights") for each
outstanding share of Common Stock to shareholders of record at the close of
business on April 16, 1997 (the "Record Date"). The Rights replaced the
cumulative preferred stock purchase rights (the "Old Rights") issued pursuant
to a Rights Agreement dated as of April 6, 1987, as amended and restated as
of February 6, 1989, between the Company and The Chase Manhattan Bank, N.A.
(as successor to Chase Lincoln First Bank, N.A.), as Rights Agent (the "Old
Rights Agreement"). The Old Rights Agreement and the Old Rights expired at
the close of business on April 16, 1997 pursuant to the terms thereof. Upon
effectiveness of the Stock Split, the number of Rights associated with each
share of Common Stock will be adjusted to a fractional one-half of one Right.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), which is defined below, the Rights will not be exercisable, will not
have any voting rights and will trade with the Common Stock. "Distribution
Date" shall mean the earlier to occur of (i) 10 business days following the
date of a public announcement that a person, together with persons affiliated
or associated with it, has acquired beneficial ownership of 20% or more of
the outstanding Common Stock or (ii) 10 business days following the earlier
of the commencement of, or the first public announcement of the intent to
commence, a tender offer or exchange offer by a person other than the Company
if, upon consummation of the offer, such person, together with persons
affiliated or associated with it, would be the beneficial owner of 20% or
more of the outstanding Common Stock. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date; provided that the Company is
required to make the necessary and appropriate rounding adjustments so that
Rights Certificates representing only whole numbers of Rights are
distributed, and cash is paid in lieu of any fractional Rights. From and
after the Distribution Date, such separate Rights Certificates alone will
evidence the Rights. Except as otherwise determined by the Board of
Directors, and except in connection with the exercise of employee stock
options, any other issuance of Common Stock with respect to awards
outstanding under employee benefit plans outstanding on the Distribution Date
and in connection with the conversion of convertible securities issued after
April 7, 1997, only Common Stock issued prior to the Distribution Date will
be issued with Rights.
Each Right entitles the registered holder to purchase from the Company
one three-hundredth of a share of a series of cumulative preferred stock of
the Company designated Series A Cumulative Preferred Stock (the "Preferred
Stock"), at a price of $250.00 (the "Purchase Price"), subject to
adjustment. If an Acquiring Person (as defined below) acquires the Company
in a transaction in which the Company and its Common Stock survive, the
Rights (other than the Rights beneficially owned by the Acquiring Person or
by certain related parties and transferees) will entitle the holder
thereof, upon payment of the then current Purchase Price, to purchase
Common Stock (or, in certain circumstances as determined by the Company,
other securities, cash, or other property) having a value of two times the
Purchase Price. If certain types of mergers, sales of assets or other
business combinations involving the Company occur after the Rights become
exercisable, the Rights (other than the Rights beneficially owned by the
Acquiring Person or by certain related parties and transferees) will entitle
the holder thereof, upon payment of the then current Purchase Price, to
purchase common stock of the acquiring company having a value of two times
the Purchase Price. Notwithstanding the foregoing, at any time after the
acquisition by a person or group of affiliated or associated persons of
beneficial ownership of 20% or more of the outstanding shares of Common
Stock and prior to the acquisition by such person or group of 50% or more of
the outstanding shares of Common Stock, the Board of Directors may exchange
the Rights (other than Rights owned by such person or group which have
become void), in whole or in part, at an exchange ratio of one share of
Common Stock, or one three-hundredth of a share of Preferred Stock (or of a
share of a class or series of the Company's preferred stock having equivalent
rights, preferences and privileges), per Right (subject to adjustment).
"Acquiring Person" shall mean any person who constitutes an "Interested
Shareholder" as defined in Section 912 of the New York Business Corporation
Law, in effect from time to time (generally defined to include any person who
or which, together with all persons affiliated or associated with it, shall
be the beneficial owner of 20% or more of the shares of Common Stock then
outstanding).
At any time until the close of business on the 10th business day
following the date of a public announcement that a person has become an
Acquiring Person, the Company may redeem all, but not less than all, the
then outstanding Rights at a redemption price of $.01 per Right. The
foregoing notwithstanding, the Rights generally may not be redeemed for 120
days following a change in the majority of the Board of Directors of the
Company as a result of a proxy contest.
The Rights Agreement may be amended by the Board of Directors of the
Company prior to the Distribution Date. Thereafter, the Rights Agreement
may be amended by the Board of Directors of the Company in order to (i) cure
any ambiguity, (ii) shorten or lengthen any time period under the Rights
Agreement, or (iii) make changes that will not adversely affect the
interests of the holders of Rights; provided such lengthening is for the
purpose of protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights, and further; provided, that no amendment
may be made at such time as the Rights are not redeemable. The Rights will
expire at the close of business on April 16, 2007, unless earlier redeemed
or exchanged by the Company.
A copy of the Rights Agreement has been filed with the Commission as an
Exhibit to a Current Report on Form 8-K dated April 7, 1997. A copy of the
Rights Agreement will be available free of charge from the Company. The
foregoing summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which
is incorporated herein by reference.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Company without conditioning the offer on a substantial number of Rights
being acquired. In general, the Rights should not interfere with any
merger or other business combination approved by the Board of Directors of
the Company since the Board of Directors generally may, at its option,
redeem at any time until the close of business on the Stock Acquisition
Date, all, but not less than all, the then outstanding Rights at the
Redemption Price.
Item 2. Exhibits.
Exhibit No. Description
- ----------- ------------
(1) Restated Certificate of Incorporation of the Company filed by
the Department of State of New York on October 29, 1996
(incorporated by reference to Exhibit 3(a)(1) to the Company's
Quarterly Report on Form 10-Q for the Quarter Ended September
30, 1996).
(2) By-Laws of the Company, as amended through January 25, 1999.
(3) Form of Rights Agreement dated as of April 7, 1997, between
the Company and The First National Bank of Boston, as Rights
Agent, which includes as Exhibits A and B thereto the Form of
Rights Certificate and the Summary of Rights to Purchase
Preferred Stock, respectively (incorporated by reference to
Exhibit 4.10 to the Company's Current Report on Form 8-K dated
April 7, 1997).
(4) Press Release dated April 7, 1997 (incorporated by reference to
Exhibit 4 to the Company's Registration Statement on Form 8-A
filed with the Commission on April 7, 1997).
(5) Form of Certificate of Adjustment to be dated on or about
February 23, 1999 (incorporated by reference to Exhibit 5 to
Amendment No. 1 to Company's Registration Statement on Form 8-A
filed with the Commission on January 26, 1999).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized.
XEROX CORPORATION (Registrant)
By: /s/ Martin S. Wagner
--------------------------
Name: Martin S. Wagner
Title: Assistant Secretary
Date: January 26, 1999
EXHIBIT INDEX
Exhibit No. Description
- ----------- ------------
(1) Restated Certificate of Incorporation of the Company filed by
the Department of State of New York on October 29, 1996
(incorporated by reference to Exhibit 3(a)(1) to the Company's
Quarterly Report on Form 10-Q for the Quarter Ended September
30, 1996).
(2) By-Laws of the Company, as amended through January 25, 1999.
(3) Form of Rights Agreement dated as of April 7, 1997, between
the Company and The First National Bank of Boston, as Rights
Agent, which includes as Exhibits A and B thereto the Form of
Rights Certificate and the Summary of Rights to Purchase
Preferred Stock, respectively (incorporated by reference to
Exhibit 4.10 to the Company's Current Report on Form 8-K dated
April 7, 1997).
(4) Press Release dated April 7, 1997 (incorporated by reference to
Exhibit 4 to the Company's Registration Statement on Form 8-A
filed with the Commission on April 7, 1997).
(5) Form of Certificate of Adjustment to be dated on or about
February 23, 1999 (incorporated by reference to Exhibit 5 to
Amendment No. 1 to Company's Registration Statement on Form 8-A
filed with the Commission on January 26, 1999).
EXHIBIT 2
BY-LAWS
of
XEROX CORPORATION
January 25, 1999
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meetings: A meeting of shareholders entitled to
vote shall be held for the election of Directors and the transaction of
other business in May of each year on any day (except a Saturday, Sunday,
or holiday) in that month as determined by the Board of Directors.
SECTION 2. Special Meetings: Special Meetings of the shareholders
may be called at any time by the Chairman of the Board, the President or
the Board of Directors.
SECTION 3. Place of Meetings: Meetings of shareholders shall be
held at the principal office of the Company or at such other place, within
or without the State of New York, as may be fixed by the Board of Directors.
SECTION 4. Notice of Meetings:
(a) Notice of each meeting of shareholders shall be in writing and
shall state the place, date and hour of the meeting. Notice of a Special
Meeting shall state the purpose or purposes for which it is being called
and shall also indicate that it is being issued by or at the direction of
the person or persons calling the meeting. If, at any meeting, action is
proposed to be taken which would, if taken, entitle shareholders, fulfilling
the requirements of Section 623 of the Business Corporation Law to receive
payment for their shares, the notice of such meeting shall include a
statement of that purpose and to that effect.
(b) A copy of the notice of any meeting shall be given, personally
or by mail, not less than ten nor more than sixty days before the date of
the meeting, to each shareholder entitled to vote at such meeting. If
mailed, such notice is given when deposited in the United States mail, with
postage thereon prepaid, directed to the shareholder at his address as it
appears on the record of shareholders, or, if he shall have filed with the
Secretary a written request that notices to him be mailed to some other
address, then directed to him at such other address.
(c) 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 protesting prior to the conclusion of the
meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
SECTION 5. Quorum and Adjourned Meetings:
(a) At any Annual or Special Meeting the holders of a majority of
the votes of shares entitled to vote thereat, present in person or by
proxy, shall constitute a quorum for the transaction of any business,
provided that 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 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.
(b) Despite the absence of a quorum, the shareholders present may
adjourn the meeting to another time and place, and 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. At the adjourned meeting any business may be
transacted that might have been transacted on the original date of the
meeting. If after the adjournment, however, 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 on the new record date entitled
to notice under Section 4 of this Article I of the By-Laws.
SECTION 6. Nominations and Business at Meetings
At any annual meeting of shareholders, only persons who are nominated
or business which is proposed in accordance with the procedures set forth
in this Section 6 shall be eligible for election as Directors or considered
for action by shareholders. Nominations of persons for election to the
Board of Directors of the Company may be made or business proposed at a
meeting of shareholders (i) by or at the direction of the Board of
Directors or (ii) by any shareholder of the Company entitled to vote at the
meeting who complies with the notice and other procedures set forth in this
Section 6. Such nominations or business proposals, other than those made
by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Company and such business
proposals must, under applicable law, be a proper matter for shareholder
action. To be timely, a shareholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Company not
less than 120 days nor more than 150 days in advance of the date which is
the anniversary of the date the Company's proxy statement was released to
security holders in connection with the previous year's annual meeting or
if the date of the applicable annual meeting has been changed by more than
30 days from the date contemplated at the time of the previous year's
proxy statement, not less than 90 days before the date of the applicable
annual meeting.
Such shareholder's notice shall set forth (a) as to each person whom
such 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, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (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 annual meeting, the reasons
for conducting such business at the annual meeting and any material
interest in such business of such person on whose behalf such 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 (ii) the class and number of shares of the Company which are
beneficially owned by such shareholder. No person shall be eligible for
election as a Director of the Company and no business shall be conducted at
the annual meeting of shareholders unless nominated or proposed in
accordance with the procedures set forth in this Section 6. The Chairman
of the meeting may, if the facts warrant, determine and declare to the
meeting that a nomination or proposal was not made in accordance with the
provisions of this Section 6 and, if he should so determine, he shall so
declare to the meeting and the defective nomination or proposal shall be
disregarded. /(1)
SECTION 7. Organization: At every meeting of the shareholders,
the Chairman of the Board, or in his absence, the President, or in his
absence, an Executive Vice President designated by the Chairman of the
Board, or in the absence of such officers, a person selected by the
meeting, shall act as chairman of the meeting. The Secretary or, in his
absence, an Assistant Secretary shall act as secretary of the meeting,
and in the absence of both the Secretary and an Assistant Secretary, a
person selected by the meeting shall act as secretary of the meeting.
SECTION 8. Voting:
(a) 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 in favor of or against such
action at a meeting of shareholders by the holders of shares entitled to
vote thereon. An abstention shall not constitute a vote cast.
(b) Directors shall, except as otherwise required by law, be
elected by a plurality of the votes cast at a meeting of shareholders by
holders of shares entitled to vote in the election. [; provided, however,
a nomination shall be accepted, and votes cast for a nominee shall be
counted by the inspectors of election, only if the Secretary of the
Company has received at least twenty-four hours prior to the meeting a
statement over the signature of the nominee that he consents to being a
nominee and, if elected, intends to serve as a Director.] /(2)
SECTION 9. Qualification of Voters:
(a) Every shareholder of record of Common Stock and Series B
Convertible Preferred Stock of the Company shall be entitled at every
meeting of such shareholders to one vote for every share of Common Stock
and Series B Convertible Preferred Stock, respectively, standing in his
name on the record of shareholders.
(b) Shares of stock belonging to the Company and shares held by
another domestic or foreign corporation of any type or kind, if a majority
of the shares entitled to vote in the election of directors of such other
corporation is held by the Company, shall not be shares entitled to vote
or to be counted in determining the total number of outstanding shares.
- ----------------------------
/(1) Effective for the annual meeting to be held in 1999 and for all
subsequent annual meetings.
/(2) Bracketed material deleted for the annual meeting to be held in 1999
and for all subsequent annual meetings.
(c) Shares held by an administrator, executor, guardian,
conservator, committee, or other fiduciary, except a trustee, may be voted
by him, either in person or by proxy, without transfer of such shares into
his name. Shares held by a trustee may be voted by him, either in person
or by proxy, only after the shares have been transferred into his name as
trustee or into the name of his nominee.
(d) Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or
proxy as the By-Laws of such corporation may provide, or in the absence
of such provision, as the Board of Directors of such corporation may
provide.
SECTION 10. Proxies:
(a) Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may
authorize another person or persons to act for him by proxy.
(b) No proxy shall be valid after the expiration of eleven months
from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the shareholder executing it, except
as otherwise provided by law.
(c) The authority of the holder of a proxy to act shall not be
revoked by the incompetence or death of the shareholder who executed the
proxy unless, before the authority is exercised, written notice of an
adjudication of such incompetence or of such death is received by the
Secretary or an Assistant Secretary.
(d) Without limiting the manner in which a shareholder may
authorize another person or persons to act for him as proxy pursuant to
paragraph (a) of this Section, the following shall constitute a valid
means by which a shareholder may grant such authority:
(1) A shareholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be accomplished
by the shareholder or the shareholder's authorized officer, director,
employee or agent signing such writing or causing his or her signature to
be affixed to such writing by any reasonable means including, but not
limited to, by facsimile signature.
(2) A shareholder may authorize another person or persons to
act for the shareholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic
transmission to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted
with information from which it can be reasonably determined that the
telegram, cablegram or other electronic transmission was authorized by the
shareholder. If it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors shall specify the
nature of the information upon which they relied.
(e) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to paragraph
(d) of this Section may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile,
telecommunication or other reproduction shall be a complete reproduction
of the entire original writing or transmission.
SECTION 11. Inspectors of Election:
(a) The Board of Directors, in advance of any shareholders'
meeting, shall appoint one or more inspectors to act at the meeting or
any adjournment thereof. The Board of Directors may designate one or
more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate has been appointed, or if such
persons are unable to act at a meeting of shareholders, the person
presiding at a shareholders' meeting shall appoint one or more
inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the
best of his ability.
(b) The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the
meeting or any shareholder entitled to vote thereat, the inspectors
shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any fact found by them.
Any report or certificate made by them shall be prima facie evidence of
the facts stated and of the vote as certified by them.
SECTION 12. List of Shareholders at Meetings: A list of share-
holders as of the record date, certified by the Secretary or by the
transfer agent, shall be produced at any meeting of shareholders upon the
request thereat or prior thereto of any shareholder. If the right to vote
at any meeting is challenged, the inspectors of election, or 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.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Power of Board and Qualification of Directors: The
business of the Company shall be managed under the direction of the Board
of Directors, each of whom shall be at least eighteen years of age.
SECTION 2. Number, Term of Office and Classification:
(a) The Board of Directors shall consist of not less than five
nor more than twenty-one members. The number of Directors shall be
determined from time to time by resolution of a majority of the entire
Board of Directors then in office, provided that no decrease in the number
of Directors shall shorten the term of any incumbent Director. At each
Annual Meeting of shareholders Directors shall be elected to hold office
until the next annual meeting.
(b) If and whenever six full quarter-yearly dividends (whether or
not consecutive) payable on the Cumulative Preferred Stock of any series
shall be in arrears, in whole or in part, the number of Directors then
constituting the Board of Directors shall be increased by two and the
holders of the Cumulative Preferred Stock, voting separately as a class,
regardless of series, shall be entitled to elect the two additional
Directors at any annual meeting of shareholders or special meeting held in
place thereof, or at a special meeting of the holders of the Cumulative
Preferred Stock called as hereinafter provided. Whenever all arrears in
dividends on the Cumulative Preferred Stock then outstanding shall have been
paid and dividends thereon for the current quarter-yearly dividend period
shall have been paid or declared and set apart for payment, then the right
of the holders of the Cumulative Preferred Stock to elect such additional
two Directors shall cease (but subject always to the same provisions for the
vesting of such voting rights in the case of any similar future arrearages in
dividends), and the terms of office of all persons elected as Directors by
the holders of the Cumulative Preferred Stock shall forthwith terminate and
the number of the Board of Directors shall be reduced accordingly. At any
time after such voting power shall have been so vested in the Cumulative
Preferred Stock, the Secretary of the Company may, and upon the written
request of any holder of the Cumulative Preferred Stock (addressed to the
Secretary at the principal office of the Company) shall, call a special
meeting of the holders of the Cumulative Preferred Stock for the election
of the two Directors to be elected by them as herein provided, such call to
be made by notice similar to that provided in the By-Laws for a special
meeting of the shareholders or as required by law. If any such special
meeting required to be called as above provided shall not be called by the
Secretary within twenty days after receipt of any such request, then any
holder of Cumulative Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock books of
the Company. The Directors elected at any such special meeting shall hold
office until the next annual meeting of the shareholders or special meeting
held in place thereof. In case any vacancy shall occur among the Directors
elected by the holders of the Cumulative Preferred Stock, a successor shall
be elected to serve until the next annual meeting of the shareholders or
special meeting held in place thereof by the then remaining Director elected
by the holders of the Cumulative Preferred Stock or the successor of such
remaining Director.
(c) All Directors shall have equal voting power.
SECTION 3. Organization: At each meeting of the Board of
Directors, the Chairman of the Board, or in his absence, the President, or
in his absence, a chairman chosen by a majority of the Directors present
shall preside. The Secretary shall act as secretary of the Board of
Directors. In the event the Secretary shall be absent from any meeting of
the Board of Directors, the meeting shall select its secretary.
SECTION 4. Resignations: Any Director of the Company may resign at
any time by giving written notice to the Chairman of the Board, the
President or to the Secretary of the Company. Such resignation shall take
effect at the time specified therein or, if no time be specified, then on
delivery.
SECTION 5. Vacancies: Newly created directorships resulting from
an increase in the number of Directors and vacancies occurring in the Board
of Directors for any reason except the removal of Directors without cause
may be filled by a vote of a majority of the Directors then in office,
although less than a quorum exists. A Director elected to fill a vacancy
shall hold office until the next annual meeting.
SECTION 6. Place of Meeting: The Board of Directors may hold its
meetings at such place or places within or without the State of New York as
the Board of Directors may from time to time by resolution determine.
SECTION 7. First Meeting: On the day of each annual election of
Directors, the Board of Directors shall meet for the purpose of
organization and the transaction of other business. Notice of such
meeting need not be given. Such first meeting may be held at any other
time which shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors.
SECTION 8. Regular Meetings: Regular meetings of the Board of
Directors may be held at such times as may be fixed from time to time by
resolution of the Board of Directors without notice.
SECTION 9. Special Meetings: Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President, or by any two of the Directors. Oral, telegraphic or written
notice shall be given, sent or mailed not less than one day before the
meeting and shall state, in addition to the purposes, the date, place and
hour of such meeting.
SECTION 10. Waivers of Notice: Notice of a meeting need not be
given to any Director who submits a signed waiver of notice whether before
or after the meeting, or who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to him.
SECTION 11. Quorum and Manner of Acting:
(a) If the number of Directors is twelve or more, seven Directors
shall constitute a quorum for the transaction of business or any specified
item of business. If the number of Directors is less than twelve, a
majority of the entire Board of Directors shall constitute a quorum.
(b) A majority of the Directors present, whether or not a quorum
is present, may adjourn any meeting to another time and place without
notice to any Director.
SECTION 12. Written Consents: Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board or the committee consent in
writing to the adoption of a resolution authorizing the action. The
resolution and the written consents thereto by the members of the Board or
committee shall be filed with the minutes of the proceedings of the Board
or committee.
SECTION 13. Participation At Meetings By 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. Participation by such
means shall constitute presence in person at a meeting.
SECTION 14. Compensation: The Board of Directors shall have
authority to fix the compensation of Directors for services in any capacity.
SECTION 15. Interested Directors:
(a) No contract or other transaction between the Company and one or
more of its Directors, or between the Company and any other corporation,
firm, association or other entity in which one or more of its Directors are
directors or officers, or are financially interested, shall be either void
or voidable for this reason alone or by reason alone that such Director or
Directors are present at the meeting of the Board of Directors, or of a
committee thereof, which approves such contract or transaction, or that his
or their votes are counted for such purpose, provided that the parties to
the contract or transaction establish affirmatively that it was fair and
reasonable as to the Company at the time it was approved by the Board, a
committee, or the shareholders.
(b) Any such contract or transaction may not be avoided by the
Company for the reasons set forth in (a) if
(1) the material facts as to such Director's interest in such
contract or transaction and as to any such common directorship, officership
or financial interest are disclosed in good faith or known to the Board or
committee, and the Board or committee approves such contract or transaction
by a vote sufficient for such purpose without counting the vote of such
interested Director or, if the votes of the disinterested Directors are
insufficient for such purpose, by unanimous vote of the disinterested
Directors (although common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a
committee which approves such contract or transactions), or
(2) the material facts as to such Director's interest in such
contract or transaction and as to any such common directorship, officership
or financial interest are disclosed in good faith or known to the
shareholders entitled to vote thereon, and such contract or transaction is
approved by vote of such shareholders.
SECTION 16. Loans to Directors: The Company may not lend money to
or guarantee the obligation of a Director of the Company unless the
particular loan or guarantee is approved by the shareholders, with the
holders of a majority of the shares entitled to vote thereon constituting
a quorum, but shares held of record or beneficially by Directors who are
benefited by such loan or guarantee shall not be entitled to vote or to be
included in the determination of a quorum.
ARTICLE III
EXECUTIVE COMMITTEE
SECTION 1. How Constituted and Powers: There shall be an Executive
Committee, consisting of not less than three nor more than nine Directors,
including the Chairman of the Board and the Chairman of the Executive
Committee, elected by a majority of the entire Board of Directors, who
shall serve at the pleasure of the Board. The Executive Committee shall
have all the authority of the Board, except it shall have no authority as
to the following matters:
(a) The submission to shareholders of any action that needs
shareholders' authorization.
(b) The filling of vacancies in the Board or in any committee.
(c) The fixing of compensation of the Directors for serving on the
Board or on any committee.
(d) The amendment or repeal of the By-Laws, or the adoption of new
By-Laws.
(e) The amendment or repeal of any resolution of the Board which, by
its terms, shall not be so amendable or repealable.
(f) The declaration of dividends.
SECTION 2. Meetings: Meetings of the Executive Committee, of which
no notice shall be necessary, shall be held on such days and at such place
as shall be fixed, either by the Chairman of the Board, the Chairman of the
Executive Committee, or by a vote of the majority of the whole Committee.
SECTION 3. Quorum and Manner of Acting: Unless otherwise provided
by resolution of the Board of Directors, a majority of the Executive
Committee shall constitute a quorum for the transaction of business and
the act of a majority of all of the members of the Committee, whether
present or not, shall be the act of the Executive Committee. The members
of the Executive Committee shall act only as a Committee. The procedure
of the Committee and its manner of acting shall be subject at all times to
the directions of the Board of Directors.
SECTION 4. Additional Committees: The Board of Directors by
resolution adopted by a majority of the entire Board may designate from
among its members additional committees, each of which shall consist of
one or more Directors and shall have such authority as provided in the
resolution designating the committee, except such authority shall not
exceed the authority conferred on the Executive Committee by Section 1 of
this Article.
SECTION 5. Alternate Members: The Board of Directors may designate
one or more eligible Directors as alternate members of the Executive
Committee, or of any other committee of the Board, who may replace any
absent or disqualified member or members at any meeting of any such
committee.
ARTICLE IV
OFFICERS
SECTION 1. Number: The officers of the Company shall be a Chairman
of the Board, a President, a Chairman of the Executive Committee, one or
more Vice Presidents, a Treasurer, a Secretary, a Controller, and such
other officers as the Board of Directors may in its discretion elect. Any
two or more offices may be held by the same person.
SECTION 2. Term of Offices and Qualifications: Those officers
whose titles are specifically mentioned in Section 1 of this Article IV
shall be chosen by the Board of Directors on the day of the Annual
Meeting. Unless a shorter term is provided in the resolution of the Board
electing such officer, the term of office of such officer shall extend to
and expire at the meeting of the Board held on the day of the next Annual
Meeting. The Chairman of the Board, the President and the Chairman of the
Executive Committee shall be chosen from among the Directors.
SECTION 3. Additional Officers: Additional officers other than
those whose titles are specifically mentioned in Section 1 of this Article
IV shall be elected for such period, have such authority and perform such
duties, either in an administrative or subordinate capacity, as the Board
of Directors may from time to time determine.
SECTION 4. Removal of Officers: Any officer may be removed by the
Board of Directors with or without cause, at any time. Removal of an
officer without cause shall be without prejudice to his contract rights,
if any, but his election as an officer shall not of itself create contract
rights.
SECTION 5. Resignation: Any officer may resign at any time by
giving written notice to the Board of Directors, or to the Chairman of the
Board, or to the Secretary. Any such resignation shall take effect at the
time specified therein, or if no time be specified, then upon delivery.
SECTION 6. Vacancies: A vacancy in any office shall be filled by
the Board of Directors.
SECTION 7. Chairman of the Board: The Chairman of the Board shall
preside at all meetings of the shareholders at which he is present, unless
at such meetings the shareholders shall appoint a chairman other than the
Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Directors at which he is present. The Chairman of the
Board shall act as the Chief Executive Officer of the Company and it shall
be his duty to supervise generally the management of the business of the
Company with responsibility direct to the Board and subject to the control
of the Board. The Chairman of the Board shall have such powers and perform
such other duties as may be assigned to him by the Board.
SECTION 8. President: The President shall have such powers and
perform such duties as may be assigned to him by the Board and the Chairman
of the Board. The President shall, in the absence of the Chairman of the
Board, preside at all meetings of the shareholders and Directors at which
he is present. In the absence or inability to act of the Chairman of the
Board, or if the Office of Chairman of the Board be vacant, the President,
subject to the right of the Board from time to time to extend or confine
such powers and duties or to assign them to others, shall perform all the
duties and may exercise all the powers of the Chairman of the Board.
SECTION 9. Chairman of the Executive Committee: The Chairman of the
Executive Committee shall have such powers and perform such duties as may
be assigned to him by the Board. The Chairman of the Executive Committee
shall preside at meetings of the Executive Committee of the Board of
Directors.
SECTION 10. The Vice Presidents: Each Vice President shall have
such powers and shall perform such duties as may be assigned to him by the
Board of Directors, the Chairman of the Board or the President.
SECTION 11. The Treasurer: The Treasurer shall, if required by
the Board of Directors, give a bond for the faithful discharge of his
duties, in such sum and with such sureties as the Board of Directors shall
require. He shall have charge and custody of, and be responsible for, all
funds and securities of the Company, and deposit all such funds in the name
of and to the credit of the Company in such banks, trust companies, or
other depositories as shall be selected by the Board of Directors. The
Treasurer may sign certificates for stock of the Company authorized by the
Board of Directors. He shall also perform all other duties customarily
incident to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Board of Directors.
SECTION 12. The Controller: The Controller shall keep and maintain
the books of account for internal and external reporting purposes. He
shall also perform all other duties customarily incident to the office of
Controller and such other duties as may be assigned to him from time to
time by the Board of Directors.
SECTION 13. The Secretary: It shall be the duty of the Secretary
to act as secretary of all meetings of the Board of Directors, and of the
shareholders, and to keep the minutes of all such meetings at which he
shall so act in a proper book or books to be provided for that purpose; he
shall see that all notices required to be given by the Company are duly
given and served; he may sign and execute in the name of the Company
certificates for the stock of the Company, deeds, mortgages, bonds,
contracts or other instruments authorized by the Board of Directors; he
shall prepare, or cause to be prepared, for use at meetings of shareholders
the list of shareholders as of the record date referred to in Article I,
Section 12 of these By-Laws and shall certify, or cause the transfer agent
to certify, such list; he shall keep a current list of the Company's
Directors and officers and their residence addresses; he shall be custodian
of the seal of the Company and shall affix the seal, or cause it to be
affixed, to all agreements, documents and other papers requiring the same.
The Secretary shall have custody of the Minute Book containing the minutes
of all meetings of shareholders, Directors, the Executive Committee, and
any other committees which may keep minutes, and of all other contracts and
documents which are not in the custody of the Treasurer or the Controller
of the Company, or in the custody of some other person authorized by the
Board of Directors to have such custody.
SECTION 14. Appointed Officers: The Board of Directors may delegate
to any officer or committee the power to appoint and to remove any
subordinate officer, agent or employee.
SECTION 15. Assignment and Transfer of Stocks, Bonds, and Other
Securities: The Chairman of the Board, the Treasurer, the Secretary, any
Assistant Secretary, any Assistant Treasurer, and each of them, shall have
power to assign, or to endorse for transfer, under the corporate seal, and
to deliver, any stock, bonds, subscription rights, or other securities, or
any beneficial interest therein, held or owned by the Company.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS AND BANK ACCOUNTS
SECTION 1. Execution of Contracts: The Board of Directors, except
as in these By-Laws otherwise provided, may authorize any officer or
officers, agent, or agents, in the name of and on behalf of the Company to
enter into any contract or execute and deliver any instrument, and such
authority may be general or confined to specific instances; but, unless so
authorized by the Board of Directors, or expressly authorized by these By-
Laws, no officer, agent or employee shall have any power or authority to
bind the Company by any contract or engagement or to pledge its credit or
to render it liable pecuniarily in any amount for any purpose.
SECTION 2. Loans: No loans shall be contracted on behalf of the
Company, and no negotiable paper shall be issued in its name unless
specifically authorized by the Board of Directors.
SECTION 3. Checks, Drafts, etc.: All checks, drafts, and other
orders for the payment of money out of the funds of the Company, and all
notes or other evidences of indebtedness of the Company, shall be signed
on behalf of the Company in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. Deposits: All funds of the Company not otherwise
employed shall be deposited from time to time to the credit of the Company
in such banks, trust companies or other depositories as the Board of
Directors may select.
ARTICLE VI
STOCKS AND DIVIDENDS
SECTION 1. Shares of Stock: Shares of stock of the Company shall
be represented by certificates except to the extent that the Board of
Directors of the Company shall provide by resolution that some or all of
any or all classes and series of the Company's shares shall be
uncertificated shares, provided that such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered
to the Company. Except as otherwise expressly provided by law, the rights
and obligations of holders of uncertificated shares and the rights and
obligations of the holders of certificates representing shares of the same
class and series shall be identical.
SECTION 2. Certificates For Shares. To the extent that shares of
stock of the Company are to be represented by certificates, the
certificates therefor shall be in such form as shall be approved by the
Board of Directors. The certificates of stock shall be numbered in order
of their issue, shall be signed by the Chairman of the Board, the President
or a Vice President, and the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer. The signature of the officers upon a
certificate may be facsimiles if the certificate is countersigned by a
transfer agent or registered by a registrar other than the Company itself
or its employee. In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Company
with the same effect as if he were an officer at the date of issue.
SECTION 3. Transfer of Stock: Transfers of stock of the Company
shall be made only on the books of the Company by the holder thereof, or by
his duly authorized attorney, on surrender of the certificate or
certificates for stock represented by certificates, properly endorsed, or
in the case of shares of stock not represented by certificates, on delivery
to the Company of proper transfer instructions. Within a reasonable time
after the issuance or transfer of uncertificated stock, the Company shall
send to the registered owner thereof a written notice containing the
information required to be set forth or stated on certificates pursuant to
the Business Corporation Law of the State of New York. Every certificate
surrendered to the Company shall be marked "Canceled", with the date of
cancellation, and no new certificate shall be issued in exchange therefor
until the old certificate has been surrendered and canceled. A person in
whose name stock of the Company stands on the books of the Company shall be
deemed the owner thereof as regards the Company; provided that, whenever
any transfer of stock shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary of the Company, or to its
transfer agent shall be so expressed in the entry of the transfer. No
transfer of stock shall be valid as against the Company, or its shareholders
for any purpose, until it shall have been entered in the stock records of
the Company as specified in these By-Laws by an entry showing from and to
whom transferred.
SECTION 4. Transfer and Registry Agents: The Company may, from
time to time, maintain one or more transfer offices or agencies and/or
registry offices at such place or places as may be determined from time to
time by the Board of Directors; and the Board of Directors may, from time
to time, define the duties of such transfer agents and registrars and make
such rules and regulations as it may deem expedient, not inconsistent with
these By-Laws, concerning the issue, transfer and registration of
certificates for stock or uncertificated stock of the Company.
SECTION 5. Lost, Destroyed and Mutilated Certificates: The holder
of any certificated stock of the Company shall immediately notify the
Company of any loss, destruction or mutilation of the certificate
therefor. The Company may issue a new certificate or uncertificated stock
in place of the lost or destroyed certificate, but as a condition to such
issue, the holder of such certificate must make satisfactory proof of the
loss or destruction thereof, and must give to the Company a bond of
indemnity in form and amount and with one or more sureties satisfactory to
the Treasurer, the Secretary or any Assistant Treasurer or Assistant
Secretary. Such bond of indemnity shall also name as obligee each of the
transfer agents and registrars for the stock the certificate for which has
been lost or destroyed.
SECTION 6. Record Dates for Certain Purposes: The Board of
Directors of the Company shall fix a day and hour not more than sixty days
preceding the date of any meeting of shareholders, or the date for payment
of any cash or stock dividend, or the date for the allotment of any rights
of subscription, or the date when any change or conversion or exchange of
capital stock shall go into effect, as a record date for the determination
of the shareholders entitled to notice of, and to vote at, any such meeting
and any adjournment thereof, or entitled to receive payment of any such
dividend, or entitled to receive any such allotment of rights of
subscription, or entitled to exercise rights in respect of any such change,
conversion or exchange of capital stock, and in such case, such
shareholders and only such shareholders as shall be shareholders of record
on the day and hour so fixed shall be entitled to such notice of, and to
vote at, such meeting or any adjournment thereof, or to receive payment of
such dividend, or to receive such allotment of rights of subscription, or
to exercise rights in connection with such change or conversion or exchange
of capital stock, as the case may be, notwithstanding any transfer of any
stock on the books of the Company after such day and hour fixed as
aforesaid.
SECTION 7. Dividends and Surplus: Subject to the limitations
prescribed by law, the Board of Directors (1) may declare dividends on the
stock of the Company whenever and in such amounts as, in its opinion, the
condition of the affairs of the Company shall render it advisable, (2) may
use and apply, in its discretion, any part or all of the surplus of the
Company in purchasing or acquiring any of the shares of stock of the
Company, and (3) may set aside from time to time out of such surplus or net
profits such sum or sums as it in its absolute discretion, may think proper
as a reserve fund to meet contingencies or for equalizing dividends, or for
the purpose of maintaining or increasing the property or business of the
Company, or for any other purpose it may think conducive to the best
interest of the Company.
ARTICLE VII
OFFICES AND BOOKS
SECTION 1. Offices: The Company shall maintain an office at such
place in the County of Monroe, State of New York, as the Board of Directors
may determine. The Board of Directors may from time to time and at any
time establish other offices of the Company or branches of its business at
whatever place or places seem to it expedient.
SECTION 2. Books and Records:
(a) There shall be kept at one or more offices of the Company (1)
correct and complete books and records of account, (2) minutes of the
proceedings of the shareholders, Board of Directors and the Executive
Committee, (3) a current list of the Directors and officers of the Company
and their residence addresses, and (4) a copy of these By-Laws.
(b) The stock records may be kept either at the office of the
Company or at the office of its transfer agent or registrar in the State of
New York, if any, and shall contain 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.
ARTICLE VIII
GENERAL
SECTION 1. Seal: The corporate seal shall be in the form of a
circle and shall bear the full name of the Company and the words and
figures "Incorporated 1906, Rochester, N. Y.".
SECTION 2. Indemnification of Directors and Officers: Except to
the extent expressly prohibited by law, the Company shall indemnify any
person, made or threatened to be made, a party in any civil or criminal
action or proceeding, including an action or proceeding by or in the right
of the Company to procure a judgment in its favor or by or in the right of
any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any Director or officer of the Company served in any
capacity at the request of the Company, by reason of the fact that he, his
testator or intestate is or was a Director or officer of the Company or
serves or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, in any capacity, against
judgments, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorneys' fees, incurred in connection with such
action or proceeding, or any appeal therein, provided that no such
indemnification shall be required with respect to any settlement unless the
Company shall have given its prior approval thereto. Such indemnification
shall include the right to be paid advances of any expenses incurred by
such person in connection with such action, suit or proceeding, consistent
with the provisions of applicable law. In addition to the foregoing, the
Company is authorized to extend rights to indemnification and advancement
of expenses to such persons by i) resolution of the shareholders, ii)
resolution of the Directors or iii) an agreement, to the extent not
expressly prohibited by law.
ARTICLE IX
FISCAL YEAR
SECTION 1. Fiscal Year: The fiscal year of the Company shall end
on the 31st day of December in each year.
ARTICLE X
AMENDMENTS
SECTION 1. Amendments: By-Laws of the Company may be amended,
repealed or adopted by a majority of the votes of the shares at the time
entitled to vote in the election of any Directors. If, at any meeting of
shareholders, action is proposed to be taken to amend, repeal or adopt By-
Laws, the notice of such meeting shall include a brief statement or
summary of the proposed action. The By-Laws may also be amended, repealed
or adopted by the Board of Directors, but any By-Law adopted by the Board
may be amended or repealed by shareholders entitled to vote thereon as
hereinabove provided. 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 of 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.