-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TFlBK8MJ/hHuwRKG75BOIiNzpFRuo6JC493HUxm2W6ZD2UD9pMVdQR3jTNURH1d5 Aii7gQk+xrpMeGAuQp04WA== 0001005229-08-000003.txt : 20080125 0001005229-08-000003.hdr.sgml : 20080125 20080125133748 ACCESSION NUMBER: 0001005229-08-000003 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20080125 ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080125 DATE AS OF CHANGE: 20080125 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COLUMBUS MCKINNON CORP CENTRAL INDEX KEY: 0001005229 STANDARD INDUSTRIAL CLASSIFICATION: CONSTRUCTION MACHINERY & EQUIP [3531] IRS NUMBER: 160547600 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27618 FILM NUMBER: 08550197 BUSINESS ADDRESS: STREET 1: 140 JOHN JAMES AUDUBON PKWY CITY: AMHERST STATE: NY ZIP: 14228-1197 BUSINESS PHONE: 7166895400 MAIL ADDRESS: STREET 1: 140 JOHN JAMES AUDUBON PARKWAY CITY: AMHERST STATE: NY ZIP: 14228-1197 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AUDUBON EUROPE S A R L CENTRAL INDEX KEY: 0001263401 IRS NUMBER: 421542436 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-109730-04 FILM NUMBER: 08550198 BUSINESS ADDRESS: STREET 1: 140 JOHN JAMES AUDUBON PARKWAY CITY: AMHERST STATE: NY ZIP: 14428 BUSINESS PHONE: 7166895405 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CRANE EQUIPMENT & SERVICE INC CENTRAL INDEX KEY: 0001263400 IRS NUMBER: 731515437 STATE OF INCORPORATION: OK FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-109730-02 FILM NUMBER: 08550199 BUSINESS ADDRESS: STREET 1: 140 JOHN JAMES AUDUBON PARKWAY CITY: AMHERST STATE: NY ZIP: 14428 BUSINESS PHONE: 7166895405 FILER: COMPANY DATA: COMPANY CONFORMED NAME: YALE INDUSTRIAL PRODUCTS INC CENTRAL INDEX KEY: 0001062624 IRS NUMBER: 710585582 STATE OF INCORPORATION: MO FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-53759-06 FILM NUMBER: 08550200 BUSINESS ADDRESS: STREET 1: 140 JOHN JAMES AUDUBON PARKWAY CITY: AMHERST STATE: NY ZIP: 19228-1197 BUSINESS PHONE: 7166895400 8-K 1 bylawamendment.txt AMENDMENTS TO CERTIFICATE OF INCORPORATION AND BY-LAWS SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): JANUARY 25, 2008 ---------------- COLUMBUS MCKINNON CORPORATION ----------------------------- (Exact name of registrant as specified in its charter) NEW YORK -------- (State or other jurisdiction of incorporation) 0-27618 16-0547600 ------- ---------- (Commission File Number) (IRS Employer Identification No.) 140 JOHN JAMES AUDUBON PARKWAY, AMHERST, NEW YORK 14228-1197 - ------------------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number including area code: (716) 689-5400 -------------- ------------------------------------------------------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 3.03 MATERIAL MODIFICATIONS TO RIGHTS OF SECURITY HOLDERS (a) On January 21, 2008, the registrant's Board of Directors approved certain amendments to the registrant's Certificate of Incorporation. The amendments eliminate the Series A Junior Participating Preferred Stock (the "Series A Preferred Stock") as a series of preferred shares of the Company, inasmuch as the Series A Preferred Stock was issued pursuant to the registrant's First Amendment and Restatement of Rights Agreement, dated October 1, 1998, which expired by its terms on November 10, 2007. The registrant's Certificate of Incorporation is attached hereto as Exhibit 3.1. The Certificate of Amendment to registrant's Certificate of Incorporation is attached hereto as Exhibit 3.2. (b) On January 21, 2008, the registrant's Board of Directors approved certain amendments to the registrant's By-Laws. The amendments change the dates by which shareholders are required to provide notice to registrant for a matter to be brought before shareholders at the annual meeting. The amendments set this notice period as not less than ninety (90) nor more than one hundred-twenty (120) days prior to the first anniversary date of the annual meeting for the preceding year. The amendments also provide that, in the case of a shareholder proposal made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, it shall be made not later than the close of business on (i) the date ninety (90) days prior to the meeting of shareholders to which the proposal relates or (ii) the tenth day following the date on which the date of such meeting of shareholders is first publicly announced or disclosed. In addition, the amendments eliminate a provision of the By-Laws permitting loans to and loan guarantees on behalf of officers. The registrant's restated By-Laws are attached hereto as Exhibit 3.3. Item 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR. See disclosures set forth in Item 3.03 above. Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits. EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.1 Certificate of Incorporation 3.2 Certificate of Amendment to Registrant's Certificate of Incorporation 3.3 Restated By-Laws of the Registrant SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. COLUMBUS McKINNON CORPORATION By: /S/ KAREN L. HOWARD ------------------------------ Name: Karen L. Howard Title: Vice President and Chief Financial Officer (Principal Financial Officer) Dated: JANUARY 25, 2008 ---------------- EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - -------------- ----------- 3.1 Certificate of Incorporation 3.2 Certificate of Amendment to Registrant's Certificate of Incorporation 3.3 Restated By-Laws of the Registrant EX-3.1 2 certificateofinc.txt CERTIFICATE OF INCORPORATION Exhibit 3.1 RESTATED CERTIFICATE OF INCORPORATION OF COLUMBUS MCKINNON CORPORATION UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW ----------------------------------------------------- The undersigned, Herbert P. Ladds, Jr. and Lois H. Demler, the President and Secretary, respectively, of Columbus McKinnon Corporation, hereby certify: 1. The name of the corporation is Columbus McKinnon Corporation. The name under which the corporation was originally formed is Columbus McKinnon Chain Co., Inc. 2. The Certificate of Incorporation was filed by the Department of State on September 23, 1929. 3. The Certificate of Incorporation, as previously amended and restated, is hereby further amended as follows: a. To change the 2,002,600 currently authorized shares, of which 2,000,000 shares are designated as Common Shares, par value $0.01 per share, consisting of 1,000,000 Class A Voting Common Shares and 1,000,000 Class B Non-Voting Common Shares, and of which 2,600 shares are designated as Preferred Shares, par value $1.00 per share, to 51,000,000 authorized shares, of which 50,000,000 shares shall be designated as Common Shares, par value $0.01 per share, and of which 1,000,000 shares shall be designated as Preferred Shares, par value $1.00 per share. To effect the foregoing amendment, paragraph FOURTH of the Certificate of Incorporation is hereby amended to read in its entirety as follows: "Fourth: The total number of shares which the corporation is authorized to issue is 51,000,000 shares, of which 50,000,000 shares, par value $0.01 per share, are designated as common shares ("Common Shares") and of which 1,000,000 shares, par value $1.00 per share, are designated as preferred shares ("Preferred Shares"), which may be designated, from time to time, as one or more c] asses or series of Preferred Shares, in such number and with such designations, preferences, rights, qualifications, limitations or restrictions as shall be stated in the resolution or resolutions providing for the issuance of such class or series of Preferred Shares adopted by the Board of Directors from time to time, pursuant to the authority hereby given, the terms of which shall have been set forth in a Certificate of Amendment executed, verified and filed in the manner required by the Business Corporation Law; provided, however, that all shares of any one series or class of Preferred Shares shall be alike in every particular. Subject to the rights of the holders of any Preferred Shares, the holders of Common Shares are entitled to receive dividends out of assets legally available therefor at such times and in such amounts as the Board of Directors may from time to time determine. b. To add provisions regarding the election, removal and powers of the Board of Directors. To effect the foregoing amendment, a new Article EIGHTH is hereby added to the Certificate of Incorporation to read in its entirety as follows: "EIGHTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the corporation shall have concurrent power with the shareholders to adopt, amend or repeal the By-laws of the corporation by such vote of the directors as is set forth in the By-laws but in no event by less than a majority of the entire Board of Directors (inclusive of vacancies). The number of directors shall be not less than three (3) nor more than nine (9). Subject to such limitation, the number of directors may be fixed by the affirmative vote of a majority of the directors then in office. - 2 - A director may be removed at any time for cause by a majority vote of the directors then in office. c. To expand the provisions contained in Article SEVENTH of the Certificate of Incorporation regarding the indemnification of directors of the corporation. To effect the foregoing amendment, Article SEVENTH is renumbered as Article SIXTH and is hereby amended to read in its entirety as follows: "SIXTH: (a) To the fullest extent that the New York Business Corporation Law, as now in effect or as may hereafter be amended, permits elimination or limitation of the liability of directors, no director of the corporation shall be liable to the corporation or its shareholders for damages for any reach of duty in such capacity. Any repeal or modification of this Article by the shareholders of the corporation shall be prospective only and shall not adversely affect any elimination or limitation of the personal liability of a director of the corporation for acts or omissions occurring prior to the effective date of such repeal or modification. (b) The corporation shall indemnify and hold harmless each person (and the heirs, executors, or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that such person is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, its directors and officers to the fullest extent permitted by the Business Corporation Law, as the same exists or may hereafter be amended; provided, however, that except for proceedings to enforce rights to indemnification, the corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or administrators) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the corporation. - 3 - (c) Expenses (including attorneys' fees)incurred by an officer or director in defending any civil, Criminal, administrative or investigative action, suit or proceeding shall be paid by the corporation in advance of final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this Article. (d) To the extent authorized from time to time by the Board of Directors, the corporation may provide rights to indemnification and to the advancement of expenses to employees and agents of the corporation who are not directors or officers similar to those conferred in this Article to directors and officers of the corporation. (e) The rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the By-laws, any statute, agreement, vote of shareholders or otherwise. 4. The text of the Certificate of Incorporation, as amended heretofore, is hereby restated, as further amended herein, to read in its entirety as follows: FIRST: The name of the corporation is Columbus McKinnon Corporation. SECOND: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the Business Corporation Law, provided that it shall not engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained. THIRD: The office of the corporation is to be located in Erie County, New York. - 4 - FOURTH: The total number of shares which the corporation is authorized to issue is 51,000,000 shares, of which 50,000,000 shares, par value $0.01 per share, are designated as common shares ("Common Shares") and of which 1,000,000 shares, par value $1.00 per share, are designated as preferred shares ("Preferred Shares"), which may be designated, from time to time, as one or more classes or series of Preferred Shares, in such number and with such designations, preferences, rights, qualifications, limitations or restrictions as shall be stated in the resolution or resolutions providing for the issuance of such class or series of Preferred Shares adopted by the Board of Directors from time to time, pursuant to the authority hereby given, the terms of which shall have been set forth in a Certificate of Amendment executed, verified and filed in the manner required by the Business Corporation Law; provided, however, that all shares of any one series or class of Preferred Shares shall be alike in every particular. Subject to the rights of the holders of any Preferred Shares, the holders of Common Shares are entitled to receive dividends out of assets legally available therefor at such times and in such amounts as the Board of Directors may from time to time determine. FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against it may be served, and the post office address to which the Secretary of State shall mail a copy of any such process served upon him or her is: - 5 - Columbus McKinnon Corporaiton, 140 John James Audubon Parkway, Amherst, New York 14228. SIXTH: (a) To the fullest extent that the Business Corporation Law, as now in force or as may hereafter he amended, permits elimination or. limitation of the liability of directors, no director of the corporation shall be liable to the corporation or its shareholders for damages for any reach of duty in such capacity. Any repeal or modification of this Article by the shareholders of the corporation shall be prospective only and shall not adversely affect any elimination or limitation of the personal liability of a director of the corporation for acts or omissions occurring prior to the effective date of such repeal or modification. (c) The corporation shall indemnify and hold harmless each person (and the heirs, executors, or administrators of such person) who,. was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that such person is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, its directors and officers to the fullest extent permitted by the Business Corporation Law, as now in effect or as may hereafter be amended; provided, however, that except for proceedings to enforce rights to indemnification, the - 6 - corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or administrators) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. (c) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the corporation in advance of final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director of officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this Article. (d) To the extent authorized from time to time by the Board of Directors, the corporation may provide rights to indemnification and to the advancement of expenses to employees and agents of the corporation who are not directors or officers similar to those conferred in this Article to directors and officers of the corporation. (e) The rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the By-laws, any statute, agreement, vote of shareholders or otherwise. SEVENTH: No holder of shares of the corporation of any class, now or hereafter authorized, shall have any preferential - 7 - or preemptive right to subscribe for, purchase or receive any shares of the corporation of any class, now or hereafter authorized, or any options or warrants for such shares, or any rights to subscribed to or purchase such shares, or any securities convertible into, exchangeable for or carrying rights or options to purchase such shares, which may at any time be issued, sold or offered for sale by the corporation. EIGHTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors shall have concurrent power with the shareholders to adopt, amend or repeal the By-laws of the corporation by such vote of the directors as is set forth in the By-laws but in no event by less than a majority of the entire Board of Directors (inclusive of vacancies). The number of directors shall be not less than three (3) nor more than nine (9). Subject to such limitation, the number of directors may be fixed by the affirmative vote of a majority of the directors then in office. A director may be removed at any time for cause by a majority vote of the directors then in office. The 445,773.2948 presently issued and outstanding shares of Class A Voting Common Stock, par value $0.01 per share, are hereby changed into 445,773.2948 Common Shares, par value $0.01 per share, at a rate of one to one. There are no presently issued or outstanding shares of Class B Non-Voting Common Stock. - 8 - The 554,22.6.7052 authorized but unissued shares of Class A Voting Common Stock, par value $0.01 per share, are hereby changed into 49,554,226.7052 Common Shares, par value $0.01 per share, at a rate of 89.41 to 1. The 1,000,000 authorized but unissued shares of CLASS B Non-Voting Common Stock, par value $0.01 per share, are hereby removed from the authorized shares of the corporation pursuant to Section 801(b)(8) of the Business Corporation Law. The 2,600 authorized but unissued shares of Preferred Stock, par value $1.00 per share, are hereby changed into 1,000,000 Preferred Shares, par value $1.00 per share, at rate of 384.615 to 1. 6. The foregoing amendments to, and the restatement of, the Certificate of Incorporation were authorized by the unanimous written consent of the Board of Directors followed by the vote of the shareholders entitled to vote thereon at a meeting of shareholders. IN WITNESS WHEREOF, this Certificate has been subscribed this 8th day of January, 1996 by the undersigned who affirm that the statements made herein are true under the penalties of perjury. /S/ Herbert P. Ladds, Jr. -------------------------------- Herbert P. Ladds, Jr., President /S/ Lois H. Demler -------------------------------- Lois H. Demler, Secretary F971030000494 CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF COLUMBUS MCKINNON CORPORATION CSC 45 (Under Section 805 of the Business Corporation Law) The undersigned, Herbert P. Ladds, Jr. and Lois H. Demler, being respectively the President and Secretary of COLUMBUS McKINNON CORPORATION, hereby certify as follows: 1. The name of the Corporation is COLUMBUS McKINNON CORPORATION. The name under which the Corporation was formed is COLUMBUS McKINNON CHAIN CO., INC. 2. The original Certificate of Incorporation of the Corporation was filed by the Department of State on September 23, 1929. 3. As authorized by paragraph FOURTH of the Certificate of Incorporation, the Board of Directors of the Corporation has authorized the issuance of 250,000 shares of a series of preferred stock of the Corporation entitled "Series A Junior Participating Preferred Stock" and has adopted resolutions providing for the issuance of such series, including the number, designation and relative rights, preferences and limitations of the shares of such series. 4. The Certificate of Incorporation is hereby amended by the addition of the following paragraph NINTH setting forth, in full, the number, designation, relative rights, preferences and limitations of the foregoing series of preferred stock of the Corporation: "NINTH SERIES A JUNIOR PARTICIPATING PREFERRED STOCK. ---------------------------------------------- Section 1. NUMBER AND DESIGNATION. There is hereby authorized for issuance ----------------------- as a series of the Corporation's preferred stock, par value $1.00 per share, two hundred fifty thousand (250,000) shares to be designated as "Series A Junior Participating Preferred Stock". Section 2. DIVIDENDS, DISTRIBUTIONS. ------------------------- a) Subject to the prior and superior rights of the holders of shares of any other class of capital stock not by its terms ranking on a parity with, or junior to, the Series A Junior Participating Preferred Stock with respect to dividends, the holders of Series A Junior Participating Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors, out of the assets of the Corporation legally available therefor, quarterly dividends payable in cash in an amount per whole share of Series A Junior Participating Preferred Stock equal to the greater of (1) 10% of the Purchase Price (the "Purchase Plice"), as adjusted, per unit of one-hundredth of a share of Series A Junior Participating Preferred Stock set forth in the Rights Agreement (the "Rights Agreement") between the Corporation and American Stock Transfer & Trust Company, as Rights Agent, dated as October 25, 1997 (no that, for example, if the Purchase Price, as adjusted, were $80.00, the quarter]y dividend amount per whole share of Series A Junior Participating Preferred Stock would be $8.00), and (2) dividends payable in cash on the payment date for each cash dividend (if any) declared on the Common Shares in an amount per whole share (rounded to the nearest cent) equal to the Formula Number then in effect times the cash dividends then to be paid on each outstanding Common Share, payable on the date declared by the Board of Directors for the payment of quarterly dividends on each of the outstanding Common Shares, but in no event later than the fifteenth day of March, June, September and December in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or a fraction of a share of Series A Junior Participating Preferred Stock, since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. In addition, if the Company shall pay any dividend or make any distribution on the Common Shares payable in assets, securities or other forms of noncash consideration (other than dividends or distributions payable solely in Common Shares), then, in each such case, the Company shall simultaneously pay or make on each outstanding share of Series A Junior Participating Preferred Stock a dividend or distribution in like kind, of the Formula Number then in effect times such dividend or distribution on each of the Common Shares. As used herein, the "Formula Number" shall be 100; PROVIDED, --------- HOWEVER, that if at any time after October 25, 1997, the Corporation shall (i) - -------- declare or pay any dividend on the Common Shares payable in Common Shares or make any distribution on the Common Shares payable in Common Shares, (ii) subdivide (by a stock split or otherwise) the outstanding Common Shares into a larger number of Common Shares or (iii) combine (by a reverse stock split or otherwise) the outstanding Common Shares into a smaller number of Common Shares, then in each such event the Formula Number shall be adjusted to a number determined by multiplying the Formula Number in effect immediately prior to such event by a fraction, the numerator of which is the number of Common Shares that are outstanding immediately after such event and the denominator of which is the number of shares that are outstanding immediately prior to such event (and rounding the result to the nearest whole number); and PROVIDED FURTHER that if ----------------- at any time after October 25, 1997, the Corporation shall issue - 2 - any shares of its capital stock in a reclassification or change of the outstanding Common Shares (including any such reclassification or change in connection with a merger in which the Corporation is the surviving corporation), then in such event the Formula Number shall be appropriately adjusted to reflect such reclassification or change. (b) The Board of Directors shall declare a dividend or distribution on the Series'A Junior Participating Preferred Stock as provided in paragraph 2(a) immediately prior to or at the same time it declares a dividend or distribution on the Common Shares {other than a dividend or distribution payable solely in Common Shares). The Board of Directors may fix a record date for the determination of holders of Series A Junior Participating Preferred Stock entitled to receive a dividend or distribution declared thereon, which record date shall be the same as the record date for any corresponding dividend or distribution on the Common Shares. (c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior Participating Preferred Stock from and after the Quarterly Dividend Payment Date next preceding the date of original issue of such Series A Junior Participating Preferred Stock; PROVIDED, HOWEVER, that dividends on such ------------------- shares which are originally issued after the record date for the determination of holders of Series A Junior Participating Preferred Stock entitled to receive a quarterly dividend and on or prior to the next succeeding Quarterly Dividend Payment Date shall begin to accrue and be cumulative from and after such Quarterly Dividend Payment Date. Notwithstanding the foregoing, dividends on shares of Series A Junior Participating Preferred Stock which are originally issued prior to the record date for the first Quarterly Dividend Payment, shall be calculated as if cumulative from and after the date (if any) declared by the Board of Directors for the payment of the quarterly dividend on the outstanding Common Shares, but in no event later than the fifteenth day of March, June, September and December, as the case may be, next preceding the date of original issuance of such shares. Accrued but unpaid dividends shall not bear interest. Dividends paid on the Series A Junior Participating Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. (d) So long as any shares of Series A Junior Participating Preferred Stock are outstanding, no dividends or other distributions shall be declared, paid or distributed, or set aside for payment or distribution, on the Common Shares unless, in each case, the dividend required by this Section 2 to be declared on the shares of Series A Junior Participating Preferred Stock shall have been declared, paid or distributed. - 3 - (e) The holders of shares of Series A Junior Participating Preferred Stock shall not be entitled to receive any dividends or other distributions except as provided herein. Section 3. VOTING RIGHTS. The holders shares of Series A Junior ---------------- Participating Preferred Stock shall have the following voting rights: (a) Each holder of shares of Series A Junior Participating Preferred Stock shall be entitled to a number of votes equal to the Formula Number then in effect for each share of Series A Junior Participating Preferred Stock held of record on all matters on which holders of the Common Shares or shareholders generally are entitled to vote. (b) Except as otherwise provided herein or by applicable law, the holders of shares of Series A Junior Participating Preferred Stock and the holders of Common Shares and any other class or series of voting stock shall vote together as one class for the election of directors of the Corporation and on all other matters submitted to a vote of shareholders of the Corporation. (c) Except as provided herein, in Section 10 of this paragraph NINTH or by applicable law, holders of shares of Series A Junior Participating Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Shares and any other class or series of voting stock as set forth herein) for authorizing or taking any corporate action. Section 4. CERTAIN RESTRICTIONS. --------------------- (a) Whenever quarterly dividends or other dividends or distributions payable on the Series A Junior Participating Preferred Stock as provided in Section 2 of this paragraph NINTH are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (1) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock; (2) declare or pay dividends on or make any other distributions on any shares ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A Junior Participating Preferred Stock and all such parity shares on which dividends are - 4 - payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (3) redeem or purchase or otherwise acquire for consideration any shares ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire any of such parity shares in exchange for any shares of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Junior Participating Preferred Stock; or (4) purchase or otherwise acquire for consideration any Series A Junior Participating Preferred Stock, or any shares ranking on a parity with the Series A Junior Participating Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of the Corporation unless the Corporation could, under paragraph (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. Section 5. LIQUIDATION RIGHTS. Upon the liquidation, dissolution or winding ------------------- up of the Corporation, whether voluntary or involuntary, no distribution shall be made (a) to the holders of shares ranking junior (either as to dividends or upon liquidation, dissolution, or winding up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior Participating Preferred Stock shall have received an amount equal to the accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, plus an amount equal to the greater of (1) 50% of the Purchase Price per unit of one one-hundredth of a share of Series A Junior Participating Preferred Stock (so that if, for example, the Purchase Price is $80.00, the liquidation amount would be $40.00 per whole share), or (2) an aggregate amount per share equal to the Formula Number then in effect times the aggregate amount to be distributed per share to holders of Common Shares, or (b) to the holders of shares ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Junior Participating Preferred Stock, except distributions made ratably on the Series A Junior Participating Preferred Stock and all other such parity stock in - 5 - proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. Section 6. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter ---------------------------- into any consolidation, merger, combination or other transaction In which the Common Shares are exchanged for or changed into other stock or securities, case or any other property, then in any such case the then outstanding shares of Series A Junior Participating Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share equal to the Formula Number then in effect times the aggregate amount of stock, securities, cash or any other property (payable in kind), as the case may be, into which or for which each of the Common Shares is exchanged or changed. Section 7. NO REDEMPTION; NO SINKING FUND. ------------------------------- (a) The shares of Series A Junior Participating Preferred Stock shall not be subject to redemption by the Corporation or at the option of any holder of Series A Junior Participating Preferred Stock; PROVIDED, HOWEVER, that the ------------------- Corporation may purchase or otherwise acquire outstanding shares of Series A Junior Participating Preferred Stock in the open market or by offer to any holder or holders of shares of Series A Junior Participating Preferred Stock. (b) The Series A Junior Participating Preferred Stock shall not be subject to or entitled to the operation of a retirement or sinking fund. Section 8. FRACTIONAL SHARES. The Series A Junior Participating Preferred ------------------ Stock shall be issuable upon exercise of the Rights issued pursuant to the Rights Agreement in whole shares or in any fraction of a share that is one one-hundredth (1/100th) of a share or any integral multiple of such fraction. At the election of the Corporation prior to the first issuance of a share or a fraction of a share of Series A Junior Participating Preferred Stock, either (1) certificates may be issued to evidence any such authorized fraction of a share of Series A Junior Participating Preferred Stock, or (2) any such authorized fraction of a share of Series A Junior Participating Preferred Stock may be evidenced by depositary receipts pursuant to an appropriate agreement between the Corporation and a depositary selected by the Corporation provided that such agreement shall provide that the holders of such depositary receipts shall have all the rights, privileges and preferences to which they are entitled as beneficial owners of shares of Series A Junior Participating Preferred Stock. Section 9. REACQUIRED SHARES. Any shares of Series A Junior Participating ------------------ Preferred Stock purchased or otherwise acquired by - 6 - the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued Preferred Shares, without designation as to series until such shares are once more designated as part of a particular series by the Board of Directors pursuant to the provisions of the Certificate of Incorporation. Section 10. AMENDMENT. None of the relative rights, preferences and ---------- limitations of the Series A Junior Participating Preferred Stock as provided in this paragraph NINTH or elsewhere in this Certificate of Incorporation shall be amended in any manner which would alter or change the relative rights, preferences and limitations of the holders of shares of Series A Junior Participating Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least 66-2/3% of the outstanding shares of Series A Junior Participating Preferred Stock, voting as though such series were a separate class." 5. The foregoing Amendment to the Certificate of Incorporation of the Corporation was authorized by resolution of the Board of Directors of the Corporation at a meeting thereof duly held on October 25, 1997, in accordance with the authority vested in the Board of Directors by paragraph FOURTH of the Certificate of Incorporation. IN WITNESS WHEREOF, the undersigned have subscribed this Certificate of Amendment to the Certificate of Incorporation of the Corporation and affirm the statements herein contained as true under penalties of perjury this 25th day of October, 1997. Herbert P. Ladds, Jr., President and Chief Executive Officer /S/ Herbert P. Ladds, Jr. -------------------------------- Herbert P. Ladds, Jr., President And Chief Executive Officer /S/ Lois H. Demler -------------------------------- Lois H. Demler, Secretary - 7 - EX-3.2 3 amendcertofinc.txt AMENDMENT TO CERTIFICATE OF INCORPORATION Exhibit 3.2 CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION of COLUMBUS MCKINNON CORPORATION (Under Section 805 of the Business Corporation Law) ----------------------------- The undersigned, Timothy R. Harvey, Corporate Secretary of Columbus McKinnon Corporation, a New York corporation (the "CORPORATION"), hereby certifies as follows: 1. The name of the Corporation is COLUMBUS MCKINNON CORPORATION. The name under which the Corporation was formed is COLUMBUS MCKINNON CHAIN CO., INC. 2. The original Certificate of Incorporation of the Corporation was filed by the Department of State on September 23, 1929. 3. The amendment of the Certificate of Incorporation effected by this Certificate of Amendment is to eliminate the series of preferred shares, par value $1.00 per share, of the Corporation entitled the "Series A Junior Participating Preferred Stock", none of which shares of such series are outstanding and none of which shares of such series will be issued subject to the Certificate of Incorporation. This Certificate of Amendment constitutes a series elimination. It does not change the number of authorized preferred shares under Article FOURTH of the Certificate of Incorporation. 4. When this Certificate of Amendment becomes accepted for filing, it shall have the effect of eliminating from the Certificate of Incorporation all matters set forth therein with respect to the Series A Junior Participating Preferred Stock. In furtherance thereof, Article NINTH of the Certificate of Incorporation, relating to the Series A Junior Participating Preferred Stock, is hereby stricken out in its entirety, without substituting a new Article in lieu thereof. 5. Following the elimination of the 250,000 shares of Series A Junior Participating Preferred Stock, the Board of Directors of the Corporation shall continue to be authorized to issue up to 1,000,000 preferred shares, par value $1.00 per share, under Article FOURTH of the Certificate of Incorporation. 6. The Board of Directors of the Corporation authorized the amendment of the Certificate of Incorporation under the authority vested in said Board under the provisions of the Certificate of Incorporation and of Section 502 of the Business Corporation Law. 1 IN WITNESS WHEREOF, the undersigned has subscribed this Certificate of Amendment to the Certificate of Incorporation of the Corporation and affirm the statements herein contained as true under penalties of perjury this 24th day of January, 2008. /S/ Timothy R. Harvey --------------------------- Timothy R. Harvey Corporate Secretary 2 EX-3.3 4 amendedbylaws.txt AMENDED BY-LAWS Exhibit 3.3 SECOND RESTATED BY-LAWS OF COLUMBUS MCKINNON CORPORATION (THE "CORPORATION") AS OF JANUARY 21, 2008 ----------------------------------------- ARTICLE I SHAREHOLDERS SECTION 1.01. ANNUAL MEETING. The annual meeting of the shareholders may be held at such time, date and place, within or without the State of New York, as shall be determined by the Board of Directors and stated in the notice of the meeting, or in a waiver of notice thereof. SECTION 1.02. SPECIAL MEETINGS. Special meetings of the shareholders, for any purpose or purposes, may be called at any time only by the Chairman of the Board or the President or by resolution of the Board of Directors. Special meetings of the shareholders shall be held at such time, date and place, within or without the State of New York, as shall be fixed by the person or persons calling the meeting and stated in the notice or waiver of notice of the meeting. SECTION 1.03. NOTICE OF MEETINGS OF SHAREHOLDERS. Whenever the shareholders are required or permitted to take any action at a meeting, written notice of the meeting shall be given which shall state the place, date and time of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called and at whose direction it is being issued. The written notice of any meeting shall be given, personally or by mail, not less than ten (10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to vote at such meeting. SECTION 1.04. QUORUM. At all meetings of the shareholders, the holders of a majority of the shares issued and outstanding and entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of any business. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders. The shareholders present may adjourn the meeting despite the absence of a quorum and at any such adjourned meeting at which a quorum shall be present or represented, the Corporation may transact any business which might have been transacted at the original meeting. Except as otherwise provided by law, notice of the adjourned meeting shall not be necessary if the time, date and place thereof are announced at the meeting. SECTION 1.05. VOTING. At any meeting of the shareholders, every shareholder entitled to vote thereat shall be entitled to vote in person or by proxy. Except as otherwise provided by law or the Certificate of Incorporation, whenever the shareholders are required or permitted to take any action at a meeting, each shareholder of record entitled to vote thereat shall be entitled to one vote for each share from which such shareholder's voting rights are derived standing in his name on the books of the Corporation. All elections of directors shall be determined by a plurality vote, and, except as otherwise provided by law or the Certificate of Incorporation, all other matters shall be determined by vote of the shares present or represented at such meeting and voting on such matters. SECTION 1.06. PROXIES. Every proxy must be executed in writing by the shareholder. No proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless it shall have specified therein its duration. Every proxy shall be revocable at the pleasure of the person executing it, except in those cases where an irrevocable proxy is permitted by law. SECTION 1.07. CONSENTS. Whenever by any provision of law or the Certificate of Incorporation or these By-laws, the vote of shareholders at a meeting thereof is required or permitted to be taken in connection with any corporate action, the meeting and vote of shareholders may be dispensed with, if all the shareholders who would have been entitled to vote upon the action if such meeting were held, shall consent in writing to such corporate action being taken. SECTION 1.08. SHAREHOLDERS LIST. A list of shareholders as of the record date, certified by the corporate officer responsible for its preparation or by a transfer agent, shall be produced at any meeting 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. SECTION 1.09. APPOINTMENT OF INSPECTORS OF ELECTION. The Board of Directors may, in advance of any meeting of the shareholders, appoint one (1) or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed in advance of the meeting, the person presiding at such meeting may, and on the request of any shareholder entitled to vote thereat shall, appoint one (1) or more inspectors. In case any inspector appointed fails to appear or act, the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector of election, before entering upon the discharge of his or her 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 or her ability. No person who is a candidate for the office of director of the Corporation shall act as an inspector at any meeting of the shareholders at which directors are elected. SECTION 1.10. DUTIES OF INSPECTORS OF ELECTION. Whenever one (1) or more inspectors of election may be appointed as provided in these By-laws, he, she or they shall determine the number of shares outstanding and entitled to vote, the shares represented at the meeting, the existence of a quorum, and 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. SECTION 1.11. ADVANCE NOTICE OF SHAREHOLDER PROPOSALS. The matters to be considered and brought before any annual or special meeting of shareholders of the Corporation shall be limited to only such matters, including the nomination and election of directors, as shall be brought properly before such meeting in compliance with the procedures set forth in this Section 1.11. For any matter to be properly before any annual meeting of shareholders, the matter must be (i) specified in the notice of annual meeting given by or at the direction of the Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of the Board of Directors or (iii) brought before the annual meeting in the manner specified in this Section 1.11 by a shareholder of record. In addition to any other requirements under applicable law and the Certificate of Incorporation and By-laws of the Corporation, persons nominated by shareholders for election as directors of the Corporation and any other proposals by shareholders shall be properly brought before the annual meeting only if notice of any such matter to be presented by a shareholder at such meeting of shareholders (the "Shareholder Notice") shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not less than one hundred twenty (120) nor more than one hundred fifty (150) days prior to the first anniversary date of the annual meeting for the preceding year; provided, however, if and only if the annual meeting is not scheduled to be held within a period that commences thirty (30) days before such anniversary date and ends thirty (30) days after such anniversary date (an annual meeting date outside such period being referred to herein as an "Other Meeting Date"), such Shareholder Notice shall be given in the manner provided herein by the later of the close of business on (i) the date one hundred twenty (120) days prior to such Other Meeting Date or (ii) the tenth day following the date such Other Meeting Date is first publicly announced or disclosed. Any shareholder desiring to nominate any person or persons (as the case may be) for election as a director or directors of the Corporation shall deliver, as part of such Shareholder Notice, a statement in writing setting forth the name of the person or persons to be nominated, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by each such person, as reported to such shareholder by each such person, the information regarding each such person required by paragraphs (a), (d), (e) and (f) of Item 401 and paragraph (a) of Item 404 of Regulation S-K adopted by the Securities and Exchange Commission (or the corresponding provisions of any regulation subsequently adopted by the Securities and Exchange Commission applicable to the Corporation), each such person's signed consent to serve as a director of the Corporation if elected, such shareholder's name and address and the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such shareholder. Any shareholder who gives a Shareholder Notice of any matter proposed to be brought before the annual meeting (not involving nominees for director) shall deliver, as part of such Shareholder Notice, the text of the proposal to be presented and a brief written statement of the reasons why such shareholder favors the proposal and setting forth such shareholder's name and address, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such shareholder and, if applicable, any material interest of such shareholder in the matter proposed (other than as a shareholder). As used herein, shares "beneficially owned" shall mean all shares which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Only such matters shall be properly brought before a special meeting of shareholders as shall have been brought before the special meeting pursuant to the Corporation's notice of meeting. In the event the Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any shareholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, if the Shareholder Notice required by Section 1.11 hereof shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not later than the close of business on the tenth day following the day on which the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is publicly announced or disclosed. Notwithstanding the foregoing, in the case of a shareholder proposal made pursuant to Rule 14a-8 under the Exchange Act (a "14a-8 Proposal"), to be timely, a shareholder's notice of a 14a-8 Proposal shall be made in accordance with the provisions of Section 14a-8 under the Exchange Act; provided that for purposes thereof the phrase "a reasonable time before the company begins to print and mail its proxy materials" shall be deemed to mean the later of the close of business on (i) the date one hundred twenty (120) days prior to the meeting of shareholders to which the 14a-8 Proposal relates or (ii) the tenth day following the date on which the date of such meeting of shareholders is first publicly announced or disclosed. For purposes of this Section 1.11, a matter shall be deemed to have been "publicly announced or disclosed" if such matter is disclosed in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission. In no event shall the adjournment of an annual meeting, or any announcement thereof, commence a new period for the giving of notice as provided in this Section 1.11. The person presiding at any meeting of shareholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether notice of nominees and other matters proposed to be brought before a meeting has been duly given in the manner provided in this Section 1.11 and, if not so given, shall direct and declare at the meeting that such nominees and other matters shall not be considered. ARTICLE II DIRECTORS SECTION 2.01. MANAGEMENT OF BUSINESS. The business of the Corporation shall be managed by or under the direction of its Board of Directors, which may exercise all powers of the Corporation, and do all lawful acts and things, except as otherwise provided by law, the Certificate of Incorporation or by these By-laws. SECTION 2.02. NUMBER AND TENURE. Except as otherwise required by law or in the Certificate of Incorporation, the number of directors which shall constitute the entire Board of Directors shall be not less than three (3) nor more than nine (9) and shall be fixed, and may be increased or decreased, from time to time by resolution adopted by a majority of the directors then in office (inclusive of vacancies). SECTION 2.03. ELECTION AND TERM. The directors shall be elected at the annual meeting of the shareholders, and each director shall be elected to hold office until the next succeeding annual meeting of the shareholders and until his successor has been duly elected and qualified. SECTION 2.04. RESIGNATION AND REMOVAL. Any director may resign at any time by providing written notice thereof to the Chairman of the Board, the President or the Board of Directors, stating the effective date thereof and no acceptance thereof shall be necessary to make it effective. The Board of Directors only, by majority vote of all of the directors then in office, may remove a director; provided, however, that such removal may only be for cause. SECTION 2.05. VACANCIES. Any vacancies in the Board of Directors occurring for any reason other than from newly created directorships resulting from any increase in the number of directors, shall be filled by a majority of the directors then in office, even if said directors constitute less than a quorum, and a director elected to fill any such vacancy shall serve until the next annual meeting of shareholders and until his successor has been duly elected and has qualified. Newly created directorships resulting from any increase in the number of directors shall be filled by a majority of the entire Board of Directors (inclusive of vacancies) and a director elected to fill any such newly created vacancy shall serve until the next annual meeting of shareholders and until his successor has been duly elected and has qualified. SECTION 2.06. QUORUM. At all meetings of the Board of Directors, a majority of the entire Board of Directors (inclusive of vacancies) shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law or the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. SECTION 2.07. ANNUAL MEETING. The newly elected Board of Directors shall meet immediately following the adjournment of the annual meeting of shareholders in each year at the same place, within or without the State of New York, and no notice thereof shall be necessary. At each annual meeting of such newly elected Board of Directors, the directors, by majority vote of the directors present thereat, shall elect one such director to serve as the Chairman of the Board, whose powers and authority shall consist of presiding at all meetings of the Board of Directors and the calling of special meetings of the Board of Directors as provided in Section 2.09 hereof. SECTION 2.08. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such time, date and place, within or without the State of New York, as shall from time to time be fixed by the Board of Directors and no notice thereof shall be necessary. SECTION 2.09. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman of the Board or the President on two (2) days' notice by mail or on one days' notice orally or by personal delivery, telecopier, telegram or electronic mail to each director. Special meetings of the Board of Directors shall be called by the Chairman of the Board or the President on like notice on the request of any two (2) directors. Special meetings shall be held at such time, date and place, within or without the State of New York, as shall be fixed by the person or persons calling the meeting and stated in the notice or waiver of notice of the meeting. SECTION 2.10. TELEPHONE CONFERENCE. Any one or more members of the Board of Directors, or any committee thereof, may participate in a meeting of such Board of Directors, or committee thereof, by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation in a meeting in such manner shall constitute presence in person at such meeting. SECTION 2.11. ACTION WITHOUT A MEETING. Any action required or permitted to be taken by the Board of Directors, or any committee thereof, may be taken without a meeting if all of the members of the Board of Directors, or committee thereof, consent in writing to the adoption of a resolution authorizing such action. The resolution and written consents thereto by the members of the Board of Directors, or committee thereof, taking such action shall be filed with the minutes of the proceedings of the Board of Directors, or committee thereof. SECTION 2.12. EXECUTIVE COMMITTEE. The Board of Directors, by resolution adopted by a majority of the entire Board of Directors (inclusive of vacancies), may designate an Executive Committee to be composed of at least three (3) directors, which Executive Committee shall have full charge of and direct the business and affairs of the Corporation, subject to the Board of Directors. The Executive Committee shall have the full powers of the Board of Directors, except as otherwise provided herein, by law or in the Certificate of Incorporation, between meetings of the Board of Directors, to transact all ordinary business and affairs of the Corporation; shall adopt its own rules of procedure and its place of meeting; and at every meeting of the Board of Directors shall report the resolutions passed and business transacted by the Executive Committee since the last meeting of the Board of Directors. Notwithstanding the foregoing, the Executive Committee shall not have any authority as to any of the following matters: (1) The submission to the shareholders of any action requiring shareholders' approval under law. (2) The filling of vacancies in the Board of Directors or in any committee thereof. (3) The fixing of compensation of the directors for serving on the Board of Directors or on any committee thereof. (4) The amendment or repeal of the By-laws or the adoption of new By-laws. (5) The amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable. Two (2) members of the Executive Committee shall constitute a quorum at any meeting of the Executive Committee. Any member of the Executive Committee shall be subject to removal from the Executive Committee at any time and for any reason by the affirmative vote of a majority of the entire Board of Directors (inclusive of vacancies). SECTION 2.13. OTHER COMMITTEES. The Board of Directors may, by resolution or resolutions adopted by a majority of the entire Board of Directors (inclusive of vacancies), designate one or more other committees, each to be comprised of such number of directors provided in said resolution or resolutions, which to the extent provided in said resolution or resolutions and within the limitations prescribed by law, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation; provided, however, that no such other committee shall have any authority as to any of the matters set forth in Section 2.12 (1) through (5). ARTICLE III OFFICERS SECTION 3.01. OFFICERS. The officers of the Corporation shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. Any two or more offices may be held by the same person, except the offices of President and Secretary. The Board of Directors may also elect or appoint such other officers as it may from time to time determine. SECTION 3.02. TERMS OF OFFICE. Unless otherwise determined by the Board of Directors, all officers shall hold office until the first meeting of the Board of Directors following the next annual meeting of shareholders and until his or her successor has been elected and qualified or until his or her earlier death, resignation or removal. Each additional officer appointed or elected by the Board of Directors shall hold office for such term as shall be determined from time to time by the Board of Directors and until his or her successor has been elected or appointed and qualified or until his or her earlier death, resignation or removal. SECTION 3.03. REMOVAL. Any officer or agent elected by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. SECTION 3.04. VACANCIES. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by majority vote of the Board of Directors then in office for the unexpired portion of the term. SECTION 3.05. COMPENSATION. Compensation of all officers shall be fixed by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his also being a director of the Corporation. SECTION 3.06. THE PRESIDENT. The President shall be the chief executive officer of the Corporation; shall preside at all meetings of the shareholders; in the absence of the Chairman of the Board, shall preside at all meetings of the Board of Directors; subject to the powers of the Board of Directors, shall have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The President shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or as may be provided in these By-laws. SECTION 3.07. VICE PRESIDENTS. The Vice President, or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors, shall, in the absence or disability of the Chairman of the Board and the President, act with all of the powers and be subject to all the restrictions of the Chairman of the Board and the President. The Vice Presidents shall also perform such other duties and have such other powers as the Board of Directors, the President or these By-laws may from time to time prescribe. SECTION 3.08. THE SECRETARY AND THE ASSISTANT SECRETARIES. The Secretary shall attend all meetings of the Board of Directors, all meetings of the committees thereof, and all meetings of the shareholders and shall record all the proceedings of such meetings in a book or books to be kept for that purpose. Under the Chairman of the Board and the President's supervision, the Secretary shall give, or cause to be given, all notices required to be given by these By-laws or by law; shall have such powers and perform such duties as the Board of Directors, the President or these By-laws may from time to time prescribe; and shall have custody of the corporate seal of the Corporation. The Secretary, or an Assistant Secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors, the President or the Secretary may from time to time prescribe. SECTION 3.09. THE TREASURER AND THE ASSISTANT TREASURERS. The Treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation as may be ordered by the Board of Directors; shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the Chairman of the Board and the President and the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the Corporation; and shall have such powers and perform such duties as the Board of Directors, the President or these By-laws may from time to time prescribe. If required by the Board of Directors, the Treasurer shall give the Corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of the Treasurer and for the restoration to the Corporation, in case of death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the possession or under the control of the Treasurer belonging to the Corporation. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, shall in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer. The Assistant Treasurers shall perform such other duties and have such other powers as the Board of Directors, the President or the Treasurer may, from time to time, prescribe. SECTION 3.10. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these By-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors. SECTION 3.11. ABSENCE OR DISABILITY OF OFFICERS. In the case of the absence or disability of any officer of the Corporation and of any person hereby authorized to act in such officer's place during such officer's absence or disability, the Board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select. ARTICLE IV CERTIFICATES OF STOCK SECTION 4.01. FORM. The interest of each shareholder of the Corporation may be evidenced either by certificates for shares of stock in such form (including punch cards, magnetically coded or otherwise treated forms to facilitate machine or automatic processing) as the Board of Directors may from time to time prescribe or may be uncertificated. In the event that shares are certificated, each certificate of stock shall in any event state upon its face all matters required by law. Each certificate of stock issued at any time the Corporation is authorized to issue shares of more than one class of stock shall set out on it the designations, relative rights, preferences and limitations of each class and series then authorized and the power of the Board of Directors to divide any such shares and to change such designations, relative rights, preferences and limitations. The certificates of stock shall be signed by the Chairman of the Board, if any, or by the President or a Vice President and sealed with the seal of the Corporation or a facsimile thereof, and countersigned by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Corporation or its employee, or registered by a registrar other than the Corporation or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Corporation. Subject to the restrictions, if any, stated or noted on the stock certificate or on the transfer books of the Corporation's transfer agent, shares of stock may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate therefore, properly endorsed or accompanied by a written assignment and power of attorney properly executed, with necessary transfer stamps affixed, and with such proof of the authenticity of signature as the Board of Directors or the transfer agent of the Corporation may reasonably require, or if such shares are uncertificated, by book entry by the transfer agent, or any other means which are the usual and customary means of evidencing the transfer of the shares by the transfer agent. Except as may be otherwise required by law, by the certificate of incorporation or by these by-laws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to receive notice and to vote or to give any consent with respect thereto, regardless of any transfer, pledge or other disposition of such stock until the shares have been properly transferred on the books of the Corporation. SECTION 4.02. LOST CERTIFICATES. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate. SECTION 4.03. FIXING A RECORD DATE FOR SHAREHOLDER MEETINGS. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if no notice is given, on the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. SECTION 4.04. FIXING A RECORD DATE FOR OTHER PURPOSES. In order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of shares, or for the purposes of any other lawful action, the record date shall be the date upon which the resolution of the Board of Directors relating thereto is adopted or such later date not more than sixty (60) days prior to such action as may be specified in such resolution of the Board of Directors. SECTION 4.05. REGISTERED SHAREHOLDERS. Prior to the surrender to the Corporation of the certificate or certificates for a share or shares with a request to record the transfer of such share or shares, the Corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner. ARTICLE V GENERAL PROVISIONS SECTION 5.01. DIVIDENDS. Dividends upon the shares of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the Corporation, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, deem proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created. SECTION 5.02. CHECKS, DRAFTS OR ORDERS. All checks, drafts or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof. SECTION 5.03. CONTRACTS. The Board of Directors may authorize any officer or officers, or any agent or agents, of the Corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. SECTION 5.04. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. SECTION 5.05. CORPORATE SEAL. The Board of Directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, New York." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. SECTION 5.06. VOTING SECURITIES OWNED BY THE CORPORATION. Voting securities in any other corporation held by the Corporation shall be voted by the President, unless the Board of Directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution. SECTION 5.07. SECTION HEADINGS. Section headings in these By-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein. SECTION 5.08. INCONSISTENT PROVISIONS. In the event that any provision of these By-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the Business Corporation Law of the State of New York or any other applicable law, the provisions of these By-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect. ARTICLE VII AMENDMENTS These By-laws may be amended, altered or repealed and new By-laws adopted at any meeting of the Board of Directors by a majority vote of the entire Board of Directors (inclusive of vacancies). The fact that the power to adopt, amend, alter or repeal the By-laws has been conferred upon the Board of Directors shall not divest the shareholders of the same powers. * * * -----END PRIVACY-ENHANCED MESSAGE-----