UNITED STATES
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) May 24, 2011
| OMNICOM GROUP INC. | ||
| (Exact name of registrant as specified in its charter) | ||
| New York | 1-10551 | 13-1514814 |
| (State or other jurisdiction of | (Commission File Number) | (IRS Employer Identification |
| incorporation) | No.) | |
| 437 Madison Avenue, New York, NY | 10022 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code (212)
415-3600
Not Applicable
(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 (see General Instruction A.2. below):
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.03. Amendments to Articles of Incorporation or By-Laws; Change in Fiscal Year
(a) On May 24, 2011, the shareholders of Omnicom Group Inc. (the “Company”) approved an amendment to the Certificate of Incorporation adding a new Article XI. The new article allows shareholder action by less than unanimous written consent if the matter is approved by the holders of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which all shares entitled to vote on the matter were present and voted.
On May 24, 2011, the shareholders of the Company also approved amendments to the Articles of Incorporation and By-laws reducing any requirements for a supermajority vote to a simple majority of outstanding shares. The new simple majority voting standard applies to any corporate actions, other than the election of directors, taken by a vote of shareholders at a meeting of shareholders at which a quorum is present. The election of directors will continue to be by a majority voting standard and subject to the Company’s resignation policy in uncontested elections, and a plurality voting standard in contested elections. To eliminate the supermajority voting requirements, shareholders approved the following amendments:
an amendment to Article 8 of the Certificate of Incorporation to change the voting standards for altering the number of directors constituting the entire Board or removing a director from office from a two-thirds of all outstanding shares standard to a majority of shares voting standard.
an amendment deleting the existing Article X of the Certificate of Incorporation and replacing it with existing Article XI. The previous Article X provided that a two-thirds vote of all outstanding shares is required to approve the adoption, amendment or repeal of any provision of the By-laws or to amend Article 8 or 9 (relating to director liability) of the Certificate of Incorporation.
an amendment to Article XI of the Company’s By-laws to change the voting standard for amending, repealing or adopting new by-laws from a two-thirds of all issued and outstanding shares standard to a majority of shares voting standard.
Under the newly adopted amendment, any by-law may be amended or repealed, in whole or in part, and new by-laws may be adopted, only by (i) the affirmative vote of the holders of a majority of the votes cast for such an action, or (ii) the affirmative vote of a majority of the entire Board of Directors.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Incorporation and By-laws, as amended, copies of which are filed as Exhibits 3.1 and 3.2 to this report and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders
(a) The Company held its annual meeting of shareholders (the “Annual Meeting”) on May 24, 2011 in Washington, D.C. At the Annual Meeting, the Company’s shareholders elected 12 individuals to the Board of Directors, approved all proposals and rejected none of the proposals. The proposals are described in more detail in the Proxy Statement.
(b) Proposal 1
The Company’s shareholders elected 12 individuals to the Board of Directors as set forth below:
| Name |
Votes For |
Votes Against |
Abstentions |
Broker Non- Votes |
| John D. Wren | 223,724,005 | 3,774,035 | 67,738 | 19,054,850 |
| Bruce Crawford | 225,698,786 | 1,801,049 | 65,943 | 19,054,850 |
| Alan R. Batkin | 222,201,490 | 5,296,541 | 67,747 | 19,054,850 |
| Robert Charles Clark | 227,145,397 | 348,284 | 72,097 | 19,054,850 |
| Leonard S. Coleman, Jr. | 209,589,495 | 17,903,625 | 72,658 | 19,054,850 |
| Errol M. Cook | 227,227,200 | 267,689 | 70,889 | 19,054,850 |
| Susan S. Denison | 221,200,268 | 6,298,838 | 66,671 | 19,054,850 |
| Michael A. Henning | 222,264,915 | 5,228,328 | 72,535 | 19,054,850 |
| John R. Murphy | 225,548,139 | 1,954,422 | 63,217 | 19,054,850 |
| John R. Purcell | 225,053,536 | 2,433,845 | 78,397 | 19,054,850 |
| Linda Johnson Rice | 222,660,850 | 4,850,206 | 54,722 | 19,054,850 |
| Gary L. Roubos | 221,015,226 | 6,493,964 | 56,588 | 19,054,850 |
Proposal 2
The Company’s shareholders ratified the appointment of KPMG LLP as the Company’s independent auditors for the 2011 fiscal year.
| Votes For | Votes Against | Abstentions | |
| |
|
|
|
| 245,242,988 | 1,255,746 | 121,894 |
Proposal 3
The Company’s shareholders approved amendments to the Certificate of Incorporation to allow shareholder action by less than unanimous written consent.
| Votes For | Votes Against | Abstentions | |
| |
|
|
|
| 236,066,168 | 10,245,999 | 308,462 |
Proposal 4
The Company’s shareholders approved amendments to the Company’s Certificate of Incorporation and By-laws to eliminate supermajority voting requirements.
| Votes For | Votes Against | Abstentions | |
| |
|
|
|
| 245,480,427 | 578,520 | 561,681 |
Proposal 5
The Company’s shareholders approved an advisory resolution on the compensation of the Company’s named executive officers as reported in the Proxy Statement.
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |
| |
|
|
|
|
| 191,780,414 | 35,261,482 | 523,882 | 19,054,850 |
Proposal 6
The Company’s shareholders voted to conduct future shareholder advisory votes on executive compensation every one year.
| Votes For 1 Year | Votes For 2 Years | Votes For 3 Years | Abstentions | |
| |
|
|
|
|
| 207,110,798 | 350,254 | 19,555,911 | 548,815 |
(d) Disclosure Regarding Frequency of Shareholder Advisory Vote on Executive Compensation:
A majority of the votes cast by shareholders voted, on an advisory basis, to hold an advisory vote to approve executive compensation every year. In line with this recommendation by our shareholders, the Board of Directors has decided that it will include an advisory shareholder vote on executive compensation in its proxy materials every year until the next required advisory vote on the frequency of shareowner votes on executive compensation, which will occur no later than our Annual Meeting of shareholders in 2017.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following are furnished herewith:
| Exhibit Number |
Description |
| 3.1 | Certificate of Incorporation of Omnicom Group Inc., as amended and restated on May 24, 2011. |
| 3.2 | By-laws of Omnicom Group Inc., as amended and restated on May 24, 2011. |
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 hereunto duly authorized.
| Omnicom Group Inc. | ||
| Date: May 26, 2011 | ||
| By: | /s/ Michael J. O’Brien | |
| |
||
| Name: | Michael J. O’Brien | |
| Title: | Senior Vice President, General Counsel and Secretary | |
EXHIBIT INDEX
| Exhibit Number |
Description |
| 3.1 | Certificate of Incorporation of Omnicom Group Inc., as amended and restated on May 24, 2011. |
| 3.2 | By-laws of Omnicom Group Inc., as amended and restated on May 24, 2011. |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
OMNICOM GROUP, INC.
Under Section 807 of the Business Corporation Law of the State of New York
| 1. | The name of the Corporation is Omnicom Group Inc. The name under which the corporation was formed is Maxwell Dane, Inc. |
| 2. | The certificate of incorporation was filed by the department of state on the 17th day of November, 1944. |
| 3. | The text of the certificate of incorporation is hereby amended to effect the following changes: |
|
Article EIGHTH of the Certificate of Incorporation respecting the directors of the corporation is amended to read:
Article TENTH is deleted. Article ELEVENTH is renumbered as Article TENTH. A new Article ELEVENTH respecting shareholder action by written consent is added to the Certificate of Incorporation reading as follows:
|
|
The text of the Certificate of Incorporation, as amended, is hereby restated as amended to read as herein set forth in full:
CERTIFICATE OF INCORPORATION
OF
OMNICOM GROUP INC.
(AS AMENDED AND RESTATED MAY 24, 2011)
FIRST: The name of the corporation is Omnicom Group Inc.
SECOND: The purposes for which the corporation is formed is to engage in any lawful act or activity for which corporations may be organized under the New York Business Corporation Law, provided that the corporation will, 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 in the State of New York shall be located in the County of New York.
FOURTH: The total number of shares of stock which the Corporation will have authority to issue is 1,007,500,000 shares. Of these, 1,000,000,000 shares are classified as Common Stock, par value $.15 per share, and 7,500,000 shares are classified as Preferred Stock, par value $1.00 per share. At the effective time of the amendment to this Article decreasing the par value of the Common Stock to $.15 per share, and without any further action on the part of the Corporation or its shareholders, each share of Common Stock with a par value of $.50 then issued and outstanding shall be changed and reclassified into a fully paid and nonassessable share of Common Stock with a par value of $.15.
The Board of Directors is authorized to divide the 7,500,000 shares of Preferred Stock from time to time into one or more series, and to determine or change by resolution for each series its designation, the number of shares of the series and the powers, preferences and rights, and the qualifications, limitations or restrictions of the shares of the series. The resolution or resolutions of the Board of Directors providing for the division of Preferred Stock into series within a class may include the following provisions:
(1) The distinctive designation of each series and the maximum number of shares of each series which may be issued, which number may be increased (except where otherwise provided by the Board of Directors in creating the series) or decreased (but not below the number of shares of the series then outstanding) from time to time by action of the Board of Directors;
(2) Whether the holders of the shares of each series are entitled to vote and, if so, the matters on which they are entitled to vote, the number of votes to which the holder of each share is entitled, and whether the shares of the series are to be voted separately or together with shares of other series;
(3) The dividends to which holders of shares of each series will be entitled; any restrictions, conditions or limitations upon the payment of those dividends; whether the dividends will be cumulative and, if cumulative, the date or dates from which the dividends will be cumulative;
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(4) Whether the shares of one or more series will be subject to redemption and, if so, whether redemption will be mandatory or optional and if optional, at whose option, the manner of selecting shares for redemption, the redemption price and the manner, of redemption;
(5) The amount payable on shares of each series if there is a liquidation, dissolution or winding up of the Corporation which amount may vary at different dates and depending upon whether the liquidation, dissolution or winding up is voluntary or involuntary;
(6) The obligation, if any, of the Corporation to maintain a purchase, retirement or sinking fund for shares of each series;
(7) Whether the shares of one or more series will be convertible into, or exchangeable for, any other types of securities, either at the option of the holder or of the Corporation and, if so, the terms of the conversions or exchanges;
(8) Any other provisions regarding the powers, preferences and rights, and the qualifications limitations or restrictions, of each series which are not inconsistent with applicable law.
All shares of a series of Preferred Stock will be identical with each other in all respects, except that shares of any one series issued at different times may differ as to the dates from which dividends on those shares, if cumulative, shall cumulate.
FIFTH: No holder of any of the shares of any class of the corporation shall be entitled as of right to subscribe for, purchase, or otherwise acquire any shares of any class of the corporation which the corporation proposes to issue or any rights or options which the corporation proposes to grant for the purchase of shares of any class of the corporation or for the purchase of any shares, bonds, securities, or obligations of the corporation which are convertible into or exchangeable for, or which carry any rights, to subscribe for, purchase, or otherwise acquire shares of any class of the corporation; and any and all of such shares, bonds, securities or obligations of the corporation, whether now or hereafter authorized or created, may be issued, or may be reissued or transferred if the same have been reacquired and have treasury status, and any and all of such rights and options may be granted by the Board of Directors to such persons, firms, corporations and associations, and for such lawful consideration, and on such terms, as the Board of Directors in its discretion may determine, without first offering the same, or any part thereof, to any said holder. Without limiting the generality of the foregoing stated denial of any and all preemptive rights, no holder of shares of any class of the corporation shall have any preemptive rights in respect of the matters, proceedings or transactions specified in subparagraphs (1) to (6), inclusive, of paragraph (e) of Section 622 of the Business Corporation Law.
SIXTH: The duration of the corporation shall be perpetual.
SEVENTH: The Secretary of State is designated as the agent of the corporation upon whom process against the corporation may be served, and the address to which the Secretary of State shall mail a copy of any process against the corporation served upon him is: 437 Madison Avenue, New York, N.Y. 10022.
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EIGHTH: The number of directors shall be fixed by the By-Laws, or by action of the shareholders or the Board of Directors under specific provisions of a By-Law adopted by the shareholders entitled to vote in an election for directors. If the shareholders are empowered by the By-Laws or by law to change the number of directors constituting the entire Board of Directors, the affirmative vote of the holders of a majority of the votes cast for such action shall be required for the shareholders to change the number of directors constituting the entire Board of Directors. Directors will be elected at each annual meeting of shareholders. If the shareholders are empowered by the By-Laws or by law to remove a director (for cause or otherwise), the exercise of that power will require the affirmative vote of the holders of a majority of the votes cast for such action.
NINTH: A director of the corporation shall not be personally liable to the corporation or its shareholders for damages for breach of fiduciary duty as a director, except where a judgment or other final adjudication adverse to a director establishes that such director’s acts or omissions were in bad faith or involved intentional misconduct or knowing violation of law or where such director personally gained in fact a financial profit or other advantage to which such director was not legally entitled or where such director’s acts violated Section 719 of The New York Business Corporation Law. Any repeal or modification of this Article Ninth shall not adversely effect any right or protection of a director of the corporation under this Article Ninth in respect of any acts or omissions of such director which occurred prior to such repeal or modification.
TENTH: Except as may otherwise be specifically provided in this Certificate of Incorporation, no provision of this Certificate of Incorporation is intended by the corporation to be construed as limiting, prohibiting, denying or abrogating any of the general or specific powers or rights conferred under the Business Corporation Law upon the corporation, upon its shareholders, bondholders, and security holders, and upon its directors, officers, and other corporate personnel, including in particular, the power of the corporation to furnish indemnification to directors and officers in the capacities defined and prescribed by the Business Corporation Law and defined and prescribed rights of said persons to indemnification as the same are conferred by the Business Corporation Law.
ELEVENTH: Notwithstanding any provisions in the By-Laws to the contrary, whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
The shareholder or shareholders proposing to take such action shall give notice of the proposed action, which notice shall be in writing and delivered to and received by the Secretary at the principal office of the Corporation not less than ninety days before the proposed effective date of such action.
| 4. | This restatement of the certificate of incorporation was authorized by the vote of the board of directors followed by a vote of two-thirds of all outstanding shares entitled to vote thereon at a meeting of shareholders. |
| /s/ | Michael J. O’Brien | |
|
|
||
| Secretary |
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Exhibit 3.2
BY-LAWS
OF
OMNICOM GROUP INC.
A NEW YORK CORPORATION
(AS AMENDED AND RESTATED MAY 24, 2011)
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. Place of Meetings. All meetings of the shareholders of the Corporation will be held at such places, within or outside of the State of New York, as may be fixed from time to time by the Board of Directors.
SECTION 2. Annual Meeting. Commencing in the year 1988, the annual meeting of shareholders will be held on such date and at such time as may be fixed by the Board of Directors. At each annual meeting of shareholders the shareholders will elect directors and transact such other business as may properly be brought before the meeting. No shareholder shall have any right to bring a matter before the shareholders for a vote at the annual meeting of shareholders, unless such shareholder shall have given the Secretary of the Corporation written notice of his intention to do so not less than 60 days prior to the date set for the annual meeting. Such notice shall include the name and address of the shareholder proposing to bring such matter before such meeting, identify the matter proposed to be brought before the meeting and disclose the shareholder’s interest in the proposed matter. No shareholder shall have any right to propose or nominate a nominee for election to the Board of Directors of the Corporation, unless such shareholder shall have given the Secretary of the Corporation written notice of his intention to do so not less than 60 days before the date set for the annual meeting. Such notice shall include as to each nominee and such shareholder (i) the information as to such nominee and shareholder
that would be required to be included in a proxy statement under the proxy rules of the Securities and Exchange Commission if such shareholder were to solicit proxies from all shareholders of the Corporation for the election of such nominee as a director and such solicitation were one to which Rules 14a-3 to 14a-12 under the Securities Exchange Act of 1934, as amended, apply and (ii) the information as to such nominee and shareholder specified in Schedule 14B under the proxy rules of the Securities and Exchange Commission. If, at any such meeting, a shareholder gives notice of intention to propose that action be taken which would, if taken, entitle shareholders fulfilling the requirements of Section 623 of the Business Corporation Law of New York (relating to the procedure to enforce a shareholder’s right to receive payment for his shares) to receive payment for their shares, such notice shall include a statement to that effect.
SECTION 3. Notice of Annual Meeting. Written notice of each annual meeting of shareholders stating the place, date and hour of the meeting, will be given in the manner set forth in Article IV of these By-Laws not less than ten nor more than fifty days before the date of the meeting to each shareholder entitled to vote at the meeting.
SECTION 4. Special Meetings. Special meetings of shareholders may be called at any time for any purpose or purposes, by the Board of Directors, or by the President, and shall be called by the President or the Secretary upon the written request of a majority of the Board of Directors. A request shall state the purpose or purposes of the proposed meeting.
SECTION 5. Notice of Special Meeting. Notice of each special meeting of shareholders will be given in the manner set forth in Article IV of these By-Laws not less than ten nor more than fifty days before the date of the meeting to each shareholder entitled to vote at the meeting.
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Each notice will state the place, date and hour of the meeting, and the purpose or purposes for which the meeting is called and indicate by whom it is being called.
SECTION 6. Quorum. Except as otherwise required by law or the Certificate of Incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of shareholders will be necessary, and will constitute a quorum, for the transaction of business at that meeting. If a quorum is not present or represented by proxy at any meeting of stockholders, the holders of a majority of the shares entitled to vote at the meeting who are present in person or represented by proxy may adjourn the meeting from time to time until a quorum is present. An adjourned meeting may be held later without notice other than announcement at the meeting, except that if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given in the manner set forth in Article IV to each stockholder entitled to vote at the adjourned meeting. At any adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.
SECTION 7. Qualification of Voters. The only persons entitled to notice of or to vote at any meeting of shareholders will be the persons shown as shareholders of the Corporation on the stock records of the Corporation on the record date fixed by the Board of Directors, or, in the absence of a record date, at the close of business on the date the notice of the meeting is given.
SECTION 8. Voting. At any meeting of shareholders each shareholder having the right to vote shall be entitled to vote in person or by proxy. Except as otherwise provided by law or the Certificate of Incorporation, each shareholder will be entitled to one vote for each share of stock entitled to vote standing in his name on the books of the Corporation. Except with respect
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to the election of directors and as otherwise provided by law or in the Certificate of Incorporation or these By-Laws, all matters will be determined by the vote of the holders of a majority of the shares voting on it.
Except as otherwise provided by these By-Laws, a nominee for director shall be elected by a majority of the votes cast in person or by proxy with respect to such nominee’s election at any meeting that includes the election of directors at which a quorum is present. For purposes of this Section, a majority of the votes cast shall mean that the number of votes cast “for” a nominee’s election exceeds the number of votes cast “against” that nominee’s election. Notwithstanding the foregoing, a nominee for director shall be elected by a plurality of the votes cast in person or by proxy at any meeting that includes the election of directors at which a quorum is present if, as of the 10th day preceding the date the Corporation first mails its notice of meeting for such meeting to the shareholders of the Corporation, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), provided that with respect to any nominee proposed or nominated by a shareholder, the Secretary of the Corporation shall have received proper notice under Section 2 of this Article. For purposes of this Section, if plurality voting is applicable to the election of directors at any meeting, the nominees who receive the highest number of votes cast “for,” without regard to votes cast “against” or “withhold,” shall be elected as directors up to the total number of directors to be elected at that meeting. Abstentions and broker non-votes will not count as a vote cast with respect to any election of directors.
In order for any incumbent director to become a nominee of the Board of Directors for further service on the Board of Directors, such person must submit an irrevocable resignation, contingent on (i) that person not receiving a majority of the votes cast in an election that is not a
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Contested Election, and (ii) acceptance of that resignation by the Board of Directors in accordance with the policies and procedures adopted by the Board of Directors for such purpose. If an incumbent director fails to receive a majority of votes cast in an election that is not a Contested Election, the Governance Committee shall recommend to the Board of Directors whether to accept or reject the resignation of such incumbent director, or whether other action should be taken. The Board shall act on the resignation, taking into account the Governance Committee’s recommendation, and within 90 days after the date of certification of the election results, the Board shall disclose its decision and rationale regarding whether to accept the resignation (or the reasons for rejecting the resignation, if applicable) in a press release, filing with the Securities and Exchange Commission or by other public announcement. The director whose resignation is under consideration may not participate in any deliberation or vote of the Governance Committee or Board of Directors regarding his or her resignation. Notwithstanding the foregoing, in the event that no nominee for director receives a majority of the votes cast in an election that is not a Contested Election, the members of the Governance Committee shall make a final determination as to whether the Board shall accept any or all resignations, including their own. The Governance Committee and the Board may consider any factors and other information they deem appropriate and relevant in deciding whether to accept a director’s resignation.
If an incumbent director fails to receive the required vote for re-election in an election that is not a Contested Election and such director’s resignation is not accepted by the Board, such director will continue to serve until the expiration date of such director’s term in office or until such director’s earlier removal pursuant to Article II, Section 3 of these By-Laws. If such director’s resignation is accepted by the Board, or if a nominee for director is not elected and the
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nominee is not an incumbent director, then the Board may fill any resulting vacancy pursuant to Article II, Section 4 of these By-Laws.
SECTION 9. Action Without a Meeting. Except as otherwise provided by the Certificate of Incorporation, whenever the vote of shareholders is required or permitted in connection with any corporate action, that action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
The shareholder or shareholders proposing to take such action shall give notice of the proposed action, which notice shall be in writing and delivered to and received by the Secretary at the principal office of the Corporation not less than ninety days before the proposed effective date of such action.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Function. The Board of Directors will manage the business of the Corporation, except as otherwise provided by law, the Certificate of Incorporation or these By-Laws.
SECTION 2. Number and Term of Office. The number of directors constituting the entire Board of Directors will be such number, not less than three nor more than twenty, as is determined by resolution of the Board of Directors from time to time, unless all the shares are owned beneficially and of record by less than three shareholders, in which event the number of directors fixed by resolution of the Board may be less than three but not less than the number of
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shareholders. As used in these By-Laws, “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies. Except as provided in Section 4 of this Article, the directors will be elected at the annual meetings of shareholders. The directors will be divided into classes and elected for terms as provided in the Certificate of Incorporation.
SECTION 3. Removal of Directors. Except as otherwise provided by law no director shall be removed prior to the expiration date of his term of office, as such date is defined in the Certificate of Incorporation of the Corporation, except for cause and by the affirmative vote of a majority of the entire Board of Directors or of the holders of the percentage of outstanding stock of the Corporation entitled to vote as is set forth in the Certificate of Incorporation of the Corporation. Except as may otherwise be provided by law, cause for removal shall exist only if the director whose removal is proposed has been convicted of a felony by a court of competent jurisdiction to be liable for acts committed in bad faith or the result of active and deliberate dishonesty and such acts were material to the cause of action so adjudicated, or acts in which he personally gained a financial profit or other advantage to which he was not legally entitled, or has been adjudicated mentally incompetent by a court of competent jurisdiction.
SECTION 4. Vacancies. Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by the vote of a majority of the directors then in office, even if less than a quorum exists. Each director so elected will hold office until the next annual meeting of shareholders. Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board also may be filled by the shareholders of the Corporation at the next annual meeting or any special meeting
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called for the purpose, and each director so elected will hold office for the term provided in the Certificate of Incorporation.
SECTION 5. Resignation. Any director of the Corporation may resign at any time by giving written notice of his or her resignation to the Board of Directors, the President or the Secretary of the Corporation. A resignation will take effect at the time specified in the notice or, if no time is specified, at the time the notice is given, and the acceptance of a resignation will not be necessary to make it effective.
SECTION 6. Executive Committee and Other Committees. By the affirmative vote of a majority of the entire Board, the Board of Directors may designate from among its members an Executive Committee and other committees, each consisting of at least three members. The Executive Committee will have all the authority of the Board of Directors except as otherwise provided by Section 712 of the New York Business Corporation Law or other applicable statutes. Any other committees will have such authority as the Board of Directors may provide. The Board of Directors may designate one or more directors as alternate members of the Executive Committee or any other committee to replace absent members. Members of all committees will serve at the pleasure of the Board of Directors.
SECTION 7. Action by Unanimous Written Consent. Any action required or permitted to be taken by the Board of Directors or any committee of the Board of Directors may be taken without a meeting if all the 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 by the members of the Board or committee shall be filed with the minutes of the proceedings of the Board or committee.
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SECTION 8. Participation by Telephone. Any director may participate in a meeting of the Board of Directors or a committee by conference telephone or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by that means will constitute presence in person at the meeting.
ARTICLE III
MEETINGS OF DIRECTORS
SECTION 1. First Meeting. The first meeting of each newly elected Board of Directors will be held immediately following each annual meeting of shareholders. If the meeting is held at the place of the meeting of shareholders, no notice of the meeting need be given to the newly elected directors. If the first meeting is not so held, it shall be held at a time and place specified in a notice given in the manner provided for notice of special meetings of the Board of Directors.
SECTION 2. Regular Meetings. Regular meetings of the Board of Directors may be held upon such notice, or without notice, at such places and at such times as may from time to time be designated by the Board of Directors. If any day fixed for a regular meeting is a legal holiday at the place where the meeting is to be held, the meeting will be held at that place at the same hour on the next day which is not a legal holiday.
SECTION 3. Special Meetings; Notice. Special meetings of the Board of Directors will be held whenever called by the President, or by the Secretary at the written request of any two directors. Notice of each special meeting, stating the time and place of the meeting, shall be given in the manner set forth in Article IV of these By-Laws not less than forty-eight hours before the time the meeting is to be held. A notice need not specify the purpose of any meeting of the Board of Directors, unless otherwise provided by these By-Laws.
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SECTION 4. Place of Meeting. The Board of Directors may hold its meetings and keep the books and records of its proceedings at such place or places within or outside of the State of New York as the Board may from time to time determine.
SECTION 5. Quorum; Action by the Board. A majority of the entire board will constitute a quorum for the transaction of business. Except as otherwise provided by these By-Laws, or required by law, the affirmative vote of a majority of the directors present at any meeting at which a quorum is present will be required for the taking of an action by the Board of Directors. If a quorum is not present at a meeting of the Board of Directors, a majority of the directors present at the meeting may adjourn the meeting from time to time until a quorum is present, without notice of the adjourned meeting other than announcement at the meeting.
ARTICLE IV
NOTICES
SECTION 1. Notice to a Shareholder. Any notice to a shareholder must be in writing and given personally, by telephone or by mail. If mailed, a notice will be deemed given when deposited in the United States mail, postage prepaid, directed to the shareholder at the address which appears on the Corporation’s shareholder records or, if the shareholder filed with the Secretary of the Corporation a written request that notices to him be mailed to some other address, then addressed to him at that other address.
SECTION 2. Notice to a Director. Any notice to a director may be given personally, by telephone or by mail, facsimile transmission, telegram, cable or similar instrumentality. A notice will be deemed given when actually given in person or by telephone or facsimile transmission, or three business days after having been deposited in the United States mails or with the
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communications company through which it is given, directed to the director at his business address or at such other address as the director may have designated to the Secretary of the Corporation as the address to which notices should be sent.
SECTION 3. Waiver of Notice. Any person may waive notice of any meeting by signing a written waiver, whether before or after the meeting. In addition, attendance by a shareholder at a meeting in person or by proxy or attendance by a director at a meeting will be deemed a waiver of notice. A waiver of notice need not specify the purposes of the meeting.
ARTICLE V
OFFICERS
SECTION 1. Number. The officers of the Corporation will be a President, a Chief Financial Officer, a Secretary, and a Comptroller, and the Board of Directors may also elect a Chairman of the Board, a Vice Chairman of the Board, one or more Vice Presidents (some of whom may be designated Executive Vice Presidents or Senior Vice Presidents), a Treasurer, one or more Assistant Secretaries, Assistant Comptrollers or Assistant Treasurers and such other officers as it may from time to time deem advisable. Any two or more offices, except the offices of President and Secretary, may be held by the same person. No officers need be a director of the Corporation.
SECTION 2. Election and Term of Office. Each officer will be elected by the Board of Directors and will hold office for such term, if any, as the Board of Directors may determine. Any officer may be removed at any time, either with or without cause, by the vote of a majority of the entire Board of Directors.
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SECTION 3. Resignation. Any officer may resign at any time by giving written notice to the Board of Directors or to the President. A resignation will take effect at the time specified in the notice or, if no time is specified, at the time the notice is given. Acceptance of a resignation will not be necessary to make it effective.
SECTION 4. Powers and Duties. The President will be the Chief Executive Officer of the Corporation. The other officers will have the powers, responsibilities and duties which are customary with regard to the respective offices which they hold, as well as any other powers, responsibilities and duties, and subject to any limitations, which the Board of Directors may specify from time to time.
SECTION 5. Compensation. The Board of Directors will fix the compensation of the chief executive officer, and subject to the discretion of the Board of Directors, the chief executive officer shall have the right to fix the compensation of all other officers and all employees of the Corporation.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. Certificates. The shares of stock of the Corporation will be represented by certificates, in such form as the Board of Directors may from time to time prescribe, except that the Board of Directors may provide that some or all of any class or series of shares will be uncertificated shares. No decision to have uncertificated shares will apply to shares represented by a certificate until that certificate has been surrendered to the Corporation.
SECTION 2. Signatures on Certificates. Each certificate will be signed by the President or a Vice President and the Secretary, the Comptroller or the Treasurer or an Assistant Secretary,
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Assistant Comptroller or Assistant Treasurer and will be sealed with the seal of the Corporation. If certificates are countersigned by a transfer agent and registered by a registrar, the signatures of the officers and the seal of the Corporation may be in facsimile. If any officer who has signed or whose facsimile signature has been placed upon a certificate ceases to hold that office before the certificate is issued, it may nonetheless be issued by the Corporation with the same effect as if he held the office at the date of issue.
SECTION 3. Lost or Destroyed Certificates. The Corporation may issue a new certificate in place of any certificate issued by the Corporation which is alleged to have been lost or destroyed. The Board of Directors may prescribe any conditions precedent to the issuance of the new certificate which it deems appropriate and may require a bond sufficient to indemnify the Corporation against any claim that may be made against it with regard to the allegedly lost or destroyed certificate or because of the issuance of the new certificate.
SECTION 4. Record Date. The Board of Directors may fix in advance a date as the record date for determination of the shareholders entitled to notice of or to vote at any meeting of shareholders, or to express consent to, or dissent from, any proposal without a meeting, or to receive payment of any dividend or allotment of any rights, or to take or be the subject of any other action. A record date, will be not less than ten nor more than fifty days before the date of the meeting to which it relates, nor more than fifty days before any other action. A determination of shareholders entitled to notice of or to vote at any meeting of shareholders which has been made as provided in this Section will apply to any adjournment of that meeting, unless the Board of Directors fixes a new record date for the adjourned meeting.
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SECTION 5. Ownership. The Corporation will be entitled to treat a person registered on its books as the owner of shares as the owner of those share for all purposes, including the right to receive dividends, to vote, or to exercise any other rights or privileges of an owner with regard to those shares.
SECTION 6. Rules and Regulations. The Board of Directors may make such rules and regulations as it deems appropriate concerning the issue, transfer and registration of certificates representing shares of stock of the Corporation.
ARTICLE VII
CORPORATE SEAL
The Board of Directors will provide a suitable seal containing the name of the Corporation. The seal will be in the charge of the Secretary. A duplicate seal may be kept and used.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation will end at the close of business on the thirty-first day of December in each year.
ARTICLE IX
INDEMNIFICATION
SECTION 1. Indemnification — Third Party and Derivative Actions.
(a) The Corporation shall indemnify any person made, or threatened to be made, a party to an action or proceeding (including, without limitation, one by or in the right of the Corporation to procure a judgment in its favor), whether civil or criminal,
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including an action 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 Corporation served in any capacity at the request of the Corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the Corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise at the request of the Corporation in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, provided that no indemnification may be made to or on behalf of such person if (i) his or her acts were committed in bad faith or were the result of his or her active and deliberate dishonesty and were material to such action or proceedings or (ii) he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled.
(b) The termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not in itself create a presumption that any such person did not act, in good faith, for a purpose which he or she reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Corporation or that he or she had reasonable cause to believe that his or her conduct was unlawful.
SECTION 2. Other Indemnification. The Corporation may, to the fullest extent permitted by law, indemnify or advance the expenses of any other person including agents and
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employees to whom the Corporation is permitted by law to provide indemnification or advancement of expenses.
SECTION 3. Payment of Expenses in Advance. To the fullest extent permitted by the New York Business Corporation Law, the Corporation will advance to any person who may be entitled to indemnification under Sections 1 or 2 sums with which to pay expenses incurred by that person in defending against the claims, actions or proceedings for which such person may become entitled to indemnification, upon receipt of an undertaking by or on behalf of such person to repay the sums which are advanced if it is ultimately determined that such person is not entitled to indemnification under Sections 1 or 2 to the extent the sums which are advanced exceed the indemnification to which such person is entitled.
SECTION 4. Enforcement; Defenses. The right to indemnification or advancement of expenses granted by this Article shall be enforceable by the person in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within 60 days. Such person’s expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advancement of expenses under Section 3 of this Article where the required undertaking has been received by the Corporation) that the claimant has conducted himself or herself in a manner which would preclude the Corporation from indemnifying him or her pursuant to Sections 1 or 2 of this Article, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, and its shareholders) to have made a determination that indemnification of the claimant is proper in the circumstances, nor the fact that there has been an
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actual determination by the Corporation (including its Board of Directors, its independent legal counsel, and its shareholders) that indemnification of the claimant is not proper in the circumstances shall be a defense to the action or create a presumption that the claimant is not entitled to indemnification.
SECTION 5. Survival; Savings Clause; Preservation of Other Rights.
(a) The foregoing indemnification provisions shall be deemed to be a contract between the Corporation and each person who serves in such capacity at any time while these provisions are in effect, and any repeal or modification of the New York Business Corporation Law shall not affect any right or obligation then existing with respect to any state of facts then or previously existing or any action or proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts, except as provided by law. Such a contract right may not be modified retroactively without the consent of such person, except as provided by law.
(b) If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each person against judgments, fines, amounts paid in settlement and expenses (including attorneys’ fees) incurred in connection with any actual or threatened action or proceeding, whether civil or criminal, including any actual or threatened action by or in the right of the Corporation, or any appeal therein, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated and to the full extent permitted by applicable law.
(c) The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any other
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by-law, agreement, vote of shareholders or directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person. The Corporation is hereby authorized to provide further indemnification if it deems advisable by resolution of shareholders or directors, by amendment of these by-laws or by agreement.
SECTION 6. New York Business Corporation Law. All references to the New York Business Corporation Law in this Article IX shall mean such Law as it may from time to time be amended.
SECTION 7. Insurance. The Corporation may purchase and maintain insurance to indemnify officers, directors and others against costs or liabilities incurred by them in connection with the performance of their duties and any activities undertaken by them for, or at the request of, the Corporation, to the fullest extent permitted by the New York Business Corporation Law.
ARTICLE X
SECURITY
The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.
ARTICLE XI
AMENDMENTS
Any By-Law, including this Article XI, may be amended or repealed, in whole or in part, and new by-laws may be adopted, only (i) by the affirmative vote of the holders of a majority of
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the votes cast for such action, or (ii) by the affirmative vote of a majority of the entire Board of Directors.
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