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): November 20, 2007
J.W. MAYS, INC.
(Exact name of registrant as specified in its charter)
New York 1-3647 11-1059070
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification No.)
of incorporation)
9 Bond Street, Brooklyn, New York 11201-5805
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (718) 624-7400
N/A
(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 5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On November 20, 2007, the Board of Directors of J.W. Mays, Inc. (the
"Company") approved amendments to Article V of the Company's By-Laws to permit
the use of uncertificated shares of stock so that the Company may be in
compliance with new NASDAQ rules requiring listed securities, such as the
Company's shares of Common Stock, par value $1 per share, to be eligible for a
Direct Registration Program. In addition, Article V, Section 5.4 was amended
to mirror amendments made to the New York Business Corporation Law relating to
record dates for the determination of shareholders entitled to notice of
meetings, to express consent without a meeting, to receive payment of any
dividend or other action. The amendments are effective November 20, 2007.
The foregoing description of the amendments to the By-Laws is qualified
in its entirety by reference to the By-Laws, a copy of which is attached to
this Current Report on Form 8-K as Exhibit 3.1 and is incorporated by
reference into this Item 5.03. A copy of the By-Laws marked to show the
changes to Article V is attached as Exhibit 3.2 to this Current Report on Form
8-K and is incorporated by reference into this Item 5.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
3.1 By-Laws of J.W. Mays, Inc.
3.2 By-Laws of J.W. Mays, Inc. marked to show the changes to Article V.
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.
J.W. Mays, Inc.
(Registrant)
November 20, 2007 By: /s/ Mark Greenblatt
Mark Greenblatt
Principal Financial Officer
EXHIBIT INDEX
Exhibit No. Description
3.1 By-Laws of J.W. Mays, Inc.
3.2 By-Laws of J.W. Mays, Inc. marked to show the changes to
Article V.
Exhibit 3.1
J.W. MAYS, INC.
--------------
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION:
1.1. Annual Meetings. The annual meeting of the shareholders of J.W.
Mays, Inc. (hereinafter called the Corporation), for the election of directors
and for the transaction of such other business as may be brought before the
meeting, shall be held on the second to last or the last Tuesday of November
of each year, or as soon thereafter as practicable, and shall be held at the
date, place and time determined by the board of directors (the "Board").
1.2. Special Meetings. Special meetings of the shareholders may be
called by resolution of the Board or by the President and shall be called by
the President upon the written request (stating the purpose or purposes of the
meeting) of a majority of the Board or of the holders of 20% of the
outstanding shares entitled to vote. Only business related to the purposes set
forth in the notice of the meeting may be transacted at a special meeting. The
time and place at which any special meeting of the shareholders shall be held
shall be fixed by the Board or the President, as the case may be, who shall
have called such meeting; provided, however, that the time so fixed shall be
such as will permit the giving of notice as hereinafter provided in Section
1.4. Special meetings may also be called and held in such cases and in such
manner as may be specifically provided by law.
1.3. Place of Meetings. Meetings of the shareholders may be held in or
outside New York State.
1.4. Notice of Meetings; Waiver of Notice. Written notice of each
meeting of shareholders shall be given to each shareholder entitled to vote at
the meeting, except that (a) it shall not be necessary to give notice to any
shareholder who waives, in person or by proxy, such notice in writing
including waiver by telegraph, cable or wireless whether before or after the
meeting, and (b) no notice of an adjourned meeting need be given if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken except as may otherwise be required by law.
Each notice of meeting shall be given, personally or by mail, not less than 10
nor more than 50 days before the meeting and shall state the place, date and
hour of the meeting, and unless it is the annual meeting, shall state at whose
direction the meeting is called and the purposes for which it is called. If
mailed, notice shall be considered given when deposited in the United States
mail, with postage thereon prepaid, directed to the shareholder at his address
as it appears on the record of shareholders or to such other address as he may
direct by notice in writing to Corporation. The attendance of any shareholder
at a meeting, in person or by proxy, without protesting prior to the
conclusion of the meeting the lack of notice of the meeting, shall constitute
a waiver of notice by him.
1.5. Quorum. The presence in person or by proxy of the holders of
majority of the shares entitled to vote shall constitute a quorum for the
transactions of any business. In the absence of a quorum a majority in voting
interest of those present or, in the absence of all the shareholders, any
officer entitled to preside at or to act as secretary of the meeting, may
adjourn the meeting until a quorum is present. At any adjournment meeting at
which a quorum is present any action may be taken which might have been taken
at the meeting as originally called.
1.6. Voting; Proxies. Every shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him by proxy. Each shareholder of record
shall be entitled at every meeting of shareholders to one vote for every share
registered in his name on the record of shareholders. Corporate action to be
taken by shareholder vote, other than the election of directors, shall be
authorized by a majority of the votes cast at a meeting of shareholders,
except as otherwise provided by law. Directors shall be elected in the manner
provided in Section 2.3 of these by-laws. Voting need not be by ballot unless
requested by a shareholder at the meeting or ordered by the person presiding
at the meeting. Every proxy must be signed by the shareholder or his attorney-
in-fact. No proxy shall be valid after eleven months from its date unless it
provides otherwise.
1.7. Inspectors of Election. The person presiding at a meeting of
shareholders may appoint one or more inspectors who may be shareholders or
their proxies, but not directors of the Corporation or candidates for such
office. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his
ability. The inspector or inspectors shall have such duties and powers
prescribed by law. On request of the person presiding at the meeting or any
shareholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, question or matter determined by them and execute a
certificate of any fact found by them. Any report or certificate made by them,
shall be prima facie evidence of the facts stated and of the vote as certified
by them.
ARTICLE II
BOARD OF DIRECTORS
SECTION:
2.1. General Powers and Qualification. The business of the Corporation
shall be managed by the board of directors each of whom shall be at least 21
years of age. At least one of them shall be a citizen of the United States and
a resident of the State of New York. Directors need not be shareholders of the
Corporation.
2.2. Manner of Determining Number of Directors to be Chosen. The number
of directors to be chosen within the maximum limits fixed by the certificate
of incorporation, shall be determined in the following manner: At each meeting
of shareholders for the election of directors and before the taking of a vote
thereon, the number of directors to be elected at such meeting shall be fixed
and determined by a majority vote of the stock represented at the meeting in
person or by proxy, provided, however, that at any time or times between
annual elections of directors, the existing directors may, by a majority vote
of the entire Board, increase the number of directors up to the maximum limits
fixed by the certificate of incorporation and in connection with any such
increase, the directors may, by like vote, designate the additional director
or directors who shall continue in office until the next annual meeting and
until his successor shall be elected and qualified. By a majority vote of the
entire Board, the Board may decrease the number of directors to not less than
three but no decrease shall shorten the term of any incumbent director.
2.3. Elections. Directors shall be elected by a plurality of the votes
cast at a meeting of shareholders by the holders of shares entitled to vote in
the election and shall hold office until the next annual meeting of
shareholders and until their successors have been elected and qualified.
2.4. Resignations. Any director of the Corporation may resign at any
time by giving written notice to the President or the Secretary. Such
resignation shall take effect at the time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
2.5. Vacancies. Any vacancy in the Board, whether caused by death,
resignation or removal with or without a cause or otherwise may be filled by
the vote of a majority of the directors then in office, though less than a
quorum. Vacancies occurring in the Board by reason of removal of a director
without cause by shareholders may also be filled by vote of shareholders at a
special meeting called for that purpose.
2.6. Place of Meetings. Meetings of the Board may be held in or outside
New York State.
2.7. Annual and Regular Meetings. Annual meetings of the Board, for the
election of officers and consideration of other matters, shall be held either
(a) without notice immediately after the annual meeting of shareholders and at
the same place, or (b) as soon as practicable after the annual meeting of
shareholders, on notice as provided in Section 2.8 of these by-laws. Regular
meetings of the Board may be held without notice if the time and place of such
meetings are fixed by the Board. If the day fixed for a regular meeting is a
legal holiday, the meeting shall be held on the next business day.
2.8. Special Meetings. Special meetings of the Board shall be held upon
notice to the directors and may be called by the Chairman of the Board, either
of the Co-Chairmen, if so elected by the Board, the President or by any two of
the directors.
2.9. Notice of Meetings; Waiver of Notice. Notice of the time and place
of each special meeting of the Board, and of each annual meeting not held
immediately after the annual meeting of shareholders and at the same place,
shall be given to each director by mailing it to him at his residence or usual
place of business at least three days before the meeting or by delivering or
telephoning or telegraphing it to him at least two days before the meeting. A
notice, or waiver of notice, need not specify the purpose of any regular or
special meeting of the Board. Notice need not be given to any director who
submits a signed waiver of notice before or after the meeting, or who attends
the meeting without protesting the lack of notice to him, either before the
meeting or when it begins. Any meeting of the Board shall be a legal meeting
without any notice having been given or regardless of the giving of any notice
or the adoption of any resolution in reference thereto, if every member of the
Board shall be present thereat.
2.10. Removal of Directors. Any or all of the directors may be removed
at anytime, either with or without cause, by vote of the shareholders, and any
of the directors may be removed for cause by action of the Board.
2.11. Quorum and Action by the Board. At all meetings of the Board, the
presence of a majority of the directors then in office, but in no event less
than three, shall be necessary to constitute a quorum, except as provided in
Section 2.5 of these by-laws. Unless otherwise provided by law or these by-
laws, the vote of a majority of the directors present at the time of the vote,
if a quorum is present at such time, shall be the act of the Board. In the
absence of a quorum, a majority of the directors present may adjourn the
meeting sine die, or from time to time until a quorum is present. Notice of
any adjourned meeting need not be given otherwise than by announcement at the
meeting at which the adjournment is taken.
2.12. Executive Committee. The Board, by resolution adopted by a
majority of the entire Board, may designate an Executive Committee of three or
more directors which shall have all the authority of the Board, except as
otherwise provided in the resolution or by law, and which shall serve at the
pleasure of the Board. All action of the Executive Committee shall be reported
to the Board at its next meeting. The Executive Committee shall adopt rules of
procedure and shall meet as provided by those rules or by resolutions of the
Board.
2.13. Other Committees. The Board, by resolution adopted by a majority
of the entire Board, may designate other committees of directors, to serve at
the Board's pleasure, with such powers and duties as the Board determines.
2.14. Alternate Members. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent member or
members at any meeting of such committee.
2.15. Compensation. Directors shall receive such compensation as the
Board determines, together with reimbursement of their reasonable expenses in
connection with the performance of their duties. A director may also be paid
for serving the Corporation, its affiliates or subsidiaries in other
capacities.
2.16. Action Without Meeting. Any action required or permitted to be
taken by the Board or any committee thereof may be taken without a meeting if
all members of the Board or the committee consent in writing to the adoption
of a resolution authorizing the action. The resolution and the written
consents thereto by the members of the Board or committee shall be filed with
the minutes of the proceedings of the Board or committee.
2.17. Participation in Board or Committee Meetings by Conference
Telephone. Any one or more members of the Board or any committee thereof may
participate in a meeting of such Board or committee by means of a conference
telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
ARTICLE III
OFFICERS
SECTION:
3.1. Number; Powers and Duties. The executive officers of the
Corporation shall be the Chairman of the Board [if so elected by the Board] or
either or both of the Co-Chairmen [if so elected by the Board], the President,
one or more Vice Presidents (including, at the election of the Board, a Senior
Vice President and one or more Executive Vice Presidents), a Secretary, a
Treasurer, and such other officers as it may determine. Any two or more
offices may be held by the same person, except the offices of President and
Secretary. The executive officers shall have such authority and perform such
duties in the management of the Corporation as may be provided in these by-
laws, or to the extent not so provided, by the Board. In the case of more than
one person holding an office of the same title, any one of them may perform
the duties of the office except insofar as the Board of Directors may
otherwise direct.
3.2. Election; Term of Office. The executive officers of the Corporation
shall be elected annually by the Board and each such officer shall hold
office, subject to the provisions of law and of these by-laws, until the next
annual meeting of the Board and until his successor has been elected and
qualified.
3.3. Subordinate Officers. The Board may appoint subordinate officers
(including a Controller, one or more Assistant Secretaries and Assistant
Treasurers), agents or employees, each of whom shall hold office for such
period and have such powers and duties as the Board determines. The Board may
delegate to any executive officer or to any committee the power to appoint,
define the powers and duties and fix the compensation of, any subordinate
officers, agents or employees.
3.4. Resignation and Removal of Officers. Any officer may resign at any
time by giving written notice to the President or the Secretary. Any such
resignation shall take effect at the time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Any officer elected or appointed by the Board
or appointed by an executive officer or by a committee may be removed by the
Board either with or without cause.
3.5. Vacancies. A vacancy in any office may be filled for the unexpired
term in the manner prescribed in Sections 3.2 and 3.3 of these by-laws for
election or appointment to the office.
3.6. Chairman or Co-Chairmen of the Board. There may be one Chairman of
the Board or, if so elected by the Board, there may be two individuals serving
as Co-Chairmen. The Board of Directors may from time to time determine the
respective responsibilities of the Co-Chairmen. Any conflict between the Co-
Chairmen shall be resolved by a vote of a majority of the entire Board. The
Chairman of the Board, or one of the Co-Chairmen, as determined by the Board,
shall be the Chief Executive Officer of the Corporation. The Chairman of the
Board, or either of such Co-Chairmen, if so elected by the Board, shall
preside at all meetings of the Board and of the shareholders, and shall have
such other powers and duties in the management of the Corporation as such
Chairman or Co-Chairmen of the Board or as a Chief Executive Officer usually
has or as the Board assigns to him or them, as the case may be. In the event
that the Board elects Co-Chairmen, either or both may be designated officers
of the Corporation.
3.7. The President. The President shall be the Chief Operating Officer
of the Corporation and shall, in the absence of the Chairman of the Board, or
the Co-Chairmen, if so elected by the Board, or in case of his [or their]
inability to act, or at the request of the Chairman of the Board, or one of
the Co-Chairmen, if so elected by the Board, preside at meetings of the Board
and of the shareholders, and shall be a member of all standing committees
appointed by the Board. Subject to the powers of the Chairman of the Board, or
the Co-Chairmen, if so elected by the Board, and the provisions of Section 3.6
and subject further to the control of the Board, he shall have general
supervision over the business of the Corporation and shall have such other
powers and duties as Presidents of corporations usually have or as the Board
or the Executive Committee, if any, assigns him.
3.8. The Vice Presidents. In the absence or inability to act of the
President, the Senior Vice President (if there be one, and, if not, then the
Vice President, including any Executive Vice President, designated by the
Board), shall perform all the duties of the President, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
President under these by-laws. The Vice Presidents shall perform such other
duties and have such authority as from time to time may be assigned to them by
the Board or the President.
3.9. The Treasurer and Assistant Treasurer. The Treasurer shall be the
chief financial officer of the Corporation and shall be in charge of the
Corporation's books and accounts. Subject to the control of the Board, he
shall have such other powers and duties as the Board or the President assigns
to him.
In the absence or inability to act of the Treasurer, the Assistant
Treasurer designated by the Board shall perform all the duties of the
Treasurer and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Treasurer under these by-laws.
3.10. The Secretary and Assistant Secretary. The Secretary shall be the
secretary of, and keep the minutes of, all meetings of the Board and of the
shareholders, shall be responsible for giving notice of all meetings of
shareholders and of the Board, shall keep the seal and, when authorized by the
Board, shall apply it to any instrument requiring it. Subject to the control
of the Board, he shall have such other powers and duties as the Board or the
President assigns to him.
In the absence or inability to act of the Secretary, the Assistant
Secretary designated by the Board shall perform all of the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary imposed by these by-laws. In the
absence of the Secretary or an Assistant Secretary from any meeting, the
minutes shall be kept by the person appointed for that purpose by the
presiding officer.
3.11. Security; Surety Bond. The Board may require any officer, agent or
employee to give security for the faithful performance of his duties. Such
security may be in the form of a bond in such sum and with such surety or
sureties as the Board may approve.
3.12. Salaries. The salaries of the officers shall be fixed from time to
time by the Board, provided, however, that the Board may authorize the
President to fix the salary of any other officer. No officer shall be
prevented from receiving compensation by reason of the fact that he is also a
director of the Corporation.
ARTICLE IV
VOTING UPON STOCK IN OTHER CORPORATIONS
SECTION:
4.1. Manner of Voting. Unless otherwise ordered by the Board, any shares
of stock held by the Corporation in any other corporation may be voted on
behalf of the Corporation by the Chairman of the Board, or either of the Co-
Chairmen, if so elected by the Board, or the President of the Corporation.
ARTICLE V
SHARES OF STOCK
SECTION:
5.1. Certificates for Stock. The stock of the Corporation may be
represented by certificates in such form as shall be approved by the Board or
may be uncertificated as provided by New York law and shall be entered in the
books of the Corporation and registered as they are issued. Any certificates
representing shares of stock shall be signed by the Chairman of the Board, or
one of the Co-Chairmen, if so elected by the Board, or the President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer and sealed with the seal of the Corporation; provided,
however, that such seal may be a facsimile engraved or printed. The signatures
of the officers upon a certificate may be facsimiles engraved or printed if
the certificate is countersigned by a Transfer Agent or registered by a
Registrar other than the Corporation itself or its employee. In case any
officer who has signed or whose facsimile signature has been placed upon the
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the date of issue.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the Corporation shall send to the registered owner thereof a written
notice that shall set forth the name of the Corporation, that the Corporation
is organized under the laws of the State of New York, the name of the
shareholder, the number and class (and the designation of the series, if any)
of the shares represented, and any restrictions on the transfer or
registration of such shares of stock imposed by the Corporation's Certificate
of Incorporation, these By-Laws, any agreement among shareholders or any
agreement between shareholders and the Corporation.
5.2. Transfers of Stock. Upon surrender to the Corporation or the
Transfer Agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate
to evidence the issuance of uncertified shares to the shareholder entitled
thereto, cancel the old certificate and record the transaction upon the
Corporation's books. Upon the surrender of any certificate for transfer of
stock, such certificate shall at once be conspicuously marked on its face
"Cancelled" and filed with the permanent stock records of the Corporation.
Upon receipt of proper transfer instructions from the registered owner of
the uncertificated shares, such uncertificated shares shall be cancelled,
issuance of new equivalent uncertificated shares or certificated shares shall
be made to the shareholder entitled thereto and the transaction shall be
recorded upon the books of the Corporation. If the Corporation has a Transfer
Agent or registrar acting on its behalf, the signature of any officer or
representative thereof may be in facsimile.
No transfers of shares shall be valid as against the Corporation, its
shareholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
it shall have been entered on the books of the Corporation by an entry showing
from and to whom transferred.
5.3. Lost, Destroyed or Stolen Certificates. The Corporation may issue a
new certificate representing shares of stock of the Corporation in the place
of any certificate theretofore issued by it or uncertificated shares in place
of any certificate or certificates previously issued by the Corporation
alleged to have been lost, destroyed or stolen. The Board may, in its
discretion, as a condition to the issue of any such new certificate or
uncertificated shares in lieu thereof, require the owner of the lost,
destroyed or stolen certificate, or his legal representative, to make proof
satisfactory to the Board of the loss, destruction or theft thereof and to
give the Corporation a bond in such sum, and with such surety or sureties as
the Board may direct sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, destruction or
theft of any such certificate or the issuance of any such new certificate or
uncertificated shares in lieu thereof.
5.4. Fixing Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purposes of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. When a determination of
shareholders of record entitled to notice of or to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof, unless the Board fixes a new record
date under this section for the adjourned meeting.
ARTICLE VI
MISCELLANEOUS
SECTION:
6.1. Reserves. In its absolute discretion, the Board may, from its
earned surplus or capital surplus, create reserves in such amount or amounts
for any proper purpose or purposes which the Board may think conducive to the
best interests of the Corporation and may increase, decrease or abolish any
such reserve.
6.2. Seal. The corporate seal shall be in the form of a circle and shall
bear the full name of the Corporation, the year of its organization, and the
words "Corporate Seal N.Y." or words and figures of similar import. In lieu of
the corporate seal, when so authorized by the Board, facsimiles thereof may be
impressed or affixed or reproduced.
6.3. Fiscal Year. The Board may determine the Corporation's fiscal year.
Until changed by the Board, the Corporation's fiscal year shall commence on
August 1 and terminate at the close of business on July 31.
6.4. Definitions.
(a) Certificate of Incorporation shall mean the certificate of
incorporation of the Corporation, as amended, supplemented or restated by
certificate of amendment, merger or consolidation or other certificates or
instruments filed or issued under any statute, from time to time.
(b) The words "entire board" mean the total number of directors which
the Corporation would have if there were no vacancies.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION:
7.1. Except to the extent expressly prohibited by the New York Business
Corporation Law, the Corporation shall indemnify each person made, or
threatened to be made, a party to any action or proceeding, whether criminal
or civil, by reason of the fact that such person or such person's testator or
intestate is or was a director or officer of the Corporation, or is or was
serving, in any capacity, at the request of the Corporation, any other
corporation, or any partnership, joint venture, trust, employee benefit plan
or other enterprise, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees and expenses,
reasonably incurred in enforcing such person's right to indemnification,
incurred in connection with such action or proceeding, or any appeal therein,
provided that no such indemnification shall be made if a judgment or other
final adjudication adverse to such person establishes that such person's acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that
such person personally gained in fact a financial profit or other advantage to
which such person was not legally entitled, and provided further that no such
indemnification shall be required with respect to any settlement or other
nonadjudicated disposition of any threatened or pending action or proceeding
unless the Corporation has given its prior consent to such settlement or other
disposition.
7.2. The Corporation shall advance or promptly reimburse upon request
any person entitled to indemnification hereunder for all reasonable expenses,
including attorneys' fees and expenses, reasonably incurred in defending any
action or proceeding in advance of the final disposition thereof upon receipt
of an undertaking by or on behalf of such person to repay such amount if such
person is ultimately found not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced or
reimbursed exceed the amount to which such person is entitled; provided,
however, that such person shall cooperate in good faith with any request by
the Corporation that common counsel be used by the parties to an action or
proceeding who are similarly situated unless to do so would be inappropriate
due to actual or potential differing interests between or among such parties.
7.3. Nothing herein shall limit or affect any right of any director,
officer or other corporate personnel otherwise than hereunder to
indemnification of expenses, including attorneys' fees, under any statute,
rule, regulation, certificate of incorporation, by-law, insurance policy,
contract or otherwise; without affecting or limiting the rights of any
director, officer or other corporate personnel pursuant to this Article VII,
the Corporation is authorized to enter into agreements with any of its
directors, officers or other corporate personnel extending rights to
indemnification and advancement of expenses to the fullest extent permitted by
applicable law.
7.4. Anything in these by-laws to the contrary notwithstanding, no
elimination or amendment of this Article VII adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the 60th day following notice to such person of such action,
and no elimination of or amendment to this Article VII shall deprive any such
person's rights hereunder arising out of alleged or actual occurrences, acts
or failures to act prior to such 60th day.
7.5. The Corporation shall not, except by elimination or amendment of
this Article VII in a manner consistent with the preceding Section 7.4, take
any corporate action or enter into any agreement which prohibits, or otherwise
limits the rights of any person to, indemnification in accordance with the
provisions of this Article VII. The indemnification of any person provided by
this Article VII shall continue after such person has ceased to be a director
or officer of the Corporation and shall inure to the benefit of such person's
heirs, executors, administrators and legal representatives.
7.6. In case any provision in this Article VII shall be determined at
any time to be unenforceable in any respect, the other provisions of this
Article VII shall not in any way be affected or impaired thereby, and the
affected provision shall be given the fullest possible enforcement in the
circumstances, it being the intention of the Corporation to afford
indemnification and advancement of expenses to its directors or officers,
acting in such capacities or in the other capacities mentioned herein, to the
fullest extent permitted by law.
ARTICLE VIII
AMENDMENTS
SECTION:
8.1. Amendments. By-laws may be amended, repealed or adopted by the
shareholders or by a majority of the entire Board, but any by-law adopted by
the Board may be amended or repealed by the shareholders. If any by-law
regulating an impending election of directors is adopted, amended or repealed
by the Board, the notice of the next meeting of shareholders for the election
of directors shall set forth the by-law so adopted, amended or repealed,
together with a concise statement of the changes made.