THE VERMEER OWNERS, INC.
BYLAWS
ARTICLE I Purpose of
Business
Section 1.
The primary purpose of the corporation
is to provide apartments for shareholders who shall be entitled,
solely by reason of their ownership of shares, to proprietary
leases for apartments in the building owned by the Corporation,
for purposes set forth in such leases.
ARTICLE II Meetings of
Shareholders
Section 1.
Annual Meeting: The first annual
meeting of shareholders shall be held within 30 business days
after closing under the Offering Plan - A Plan to Convert To
Cooperative Ownership - The Vermeer: Premises Located at 77
Seventh Avenue, New York, New York, and subsequent annual meetings
shall be held in the State of New York at such time and place
before the 31st day of May each year as may be designated by the
Board. The notice of the meeting shall be in writing and signed by
the president or a vice president or the secretary or an assistant
secretary. Such notice shall state the time when and the place
within the state where it is to be held, and the secretary shall
cause a copy thereof to be delivered personally or mailed to each
shareholder of record of the Corporation entitled to vote at such
meeting not less than ten nor more than forty days before the
meeting. If mailed, it shall be directly to each such shareholder
at his or her address as it appears on the share book, unless he
or she shall have filed with the secretary of the Corporation a
written request that notices intended for him or her be mailed to
some other address, in which case it shall be mailed to the
address designated in such request.
Section 2.
Special Meetings: Special meetings of
shareholders, other than those the calling of which is regulated
by statute, may be called at any time by the president or
secretary or by a majority of the Board of Directors. It shall
also be the duty of the secretary to call such meetings whenever
requested in writing to do so by shareholders owning at least
twenty five per cent of the outstanding shares of the Corporation.
The secretary shall cause a notice of such special meeting,
stating the time, place and object thereof and the officer or
other person or persons by whom the meeting is called, to be
delivered personally or mailed as provided in Section I of this
Article to each shareholder of record of the Corporation entitled
to vote at such meeting not less than ten nor more than forty days
before such meeting. No business other than that stated in such
notice shall be transacted at such special meeting unless the
holders of all the outstanding shares of the Corporation be
present thereat in person or by proxy.
Section 3.
Waiver of Notices: The notice provided
for in the two foregoing sections is not indispensable, but any
shareholders' meeting whatever shall be valid for all purposes if
all the outstanding shares of the Corporation are represented
thereat in person or by proxy, or if a quorum is present, as
provided in the next succeeding section, and waiver of notice of
the time, place and objects of such meeting shall be duly executed
in writing either before or after said meeting by such
shareholders as are not so represented and were not given such
notice.
Section 4.
Quorum : At each meeting of
shareholders, except where otherwise provided by law, shareholders
representing, in person or by proxy, a majority of the shares then
issued and outstanding shall constitute a quorum; in case a quorum
shall not be present at any meeting, the holders of a majority of
the shares represented may adjourn the meeting to some future time
and place. No notice of the time and place of the adjourned
meeting need be given other than by announcement at the meeting.
only those shareholders who, if present at the original meeting,
would have been entitled to vote there shall be entitled to vote
at any such adjourned meeting.
Section 5.
Voting: At each meeting of
shareholders each shareholder present in person or by proxy shall
be entitled to one vote for each share registered in his name at
the time of service of notice of such meeting or at such prior
date, not more than forty days before such meeting, as may be
prescribed by the Board of Directors for the closing of the
corporate share transfer books or fixed by the Board of Directors
as the date for determining which shareholders of record are
entitled to notice of and to vote at such meeting. The proxies
shall be in writing duly signed by the shareholder but need not be
acknowledged or witnessed, and the person named as proxy by any
shareholder need not himself be a shareholder of the Corporation.
Voting by shareholders shall be by voice vote unless any
shareholder present at the meeting, in person or by proxy, demands
a vote by written ballot, in which case the voting shall be by
ballot, and each ballot shall state the name of the shareholder
voting and the number of shares owned by him, and in addition, the
name of the proxy if such ballot is cast by a proxy.
Section 6.
Inspectors of Election: Inspectors of
election shall not be required to be appointed at any meeting of
share- holders unless requested by a shareholder present (in
person or by proxy) and entitled to vote at such meeting and upon
the making of such request inspectors shall be appointed or
elected as provided in Section 610 of the Business Corporation
Law.
Section 7.
Order of Business: So far as
consistent with the purpose of the meeting, the order of business
of each meeting of shareholders shall be as follows:
1. Call to order.
2. Presentation of proofs of due calling of the meeting.
3. Roll call and presentation and examination of proxies.
4. Reading of minutes of previous meeting or meetings, unless
waived.
5. Reports of officers and committees.
6. Appointment or election of inspectors of election, if
requested.
7. If the annual meeting or a special meeting called for that
purpose, the election of
directors.
9. Unfinished business.
10. New business.
11. Adjournment.
ARTICLE III Directors
Section 1.
Number: The number of directors of the
corporation shall be no more than nine nor less than three, as may
be from time to time fixed by resolution of the shareholders. In
the absence of any resolution to the contrary, the number of
directors shall be five. If the corporation shall consist of
shareholders in more than one building, a provision may be made by
resolution adopted by the shareholders to have one or more
directors elected by the shareholders in each building so that
each building may be represented on the Board of Directors, and,
if there be an odd number of directors, the odd director may be
elected by each building on a rotating annual basis. The number of
directors may be changed by resolution of the shareholders from
time to time at any annual or special meeting, provided that the
notice of such meeting shall state that a resolution will be
considered to change the number of directors and shall set forth
the number to be proposed in such resolution. Any such resolution
shall specify the manner in which the selection of directors
necessitated by an increase in the number of directors shall be
accomplished, or shall state that a decrease in the number of
directors shall not shorten the term of any incumbent director, as
the case may be. The number of directors so determined shall be
the number of directors of the corporation until changed by
further action of the shareholders in accordance with the
foregoing. Notwithstanding anything to the contrary contained
herein, the Sponsor of the Offering Plan to Convert the Premises
to Cooperative Ownership will cause the Individuals who own
"Unsold Shares," as same is defined in Paragraph 38 of the
Proprietary Lease, to agree that after two years from the date of
closing of title to the Apartment Corporation, such Individuals
will not elect a majority of the Board of Directors even though
the number of shares owned by them would enable them to do so.
Section 2.
Election: The Directors shall be
elected at the annual meeting of shareholders or at a special
meeting called for that purpose as provided by Section 5 of
Article II of these Bylaws. Their term of office shall be until
the date herein fixed for the next annual meeting and thereafter
until their respective successors are elected and qualify. It
shall not be necessary for a director of this Corporation to be a
shareholder.
Section 3.
Quorum: A Majority of the Directors
then authorized by these Bylaws shall constitute a quorum.
Section 4.
Vacancies: Vacancies in the Board of
Directors resulting from death, resignation or otherwise may be
filled without notice to any of the shareholders by vote of a
majority of the remaining directors present at the meeting at
which such election is held, even though no quorum is present,
which may be at any regular meeting of the Board of Directors or
any special meeting thereof called for such purpose. In the event
of the failure to hold any election of directors at the time
designated for the annual election of directors or in the event
that the Board of Directors shall not have filled any such
vacancy, a special meeting of shareholders to elect a new Board of
Directors or to fill such vacancy or vacancies may be called in
the manner generally provided for the calling of special meetings
of shareholders. Vacancies in the Board of Directors resulting
from an increase of the Board of Directors by amendment of the
Bylaws shall be filled in the manner provided in the resolution
adopting such amendment. In case of a reduction of the authorized
number of directors by amendment to these Bylaws or by resolution
adopted by the shareholders, the directors, if any, whose term of
office shall cease, shall be determined in the manner provided in
the resolution adopting such amendment.
Section 5.
Meetings: The Board of Directors shall
meet immediately after the annual meeting of shareholders without
notice and also whenever called together by any officer of the
corporation or upon the written request of any two directors then
holding office, upon notice given to each director, by delivering
personally, mailing or telegraphing the same to him at least two
days prior to such meeting at the last address furnished by him to
the Corporation. Regular meetings may be held without notice at
such times and places as the Board of Directors may determine. Any
meeting of the Board at which all the members shall be present, or
of which notice shall be duly waived by all absentees, either
before or after the holding of such meeting, shall be valid for
all purposes provided a quorum be present. Meetings of directors
may be held either at the principal office of the Corporation or
elsewhere within the State of New York as provided in the notice
calling the meeting, unless the Board of Directors by resolution
adopt some further limitation in regard thereto. At all meetings
of the Board of Directors, each director shall be entitled to one
vote. The vote of a majority of the Board of Directors present at
the time of a vote of a duly constituted meeting shall be the act
of the Board of Directors.
Section 6.
Resignation and Removal: Any director
may resign at any time by written notice delivered in person or
sent by certified registered mail to the president or secretary of
the Corporation. Such resignation shall take effect at the time
specified therein, and unless specifically requested, acceptance
of such resignation shall not be necessary to make it effective.
Any director may be removed from office without cause by the
shareholders of the Corporation at a meeting duly called for that
purposed, provided that no Director may be removed when the votes
cast against his removal would be sufficient to elect him if voted
cumulative at an election of Directors at which the same total
number of votes were cast and the entire Board, or the entire
class of Directors of which he is a member, were then being
elected.
Section 7.
Annual Cash Requirements: The Board of
Directors shall, except as may be otherwise restricted by the
Proprietary Lease of the Corporation, from time to time, determine
the cash requirements as defined in the Corporation's proprietary
leases, and fix the terms and manner of payment of rent under the
Corporation's proprietary leases. The Board of Directors shall
have discretionary power to prescribe the manner of maintaining
and operating the Property of the Corporation and to determine the
cash requirements of the Corporation to be paid as aforesaid by
the shareholder-tenants under their respective proprietary leases.
Every such determination by the Board of Directors shall be final
and conclusive as to all shareholder-tenants and any expenditures
made by the Corporation's officers or its agent under the
direction or with the approval of the Board of Directors of the
Corporation shall, as against the shareholder-tenants, be deemed
necessarily and properly made for such purpose.
Section 8.
House Rules: The Board of Directors
may, from time to time, adopt and mend such house rules as it may
deem necessary in respect to the Property of the Corporation for
the health, safety and convenience of the shareholder-tenants.
Copies thereof and of changes therein shall be furnished to each
Section 9.
Executive Committee and Other
Committees: The Board of Directors may by resolution appoint an
Executive Committee, and such other committees as it may deem
appropriate, each to consist of three or more directors of the
Corporation. Such committees shall have and may exercise such of
the powers of the Board in the management of the business and
affairs of the corporation during the intervals between the
meetings of the Board as may be determined by the authorizing
resolution of the Board of Directors and so far as may be
permitted by law, except that no committee shall have power to
determine the cash requirements defined in the proprietary leases,
or to fix the rent to be paid under the proprietary leases, or to
vary the terms of payment thereof as fixed by the Board.
Section 10.
Distributions: No shareholder-tenant
shall be entitled, either conditionally or unconditionally, except
upon a complete or partial liquidation of the Corporation, to
receive any distribution not out of earnings and profits of the
Corporation.
ARTICLE IV Officers
Section 1.
Election and Removal: The officers of
the Corporation shall be a president, one or more vice presidents,
a secretary and a treasurer. Such officers shall be elected at the
first meeting of the Board of Directors after these Bylaws become
effective, and thereafter at the regular meeting in each year
following the annual meeting of shareholders, and shall serve
until removed or until their successors shall have been elected.
The Board of Directors may at any time or from time to time
appoint one or more assistant secretaries and one or more
assistant treasurers to hold office at the pleasure of the Board
and may accord to such officers such power as the Board deems
proper. Any officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the then
authorized total number of directors. The president shall be a
member of the Board of Directors, and shall be a shareholder or
the spouse of a shareholder, but none of the other officers need
be a member of the Board of Directors but shall be a shareholder
or spouse of a shareholder. one person may hold not more than two
offices at the same time, except that the president and the
secretary may not be the same person. vacancies occurring in the
office of any officer may be filled by the Board of Directors at
any time.
Section 2.
Duties of President and Vice
President: The president shall preside at all meetings of the
stockholders and of the Board of Directors. The president or any
vice president shall sign in the name of the Corporation all
contracts, leases and other instruments which are authorized from
time to time by the Board of Directors. The president, subject to
the control of the Board of Directors, shall have general
management of the affairs of the Corporation and perform all the
duties incidental to the office. in the absence from the State of
New York or inability of the president to act, any vice president
shall have the powers and perform the duties of the president.
Section 3.
Duties of Treasurer: The treasurer
shall have the care and custody of all funds and securities of the
Corporation, and shall deposit such funds in the name of the
Corporation in such bank or trust companies as the directors may
determine, and he shall perform all other duties incidental to his
office. If so required by the Board of Directors, he shall, before
receiving any such funds, furnish to the Corporation a bond with a
surety company as surety, in such form and amount as said Board
from time to time shall determine. The premium upon such bond
shall be paid by the Corporation. Within three months after the
close of each calendar year, the treasurer shall cause to be
furnished to each shareholder-tenant whose proprietary lease is
then in effect, a statement of the Certified Public Accountant of
the Corporation of any deductions available for income tax
purposes on a per share basis and indicating thereon on a per
share basis any such other information as may be necessary or
useful to permit him to compute his income tax returns in respect
thereof. Such statement shall not relate to independent business
operations, but only cooperative ownership. Within three months
after the end of each fiscal year, the treasurer shall cause to be
transmitted to each shareholder-tenant whose proprietary lease is
then in effect, an annual report of operations and balance sheet
of the Corporation which shall be certified by an independent
Certified Public Accountant. A copy of said annual report shall be
submitted to the Department of Law of the State of New York. In
the absence or inability of the treasurer, the assistant
treasurer, if any, shall have all the powers and perform all the
duties of the treasurer.
Section 4.
Duties of Secretary: The secretary
shall kept the minutes of the meetings of the Board of Directors
and of the meetings of shareholders; he shall attend to the giving
and serving of all notices of the Corporation and shall be
empowered to affix the corporation seal to all written instruments
authorized by the Board of Directors or these Bylaws. He shall
also perform all other duties incidental to his office. He shall
cause to be kept a book containing the names, alphabetically
arranged, of all persons who are shareholders of the Corporation,
showing their places of residence, the number of shares held by
them, respectively, the time when they respectively became the
owners thereof, and the amount paid thereon, and the denomination
and the amount of all shares issued or transfer stamps affixed
thereto, and such book shall be open for inspection as provided by
law. In the absence or inability of the secretary, the assistant
secretary, if any, shall have all the powers and perform all the
duties of the secretary.
ARTICLE V Proprietary
Leases
Section 1.
Form of Lease: The Board of Directors
shall adopt a form of proprietary lease to be used by the
Corporation for the leasing of all apartments and other space in
the Property of the Corporation to be leased to
shareholder-tenants under proprietary leases. Such proprietary
leases shall be for such terms, with or without provisions for
renewals, and shall contain such restrictions, limitations and
provisions in respect to the assignment thereof, the subletting of
the premises demised thereby and the sale and/or transfer of the
shares of the Corporation appurtenant thereto, and such other
terms, provisions, conditions and covenants as the Board of
Directors may determine. After a proprietary lease in the form so
adopted by the Board of Directors shall have been executed and
delivered by the Corporation, all proprietary leases (as distinct
from the house rules) subsequently executed and delivered shall be
in the same form, except with respect to the statement as to the
number of shares owned by the lessee, the use of the premises and
the date of the commencement of the term, unless any change or
alteration is approved by lessees in accordance with the voting
set forth in Section 5 of Meetings of Shareholders above.
Section 2.
Assignment: Proprietary leases shall
be assigned or transferred only in compliance with, and shall
never be assigned or transferred in violation of, the terms,
conditions or provisions of such proprietary leases. A duplicate
original of each proprietary lease shall always be kept on file in
the principal office of the Corporation or with the managing agent
of the Property of the Corporation.
Section 3.
Allocation of Shares: The Board of
Directors shall allocate to each apartment or other space in the
Property of the Corporation to be leased to shareholder-tenants
under proprietary leases the number of shares of the Corporation
which must be owned by the proprietary lessee of such apartment or
other space.
Section 4.
Assignment of Lease and Transfer of
Shares: No assignment of any lease or transfer of the shares of
the Corporation shall take effect as against the Corporation for
any purpose until a proper assignment has been delivered to the
Corporation; the assignee has assumed and agreed to perform and
comply with all the covenants and conditions of the assigned lease
or has entered into a new lease for the remainder of the term; all
shares of the Corporation appurtenant to the lease have been
transferred to the assignee; all sums due have been paid to the
Corporation; and all necessary consents have been properly
obtained. The action of the Board of Directors with respect to the
written application for the consent of a proposed assignment of
subletting must be made within thirty (30) days after receipt of
said written application.
Section 4(a). Where the Sponsor named in the Plan of
Cooperative Organization or a person supplied by the Sponsor is a
lessee or holder of Unsold Shares (as that term is defined in the
proprietary lease) of the Corporation, consent to an assignment or
transfer of his lease and the shares appurtenant thereto will not
be required from the Managing Agent and/or the Apartment
Corporation. Section 4(b). No person to whom the interest of a
lessee or shareholder shall pass by law, shall be entitled to
assign any lease, transfer any shares, or to sublet or occupy any
apartment, other than upon compliance with the requirements of the
lease and these Bylaws.
Section 5.
Fees on Assignment: In addition to a
reasonable fee to cover actual expenses and attorney's fees of the
corporation in connection with proposed transfers, the Board of
Directors shall have the authority to impose an administrative fee
of $32.00 per share on each share to be transferred, which fee is
payable in advance of, or simultaneously with the transfer in
cash, certified check or bank funds as a condition of such
transfer. The Board shall have the further authority to provide
that under certain circumstances set forth in the Proprietary
Lease certain categories of individuals may be exempt from the
imposition of this administrative fee. The Board shall have the
further authority to impose this fee on all transfers where an
application for permission to sell is filed with the Managing
Agent of the apartment corporation on and after the 1st day of
September, 2005. The Board shall have the further authority to
establish, modify or remove such administrative or transfer fee by
vote of two-thirds (2/3) of its members.
Section 6.
Lost Proprietary Leases: In the event
that any proprietary lease in full force and effect is lost,
stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new proprietary lease in lieu thereof,
in the same form and with the same terms, provisions, conditions
and limitations. The Board may, in its discretion, before the
issuance of any such new proprietary lease, require the owner
thereof, or the legal representative of the owner, to make an
affidavit or affirmation setting forth such facts as to the loss,
destruction or mutilation as it deems necessary, and to give the
Corporation a bond in such reasonable sum as it directs, to
indemnify the Corporation.
Section 7.
Regrouping of Space: The Board of
Directors, upon the written request of the owner or owners of one
or more proprietary leases covering one or more apartments in the
Property and of the shares issued to accompany same, may in its
discretion, at any time, permit such owner or owners, at his or
their own expense: (a)(1) to subdivide any apartment into any
desired number of apartments, (2) to combine all or any portions
of any such apartments into one or any desired number of
apartments, and (3) to reallocate the shares issued to accompany
the proprietary lease or leases (but the total number of shares so
reallocated shall not be less, or more, than the number of shares
previously allocated to the apartment or apartments involved, and,
in connection with any such regrouping, the Board of Directors may
require that the number of shares allocated to the resulting
apartment or apartments be greater than the number of shares
allocated to the original apartment or apartments, and may
authorize the issuance of shares from its treasury for such
purpose); or (b) to incorporate one or more servant's rooms, or
other space in the building not covered by a proprietary lease,
into one or more apartments covered by a proprietary lease,
whether in connection with any regrouping of space pursuant to
subparagraph (a) of this Section 7 or otherwise, and in allocating
shares to any such resulting apartment or apartments, shall
determine the number of shares from its treasury to be issued and
allocated in connection with the appropriation of such additional
space. In respect of unsold apartments or apartments for which the
proprietary lease and shares issued to accompany the same are
owned by the Sponsor named in the Plan of Cooperative Organization
or a person supplied by the Sponsor as a holder of Unsold Shares
(as that term is defined in the Proprietary Lease), who while
entitled to occupy any such apartments for his personal use does
not do so, such Sponsor, or person holding the Unsold Shares may
change the number of such apartments by increasing or decreasing
their size or change the size, layout or location of any such
apartment or subdivide same provided the Sponsor or such person
does not permanently encroach on any public area and complies with
any applicable provisions of local law. Such Sponsor, or person
holding Unsold Shares shall not have the right, however, to
reallot the shares allocated to any of the apartments offered for
sale under said Plan, unless such reallocation is designed to
reflect a change in the value of the equity in the property
attributable to the apartment or apartments to which the block of
shares is being reallocated. Accordingly, any such reallocation of
shares may not result in an increase or decrease in the relative
voting rights and assessment obligations of owners of other
apartments. Upon any regrouping of space in the building, the
proprietary leases so affected, and the accompanying share
certificates shall be surrendered, and there shall be executed and
delivered in place thereof, respectively, a new proprietary lease
for each separate apartment involved, and a new certificate for
the number of shares so reallocated to each new proprietary lease.
ARTICLE VI Capital Shares
Section 1.
No shares hereafter issued or acquired
by the Corporation shall be issued or reissued except in
connection with the execution by the purchaser and delivery by the
Corporation of a proprietary lease of an apartment in the Property
owned by the Corporation. The ownership of shares shall entitle
the holder thereof to occupy the apartment for the purposes
specified in the proprietary lease to which the shares are
appurtenant, subject to the provision, covenants and agreements
contained in such proprietary lease.
Section 2.
Form and Share Register: Certificates
of the shares of the Corporation shall be in the form adopted by
the Board of Directors, and shall be signed by 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, and shall be numbered in the order in which
issued. Such signatures and seal may be facsimiles when and to the
extent permitted by applicable statutory provisions. Certificates
shall be issued in consecutive order and there shall be recorded
the name of the person holding the shares, the number of shares
and the date of issue. Each certificate exchanged or returned to
the Corporation shall be cancelled, and the date of cancellation
shall be indicated thereon and such certificate shall be retained
in the corporate records.
Section 3.
Issuance of Certificates: Shares
appurtenant to each proprietary lease shall be issued in the
amount allocated by the Board of Directors to the apartment or
other space described in such proprietary lease and shall be
represented by a single certificate.
Section 4.
Transfers: Transfers of shares shall
be made upon the books of the Corporation only by the holder in
person or by power of attorney, duly executed and filed with the
secretary of the Corporation and on the surrender of the
certificate for such shares, except that shares sold by the
Corporation to satisfy any lien which it holds thereon may be
transferred without the surrender of the certificate representing
such shares. No transfer of shares shall be valid as against the
Corporation, its shareholders and creditors for any purpose except
to render the transfer liable for the debts of the Corporation to
the extent provided for in the Business Corporation Law of the
State of New York or any other applicable provision of the law,
until it shall have been entered in the shares ledger, or as
required by any then existing applicable provision of law, by an
entry stating from whom and to whom transferred. Subject to the
provision of the form of proprietary lease adopted by the Board of
Directors, the Board of Directors shall have authority before an
assignment of shares takes effect as against the corporation, to
fix a reasonable fee to cover actual expenses and attorneys' fees
of the Corporation in connection with each such proposed
assignment, and may direct that such attorneys' fees be paid
directly to the attorneys.
Section 5.
Units of Issuance: Except as otherwise
provided in Article V, Section 7, unless and until all proprietary
leases which shall have been executed by the Corporation shall
have been terminated, the shares appurtenant to each proprietary
lease shall not be sold or assigned except as an entirety to the
Corporation or an assignee of such proprietary lease, after
complying with and satisfying the requirements of such proprietary
lease in respect to the assignment thereof.
Section 6.
Corporation's Lien: The Corporation
shall at all times have a first lien upon the shares owned by each
shareholder for all indebtedness and obligations owing and to be
owing by such shareholder to the Corporation, arising under the
provisions of any proprietary lease issued by the Corporation and
at any time held by such shareholder or otherwise arising. Unless
and until such shareholder as lessee shall default in the payment
of any of the rental or in the performance of any of the covenants
or conditions of such proprietary lease, and/or unless and until
such shareholder shall default in the payment of any indebtedness
or obligation owing by such shareholder to the Corporation
otherwise arising, such shares shall continue to stand in the name
of the shareholder upon the books of the Corporation, and the
shareholder shall be entitled to exercise the right to vote
thereon as though said lien did not exist. The Corporation shall
have the right to issue to any purchaser of such shares upon the
enforcement by the Corporation of such lien, or to the nominee of
such purchaser, a certificate of the share so purchased
substantially of the tenor of the certificate issued to such
defaulting shareholder, and thereupon the certificate for such
shares theretofore issued to such defaulting shareholder shall
become void and such defaulting shareholder agrees to surrender
such last mentioned certificate to the Corporation upon the
latter's demand, but the failure of such defaulting shareholder so
to surrender such certificate shall not affect the validity of the
certificate issued in replacement thereof. The Corporation may
refuse to consent to the transfer of shares of any shareholder
indebted to the Corporation unless and until such indebtedness is
paid.
Section 7.
Lost Certificates: In the event that
any share certificate is lost, stolen, destroyed or mutilated, the
Board of Directors may authorize the issuance of a new certificate
of the same tenor and for the same number of shares in lieu
thereof. The Board may, in its discretion, before the issuance of
such new certificate, require the owner of the lost, stolen,
destroyed or mutilated certificate, or the legal representative of
the owner, to make an affidavit or affirmation setting forth such
facts as to the loss, destruction or mutilation as it deems
necessary, and to give the corporation a bond in such reasonable
sum as it directs, to indemnify the Corporation.
Section 8.
Legend of Share Certificates:
Certificates representing shares of the Corporation shall bear a
legend reading as following: "The rights of any holder hereof are
subject to the provisions of the Bylaws of The Vermeer Owners,
Inc., and to all the terms, covenants, conditions and provisions
of a certain proprietary lease made between the person in whose
name this certificate is issued, as Lessee, and The Vermeer
Owners, Inc., as Lessor, for an apartment in the premises known as The
Vermeer, 77 Seventh Avenue, New York,
New York, which lease limits and restricts the title and rights of
any transferee hereof. The shares represented by this certificate
are transferable only as an entirety and only to an approved
assignee of such proprietary lease. Copies of the proprietary
lease and the Bylaws are on file and available for inspection at
the office of the Managing Agent of this Corporation. "The
directors of this Corporation may refuse to consent to the
transfer of the shares represented by this certificate until any
indebtedness of the shareholder to the Corporation is paid. The
Corporation, by the terms of said Bylaws and proprietary lease,
has a first lien on the shares represented by this certificate for
all sums due and to become due under said proprietary lease."
ARTICLE VII Indemnification
of directors and officers.
Section 1.
Indemnification. Except to the extent
expressly prohibited by the New York Corporation Law, this
corporation shall indemnify each person made or threatened to be
made a party to any action or proceeding, whether civil or
criminal, whether by or in the right of this corporation or
otherwise, by reason of the fact that such person or such person's
testator or intestate is or was a director or officer of this
corporation, or serves or served at the request of this
corporation any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity ,
against judgments, fines, penalties, amounts paid in settlement
and reasonable expenses, including attorneys' fees, incurred in
connection with such action or proceeding, or any appeal therein,
provided that no such indemnification shall be made if a judgment
or other final adjudication adverse to such person establishes
that his or her acts were committed in bad faith or were the
result of active or deliberate dishonesty and were material to the
cause of action so adjudicated, or that he or she personally
gained in fact a financial profit or other advantage to which he
or she 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 this corporation has given its prior
consent to such settlement or other disposition. This corporation
shall advance or promptly reimburse upon request any person
entitled to indemnification hereunder for all expenses ,
attorneys' fees 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 this corporation
that common counsel be utilized 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. The Board of Directors is
authorized to provide indemnification and advancement of expenses
to such other persons as the Board shall determine from time to
time in its sole discretion consistent with applicable law.
Nothing herein shall limit or affect any right otherwise than
hereunder to indemnification or expenses, including attorneys
fees, under any statute, rule, regulation, certificate of
incorporation, by-law, insurance policy, contract or otherwise.
Anything in these by-laws to the contrary notwithstanding, no
elimination of this by-law, and no amendment of this by-law
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 by-law shall deprive any
person of his or her rights hereunder arising out of alleged or
actual occurrences, acts or failures to act prior to such 60th
day. This corporation shall not, except by elimination or
amendment of this by-law in a manner consistent with the preceding
paragraph, 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 by-law.
If this corporation fails within 30 days after a written claim has
been received by this corporation to make any payment in
accordance with the indemnification and advancement of expenses
provisions of this by-law, the person entitled to indemnification
hereunder may at any time thereafter bring suit against this
corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the person entitled to
indemnification hereunder shall be entitled to be paid also the
expenses of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to this corporation) that the person
entitled to indemnification hereunder has not met the standards of
conduct which make it permissible under this by-law to indemnify
the person entitled to indemnification hereunder for the amount
claimed, but the burden of proving such defense shall be on this
corporation. Neither the failure of this corporation (including
its Board of Directors, legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the person entitled to indemnification
hereunder is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in this by-law, or an
actual determination by this corporation (including its Board of
Directors, legal counsel, or its stockholders), that the person
entitled to indemnification hereunder has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the person entitled to indemnification hereunder
has not met the applicable standard of conduct. The
indemnification of any person provided by this by-law shall
continue after such person has ceased to be a director or officer
of this corporation and shall inure to the benefit of such
person's heirs, executors, administrators and legal
representatives. This corporation is authorized to enter into
agreement with any of its directors, officers or employees
extending rights to indemnification and advancement of expenses to
such person to the fullest extent permitted by applicable law, but
the failure to enter into any such agreement shall not affect or
limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all directors and officers of
this corporation, by serving as such after the adoption hereof,
are acting in reliance hereon and that this corporation is
estopped to contend otherwise. in case any provision in this
by-law shall be determined at any time to be unenforceable in any
respect, the other provisions 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 this corporation to afford indemnification and
advancement, acting in such capacities or in other capacities
mentioned herein, to the fullest extent permitted by law. A person
who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the
character described in the first paragraph of this Article VII
shall be entitled to indemnification as authorized in such
paragraph. Except as provided in the preceding sentence and unless
ordered by a court, any indemnification under this by-law shall be
made by this corporation if, and only if, authorized in the
specific case: (1) By the Board of Directors acting by a quorum
consisting of directors who are not parties to such action or
proceeding upon the finding that the director or officer has met
the standard of conduct set forth in the first paragraph of this
Article VII, or (2) If such a quorum is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs: (a) By
the Board of Directors upon the opinion in writing of independent
legal counsel that indemnification is proper in the circumstances
because the standard of conduct set forth in the first paragraph
of this by-law has been met by such director or officer, or (b) By
the shareholders upon a finding that the director or officer has
met the applicable standard of conduct set forth in such
paragraph. If any action with respect to indemnification of
directors and officers is taken by way of amendment of these
by-laws, resolution o directors, or by agreement, this corporation
shall, not later than the next annual meeting of shareholders,
unless such meeting is held within three months from the date of
such action and, in any event, within fifteen months from the date
of such action, mail to its shareholders of record at the time
entitled to vote for the election of directors a statement
specifying the action taken.
ARTICLE VIII Seal
Section 1.
The seal of the Corporation shall be
circular in form and have inscribed thereon the name of the
Corporation, the year of its organization, and the words
"Corporate Seal" and "New York."
ARTICLE IX Negotiable
Instruments
Section 1.
All checks, drafts, orders for payment
of money and negotiable instruments shall be signed by such
officer or officers or employee or employees as the Board of
Directors may from time to time, by standing resolution or special
order, prescribe.
Section 2.
Endorsements or transfers of shares,
bonds, or other securities shall be signed by the president or any
vice president and by the treasurer or an assistant treasurer or
the secretary or an assistant secretary unless the Board of
Directors, by special resolution in one or more instances,
prescribe otherwise.
Section 3.
Safe Deposit Boxes: Such officer or
officers as from time to time shall be designated by the Board of
Directors, shall have access to any safe of the Corporation in the
vault of any safe deposit company.
Section 4.
Securities: Such officer or officers
as from time to time shall be designated by the Board of Directors
shall have power to control and direct the disposition of any
bonds or other securities or property of the Corporation deposited
in the custody of any trust company, bank, or other custodian.
ARTICLE X Fiscal Year
Section 1.
The fiscal year of the Corporation
shall be the calendar year, unless otherwise determined by the
resolution of the Board of Directors.
ARTICLE XI Miscellaneous
Salary
Section 1.
No salary or other compensation for
services shall be paid to any director or officer of the
Corporation for services rendered as such officer unless and until
the same shall have been authorized in writing or by affirmative
vote, taken at a duly held meeting of shareholders, by
shareholders owning at least a majority of the then outstanding
shares of the Corporation. .
Section 2.
References: A reference in these
Bylaws to any one gender, masculine, feminine, or neuter, includes
the other two, and the singular includes the plural, and vice
versa, unless the context otherwise requires. The term spouse
shall mean spouse as the same is defined in the proprietary lease.
ARTICLE XII Amendments
Section 1.
These Bylaws may be amended, enlarged
or diminished either (a) at any shareholders' meeting by vote of
shareholders owning a majority of the amount of the outstanding
shares, represented in person or by proxy, provided that the
proposed amendment or the substance thereof shall have been
inserted in the notice of meeting or that all of the shareholders
be present in person or by proxy, or (b) at any meeting of the
Board of Directors by vote of two-thirds of the number of
Directors fixed in Article III Section I of the Bylaws, provided
that the proposed amendment or the substance thereof shall have
been inserted in the notice of meeting or that all of the
Directors are present in person, except that the Directors may not
repeal a Bylaw amendment adopted by the shareholders as provided
above. Any such amendment shall be in conformity with the
certificate of incorporation of this Corporation.
