Exhibit 3(b)
AMENDED AND RESTATED
BY-LAWS of HASBRO, INC.
(as amended from time to time and restated by the Board of Directors as of
February 17, 1995)
ARTICLE I
OFFICES
Section 1.1. The office of Hasbro, Inc. (the "Corporation") within
the State of Rhode Island shall be located in the City of Pawtucket, County
of Providence.
Section 1.2. Other Offices. The Corporation may also have offices
and places of business at such other places within or without the State of
Rhode Island as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1. Place. All meetings of shareholders of the
Corporation shall be held at such place within or without the State of Rhode
Island as shall be stated in the notice of the meeting.
Section 2.2. Annual Meeting. Commencing with the year 1995, a
meeting of the shareholders of the Corporation shall be held annually on the
second Wednesday in the month of May of each year, if not a legal holiday,
and if a legal holiday, then on the next secular day following, or on such
other date and at such time and place as the Board of Directors shall
determine, and at such meeting, the shareholders shall transact such business
as may properly be brought before the meeting.
Section 2.3. Special Meetings. Special meetings of the
shareholders of the Corporation, for any purpose or purposes, unless
otherwise prescribed by statute or by the Restated Articles of Incorporation
(the "Articles of Incorporation"), may be called by the Chairman of the Board,
any Vice Chairman, any Chief Operating Officer, the President, or the Board
of Directors.
Section 2.4. Notice of Meetings. Written notice of each meeting
of shareholders of the Corporation stating the place, date and hour thereof,
and in the case of a special meeting of shareholders, specifying the purpose
or purposes thereof, and the person or persons by whom or at whose direction
such meeting has been called, shall be given to each shareholder entitled to
vote thereat, at his address as it appears on the records of the Corporation,
not less than ten (10) nor more than sixty (60) days prior to the meeting.
Section 2.5. Quorum. At each meeting of the share holders of the
Corporation, the holders of a majority of shares of the Corporation entitled
to vote thereat, present in person or by proxy, shall constitute a quorum,
except as may be otherwise provided by the Articles of Incorporation or these
By-Laws. If, however, a quorum shall not be present on the date specified in
the original notice of meeting, the shareholders entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. At any such adjourned meeting, at which a quorum
shall be present, the shareholders, present in person or by proxy, may
transact any business which might have been transacted had a quorum been
present on the date specified in the original notice of meeting.
Section 2.6. Voting. At any meeting of the share holders of the
Corporation, each shareholder having the right to vote shall be entitled to
vote in person or by proxy appointed by an instrument in writing subscribed
by such shareholder. Except as may be otherwise provided by the Articles of
Incorporation, each holder of record of Common Stock shall be entitled to one
vote for every share of such stock standing in his name on the books of the
Corporation. All elections of directors by shareholders shall be determined
by a plurality vote and, except as otherwise provided by statute, the Articles
of Incorporation or Article XII of these By-Laws, all other matters shall be
decided by the vote of the holders of a majority of the stock having voting
power and represented in person or by proxy at such meeting.
Section 2.7. Proxies. Each proxy shall be executed in writing by
the shareholder or by his duly authorized attorney. No proxy shall be valid
after the expiration of eleven (11) months from the date of its execution
unless it shall have specified therein a longer duration. Each proxy shall be
revocable at the pleasure of the person executing it or of his personal
representatives, except in those cases where an irrevocable proxy is
permissible under applicable law.
Section 2.8. Consents. Action shall be taken by the shareholders
only by unanimous written consent or at annual or special meetings of
shareholders of the Corporation except that, if and with the percentage of
the outstanding Preference Stock or any series thereof (the "Required
Percentage") set forth in the resolution or resolutions adopted by the Board
of Directors with respect to the Preference Stock, action may be taken
without a meeting, without prior notice and without a vote, if consent in
writing setting forth the action so taken, shall be signed by the holders of
the Required Percentage of the outstanding Preference Stock or any series
thereof entitled to vote thereon.
Section 2.9. Shareholder Proposals. Any new business proposed by
any shareholder to be taken up at the annual meeting of shareholders shall be
stated in writing and filed with the Secretary of the Corporation at least
150 days before the date of the annual meeting, and all business so stated,
proposed and filed shall, if appropriate under applicable law, be considered
at the annual meeting, but no other proposal shall be acted upon at the annual
meeting. These provisions shall not prevent the consideration and approval or
disapproval at the annual meetings of reports of officers, directors and
committees, but in connection with such reports no new business shall be acted
upon at such annual meeting unless stated and filed as herein provided. The
business to be taken up at a special meeting of shareholders shall be confined
to that set forth in the notice of special meeting.
ARTICLE III
DIRECTORS
Section 3.1. Board of Directors. The property and business of the
Corporation shall be managed by its Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not, by statute or by the Articles of Incorporation or by these By-Laws,
directed or required to be exercised or done by the shareholders. Directors
need not be shareholders.
Section 3.2. Number. The number of directors of the Corporation
(exclusive of directors that may be elected by the holders of any one or more
series of the Preference Stock voting separately as a class or classes) that
shall constitute the entire Board of Directors (the "Entire Board of
Directors") shall be 17, unless otherwise determined from time to time by
resolution adopted by the affirmative vote of a majority of the Entire Board
of Directors, except that if an Interested Person (as hereinafter defined in
Article XIII of these By-Laws) exists, such majority must include the
affirmative vote of at least a majority of the Continuing Directors (as
hereinafter defined in Article XIII of these By-Laws).
Section 3.3. Election. Directors shall be elected at the annual
meeting of shareholders, or as otherwise provided in the Articles of
Incorporation or in these By-Laws.
Section 3.4. Term of Office, Classes. Except with respect to any
directors elected by holders of any one or more series of Preference Stock
voting separately as a class or classes, the Board of Directors shall be
divided into three (3) classes in respect of term of office, designated Class
I, Class II and Class III. Each class shall contain one-third (1/3) of the
Entire Board of Directors, or such other number that will cause all three (3)
classes to be as nearly equal in number as possible, with the terms of office
of one class expiring each year. At the annual meeting of shareholders in
1985, directors of Class I shall be elected to serve until the annual meeting
of shareholders to be held in 1986; the directors of Class II shall be elected
to serve until the annual meeting of shareholders to be held in 1987; and the
directors of Class III shall be elected to serve until the annual meeting of
shareholders to be held in 1988; provided that in each case, directors shall
continue to serve until their successors shall be elected and shall qualify or
until their earlier death, resignation or removal. At each subsequent annual
meeting of shareholders, one (1) class of directors shall be elected to serve
until the annual meeting of shareholders held three (3) years next following
and until their successors shall be elected and shall qualify or until their
earlier death, resignation or removal. No decrease in the number of directors
shall have the effect of shortening the term of office of any incumbent
director. Any increase or decrease in the number of directors shall be
apportioned among the classes so as to make all classes as nearly equal in
number as possible.
Section 3.5. Removal. Except as otherwise required by law and
subject to the terms of any one or more classes or series of outstanding
capital stock of the Corporation, any director may be removed; provided,
however, such removal must be for cause and must be approved by at least a
majority vote of the Entire Board of Directors or by at least a majority of
the votes held by the holders of shares of the Corporation then entitled to
be voted at an election for that director, except that if an Interested
Person exists, such removal must be approved (1) by at least a majority vote
of the Entire Board of Directors, including a majority of the Continuing
Directors, or (2) by at least 80% of the votes held by the holders of shares
of the Corporation then entitled to be voted at an election for that director,
including a majority of the votes held by holders of shares of the Corporation
then entitled to vote at an election for that director that are not
beneficially owned or controlled, directly or indirectly, by any Interested
Person. For purposes of this Section 3.5, the Entire Board of Directors will
not include the director who is the subject of the removal determination, nor
will such director be entitled to vote thereon. However, nothing in the
preceding sentence shall be construed as preventing a director who is the
subject of removal determination (but who has not yet actually been removed in
accordance with this Section 3.5) from voting on any other matters brought
before the Board of Directors, including, without limitation, any removal
determination with respect to any other director or directors.
Section 3.6. Vacancies. Except as otherwise provided by the terms
of any one or more classes or series of outstanding capital stock of the
Corporation, any vacancy occurring on the Board of Directors, including any
vacancy created by reason of any increase in the number of directors, shall be
filled by the affirmative vote of at least a majority of the remaining
directors, whether or not such remaining directors constitute a quorum,
except that if an Interested Person exists, such majority of the remaining
directors must include a majority of the Continuing Directors. A director
elected to fill a vacancy shall serve for the unexpired term of his or her
predecessor in office.
ARTICLE IV
MEETINGS OF THE BOARD
Section 4.1. Time and Place. Meetings of the Board of Directors
may be held either within or without the State of Rhode Island. Regular
meetings of the Board of Directors may be held without notice at such time
and place as shall from time to time be determined by the Board. Each
special meeting of the Board of Directors shall be held at such time and
place as shall be stated in the notice of the meeting.
Section 4.2. First Meeting. The first meeting of each newly
elected Board of Directors shall be held within ten (10) days following each
annual meeting of the shareholders, at such time and place either within or
without the State of Rhode Island, as shall be announced at the annual meeting
of share holders, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present.
Section 4.3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, any Vice Chairman, any
Chief Operating Officer, the President, or the Secretary, and at the written
request of any two (2) directors, shall be called by the Secretary. Written
notice of each special meeting of directors, stating the time and place
thereof, shall be served upon each director, personally, by mail or by tele-
graph, at least two (2) days before such meeting.
Section 4.4. Quorum and Voting. At all meetings of the Board of
Directors a majority of the entire Board of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Articles of Incorporation or by these
By-Laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without further notice other than announcement at the meeting, until a
quorum shall be present.
Section 4.5. Telephone Conference Meetings. Meetings of the
directors may be held by means of a telephone or similar communications
equipment, by means of which all persons participating in the meeting can hear
each other at the same time and participation by such means shall constitute
presence in person at a meeting.
Section 4.6. Consents. Any action allowed or required to be taken
at a meeting of the Board of Directors or by any committee thereof, may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed before or after such action by all of the directors, or all
of the members of the committee, as the case may be.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Designation; Powers. The Board of Directors may, by
resolution or resolutions adopted by a majority of the Entire Board of
Directors, designate from among its members an Executive Committee, or other
Committees, each consisting of three (3) or more directors, and each of which,
to the extent provided in any such resolution, shall have all the authority of
the Board, except as provided by law, the Articles of Incorporation or these
By-Laws. The Board of Directors may designate one or more directors as
alternate members of any such Committee who may replace any absent member or
members at any meeting of such Committee.
Section 5.2. Tenure and Reports. Each such Committee shall serve
at the pleasure of the Board of Directors. It shall keep minutes of its
meetings and report the same to the Board.
ARTICLE VI
NOTICES
Section 6.1. Delivery of Notices. Notices to directors and
shareholders shall be in writing and may be delivered personally or by mail.
Notice by mail shall be deemed to be given at the time when the same shall be
deposited in the post office or a letter box, in a postpaid, sealed wrapper,
and shall be addressed to directors or shareholders at their addresses
appearing on the books of the Corporation. Notice to directors may also be
given by telecopy.
Section 6.2. Waiver of Notice. Whenever any notice is required to
be given by any statute, the Articles of Incorporation or these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed equi-
valent thereto. Any shareholder attending a meeting of shareholders in person
or by proxy, or any director attending a meeting of the Board of Directors or
any committee thereof, without protesting such lack of notice prior to the
meeting or at its commencement, shall be deemed conclusively to have waived
notice of such meeting. Any shareholder signing a unanimous or other written
consent pursuant to Section 2.8 hereof or any director signing a unanimous
written consent pursuant to Section 4.6 hereof shall be deemed conclusively to
have waived notice of the action taken by such consent.
ARTICLE VII
OFFICERS
Section 7.1. Officers. The officers of the Corporation shall be a
Chairman of the Board, one or more Vice Chairmen, a Chief Operating Officer--
Domestic Toy Operations, a Chief Operating Officer--Games and International
(each of said Chief Operating Officers being sometimes referred to in these
By-Laws as a "Chief Operating Officer" and both of said officers being
sometimes referred to as "Chief Operating Officers"), a President, one or
more Vice Presidents, a Treasurer, a Controller and a Secretary, each of whom
shall be elected annually by the directors at their annual meeting, and shall
hold office at the pleasure of the Board of Directors. Any person may hold
two or more such offices.
Section 7.2. Additional Officers. The Board of Directors may
appoint such other officers and agents, including, without limitation,
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Controllers with such powers and duties as it shall deem necessary
or appropriate. All such officers or agents shall hold office at the
pleasure of the Board of Directors.
Section 7.3. Authorities and Duties. All officers, as between
themselves and the Corporation, 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, as may be prescribed by the Board
of Directors.
Section 7.4. Salaries. The salaries or other com- pensation of all
officers of the Corporation shall be fixed by the Board of Directors. The
salaries or other compensation of all other employees and agents of the
Corporation may be fixed by the Board of Directors. However, the Board of
Directors may delegate to one or more officers or employees authority to
employ and to fix the salaries or other compensation of any such employees or
agents.
Section 7.5. The Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall have such
powers and perform such duties as may from time to time be assigned to him by
the Board of Directors.
Section 7.6. The Vice Chairman. In the absence of the Chairman of
the Board, the Vice Chairman (and if there is more than one Vice Chairman, the
Vice Chairmen in order of their seniority or as otherwise determined by the
Board) shall preside at all meetings of the Board of Directors and shall have
such powers and perform such duties as may from time to time be assigned to
him by the Board of Directors.
Section 7.7. The Chief Operating Officers. In the absence of the
Chairman of the Board and any Vice Chairman, any Chief Operating Officer (and
if there is more than one Chief Operating Officer, in order of their seniority
or as otherwise determined by the Board) shall preside at all meetings of the
Board of Directors and shall have such powers and perform such duties as may
from time to time be assigned to him by the Board of Directors.
Section 7.8. The President. In the absence of the Chairman of the
Board, any Vice Chairman and the Chief Operating Officers, the President
shall preside at all meetings of the Board of Directors and shall have such
powers and perform such duties as may from time to time be assigned to him by
the Board of Directors.
Section 7.9. The Vice Presidents. The Vice Presidents in the order
of their seniority, as indicated by their titles (Executive, Senior, etc.) or
as otherwise determined by the Board of Directors, shall, in the absence of
the Chairman of the Board, any Vice Chairman, the Chief Operating Officers and
the President, perform the duties and exercise the powers of the Chairman of
the Board, the Vice Chairmen, the Chief Operating Officers and the President,
shall perform such other duties as the Board of Directors shall prescribe and
shall generally assist the Chairman of the Board, the Vice Chairmen, the
Chief Operating Officers and the President.
Section 7.10. The Secretary. The Secretary shall attend meetings
of the Board of Directors and shareholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the standing committees of the Board of Directors
when required. He shall give, or cause to be given, notice of meetings of
the shareholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chairman of the Board, the Vice Chairmen, the Chief Operating Officers and
the President, under whose collective supervision he shall be. He shall keep
in safe custody the seal of the Corporation and, when authorized by the Board
of Directors, affix the same to any instrument requiring it and, when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer or an Assistant Secretary or Treasurer. He shall keep in safe
custody the certificate books and stock books and such other books and papers
as the Board of Directors may direct and shall perform all other duties
incident to the office of Secretary.
Section 7.11. Assistant Secretaries. The Assistant Secretaries
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as
the Board of Directors shall prescribe.
Section 7.12. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds, and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the Chairman of the Board, the Vice Chairmen, the Chief
Operating Officers, the President and the Board of Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the Corpora-
tion a bond for such term, in such sum and with such surety or sureties as
shall be satisfactory to the Board for the faithful performance of the duties
of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 7.13. Assistant Treasurers. The Assistant Treasurer
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as
the Board of Directors may prescribe.
Section 7.14. Execution of Instruments. Each of the Chairman of
the Board, the Vice Chairmen, the Chief Operating Officers, the President and
the Executive Vice Presidents shall have the power to sign on behalf of the
Corporation bonds, notes, deeds, mortgages, guarantees and any and all
contracts, agreements and instruments of a contractual nature pertaining to
matters which arise in the normal conduct and ordinary course of the business
of the Corporation, except in cases in which the signing and execution
thereof shall have been expressly delegated by the Board of Directors of the
Corporation to some other officer or agent of the Corporation.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1. Form. The certificates of stock of the Corporation
shall be in such form as shall be determined by the Board of Directors and
shall be numbered consecutively and entered in the books of the Corporation as
they are issued. Each certificate shall exhibit the registered holder's name
and the number and class of shares, and shall be signed by the Chairman of
the Board, any Vice Chairman, any Chief Operating Officer, the President, any
Executive Vice President, Senior Vice President, or Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, and shall bear the seal of the Corporation or an engraved or
printed facsimile thereof. Where any such certificate is signed by a transfer
agent or by a registrar, the signature of the Chairman of the Board, any Vice
Chairman, any Chief Operating Officer, the President, Executive Vice
President, Senior Vice President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary may be a facsimile. In case any
officer, transfer agent or registrar, who has signed, or whose facsimile
signature or signatures have been used on, any such certificate or
certificates, shall cease to be such officer, transfer agent or registrar of
the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer, transfer agent or registrar of the Corporation.
Section 8.2. Registered Shareholders. The Corporation shall be
entitled to (1) recognize the exclusive right of a person registered on its
books as the owner of shares as entitled to receive dividends and notices of
meetings of shareholders and to vote as such owner; and (2) hold liable for
calls and assessments a person registered on its books as the owner of shares;
and the Corporation shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
required by law.
Section 8.3. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed, and
upon such other terms as the Board of Directors may prescribe; and the Board
of Directors may, in its discretion and as a condition precedent to the
issuance of a new certificate or certificates, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative,
to give the Corporation a bond in such sum and with such surety or sureties as
it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 8.4. Record Date.
(a) 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 purpose 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 (60) nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action.
(b) If no record date is fixed:
(1) The record date for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if no notice is given, the day on which the meeting is held.
(2) The record date for determining shareholders for any
purpose other than that specified in subparagraph (1) shall be at the close of
business on the day on which the resolution of the Board relating thereto is
adopted.
(c) 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.
Section 8.5. Fractional Shares. The Corporation may (1) issue
fractions of a share, (2) arrange for the disposition of fractional interests
by those entitled thereto, (3) pay in cash the fair value of fractions of a
share as of the time when those entitled to receive such fractions are
determined, or (4) issue scrip in registered or bearer form which shall
entitle the holder to receive a certificate for a full share upon the
surrender of such scrip aggregating a full share. A certificate for a
fractional share shall, but scrip shall not, unless otherwise provided
therein, entitle the holder to exercise voting rights, to receive dividends
thereon, and to participate in any of the assets of the Corporation in the
event of liquidation. The Board of Directors may cause scrip to be issued
subject to the condition that it shall become void if not exchanged for
certificates representing full shares before a specified date, or subject to
the condition that the shares for which scrip is exchangeable may be sold by
the Corporation and the proceeds thereof distributed to the holders of scrip,
or subject to any other conditions which the Board of Directors may deem
advisable.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Dividends. Subject always to the provisions of the
law and the Articles of Incorporation, the Board of Directors shall have full
power to determine whether any, and if any, what part of any, funds legally
available for the payment of dividends shall be declared in dividends and
paid to share holders; the division of the whole or any part of such funds of
the Corporation shall rest wholly within the lawful discretion of the Board
of Directors, and it shall not be required at any time, against such
discretion, to divide or pay any part of such funds among or to the
shareholders as dividends or otherwise; and the Board of Directors may fix a
sum which may be set aside or reserved over and above the capital paid in of
the Corporation as working capital for the Corporation or as a reserve for any
proper purpose, and from time to time may increase, diminish, and vary the
same in its absolute judgment and discretion.
Section 9.2. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
Section 9.3. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the
words "Incorporated, Rhode Island". Said seal may be used by causing it or a
facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.4. Instruments for the Payment of Money. All checks or
other instruments for the payment of money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
ARTICLE X
INDEMNIFICATION
Section 10.1. Without limiting the provisions of Section 10.2 ,
each person who at any time serves or shall have served as a director or
officer of the Corporation or who, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a member
of any committee of the Board of Directors or as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan
shall be indemnified to the full extent permitted by Title 7-1.1-4.1 of the
Rhode Island Business Corporation Act, as the same may be amended from time to
time.
Section 10.2. Nothing contained in this ARTICLE X shall affect any
rights to indemnification to which directors and officers may be entitled by
agreement, vote of shareholders or disinterested directors or otherwise.
ARTICLE XI
AMENDMENTS
Section 11.1. Power to Amend. The Board of Directors is
authorized to adopt, repeal, alter, amend or rescind these By- Laws by the
affirmative vote of at least a majority of the Entire Board of Directors,
except that if an Interested Person exists, such Board action must be taken
by the affirmative vote of at least a majority of the Entire Board of Direc-
tors, including a majority of the Continuing Directors. The shareholders may
adopt, repeal, alter, amend or rescind the By-Laws of the Corporation by the
vote of at least 66-2/3% of the votes held by holders of shares of Voting
Stock (as hereinafter defined) except that if an Interested Person exists,
such shareholder action must be taken by the vote of at least 80% of the votes
held by holders of shares of Voting Stock, including an Independent Majority
of Shareholders (as hereinafter defined in Article XIII of these By-Laws).
ARTICLE XII
BUSINESS COMBINATIONS
Section 12.1. Subject to Section 12.2 of this Article XII, but
notwithstanding any other provisions of these By-Laws or of the Articles of
Incorporation or the fact that no vote for such a transaction may be required
by law or that approval by some lesser percentage of shareholders may be
permitted by law, neither the Corporation nor any Subsidiary shall be party to
a Business Combination (as hereinafter defined in Article XIII of these
By-Laws) unless all of the following conditions are met:
(1) After becoming an Interested Person and prior to the
consummation of such Business Combination:
(a) such Interested Person shall not have acquired any newly
issued shares of capital stock, directly or indirectly, from the
Corporation or a Subsidiary (except upon exercise or conversion of
warrants or other rights, including preemptive rights, or converti-
ble securities acquired by an Interested Person prior to becoming
an Interested Person or upon compliance with the provisions of this
Article XII or as a result of a pro rata stock dividend or stock
split);
(b) such Interested Person shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or tax credits provided by the Corporation or a
Subsidiary, or have made any major changes in the Corporation's
business or equity capital structure;
(c) except as approved by a majority of the Continuing
Directors, there shall have been (i) no reduction in the annual rate
of dividends paid on Voting Stock (except as necessary to reflect a
pro rata stock dividend or stock split) and (ii) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapi-
talization, reorganization or any similar transaction which has the
effect of reducing the number of outstanding shares of Voting Stock;
and
(d) such Interested Person shall have taken steps to insure
that the Board of Directors of the Corporation included at all times
representation by Continuing Directors proportionate to the ratio
that the number of shares of Voting Stock (as hereinafter defined in
Article XIII of these By-Laws) from time to time owned by share-
holders who are not Interested Persons bears to all shares of Voting
Stock outstanding at the time in question (with a Continuing
Director to occupy any resulting fractional position among the
directors); and
(2) The Business Combination shall have been approved by at least
a majority of the Entire Board of Directors of the Corporation, including a
majority of the Continuing Directors; and
(3) A shareholder's meeting shall have been called for the purpose
of approving the Business Combination and a proxy statement complying with
the requirements of the Exchange Act, as amended, or any successor statute or
rule, whether or not the Corporation is then subject to such requirements,
shall be mailed to all shareholders of the Corporation not less than thirty
(30) days prior to the date of such meeting for the purpose of soliciting
shareholder approval of such Business Combination and shall contain at the
front thereof, in a prominent place, (a) any recommendations as to the
advisability (or inadvisability) of the Business Combination which the Con-
tinuing Directors may choose to state, and (b) the opinion of a reputable
national investment banking firm as to the fairness (or lack thereof) of the
terms of such Business Combination, from the point of view of the remaining
shareholders of the Corporation (such investment banking firm to be engaged by
a majority of the Continuing Directors solely on behalf of the remaining
shareholders and paid a reasonable fee for their services, which fee shall not
be contingent upon the consummation of the transaction); and
(4) The Business Combination shall have been approved by at least
80% of the votes held by the holders of the outstanding Voting Stock,
including an Independent Majority of Shareholders.
Section 12.2. The approval requirements of Section 12.1 shall not
apply to any particular Business Combination, and such Business Combination
shall require only such affirmative shareholder vote as is required by law,
any other provision of the Articles of Incorporation or of these By-Laws, the
terms of any outstanding classes or series of capital stock of the
Corporation or any agreement with any national securities exchange, if the
Business Combination is approved by a majority of the Entire Board of
Directors, including the affirmative vote of at least 66-2/3% of the
Continuing Directors.
Section 12.3. The Board of Directors of the Corporation, when
evaluating any offer of another Person (the "Offering Person") (i) to make a
tender or exchange offer for any equity security of the Corporation or (ii)
to effect any Business Combination (as defined in Article XIII of these
By-Laws, except that for purposes of this Section 12.3 the term "Person"
shall be substituted for the term "Interested Person"), shall, in connection
with the exercise of the Board's judgment in determining what is in the best
interests of the Corporation as a whole, be authorized to give due con-
sideration to such factors as the Board of Directors determines to be
relevant, including, without limitation:
(a) the relationships between the consideration offered by
the Offering Person and (x) the market price of the Voting Stock
over a period of years, (y) the current and future value of the
Corporation as an independent entity and (z) political, economic and
other factors bearing on securities prices and the Corporation's
financial condition and future prospects;
(b) the interests of all of the Corporation's shareholders,
including minority shareholders;
(c) whether the proposed transaction might violate federal,
state, local or foreign laws;
(d) the competence, experience and integrity of the Offering
Person and its management; and
(e) the social, legal and economic effects upon employees,
suppliers, customers, licensors, licensees and other constituents
of the Corporation and its Subsidiaries and on the communities in
which the Corporation and its Subsidiaries operate or are located.
In connection with any such evaluation, the Board of Directors is
authorized to conduct such investigations and to engage in such legal
proceedings as the Board of Directors may determine.
Section 12.4. As to any particular transaction, the Continuing
Directors shall have the power and duty to determine, on the basis of
information known to them:
(a) The amount of Voting Stock beneficially owned by any
Person (as hereinafter defined in Article XIII of these By-Laws);
(b) Whether a Person is an Affiliate (as herein after defined
in Article XIII of these By-Laws) or Associate (as hereinafter
defined in Article XIII of these By-Laws) of another;
(c) Whether a Person has an agreement, arrangement or
understanding with, or is acting in concert with, another;
(d) Whether the assets subject to any Business Combination
constitute a Substantial Part (as hereinafter defined in Article
XIII of these By-Laws);
(e) Whether a proposed transaction is proposed, directly or
indirectly, by or on behalf of any Person;
(f) Whether a proposed amendment of any Article of the
Articles of Incorporation would have the effect of modifying or
permitting circumvention of the provisions of Article Eighth
through Twelfth of the Articles of Incorporation; and
(g) Such other matters with respect to which a determination
is required under Articles Eighth through Twelfth of the Articles of
Incorporation.
Any such determination shall be conclusive and binding for all
purposes of the Articles of Incorporation and of these By-Laws.
Section 12.5. The affirmative votes required by this Article XII
is in addition to the vote of the holders of any class or series of capital
stock of the Corporation otherwise required by law, the Articles of
Incorporation or these By-Laws, any resolution which has been adopted by the
Board of Directors providing for the issuance of a class or series of capital
stock or any agreement between the Corporation and any national securities
exchange.
Section 12.6. Nothing contained in this Article XII shall be con-
strued to relieve any Interested Person from any fiduciary or other
obligation imposed by law.
ARTICLE XIII
DEFINITIONS
For the purposes of these By-Laws:
(1) The term "beneficial owner" and correlative terms shall have
the meaning as set forth in Rule 13d-3 of the General Rules and Regulations
(the "General Rules") promulgated by the Securities and Exchange Commission
(the "Commission") under the Securities Exchange Act of 1934 (the "Exchange
Act"), as in effect on June 5, 1985, except that the words "within sixty days"
in Rule 13d-3(d)(1)(i) shall be omitted.
(2) The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) (i) with an Interested Person, any
Affiliate (as hereinafter defined) or Associate (as hereinafter defined) of an
Interested Person or any Person (as hereinafter defined) acting in concert
with an Interested Person (including, without limitation, any Person, which
after such merger or consolidation, would be an Affiliate or Associate of an
Interested Person), in each case irrespective of which Person is the surviving
entity in such merger or consolidation, or (ii) proposed, directly or
indirectly, by or on behalf of an Interested Person;
(b) any sale, lease, exchange, transfer, distribution to
shareholders or other disposition, including, without limitation, a mortgage,
pledge or other security device, by the Corporation or any Subsidiary (in a
single transaction or a series of separate or related transactions) of all,
substantially all or any Substantial Part (as hereinafter defined) of the
assets or business of the Corporation or a Subsidiary (including, without
limitation, any securities of a Subsidiary) (i) to or with an Interested
Person, or (ii) proposed, directly or indirectly, by or on behalf of an
Interested Person;
(c) the purchase, exchange, lease or other acquisition,
including, without limitation, a mortgage, pledge or other security device, by
the Corporation or any Subsidiary (in a single transaction or a series of
separate or related transactions) of all, substantially all or any Substantial
Part of the assets or business of (i) an Interested Person, or (ii) any
Person, if such purchase, exchange, lease or other acquisition is proposed,
directly or indirectly, by or on behalf of an Interested Person;
(d) the issuance of any securities, or of any rights,
warrants or options to acquire any securities, by the Corporation or a
Subsidiary to an Interested Person (except (i) as a result of a pro rata
stock dividend or stock split, (ii) upon the exercise or conversion of
warrants or other rights, including preemptive rights, or convertible
securities acquired by an Interested Person prior to or simultaneously with
becoming an Interested Person or (iii) upon conversion of publicly traded
convertible securities of the Corporation) or the acquisition by the
Corporation or a Subsidiary of any securities, or of any rights, warrants or
options to acquire any securities, issued by an Interested Person;
(e) any plan or proposal for, or which has the effect of,
the partial or complete liquidation, dissolution, spin off, split off or split
up of the Corporation or any Subsidiary proposed, directly or indirectly, by
or on behalf of an Interested Person;
(f) any of the following which has the effect, directly or
indirectly, of increasing the proportionate amount of Voting Stock or capital
stock of any Subsidiary thereof which is beneficially owned by an Interested
Person: any reclassification of securities (including, without limitation,
any reverse stock split) of the Corporation, any issuance of any Voting Stock
or other securities of the Corporation, any recapitalization of the Corpora-
tion or any merger, consolidation or other transaction (whether or not with
or into or otherwise involving an Interested Person); and
(g) any agreement, contract, understanding or other
arrangement providing for any of the transactions described in this subsection
(2) of this Article XIII.
(3) The term "Continuing Director" shall mean (i) a director
serving continuously as a director of the Corporation from and including June
5, 1985; (ii) a person who was a member of the Board of Directors of the
Corporation immediately prior to the time that any then existing Interested
Person became an Interested Person, (iii) a person not affiliated with any
Interested Person and designated (before or simultaneously with initially be-
coming a director) as a Continuing Director by at least a majority of the then
Continuing Directors and (iv) a director deemed to be a Continuing Director in
accordance with the last sentence of this subsection (3) of this Article XIII.
All references to action by a specified percentage of the Continuing Directors
shall mean a vote of such specified percentage of the total number of Con-
tinuing Directors of the Corporation at a meeting at which at least such
specified percentage of the total number of Continuing Directors shall have
been in attendance. Whenever a condition requires the act of a specified
percentage of Continuing Directors, such condition shall not be capable of
fulfillment unless there is at least one Continuing Director. If all of the
capital stock of the Corporation is beneficially owned by one Person
continuously for at least three consecutive years during which period at least
three annual meetings of shareholders shall have taken place, at which
meetings all of the Continuing Directors as defined in clauses (i)-(iii)
above shall not have been reelected, all directors elected from and after
such third consecutive year shall be deemed Continuing Directors.
(4) The term "Independent Majority of Shareholders" shall mean the
majority of the votes held by holders of shares of the outstanding Voting
Stock that are not beneficially owned or controlled, directly or indirectly,
by any Interested Person.
(5) The term "Interested Person" shall mean (i) any Person, which,
together with its "Affiliates" and "Associates" (as defined in Rule 12b-2 of
the General Rules promulgated by the Commission under the Exchange Act, as in
effect on June 5, 1985) and any Person acting in concert therewith, is the
beneficial owner, directly or indirectly, of ten percent (10%) or more of the
votes held by the holders of shares of Voting Stock, (ii) any Affiliate or
Associate of an Interested Person, including, without limitation, a Person
acting in concert therewith, (iii) any Person that at any time within the two
year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of ten percent (10%) or more of the votes held
by the holders of shares of Voting Stock, or (iv) an assignee of, or successor
to, any shares of Voting Stock which were at any time within the two-year
period prior to the date in question beneficially owned by any Interested
Person, if such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public offering within
the meaning of the Securities Act of 1933, as amended. For purposes of deter-
mining the percentage of votes held by a Person, any Voting Stock not
outstanding which is subject to any option, warrant, convertible security,
preemptive or other right held by such Person (whether or not such option,
warrant, convertible security, preemptive or other right is currently
exercisable) shall be deemed to be outstanding for the purpose of computing
the percentage of votes held by such Person.
Notwithstanding anything contained in the immediately preceding
paragraph, the term "Interested Person" shall not include (A) a Subsidiary of
the Corporation or (B) a Continuing Director who beneficially owned, on June
5, 1985, ten percent (10%) or more of the votes held by the holders of shares
of Voting Stock and any Affiliate or Associate of one or more of such
Continuing Directors. For purposes of Articles III and XI of these By-Laws,
the term "Interested Person" shall not include any Person which shall have
deposited all of its Voting Stock in a voting trust (only and for so long as
the voting trust shall be continuing and all of such Person's Voting Stock
shall remain deposited in the Voting Trust) pursuant to an agreement with the
Corporation providing the Corporation with the power to appoint a majority of
the voting trustees of the voting trust who, in turn, shall have the power to
vote all of the shares of Voting Stock in the voting trust, in their discre-
tion, for the election of directors of the Corporation and the amendment of
the Articles of Incorporation and/or these By-Laws. The agreement by the
Corporation with any Person described in the immediately preceding sentence
to use its best efforts to elect one designee of such Person as a director
and to cause the voting trustees appointed by the Corporation to vote for such
designee shall not cause such Person to be deemed an Interested Person for
purposes of Articles III and XI of these By-Laws.
A Person who is an Interested Person as of (x) the time any
definitive agreement, or amendment thereto, relating to a Business
Combination is entered into, (y) the record date for the determination of
shareholders entitled to notice of and to vote on a Business Combination, or
(z) immediately prior to the consummation of a Business Combination shall be
deemed an Interested Person for purposes of this definition.
(6) The term "Person" shall mean any individual, corporation,
partnership or other person, group or entity (other than the Corporation, any
Subsidiary or a trustee holding stock for the benefit of employees of the
Corporation or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for
the purpose of acquiring, holding or disposing of securities, such partner-
ship, syndicate, association or group will be deemed a "Person".
(7) The term "Subsidiary" shall mean any corporation or other
entity fifty percent (50%) or more of the equity of which is beneficially
owned by the Corporation; provided, however, that for purposes of the
definition of Interested Person set forth in subsection (5) of this Article
XIII and the definition of Person set forth in subsection (6) of this Article
XIII, the term "Subsidiary" shall mean only a corporation of which a majority
of each class of equity security is beneficially owned by the Corporation.
(8) The term "Substantial Part", as used in reference to the
assets or business of any Person means assets or business having a value of
more than ten percent (10%) of the total consolidated assets of the
Corporation and its Subsidiaries as of the end of the Corporation's most
recent fiscal year ending prior to the time the determination is made.
(9) For the purposes of determining the number of "votes held by
holders" of shares, including Voting Stock, of the Corporation, each share
shall have the number of votes granted to it pursuant to Article Fifth of the
Articles of Incorporation of the Corporation.
(10) The term "Voting Stock" shall mean stock or other securities
of the Corporation entitled to vote generally in the election of directors.
-1-