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EXHIBIT 5.1
WYMAN-GORDON COMPANY
AMENDED AND RESTATED BYLAWS
Amended and Restated as of October 21, 1998
ARTICLE I OFFICES
1. PRINCIPAL OFFICE
The principal office for the transaction of the business of
the Corporation shall be located in the City of Worcester,
Commonwealth of Massachusetts.
2. OTHER OFFICES
The Corporation may also establish offices at such other
places, both within and without the Commonwealth of
Massachusetts, as the Board of Directors may from time to
time determine or the business of the Corporation may
require.
ARTICLE II MEETING OF STOCKHOLDERS
1. ANNUAL MEETINGS
The annual meeting of stockholders shall be held at the
hour, date and place within or without the United States
which is fixed by the majority of the Board of Directors,
the Chairman of the Board, if one is elected, or the
President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. The
purposes for which such annual meeting is to be held, in
addition to those prescribed by law, by the Articles of
Organization or by these Bylaws, may be specified by the
Board of Directors, the Chairman of the Board, if one is
elected, or the President. If no annual meeting of
stockholders has been held within six months after the end
of the fiscal year of the Corporation, a special meeting in
lieu thereof may be held, and such special meeting shall
have, for purposes of these Bylaws or otherwise, all the
force and effect of an annual meeting. Any and all
references hereafter in these Bylaws to an annual meeting or
annual meetings shall be deemed to refer also to any special
meeting(s) in lieu thereof.
2. SPECIAL MEETINGS
Special meetings of stockholders may be called by the Board
of Directors. Special meetings shall be called by the Clerk
or in case of the death, absence, incapacity or refusal of
the Clerk, by any other officer, upon written application of
one or more stockholders who hold at least (i) 66 2/3% in
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interest of the capital stock entitled to vote at such
meeting or (ii) such lesser percentage, if any, (but not
less than 40%) as shall be determined to be the maximum
percentage which the Corporation is permitted by applicable
law to establish for the call of such a meeting.
Application to a court pursuant to Section 34(b) of
Chapter 156B of the General Laws of the Commonwealth of
Massachusetts requesting the call of a special meeting of
stockholders because none of the officers is able and
willing to call such a meeting may be made only by
stockholders who hold at least (i) 66 2/3% in interest of
the capital stock entitled to vote at such meeting or
(ii) such lesser percentage, if any, (but not less than 40%)
as shall be determined to be the maximum percentage which
the Corporation is permitted by applicable law to establish
for the call of such a meeting. The hour, date and place of
any special meeting and the record date for determining the
stockholders having the right to notice of and to vote at
such meeting shall be determined by the Board of Directors.
At a special meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted
upon, as shall have been stated in the written notice of the
special meeting and otherwise properly brought before the
special meeting.
3. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS
(A) ANNUAL MEETINGS OF STOCKHOLDERS
(1) Nominations of persons for election to the Board
of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be
made at an annual meeting of stockholders (a) pursuant
to the Corporation s notice of meeting, (b) by or at
the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in
this Bylaw, who is entitled to vote at the meeting and
who complied with the notice procedures set forth in
this Bylaw.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder
pursuant to clause (c) of paragraph (A)(1) of this
Bylaw, the stockholder must have given timely notice
thereof in writing to the Clerk of the Corporation and
such other business must be a proper matter for
stockholder action. To be timely, a stockholder s
notice shall be delivered to the Clerk at the principal
executive offices of the Corporation not later than the
close of business on the 90th day nor earlier than the
close of business on the 120th day prior to the first
anniversary of the preceding year s annual meeting;
provided, however, that in the event that the date of
the annual meeting is more than 30 days before or more
than 60 days after such anniversary date, notice by the
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stockholder, to be timely, must be so delivered not
earlier than the close of business on the 120th day
prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to
such annual meeting or the 10th day following the day
on which public announcement of the date of such
meeting is first made. In no event shall the public
announcement of an adjournment of an annual meeting
commence a new time period for the giving of a
stockholder s notice as described above. Such
stockholder s notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for
election or reelection as a director all information
relating to such person that is required to be
disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (including
such person s written consent to being named in the
proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that
the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought
before the meeting, the reasons for conducting such
business at the meeting and any material interest in
such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made;
and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the
Corporation s books, and of such beneficial owner, and
(ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Bylaw to the contrary, in the
event that the number of directors to be elected to the
Board of Directors of the Corporation is increased and
there is no public announcement naming all of the
nominees for director or specifying the size of the
increased Board of Directors made by the Corporation at
least 100 days prior to the first anniversary of the
preceding year s annual meeting, a stockholder s notice
required by this Bylaw shall also be considered timely,
but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to
the Clerk at the principal executive offices of the
Corporation not later than the close of business on the
10th day following the day on which such public
announcement is first made by the Corporation.
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(B) SPECIAL MEETINGS OF STOCKHOLDERS
Only such business shall be conducted at a special
meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation s notice
of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected
pursuant to the Corporation s notice of meeting (a) by
or at the direction of the Board of Directors or (b) by
any stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided for
in this Bylaw, who shall be entitled to vote at the
meeting and who complies with the notice procedures set
forth in this Bylaw. In the event the Corporation
calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person
or persons (as the case may be), for election to such
position(s) as specified in the Corporation s notice of
meeting, if the stockholder s notice required by
paragraph (A)(2) of this Bylaw shall be delivered to
the Clerk at the principal executive offices of the
Corporation not earlier than the close of business on
the 120th day prior to such special meeting and not
later than the close of business on the later of the
90th day prior to such special meeting or the 10th day
following the day on which public announcement is first
made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting
commence a new time period for the giving of a
stockholder s notice as described above.
(C) GENERAL
(1) Only such persons who are nominated in accordance
with the procedures set forth in this Bylaw shall be
eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in
accordance with the procedures set forth in this Bylaw.
If the Board of Directors or a designated committee
thereof determines that any stockholder proposal or
nomination was not made in a timely fashion in
accordance with the provisions of this Bylaw or that
the information provided in a stockholder's notice does
not satisfy the information requirements of this Bylaw
in any material respect, such proposal or nomination
shall not be presented for action at the Annual Meeting
in question. If neither the Board of Directors nor
such committee makes a determination as to the validity
of any stockholder proposal or nomination in the manner
set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder
proposal or nomination was made in accordance with the
terms of this Bylaw. If the presiding officer
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determines that any stockholder proposal or nomination
was not made in a timely fashion in accordance with the
provisions of this Bylaw or that the information
provided in a stockholder's notice does not satisfy the
information requirements of this Bylaw in any material
respect, such proposal or nomination shall not be
presented for action at the Annual Meeting in question.
If the Board of Directors, a designated committee
thereof or the presiding officer determines that a
stockholder proposal or nomination was made in
accordance with the requirements of this Bylaw, the
presiding officer shall so declare at the Annual
Meeting and ballots shall be provided for use at the
meeting with respect to such proposal or nomination.
(2) For purposes of this Bylaw, "ublic announcement"
shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or
comparable national news service or in a document
publicly filed by the Corporation with the Securities
and Exchange Commission (including, without limitation,
a Form 8-K) pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Bylaw, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the
matters set forth in this Bylaw. Nothing in this Bylaw
shall be deemed to affect any rights of (i)
stockholders to request inclusion of proposals in the
Corporation s proxy statement pursuant to Rule 14a-8
under the Exchange Act or (ii) the holders of any
series of Preferred Stock to elect directors under
specified circumstances.
4. NOTICE OF MEETINGS
The Clerk, Assistant Clerk or other person authorized by
these Bylaws shall, not less than seven days prior to any
meeting of stockholders, give written notice to all
stockholders, entitled to vote thereat, stating the place,
date and hour of such meeting, and the purposes of the
meeting. Such notice shall be given to any stockholder (a)
by leaving such notice with the stockholder, or at his
residence or usual place of business, or (b) by mail,
postage prepaid, addressed to the stockholder at his address
as it is shown upon the records of the Corporation.
5. QUORUM
The holders of a majority in interest of all capital stock
of the Corporation issued, outstanding and entitled to vote
at a meeting of stockholders shall constitute a quorum, but
if a quorum is not present, a majority in interest of the
stockholders present or the presiding officer may adjourn
the meeting from time to time and the meeting may be held as
adjourned without further notice other than an announcement
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at the meeting at which the adjournment is taken of the
hour, date and place to which the meeting is adjourned. At
such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted
at the meeting as originally noticed. The stockholders
present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a
quorum.
6. VOTING
Each vote at a stockholders meeting shall be by voice vote
or by ballot as determined by the presiding officer at the
meeting; provided, however, that all elections for Directors
must be by ballot upon demand made before the voting begins
by a stockholder entitled to vote thereon.
7. PROXIES
Every person entitled to vote or execute consents shall have
the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or his
duly authorized agent and filed with the Clerk of the
Corporation. A proxy with respect to stock held in the name
of two or more persons shall be valid if executed by any one
of them unless at or prior to exercise of the proxy the
Corporation receives a specific written notice to the
contrary from any one of them. A proxy purporting to be
executed by or on behalf of a stockholder shall be deemed
valid unless challenged at or prior to its exercise and the
burden of proving invalidity shall rest upon the challenger.
8. RESCHEDULING OF MEETINGS; ADJOURNMENTS
The Board of Directors may postpone and reschedule any
previously scheduled annual or special meeting of
stockholders, and a record date with respect thereto,
regardless of whether any notice or public disclosure with
respect to any such meeting or record date has been sent or
made pursuant to Sections 3 or 4 of this Article II hereof
or otherwise. In no event shall the public announcement of
an adjournment, postponement or rescheduling of any
previously scheduled Annual Meeting of stockholders commence
a new time period for the giving of a stockholder's notice
under Section 3 of this Article II of these Bylaws.
When any meeting is convened, the presiding officer may
adjourn the meeting if (a) no quorum is present for the
transaction of business, (b) the Board of Directors
determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which
the Board of Directors determines has not been made
sufficiently or timely available to stockholders, or (c) the
Board of Directors determines that adjournment is otherwise
in the best interests of the Corporation. When any Annual
Meeting or special meeting of stockholders is adjourned to
another hour, date or place, notice need not be given of the
adjourned meeting other than an announcement at the meeting
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at which the adjournment is taken of the hour, date and
place to which the meeting is adjourned.
9. ACTION WITH MEETING
Any action which may be taken at a meeting of stockholders,
except approval of an agreement for merger or consolidation
of the Corporation with other corporations, may be taken
without a meeting if authorized by a writing signed by all
of the persons who would be entitled to vote upon such
action at a meeting, and filed with the Clerk of the
Corporation.
10. PRESIDING OFFICER
The Chairman, if one is elected, or, in his absence, the
President or, in his absence, such other officer as shall be
designated by the Board of Directors, shall preside at all
annual or special meetings of stockholders and shall have
the power, among other things, to adjourn such meetings at
any time and from time to time in accordance with the
provisions of Sections 5 and 8 of this Article II. The
order of business and all other matters of procedure at any
meeting of the stockholders shall be determined by the
presiding officer.
11. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS
In advance of any meeting of stockholders, the Board of
Directors may appoint one or more inspectors to act at an
annual or special meeting of stockholders and make a written
report thereon. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each
inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the
best of his or her ability. The inspector(s) shall
(i) ascertain the number of shares outstanding and the
voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain
for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and
ballots. The inspector(s) may appoint or retain other
persons or entities to assist the inspector(s) in the
performance of the duties of the inspector(s). The
presiding officer may review all determinations made by the
inspector(s), and in so doing the presiding officer shall be
entitled to exercise his sole judgment and discretion and he
shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and,
if applicable, presiding officer shall be subject to further
review by any court of competent jurisdiction.
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ARTICLE III DIRECTORS
1. POWERS
Subject to limitations imposed by law or the Articles of
Organization, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the
Corporation shall be controlled by, the Board of Directors.
In the exercise of its powers, the Board may appoint an
executive committee and other committees, and may delegate
to the executive committee any of the powers and authority
of the Board in the management of the business and affairs
of the Corporation, except the powers expressly reserved to
the Directors in Section 55 of the Massachusetts Business
Corporation Law. The executive committee shall be composed
of three or more Directors.
2. NUMBER AND CLASSIFICATION OF DIRECTORS
The number of Directors of the Corporation shall not be less
than seven nor more than thirteen, as determined from time
to time by the Directors, and the number shall be nine until
otherwise so determined. The Board of Directors shall be
divided into three classes in respect of term of office,
each class to contain as near as may be one-third of the
whole number of the Board. Of the Board of Directors
elected at the last annual meeting of stockholders held
prior to the adoption of this Bylaw, the members of Class I
shall serve until the annual meeting of stockholders held in
the year following their election, the members of Class II
shall serve until the annual meeting of stockholders held
two years following their election, and the members of Class
III shall serve until the annual meeting of stockholders
held three years following their election; provided,
however, that in each case Directors shall continue to serve
until their successors shall be elected and shall qualify.
At each annual meeting of stockholders following the
adoption of this Bylaw, one class of Directors shall be
elected to serve until their successors shall be elected and
shall qualify. If any annual meeting of stockholders is not
held or Directors are not elected thereat, Directors may be
elected at any special meeting of stockholders.
Directors need not be stockholders of the Corporation.
3. VACANCIES
In case a vacancy shall occur from any cause in the Board of
Directors or in any other office, including action by the
Directors to increase the number of Directors in accordance
with Section 2 of the Article III, the remaining Directors
then in office may elect a person to fill such vacancy for
the balance of the term of the office vacated, except that,
in the case of an increase in the number of Directors, such
vacancy may be filled only until the next annual meeting of
stockholders, at which time the vacancy shall be filled by
vote of the stockholders. In case of a vacancy or vacancies
in the Board of Directors being unfilled, the remaining
Directors shall exercise all the powers of the Board.
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A vacancy in the Board of Directors shall be deemed to exist
in the case of the death, resignation or removal of any
Director, or if the authorized number of Directors is
increased, or if the stockholders fail, at any annual or
special meeting of stockholders at which any Director is
elected, to elect the full authorized number of Directors to
be voted for at that meeting. The Board of Directors may
declare vacant the office of a Director if, within 30 days
after notice of his first election to the Board of
Directors, he does not accept the office either in writing
or by attending a meeting of the Board of Directors.
The stockholders may elect a Director or Directors at any
time to fill any vacancy or vacancies not filled by the
remaining Director or Directors. If the Board of Directors
accepts the resignation of a Director tendered to take
effect at a future time, the Board, or if the Board has not
acted, the stockholders, shall have the power to elect a
successor to take office when the resignation is to become
effective.
4. REMOVAL
Any Director of the Corporation may be removed with or
without cause at any regular meeting of the stockholders or
at a special meeting called for the purpose, and by vote of
the holders of a majority of the stock outstanding and
entitled to vote, or may be removed with or without cause by
the Board of Directors.
No reduction of the authorized number of Directors shall
have the effect of removing any Director prior to the
expiration of his term of office.
5. QUORUM
A majority of the authorized number of Directors shall
constitute a quorum of the Board for the transaction of
business. Every act or decision done or made by a majority
of the Directors present at a meeting duly held at which a
quorum is present shall be regarded as the act of the Board
of Directors, unless a greater number be required by law.
6. PLACE OF DIRECTORS' MEETINGS
Meetings of the Board of Directors shall be held at the
principal office of the Corporation, or at any place within
or without the Commonwealth of Massachusetts which has been
designated from time to time by resolution of the Board or
by written consent of all the members of the Board.
7. ORGANIZATION MEETINGS
Immediately following each annual meeting of stockholders
the Board of Directors shall hold a regular meeting for the
purpose of organizing, electing officers, and transacting
other business. No notice need be given of such meetings of
the Board of Directors.
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8. ORGANIZATION MEETINGS
Regular meetings of the Board of Directors shall be held at
such day and hour as shall be from time to time determined
by the Board. If said day shall fall upon a holiday, such
meeting shall be held on the next succeeding business day
thereafter. No notice need be given of such regular
meetings of the Board of Directors.
9. SPECIAL MEETINGS
Special meetings of the Board of Directors for any purpose
or purposes shall be called by the Chief Executive Officer
or, if he is absent or unable or refuses to act, by the
President if the Chairman of the Board is the Chief
Executive Officer, by any corporate Vice President, or by
any two Directors.
Written notice of the time and place of special meetings
shall be delivered to each Director in person or by
telephone, or sent to each Director by mail, facsimile or
other form of written communication, charges prepaid,
addressed to him at his address as it is shown upon the
records of the Corporation, or, if it is not so shown and if
it is not readily ascertainable, addressed to him at the
city or place where the meetings of the Directors are
regularly held. Notices mailed or telegraphed shall be
deposited in the United States mail or delivered to the
telegraph company at the place where the principal office of
the Corporation is located at least 48 hours prior to the
time of the holding of the meeting; and notices given
personally, by telephone or facsimile shall be given at
least 24 hours prior to the time of the holding of the
meeting.
10. NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting
need not be given to absent Directors if the time and place
are fixed at the meeting adjourned.
11. WAIVER OF NOTICE, CONSENT TO MEETING
The transactions of any meeting of the Board of Directors,
however called and noticed or whenever held, shall be as
valid as though had at a meeting duly held after regular
call and notice if a quorum is present and if, either before
or after the meeting, each of the Directors not present
signs a waiver of notice or a consent to hold such meeting,
or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate
records and made a part of the minutes of the meeting.
12. ADJOURNMENT
A quorum of the Directors may adjourn any meeting of the
Board of Directors to meet again at a stated day and hour;
and in the absence of a quorum, a majority of the Directors
present may adjourn from time to time until the time fixed
for the next regular meeting of the Board.
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13. ACTION WITHOUT MEETING
Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting, if all members of
the Board shall individually or collectively consent in
writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the
Board. Such action, by written consent, shall have the same
force and effect as a unanimous vote of such Directors at a
meeting of the Board of Directors.
Directors of the Company may participate in meetings of the
Board of Directors or any committee designated thereby by
means of a conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other at the same time and
participation by such means shall constitute presence in
person at a meeting.
14. FEES AND COMPENSATION
Directors shall receive such fees and compensation, if any,
for their services as may be determined by vote of the
Board, and shall receive reimbursement of reasonable
expenses incurred in attending meetings of the Directors or
committees thereof or otherwise in connection with attention
to the affairs of the Corporation. No Director who receives
a salary as an officer or employee of the Corporation or any
subsidiary thereof shall receive any remuneration as a
Director or member of any committee of the Directors.
ARTICLE IV OFFICERS
1. OFFICERS
The officers of the Corporation shall be a President, a
Treasurer and a Clerk. The Corporation may also have, at
the discretion of the Board of Directors, a Chairman of the
Board, one or more corporate Vice Presidents, one or more
Assistant Treasurers and one or more Assistant Clerks, each
of whom shall be elected by the Board of Directors in
accordance with the provisions of Section 2 of this Article.
Other officers may be appointed in accordance with the
provisions of Section 3 of this Article; provided, however,
that no such appointed officer shall be deemed to be a
corporate officer. One person may hold two or more offices,
except that the offices of President and Treasurer shall not
be held by the same person. The Chief Executive Officer of
the Corporation shall be the President or the Chairman of
the Board, as determined by the Board of Directors.
2. ELECTION
The officers of the Corporation, except such officers as may
be appointed in accordance with the provisions of Sections 3
or 5 of this Article, shall be chosen annually by the Board
of Directors, and each shall hold his office until he shall
resign or shall be removed or otherwise disqualified to
serve, or his successor shall be elected and qualified.
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3. APPOINTED OFFICERS
The Board of Directors may appoint and may empower the Chief
Executive Officer to appoint, such other officers as the
business of the Corporation may require, including without
limitation, divisional vice presidents (who shall not be
corporate officers). Each such appointed officer shall hold
office for such period, have such authority and perform such
duties as are provided in the Bylaws or as the Board of
Directors or the Chief Executive Officer may from time to
time determine.
4. REMOVAL AND RESIGNATION
Any officer or agent may be removed, either with or without
cause, by a majority of the Directors at the time in office,
at any regular or special meeting of the Board, or, except
in case of an officer elected by the Board of Directors, by
the Chief Executive Officer or by any officer upon whom such
power of removal may be conferred by the Board of Directors.
Any officer or agent may resign at any time by giving
written notice to the Board of Directors or the Chief
Executive Officer, or the Clerk of the Corporation. Any
such resignation shall take effect on the date of the
receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to
make it effective.
5. VACANCIES
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled
in the manner prescribed in the Bylaws for regular
appointments to such office.
6. CHAIRMAN OF THE BOARD
The Chairman of the Board, if any, shall, if present,
preside at all meetings of the Board of Directors, and
exercise and perform such other powers and duties as may be
from time to time assigned to him by the Board of Directors.
7. CHIEF EXECUTIVE OFFICER
Subject to the supervision and control of the Board of
Directors, the Chief Executive Officer shall have general
control of the business and financial affairs of the
Corporation, shall have the general powers and duties of
management usually vested in the chief executive officer of
a corporation, and shall have such other powers and perform
such other duties as are delegated to him by the Corporation
or the Board of Directors or as may be imposed by law. He
shall preside at all meetings of the stockholders and, in
the absence of a Chairman of the Board who has not been
designated Chief Executive Officer, at all meetings of the
Board of Directors. He shall be ex officio a member of the
executive committee and any other standing committees, other
than the stock option committee and the compensation
committee.
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8. PRESIDENT
Subject to the supervision and control of the Board of
Directors, the President shall have the general powers and
duties of management usually vested in the president of a
corporation and shall have such other powers and duties as
are delegated to him by the Corporation or the Board of
Directors or as may be imposed by law. Unless the Chairman
of the Board is specifically designated by the Board of
Directors as the Chief Executive Officer, the President
shall be the Chief Executive Officer of the Corporation with
all of the powers and duties specified in Section 7 of this
Article. If the Chairman of the Board is the Chief
Executive Officer, the President, shall, in his absence or
disability or in case of a vacancy in his office, perform
all the duties of the Chief Executive Officer, and when so
acting shall have all the powers of, and be subject to all
the restrictions upon, the Chief Executive Officer.
9. VICE PRESIDENT
In the absence or disability of the President, or in case of
a vacancy in his office, the corporate Vice Presidents, if
any, in order of their rank as fixed by the Board of
Directors, shall perform all the duties of the President,
and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the President. The
Vice Presidents shall have such other powers and perform
such other duties as from time to time may be prescribed for
them respectively by the Board of Directors.
10. TREASURER
Subject to the supervision and control of the Chief
Executive Officer, the Treasurer shall have general charge
of the financial affairs of the Corporation and have the
custody of the funds and of all the valuable papers of the
Corporation. He shall keep the accounts of the Corporation
in a clear manner and shall at all times when requested by
the Directors or the Chief Executive Officer exhibit a true
statement of the affairs of the Corporation. The Assistant
or each of the Assistant Treasurers, in the absence or
inability of the Treasurer, or in case of a vacancy in his
office, may perform such part or all of the duties of the
Treasurer as may be specified from time to time by the
Directors or the Chief Executive Officer, and the written
statement of any Assistant Treasurer as to such absence,
inability or vacancy shall conclusively determine the fact
so stated. The Treasurer shall, if required by the
Directors or the Chief Executive Officer, give a bond for
the faithful discharge of his duties at the expense of the
Corporation with satisfactory sureties and in such penal
sums as may be required by the Directors. The Assistant
Treasurer or Treasurers shall also, if required by the
Directors or Chief Executive Officer, give a bond in like
manner for the faithful discharge of their duties. The
Treasurer and Assistant Treasurers shall perform such other
duties as may be delegated to them respectively by the
Corporation or the Chief Executive Officer or may be imposed
by law.
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11. CLERK
The Clerk shall attend all meetings of the Board of
Directors, the stockholders and the executive committee, if
any, and if so directed by the Board of Directors, any other
committee which may be constituted, and shall keep, or cause
to be kept, at the principal office or such other place as
the Board of Directors may direct, a book of minutes of all
such meetings, showing the time of and place at which such
meetings are held; whether regular or special; and if
special, how authorized; the notice thereof given; the names
of those present at Directors or committee meetings; the
number of share present or represented at stockholders
meetings; and a record of the proceedings of such meetings.
In the absence of the Clerk or an Assistant Clerk, a
Temporary Clerk shall be appointed to keep the records of
any meeting.
The Clerk shall keep, or cause to be kept, at the principal
office or at the office of the Corporation s transfer agent,
a stock book, or a duplicate stock book, showing the names
of the stockholders and their addresses; the number and
classes of shares held by each; the number and date of
certificates issued for the same; and the number and date of
cancellation of every certificate surrendered for
cancellation.
The Clerk shall give, or cause to be given, notice of all
the meetings of stockholders and the Board of Directors
required by these Bylaws to be given, and shall have such
other powers and perform such other duties as may be
prescribed by the Board of Directors. He shall keep in safe
custody the seal of the Corporation and, when authorized by
the Board of Directors, shall affix the same to any
instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of an
Assistant Clerk.
The Assistant or each of the Assistant Clerks, in the
absence or inability of the Clerk, or in case of a vacancy
in his office, may perform such part or all of the duties of
the Clerk as may be specified from time to time by the
Directors or the Chief Executive Officer, and the written
statement of any Assistant Clerk as to such absence,
inability or vacancy shall conclusively determine the fact
so stated.
ARTICLE V INDEMNIFICATION
1. RIGHT OF INDEMNIFICATION
Every person who is or was a Director, officer or employee
of this Corporation or of any other corporation which he
served at the request of the Corporation and in which the
Corporation owns or owned shares of capital stock or of
which it is a creditor shall have a right to be indemnified
by this Corporation against all reasonable expenses incurred
by him in connection with or resulting from any action, suit
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or proceeding in which he may become involved as a party or
otherwise by reason of his being or having been a Director,
officer or employee of the Corporation or such other
corporation, provided (a) said action, suit or proceeding
shall be prosecuted to a final determination and he shall be
vindicated on the merits, or (b) in the absence of such
final determination vindicating him on the merits, the Board
of Directors shall determine that he acted in good faith in
the reasonable belief that his action was in the best
interests of the Corporation or such other corporation and
that he cooperated effectively with the Corporation in the
defense and disposition of any said action, suit or
proceeding, said determinations to be made by the Board of
Directors acting through a quorum of disinterested
directors, or in its absence on the opinion of the counsel.
2. DEFINITIONS
For purposes of Section 1 of this Article V:
(a) "reasonable expenses" shall include but not be limited
to reasonable counsel fees and disbursements, amounts of any
judgement, fine or penalty, and reasonable amounts paid in
settlement, but in no event shall "reasonable expenses"
include any item for which indemnification would be contrary
to law; (b) "action, suit or proceeding" shall include every
claim, action, suit or proceeding, whether civil or
criminal, derivative or otherwise, administrative, judicial
or legislative, any appeal relating thereto, and shall
include any reasonable apprehension or that of such a claim,
action, suit or proceeding; and (c) a settlement plea of
nolo contendere, consent judgment, adverse civil judgment,
or conviction shall not of itself create a presumption that
the person seeking indemnification did not act in good faith
in the reasonable belief that his action was in the best
interests of this Corporation or such other corporation, but
the Board of Directors shall be bound by a civil judgment or
conviction which adjudges that the person did not act in
good faith in the reasonable belief that his action was in
the best interests of this Corporation or such other
corporation.
3. PERSONS ENTITLED TO INDEMNIFICATION
The right of indemnification shall extend to any person
otherwise entitled to it under this Article V whether or not
that person continues to be a Director or officer of this
Corporation at the time such liability or expense shall be
incurred. The right of indemnification shall extend to the
legal representatives and heirs of any person otherwise
entitled to indemnification. If a person meets the
requirements of this Article V with respect to some matters
in an action, suit or proceeding, but not with respect to
others, he shall be entitled to indemnification as to the
former. Advances against liability and expenses may be made
by the Corporation on terms fixed by the Board of Directors
subject to an obligation to repay if indemnification proves
unwarranted.
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4. BYLAW NOT EXCLUSIVE
This Article V shall not exclude any other rights of
indemnification or other rights to which any Director,
officer or employee may be entitled by contract, by vote of
the Board of Directors, or as a matter of law. If any
clause, provisions or application of this Article V shall be
determined to be invalid, the other clauses, provisions or
applications of these Bylaws shall not be affected but shall
remain in full force and effect. The provisions of this
Article V shall be applicable to actions, suits or
proceedings commenced after the adoption hereof, whether
arising from acts or omissions occurring before or after the
adoption hereof.
ARTICLE VI MISCELLANEOUS
1. RECORD DATE AND CLOSING STOCK BOOKS
The Board of Directors may fix a time in the future as a
record date for the determination of stockholders entitled
to notice of and to vote at any meeting of stockholders or
entitled to receive any dividend or distribution, or any
allotment of rights, or to exercise rights in respect to any
change, conversion or exchange of shares. The record date
so fixed shall be not more than 60 days prior to the date of
the meeting or event for the purposes of which it is fixed.
When a record date is so fixed, only stockholders of record
on that date are entitled to notice of and to vote at the
meeting or to receive the dividend, distribution, or
allotment of rights, or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the
books of the Corporation after the record date.
The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or
any part of a period not more than 60 days prior to the date
of a meeting of stockholders, the date when the right to any
dividend, distribution, or allotment of rights vests, or the
effective date of any change, conversion or exchange of
shares.
2. INSPECTION OF CORPORATE RECORDS
The stock book or duplicate stock book and minutes of
proceedings of the incorporators and stockholders shall be
open to inspection upon the written demand of any
stockholder at any reasonable time, and for a purpose
reasonably related to his interests as a stockholder but not
to secure a list of stockholders for the purpose of selling
said list or copies thereof or of using the same for a
purpose other than in the interest of the applicant, as a
stockholder, relative to the affairs of the Corporation.
Such records shall be exhibited at any meeting of
stockholders upon the demand by the holders of ten percent
of the shares represented at the meeting. Such inspection
may be made in person or by an agent or attorney, and shall
include the right to make extracts for any proper purpose,
but not to secure a list of stockholders for the purpose of
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selling said list or copies thereof or of using the same for
a purpose other than in the interest of the applicant, as a
stockholder, relative to the affairs of the Corporation.
Demand of inspection other than at a meeting of stockholders
shall be made in writing upon the President or Clerk of the
Corporation.
Every Director shall have the right, at any reasonable time,
to inspect all books, records, documents of every kind, and
the physical properties of the Corporation and of its
subsidiary corporations, domestic or foreign; provided,
however, that in the case of foreign subsidiary corporations
such right shall extend only to such books, records,
documents and properties as are kept or located in the
Commonwealth of Massachusetts.
3. CERTIFICATES OF SHARES
Certificates representing shares of common stock of the
Corporation shall be of such form as the Board of Directors
may approve and shall state the name of the record holder of
the shares represented thereby; the number of the
certificate; the date of issuance of the certificate; the
number of shares for which it is issued; the par value, if
any, or a statement that such shares are without par value;
a statement of the rights, privileges, preferences and
restrictions, if any; a statement as to redemption or
conversion, if any; a statement of liens or restrictions
upon transfer or voting, if any; if the shares be
assessable, or, if the assessments are collectible by
personal action, a plain statement of such facts.
4. EXECUTION OF CERTIFICATES
Every certificate for shares must be signed by the President
or a Vice President and the Treasurer, or an Assistant
Treasurer, and may be by facsimiles of the signatures of the
President and Treasurer or by a facsimile of the signature
of the President and the written signature of its Treasurer
or an Assistant Treasurer. No certificate for shares
authenticated by a facsimile of a signature shall be valid
until countersigned by the transfer agent.
5. TRANSFER OF STOCK
Prior to due presentment for registration of transfer, the
Corporation may treat the registered owner of shares as the
person exclusively entitled to vote, to receive
notifications and otherwise to exercise all the rights and
powers of a stockholder. Shares may be transferred on the
books of the Corporation only by the person named in the
certificate as the owner thereof, or by his agent, attorney,
or legal representative, upon surrender to the Clerk of the
Corporation or, at the discretion of the Board of Directors,
to any transfer agent, of a certificate, duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer. A new certificate shall thereupon be
issued to the person entitled thereto and the old
certificate shall be canceled.
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6. LOST CERTIFICATES
New certificates for shares or other securities of the
Corporation may be issued for and in the place of any such
instrument theretofore issued which is alleged to have been
lost, destroyed or wrongfully taken. The Directors may, in
their discretion, require the owner of such instrument, or
his legal representative, to give the Corporation a bond or
other security in an adequate amount as indemnity against
any claim that may be made against the Corporation. A new
instrument may be issued, however, without requiring any
bond or other security when, in the judgment of the
Directors, it is proper to do so.
7. CORPORATE SEAL
A corporate seal shall be provided and adopted by the Board
of Directors and shall contain the name of the Corporation
and such other wording as the Board may deem suitable or as
may be required by law.
8. FISCAL YEAR
Except as from time to time otherwise determined by the
Board of Directors, the fiscal year of the Corporation shall
begin on the first day of June and end on the last day of
May next succeeding.
9. ISSUANCE OF STOCK
Any unissued capital stock from time to time authorized
under the Articles of Organization may be issued by a vote
of the Board of Directors.
10. EXECUTION OF CONTRACTS
The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined
to specific instances; and unless so authorized by the Board
of Directors, no officer, agent or employee shall have any
power or authority to bind the Corporation by any contract
or engagement or to pledge its credit or to render it liable
for any purpose or in any amount.
11. REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chairman of the Board, the President, any corporate Vice
President and the Treasurer of this Corporation, or any one
of them, are authorized to vote, represent and exercise on
behalf of this Corporation all rights incident to any and
all shares of any other corporation or corporations standing
in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of
this Corporation any and all shares held by this Corporation
in any other corporation or corporations may be exercised by
such officers in person or by any person authorized so to do
by proxy or power of attorney duly executed by said
officers.
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12. INSPECTION OF BYLAWS
The Corporation shall keep in its principal office for the
transaction of business the original or a copy of these
Bylaws as amended or otherwise altered to date, certified by
the Clerk, which shall be open to inspection by the
stockholders at all reasonable times during office hours.
13. CONSTRUCTION AND DEFINITIONS
Unless the context otherwise requires, the general
provisions, rules of construction and definitions contained
in the Massachusetts Business Corporation Law shall govern
the construction of these Bylaws. The Article and Section
captions used in these Bylaws are for reference only and are
not part of the Bylaws and shall not be used in construing
or interpreting these Bylaws.
14. EXEMPTION FROM MASSACHUSETTS CONTROL SHARE ACQUISITIONS LAW
The provisions of Chapter 110D of the Massachusetts General
Laws shall not apply to control share acquisitions of the
Company.
ARTICLE VII AMENDMENTS
1. POWER OF STOCKHOLDERS
New Bylaws may be adopted or these Bylaws may be amended or
repealed by the vote of stockholders entitled to exercise a
majority of the voting power of the Corporation, except as
otherwise provided by the Articles of Organization.
2. POWER OF DIRECTORS
Subject to the right of stockholders to adopt, amend or
repeal Bylaws, these Bylaws may be amended or repealed by
the Board of Directors, and new Bylaws may be adopted, at
any regular or special meeting thereof.
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