EXHIBIT 3.58
BY-LAWS
OF
GRADIENT CORPORATION
ARTICLE I
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Articles of Organization
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The name, location and principal office and purpose of the corporation
shall be as set forth in the Articles of Organization, and the powers of the
corporation and of its directors and stockholders, and all matters concerning
the conduct and regulation of the business of the corporation shall be subject
to such provisions in regard thereto, if any, as are set forth in the Articles
of Organization, which is hereby made a part of these by-laws.
All references in these by-laws to the Articles of Organization shall be
construed to mean the Articles of Organization of the corporation as from time
to time amended.
ARTICLE II
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Directors and Officers and Their Election
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Section 1. Board of Directors. The Board of Directors of the corporation
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shall consist of not less than three (3) nor more than nine (9) Directors as the
stockholders shall from time to time determine at their annual meeting, but such
stockholders may, at any special meeting duly called for that purpose, increase
or decrease (within the limits fixed above) the number of Directors as thus
fixed and, subject to any applicable provisions of the Articles of Organization,
elect new Directors to the number so fixed. It shall not be necessary for any
officer or Director to be a stockholder in the corporation.
Section 2. Officers. The officers of the corporation shall be a
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President, Treasurer, and Clerk, and such other officers as the Board of
Directors may from time to time determine, including a Chairman of the Board of
Directors, a Secretary and one or more Vice Presidents, Assistant Treasurers,
Assistant
Secretaries, and Assistant Clerks. Except as otherwise specifically
provided herein, no officer need be a Director.
Section 3. Election of Officers. The Directors shall be elected annually
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by such stockholders as have the right to vote thereon. The President,
Treasurer, Clerk and any Vice President shall be elected annually by the Board
of Directors. The Chairman of the Board of Directors, if any, shall be elected
annually by and from the Board of Directors. Assistant Treasurers, the
Secretary, and Assistant Secretaries shall be chosen by the Board of Directors
when and for such term as the Directors shall determine. Except as in these by-
laws otherwise provided, the officers hereinbefore in this section referred to
shall hold office for one year and until their successors are chosen and
qualified. One person may hold two or more offices at the same time.
Section 4. Resignation and Removals. Any officer or Director of the
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corporation may resign by filing with the Chairman of the Board of Directors or
with the President or with the Board of Directors or with the Clerk a written
resignation which shall take effect on being so filed or at such other time as
may be therein specified. So far as permitted by law, the Directors may at any
meeting of the Board called for the purpose, remove from office any officer
chosen by the Directors or any officer elected by the stockholders. So far as
permitted by law, the stockholders having voting power may at any special
meeting of the stockholders called for the purpose remove from office any
Director or any officer elected by the stockholders with or without cause. A
Director or officer may be removed for cause only after a reasonable notice and
opportunity to be heard before the body proposing to remove him.
Section 5. Vacancies. Any vacancy at any time existing in the Board of
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Directors, except such vacancies occurring by reason of any increase in number
of members of the said Board by vote of the stockholders, or any vacancy in any
other office, may be filled by the Board of Directors at any regular or special
meeting and the person chosen to fill the vacancy shall, except as in these by-
laws otherwise provided, hold office until the next annual meeting of the
stockholders and until his successor is chosen and qualified. The stockholders
having voting power shall at their annual meeting or at any special
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meeting duly called for the purpose choose a director to fill any vacancy in the
Board of Directors occurring by reason of an increase in membership of said
Board. The stockholders having voting power also may at a special meeting duly
called for the purpose choose a successor to a director, or other officer chosen
by them, who has vacated his office. The person so chosen to be a successor to a
director or other officer chosen by the stockholders who has vacated his office
shall, except as in these by-laws otherwise provided, hold office until the next
annual meeting and until his successor is chosen and qualified.
ARTICLE III
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Powers and Duties of Officers
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Section 1. Directors. The Board of Directors, subject always to the
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provisions of law, the Articles of Organization and these by-laws as from time
to time amended, and to any action at any time taken by such stockholders as
then have the right to vote, shall have the entire charge, control and
management of the corporation, its property and business and may exercise all or
any of its powers. Among other things, the Board of Directors may, subject as
aforesaid, (1) appoint and at its discretion remove or suspend such subordinate
officers, agents, and employees as it from time to time thinks fit and determine
their duties and fix and, from time to time as it sees fit, change their
compensation; (2) fix and, from time to time as it sees fit, change all
salaries, including those of the Chairman of the Board of Directors, the
President, Treasurer and other officers; (3) appoint any officer, permanently or
temporarily as it sees fit, to have the powers and perform the duties of any
other officer; (4) delegate any of the powers of the Board to any committee,
officer or agent; (5) appoint any persons to be agents of the corporation (with
the power to subdelegate) and upon such terms as it sees fit; (6) appoint any
person or persons to accept and hold in trust for the corporation any property
belonging to the corporation or in which it is interested and cause such
instruments to be executed, and do and cause to be done such things as it may
deem requisite, in relation to any such trust; and (7) determine the amounts to
be distributed as dividends.
Section 2. Chairman of the Board of Directors. The Chairman of the Board
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of Directors shall preside when present at all meetings of the Board of
Directors.
Section 3. President. The President shall preside, when present, at all
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meetings of the stockholders. It shall be the duty of the President to see that
all orders and resolutions of the Board of Directors are carried into effect.
In the recesses of the Board of Directors, the President shall have the general
operating control and management of the Business, subject, however, to their
vote and to the right of the Directors to subdelegate any specific power to any
other officer or officers of the corporation, except such as may be by statute
exclusively conferred on the President. The President, as soon as reasonably
possible after the close of the fiscal year, shall submit to the Board of
Directors a report of the operations of the corporation for such year and the
statement of its affairs and shall from time to time
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report to the Board of Directors all matters within his knowledge which the
interests of the corporation may require to be brought to its notice. The
President, together with the Treasurer or an Assistant Treasurer, may sign
certificates of stock to be issued by the corporation. The President shall
prescribe the duties for officers and employees that are not otherwise defined.
The President shall employ and discharge employees except those selected by the
Board of Directors. The President shall perform such duties additional to the
foregoing as the Directors may designate.
Section 4. Vice Presidents. In the absence of the President, the
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Executive Vice President shall have all the powers of the President. Each Vice
President, together with the Treasurer or Assistant Treasurers, may sign any
stock certificate and shall have such other powers as are conferred upon him by
the Board of Directors.
Section 5. Treasurer and Assistant Treasurers. The Treasurer shall keep
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full and accurate accounts of receipts and disbursements in books belonging to
the corporation and shall deposit all monies, securities and other valuable
effects in the name of the corporation and to the credit of the corporation in
such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the corporation as may be ordered by the Board, taking
proper vouchers for such disbursements. He shall promptly render to the
President and to the Board of Directors such statements of all his transactions
and accounts and of the financial condition of the corporation at the regular
annual meetings of the Board, and at such other times as the President and Board
may respectively from time to time require. He shall also present to the
stockholders at their annual meeting a report giving the receipts and
disbursements of the preceding fiscal year and the then financial condition of
the company. He may be required to give bond in such amount, with such security
and in such form as the Board of Directors shall determine. Certificates of
stock signed by the President or Vice President may be signed also by the
Treasurer. The Treasurer shall perform such duties additional to the foregoing
as the directors may designate.
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Assistant Treasurers shall perform such duties as are prescribed by the
Board of Directors. Certificates of stock signed by the President or a Vice
President may also be signed by an Assistant Treasurer.
Section 6. Clerk and Secretary. The Clerk shall record in books kept for
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the purpose all votes and proceedings of the stockholders at their respective
meetings. An Assistant Clerk shall, in the absence of the Clerk from any
meeting of the stockholders, perform the duties of the Clerk. The Secretary
shall record in books kept for the purpose all votes and proceedings of the
Board of Directors at their respective meetings. In the absence of the
Secretary from any meeting of the Board of Directors, the Assistant Secretary
shall perform the duties of Secretary. If at any time there shall be no
Secretary or Assistant Secretary then serving, the Clerk shall perform the
duties of the Secretary.
Unless the Board of Directors shall appoint a transfer agent and/or
registrar or other officer or officers for the purpose, the Clerk shall be
charged with the duties of keeping or causing to be kept accurate records of all
stock outstanding; stock certificates issued and stock transfers; and subject to
such other or different rules as may be adopted from time to time by the Board
of Directors, such records shall be kept solely in the stock certificate books.
The Clerk and the Secretary shall respectively perform such duties additional to
the foregoing as the directors may designate.
ARTICLE IV
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Stockholders' Meetings
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Section 1. Annual Meeting. The annual meeting of stockholders of the
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corporation shall be held at the principal office of the corporation (or such
other place in the United States as may be named in the call) on the third
Tuesday in November in each year if not a legal holiday, and if a legal holiday,
then on the next succeeding business day, at eleven o'clock in the forenoon, to
elect officers, hear reports of the officers and transact other business. If,
for any reason, any annual meeting is not so held, a special meeting as
hereinafter provided in Section 2 of this Article IV shall be called and held in
lieu of the
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annual meeting, and all business properly coming before such omitted annual
meeting shall be transacted at such special meeting.
Section 2. Special Meetings. Special Meetings of the stockholders may be
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called by the President or by a majority of the directors, and shall be called
by the Clerk, or in the absence, incapacity or refusal of the Clerk, by any
other officer upon written application of one or more stockholders who are
entitled to vote and who hold at least one-fourth part in interest of the
capital stock entitled to vote at the meeting, stating the time, place and
purpose of the meeting. All special meetings of the stockholders shall be held
at the principal office of the corporation, or at such other place in the United
States as may be named in the call.
Section 3. Quorum. At any meeting of the stockholders, a quorum for the
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transactions of business shall consist of a majority in interest of all stock
issued, outstanding and entitled to vote, provided that less than such quorum
shall have power to adjourn the meeting from time to time without further notice
until a quorum is secured.
Section 4. Notices. Notice of all meetings of stockholders shall be given
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as follows, to wit: a written notice, stating the place, day and hour thereof,
shall be given by the Clerk, or an Assistant Clerk, at least seven days before
the meeting, to each stockholder entitled to vote thereat and to each
stockholder who, under the Articles of Organization or the by-laws is entitled
to such notice, by leaving such notice with him or at his residence or usual
place of business, or by mailing it, postage prepaid, and addressed to such
stockholder at his address as it appears on the books of the corporation.
Notice of all meetings of stockholders shall state the purpose for which the
meetings are called. No notice of the time, place or purpose of any regular or
special meeting of the stockholder shall be required if every stockholder
entitled to notice thereof, or his attorney thereunto authorized, by writing
which is filed with the records of the meeting, waives such notice before or
after such meeting, or is present at such meeting.
Section 5. Voting. At all meetings of the stockholders, every registered
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stockholder entitled to vote shall have one vote for every share of voting stock
registered in his name. When any share is held
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jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such share, but if more than one of them shall be present
at such meeting in person or by proxy, no vote shall be cast in respect of such
share unless the persons in question present or represented by proxy join in or
assent to such vote. In case of the death, bankruptcy, minority or mental
incapacity of any stockholder, the person entitled to transfer his shares shall
be entitled to vote in respect of such shares, and if there shall be more than
one such person, the right to vote shall be the same as if they were joint
holders thereof. A vote given in accordance with a proxy shall be regarded as
valid so far as the corporation is concerned notwithstanding the previous death
of the stockholder or revocation of the proxy, unless information in writing of
the death or revocation of the proxy, shall have been previously received by the
Chairman of the Board of Directors or President or Clerk of the corporation. Any
person entitled to vote at a meeting may vote by proxy granted at any time prior
to such meeting, which shall be named therein. Proxies shall be filed with the
Clerk or Assistant Clerk of the meeting. Proxies shall not be valid after the
final adjournment of the meeting for which they are given.
ARTICLE V
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Directors' Meetings
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Section 1. Annual Meeting. Immediately after each annual meeting of
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stockholders, and at the place thereof, if a majority of the directors elected
at the meeting were present thereat, there shall be a meeting of the directors
without notice; but if a majority of the directors chosen at any annual meeting
of stockholders were not present at such meeting, a meeting of the directors may
be called in the manner provided with respect to the call of special meetings of
directors.
Section 2. Regular Meetings. Regular meetings of the Board of Directors
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may be held at such time and place as may from time to time be fixed by
resolution of the Board and no notice need be given of regular meetings held at
times and places so fixed, provided, however, that any resolution relating to
the holding of regular meetings shall remain in force only until the next annual
meeting of stockholders and that if at any meeting of directors at which a
resolution is adopted fixing the times or place or places
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for any regular meetings any director is absent, no meeting shall be held
pursuant to such resolution until either each such absent director has in
writing or by telegram approved the resolution or seven (7) days have elapsed
after a copy of the resolution certified by the Secretary has been mailed,
postage prepaid, addressed to each such absent director at his last known
address.
Section 3. Special Meetings. Special meetings of the directors shall be
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called by the Secretary whenever requested in writing by the President or by any
two directors; and if the Secretary when so requested refuses or neglects for
more than twenty-four (24) hours to call such special meeting, the President or
such two directors may in the name of the Secretary call such meeting by giving
notice thereof in the manner required when notice is given by the Secretary. At
any time when the office of Secretary is vacant or the Secretary is absent from
the Commonwealth or incapacitated, a special meeting of the directors may be
called by the President in his own name or by any two directors in their own
names by giving notice thereof in the manner required when notice is given by
the Secretary.
Section 4. Quorum. At any meeting of the Board of Directors, a majority
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of the directors for the time being shall constitute a quorum for the
transaction of business; provided always that any number of directors (whether
one or more and whether or not constituting a quorum) present at any meeting or
at any adjourned meeting may make any reasonable adjournment thereof. Except as
otherwise provided herein, a favorable vote by a majority of those present at a
meeting shall be necessary to pass a motion duly made and seconded or to take
such action as may come before the meeting.
Section 5. Notices. Except as provided elsewhere herein, notice of any
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meeting of the directors shall be given by the Secretary or other officer to
each director, by mailing to him postage prepaid, and addressed to him at his
last known address, a written notice giving the time and place of such meeting
at least four days before the meeting or by delivering such notice to him at
least three days before the meeting. Except as otherwise provided herein,
notices of directors' meetings need not specify the purposes thereof. No notice
of any meeting of the Board of Directors shall be required to any director
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who attends the meeting or who, by a writing filed with the records of the
meeting, waives such notice either before or after such meeting.
ARTICLE VI
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Executive Committee
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Section 1. The Board of Directors may elect an Executive Committee
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selected by it from the Board of Directors. Any member of the Executive
Committee may be removed and replaced by the Board of Directors.
Section 2. Such Executive Committee by majority vote shall appoint one of
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their number as Chairman. The Chairman, unless removed as a member of the
Executive Committee, shall hold the office until the next annual meeting of the
directors and until his successor is appointed. He shall preside at all
meetings of the Executive Committee and may appoint a person of his own
choosing, who need not be a member of the Executive Committee, to act as
secretary and record the transactions, acts, deeds, votes, decisions, business
and affairs of the Executive Committee.
Section 3. Between meetings of the Board of Directors, such Executive
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Committee may, subject to the authority of the Board of Directors, exercise all
the powers of the Board of Directors, except that such Executive Committee shall
not have the power to (1) issue any of the capital stock of the corporation or
(2) create any long term indebtedness.
Section 4. The Executive Committee shall hold its meetings whenever and
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wherever called by the Chairman or by any two members thereof. A majority of
the members of the Executive Committee as from time to time constituted shall
constitute a quorum for the transaction of all business at such meetings. The
concurrent and consistent votes of a majority of the members of the Executive
Committee as from time to time constituted shall be necessary to pass any
motion, proposal or resolution, or to take any effective action at meetings of
the Executive Committee.
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Section 5. At each meeting of the Board of Directors, the Executive
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Committee, by its Chairman or other member designated by him, shall report all
the acts, deeds, votes, and resolutions of the Executive Committee which have
occurred since the next preceding meeting of the Board of Directors.
ARTICLE VII
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Privileges and Exemptions of Officers and Directors
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No officer or director of the corporation shall be disqualified by his
office from holding any office or place of profit in this corporation or in any
other corporation, or from holding any such position in any other corporation.
Except as otherwise mandatorily provided and required by law, no officer or
director of this corporation shall be personally liable for any vote, act or
deed of any other officer or director, nor for his own votes, acts and deeds
done by him in good faith.
ARTICLE VIII
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Indemnification of Officers and Directors
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In order to induce officers and directors of the corporation to continue to
serve as such and to induce others to serve as officers and directors of the
corporation and as partial consideration for such services, the corporation
shall reimburse, exonerate and hold harmless and indemnify each present and
future director and officer of the corporation of, from and against any and all
claims and liabilities to which he has heretofore or may hereafter become
subject by reason of his now or hereafter being a director or officer of the
corporation or by reason of his alleged acts or omissions as a director or
officer as aforesaid, and shall reimburse, exonerate, hold harmless and
indemnify each such director and officer for all legal and other expenses
reasonably paid or incurred by him in connection with any such claims or
liabilities, whether or not at or prior to the time when so reimbursed,
exonerated, held harmless and indemnified he had ceased to be a director or
officer of the corporation, unless such director or officer shall have been
finally adjudged by a court of competent jurisdiction to have been guilty of
willful malfeasance, bad faith or reckless disregard of his duties in the
conduct of his office. The corporation prior to such final adjudication may
compromise, settle, pay and discharge any such claims and liabilities
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and pay such expenses if such settlement, payment or discharge, as the case may
be, appears in the judgment of a majority of the Board of Directors to be for
the best interest of the corporation, evidenced by a resolution to that effect
adopted after receipt by the corporation of a written opinion of counsel for the
corporation to the effect that such director or officer has not been guilty of
willful malfeasance, bad faith or reckless disregard of this duties in the
conduct of this office in connection with the matters involved in such
compromise, settlement, payment and discharge. The foregoing rights of such
directors and officers shall not be exclusive of any other rights to which they
may be lawfully entitled.
ARTICLE IX
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Provisions Relating to Capital Stock
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Section 1. Certificates of Stock. Each stockholder shall be entitled to a
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certificate or certificates representing in the aggregate the shares held by
him, which shall be in such form as the Board of Directors may adopt. Each
certificate of stock shall be signed by the President or a Vice President and by
the Treasurer or an Assistant Treasurer of the corporation, and shall be sealed
with its seal. The corporation, for all purposes shall conclusively presume
that the registered holder of a certificate is the absolute owner of the shares
thereby represented and that his address appearing on the records of the
corporation is his proper address until otherwise notified in writing by him.
Section 2. Transfer of Stock. The stock of the corporation shall be
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transferable, so as to affect the rights of the corporation, only by transfer
recorded on the books of the corporation, in person or by attorney and upon the
surrender of the certificates duly endorsed or assigned. The Board of Directors
may appoint any reliable trust company and/or national bank the transfer agent
and/or registrar of transfers of shares of stock of this corporation, and may
require that all certificates of stock shall bear its or their signatures. The
stock and transfer books of the corporation shall be kept in the commonwealth of
Massachusetts at its principal office, or at the office of its transfer agent,
or elsewhere, as the Board of Directors shall determine.
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Section 3. Closing of Transfer Books. The Board of Directors shall have
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power to close the stock transfer books of the corporation for a period not
exceeding sixty (60) days preceding the date of any meeting of the stockholders,
or the date for payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of the capital
stock shall go into effect; provided, however, that in lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix in advance a date,
not exceeding sixty (60) days preceding the date of any meeting of the
stockholders, or the date for payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, as a record date for the determination of
the stockholders entitled to notice of, and vote at, any such meeting, or
entitled to receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights with respect to any such change, conversion or
exchange of capital stock, and in such case only, such stockholders as shall be
stockholders of record on the date so fixed, shall be entitled to such notice
of, and to vote at, such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record date fixed as aforesaid.
Section 4. Equitable Interest Not Recognized. The corporation shall be
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entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and shall not be bound to recognize any equitable or
other claims to or interest in such share or shares on the part of any other
person except as may be otherwise expressly provided by law.
Section 5. Lost Certificates. Upon evidence satisfactory to the Board of
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Directors that a certificate of stock has been lost or destroyed, and upon
receiving indemnity satisfactory to the Board of Directors against loss to the
corporation, said Board may authorize the issue of a new certificate in place
thereof.
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Section 6. Issue of Authorized Stock. Any unissued capital stock from
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time to time authorized under the Articles of Organization may be issued, and
the consideration for and terms of the issue thereof determined, by vote of the
Board of Directors.
ARTICLE X
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Securities in Other Corporations
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The Board of Directors may appoint any person or persons to act as proxy or
attorney in fact of this corporation with full power of substitution at any
meeting of the security holders for the election of officers or for any other
purpose, of any corporation, securities in which shall be held by this
corporation.
ARTICLE XI
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Checks, Notes, Drafts and Other Instruments
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All checks, drafts, notes and other similar instruments shall be signed by
the Treasurer and/or by such other officer or officers and/or agent or agents as
the Board of Directors may from time to time designate.
ARTICLE XII
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Corporate Seal and Fiscal Year
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The seal of the corporation shall be circular in form and shall include the
name of the corporation, the year of incorporation and the word "Massachusetts".
The Clerk shall have custody of the seal and may affix it (as may any other
officer if authorized by the directors) to any instrument requiring the
corporate seal. The fiscal year shall commence on October 1st of each year.
ARTICLE XIII
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Dividends
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Dividends upon the capital stock of the corporation, subject to the
provisions of the Articles of Organization, if any, may be declared by the Board
of Directors at any regular or special meeting pursuant to law.
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ARTICLE XIV
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Amendments of the By-Laws
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These by-laws may be amended by vote of the holders of a majority of the
stock outstanding and entitled to vote. These by-laws may also be amended in
whole or in part by a two-thirds (2/3) vote of the Board of Directors (except
with respect to any provision hereof which by law, the Articles of Organization
or these by-laws, requires action by the stockholders); provided, however, that,
not later than the time of giving notice of the meeting of stockholders next
following any amendment of the by-laws by the Board of Directors, notice thereof
stating the substance of such amendment shall be given to all stockholders
entitled to vote on amending the by-laws. Any by-law adopted by the directors
may be amended or repealed by the stockholder.
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ACTION BY WRITTEN CONSENT OF
THE SOLE SHAREHOLDER OF
GRADIENT CORPORATION
The undersigned, being the sole shareholder of GRADIENT CORPORATION, a
Massachusetts Corporation, does hereby adopt the following resolutions by
written consent in lieu of the annual meetings to be held November 19, 1996:
NOW, THEREFORE, BE IT RESOLVED, that pursuant to Section 47 of Chapter 156B
of the Massachusetts General Laws Annotated, that that portion of Article
II, Section 1 of the Bylaws of this Corporation which presently provides
that "The Board of Directors of the corporation shall consist of at least
three (3) nor more than nine (9) Directors as the stockholders shall from
time to time determine at their annual meeting," be amended to provide as
follows: "The Board of Directors of the corporation shall consist of at
least one (1) nor more than nine (9) directors as the stockholders shall
from time to time determine at their annual meeting, ...."
RESOLVED FURTHER, that the number of directors of the Corporation be fixed
at one (1), and that following person be, and he hereby is, nominated and
unanimously elected as sole director of the Corporation, to serve until the
next annual meeting and until his successor has been elected or until his
earlier resignation, removal from office or death:
Joseph K. Register, Jr.
FURTHER RESOLVED, that the acts of the directors of the Corporation taken
since the last annual meeting of the shareholders (or unanimous written
consent in lieu thereof) be, and they hereby are, adopted, ratified, and
approved.