EXHIBIT 3.2
BY-LAWS
OF
CSP INC.
ARTICLE I
ARTICLES OF ORGANIZATION
The name, location of principal office, and purposes of the corporation
shall be as set forth in the Articles of Organization; and these By-Laws, 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; and the Articles of Organization are 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
STOCKHOLDERS
1. Annual Meeting.
The annual meeting of the stockholders shall be held at 10:00 a.m. on the
second Tuesday of December in each year, if it be not a legal holiday, and if it
be a legal holiday, then at the same hour on the next succeeding day not a legal
holiday (the "Specified Annual Meeting Date"). Purposes for which an annual
meeting is to be held, additional to those prescribed by law, by the Articles of
Organization and by these By-Laws, may be specified by the President or the
Directors. If such annual meeting is omitted on the day herein provided
therefor, a special meeting may be held in place thereof, and any business
transacted or elections held at such meeting shall have the same effect as if
transacted or held at the annual meeting. Such special meeting shall be called
in the same manner and as provided for special stockholders' meetings.
2. Special Meetings.
(a) Except as provided in subsection (b) of this paragraph 2, a special
meeting of stockholders may be called at any time by the President or by the
Directors, and shall be called by the Clerk, or in the case of the death,
absence, incapacity or refusal of the Clerk, by another officer, upon written
application of one or more stockholders who hold at least 10% in interest of the
Capital Stock entitled to vote thereat. The call for the meeting shall state the
date, hour and place and the purposes of the meeting.
(b) While a class of voting stock of the corporation is registered under the
Securities Exchange Act of 1934, as amended, a special meeting of the
stockholders may be called at any time by the President or by the Directors and
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 40% in interest of the Capital Stock
entitled to vote thereat. The call for the meeting shall state the date, hour
and place and the purposes of the meeting.
3. Place of Meetings.
All meetings of stockholders shall be held in Massachusetts either at the
principal office of the corporation or at such other place as may be fixed by
the Directors for annual meetings or as may be stated in the call for a special
meeting or, to the extent permitted by the Articles of Organization, at such
other place within the United States as shall be fixed by the Directors,
provided, however, that special meetings called upon shareholders' applications
shall be held in the same county as the principal office of the corporation,
unless some other meeting place in Massachusetts specified in the application
shall be approved by the Directors.
4. Notice of Meetings.
A written notice of each meeting of stockholders, stating the place, day and
hour thereof and the purposes for which the meeting is called, shall be given by
the Clerk, at least seven (7) days before the meeting, to each stockholder
entitled to vote thereat and to each stockholder who by law, by the Articles of
Organization or by 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 upon the books of the corporation. In case of the death, absence,
incapacity or refusal of the Clerk, such notice may be given by any other
officer or by a person designated either by the Clerk or by the person or
persons calling the meeting or by the Board of Directors. No such notice need be
given to any stockholder, if a written waiver of notice, executed before or
after the meeting by the stockholder or his attorney, thereunto authorized, is
filed with the records of the meeting.
5. Notice of Stockholder Business at a Meeting of the Stockholders.
The following provisions of this paragraph 5 shall apply to the conduct of
business at any meeting of the stockholders. (As used in this paragraph 5, the
term annual meeting shall include a special meeting in lieu of an annual
meeting.)
(a) At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) pursuant to the
corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the corporation who (x) is a
stockholder of record at the time of giving of the notice provided for in
subparagraph (b) of this paragraph 5, (y) is entitled to vote at such meeting
and (z) complies with the notice procedures set forth in subparagraph (b) of
this paragraph 5.
(b) For business to be properly brought before any meeting of the
stockholders by a stockholder pursuant to clause (iii) of subparagraph (a) of
this paragraph 5, the stockholder must give timely and sufficient notice thereof
in writing to the Clerk of the corporation. To be timely, a stockholder's notice
must be received at the principal executive offices of the corporation (i) in
the case of an annual meeting (or a special meeting in lieu of the annual
meeting), not less than ninety (90) days prior to the date for such annual
meeting, regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that if the annual meeting of
stockholders or a special meeting in lieu thereof is to be held on a date prior
to the Specified Annual Meeting Date, and if less than one hundred (100) days'
notice or prior public disclosure of the date of such annual or special meeting
is given or made, notice by the stockholder to be timely must be received not
later than the close of business on the tenth (10th) day following the earlier
of the date on which notice of the date of such annual or special meeting was
mailed or the day on which public disclosure was made of the date of such annual
or special meeting; and (ii) in the case of a special meeting (other than a
special meeting in lieu of an annual meeting), not later than the tenth (10th)
day following the earlier of the day on which notice of the date of the
scheduled meeting was mailed or the day on which public disclosure was made of
the date of the scheduled meeting. To be sufficient, a stockholder's notice to
the Clerk must set forth as to each matter the stockholder proposes to bring
before the meeting (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(ii) the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, the name and address of the beneficial
owner, if any, on whose behalf the proposal is made, and the name and address of
any other stockholders or beneficial owners known by such stockholder to be
supporting such proposal, (iii) the class and number of shares of the
corporation which are owned beneficially and of record by such stockholder of
record, by the beneficial owner, if any, on whose behalf the proposal is made
and by any other stockholders or beneficial owners known by such stockholder to
be supporting such proposal, and (iv) any material interest of such stockholder
of record or of the beneficial owner, if any, on whose behalf the proposal is
made, in such proposed business, and any material interest of any other
stockholders or beneficial owners known by such stockholder to be supporting
such proposal in such proposed business, to the extent known by such
stockholder.
(c) Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting except in accordance with the procedures set
forth in this Paragraph 5. The person presiding at the meeting shall, if the
facts warrant, determine that business was not properly brought before the
meeting in accordance with the procedures prescribed by these By-Laws, and if
the person presiding should so determine, he or she shall so declare at the
meeting and any such business not properly brought before the meeting shall not
be transacted. Notwithstanding the foregoing provisions of this paragraph 5, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended from time to time (or any successor law), and
the rules and regulations thereunder with respect to the matters set forth in
this paragraph 5.
(d) This provision shall not prevent the consideration and approval or
disapproval at the meeting of reports of officers, Directors and committees of
the Board of Directors, but, in connection with such reports, no new business
shall be acted upon at such meeting unless properly brought before the meeting
as herein provided.
6. Quorum.
At any meeting of stockholders, a majority in interest of all stock issued,
outstanding and entitled to vote upon a question to be considered at such
meeting shall constitute a quorum, but a less interest may adjourn any meeting
from time to time, and the meeting may be held as adjourned without further
notice; for the consideration of such question, except that, if two or more
classes of stock are outstanding and entitled to vote upon such question as
separate classes, then in the case of each such class, a quorum shall consist of
a majority in interest of the stock of that class issued, outstanding and
entitled to vote upon such question.
7. Voting and Proxies.
Each stockholder shall have one vote for each share of stock entitled to
vote held by him of record according to the records of the corporation, unless
otherwise provided by the Articles of Organization. Stockholders may vote either
in person or by written proxy dated not more than six months before the meeting
named therein. Proxies shall be filed with the Clerk of the meeting, or of any
adjournment thereof, before being voted. Except as otherwise limited therein,
proxies shall entitle the persons named therein to vote at any adjournment of
such meeting but shall not be valid after final adjournment of such meeting. A
proxy with respect to stock held in the name of two or more persons shall be
valid if executed by 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.
8. Action at Meeting.
When a quorum is present at any meeting, a majority in interest of the stock
present or represented and entitled to vote on a matter, (or if there are two or
more classes of stock entitled to vote as separate classes, then in the case of
each such class, a majority in interest of the stock of that class present or
represented and entitled to vote on a matter) shall decide any matter to be
voted on by the stockholders, except where a larger vote is required by law, the
Articles of Organization or these By-Laws. Any election by stockholders shall be
determined by a plurality of the votes cast by the stockholders present or
represented at the meeting and entitled to vote at the election. No ballot shall
be required for such election unless requested by a stockholder present or
represented at the meeting and entitled to vote in the election The corporation
shall not directly or indirectly vote any share of its stock.
9. Action without Meeting.
Any action to be taken by stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action by a writing
filed with the records of the meetings of stockholders. Such consent shall be
treated for all purposes as a vote at a meeting.
ARTICLE III
DIRECTORS
1. Powers.
The business of the corporation shall be managed by a Board of Directors who
may exercise all the powers of the corporation except as otherwise provided by
law, by the Articles of Organization or by these By-Laws. In particular, and
without limiting the generality of the foregoing, the Directors may at any time
issue all or from time to time any part of the unissued Capital Stock of the
corporation from time to time authorized under the Articles of Organization and
any amendment thereto and may determine, subject to any requirement of law, the
consideration for which stock is to be issued and the manner of allocating such
consideration between capital and surplus. In the event of a vacancy in the
Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
2. Election and Enlargement of Board.
(a) The number of Directors shall be determined by majority vote of the
Board of Directors; provided, however, that there shall not be fewer than three
Directors; and provided, further, that in the absence of affirmative
determination, the number of Directors shall be the same as the number last
previously determined. The Board of Directors shall be elected by the
stockholders at the annual meeting or at any meeting held in place thereof as
hereinbefore provided. The Board of Directors may be enlarged by the
stockholders at any meeting or by vote of a majority of the directors then in
office.
(b) Notwithstanding the foregoing, so long as this corporation is a
registered corporation (as that term is defined in paragraph (e) of Section 50A
of Chapter 156B of the General Laws of Massachusetts) to which the provisions of
paragraph (a) of said Section 50A apply, the Directors of this corporation shall
be classified, with respect to the time for which they severally hold office,
into three (3) classes, as nearly equal in number as possible, the term of
office of those of the first class (Class I Directors) to continue until the
first annual meeting following the date (the "Effective Date") this corporation
becomes subject to paragraph (a) of said Section 50A and until their successors
are duly elected and qualified, the term of office of those of the second class
(Class II Directors) to continue until the second annual meeting following the
Effective Date and until their successors are duly elected and qualified, and
the term of those of the third class (Class III Directors) to continue until the
third annual meeting following the Effective Date and until their successors are
duly elected and qualified; and, thereafter, at each annual meeting of this
corporation, the successors to the class of directors whose term expires at that
meeting shall be elected to hold office for a term continuing until the annual
meeting held in the third year following the year of their election and until
their successors are duly elected and qualified. In case the Board of Directors
shall be enlarged at any time, the Directors then in office, by majority vote,
shall designate the class of director to which the person who is elected to fill
the vacancy created by the enlargement shall serve.
3. Vacancies.
Any vacancy in the Board of Directors, including a vacancy resulting from
the enlargement of the Board, may be filled by the stockholders or, in the
absence of stockholder action, by the Directors.
4. Nomination of Directors.
The following provisions of this paragraph 4 shall apply to the nomination
of persons for election to the Board of Directors.
(a) Nominations of persons for election to the Board of Directors of the
corporation may be made (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who (x) is a stockholder of record at
the time of giving of notice provided for in subparagraph (b) of this paragraph
4, (y) is entitled to vote for the election of Directors at the meeting and (z)
complies with the notice procedures set forth in subparagraph (b) of this
paragraph 4.
(b) Nominations by stockholders shall be made pursuant to timely and
sufficient notice in writing to the Clerk of the corporation. To be timely, a
stockholder's notice shall be received at the principal executive offices of the
corporation (i) in the case of an annual meeting (or a special meeting in lieu
of the annual meeting), not less than ninety (90) days prior to the date for
such annual meeting, regardless of any postponements, deferrals or adjournments
of that meeting to a later date; provided, however, that if the annual meeting
of stockholders or a special meeting in lieu thereof is to be held on a date
prior to the Specified Annual Meeting Date, and if less than one hundred (100)
days' notice or prior public disclosure of the date of such annual or special
meeting is given or made, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth (10th) day following
the earlier of the day on which notice of the date of such annual or special
meeting was mailed or the day on which public disclosure was made of the date of
such annual or special meeting; and (ii) in the case of a special meeting (other
than a special meeting in lieu of an annual meeting), not later than the tenth
(10th) day following the earlier of the day on which notice of the date of the
scheduled meeting was mailed or the day on which public disclosure was made of
the date of the scheduled meeting. To be sufficient, such stockholder's notice
must set forth (x) 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, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, or pursuant to any other then
existing statute, rule or regulation applicable thereto (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected); (y) as to the stockholder giving the notice,
(1) the name and address, as they appear on the corporation's books, of such
stockholder and (2) the class and number of shares of the corporation which are
beneficially owned by such stockholder and also the class and number which are
owned of record by such stockholder; and (z) as to the beneficial owner, if any,
on whose behalf the nomination is made, (1) the name and address of such person
and (2) the class and number of shares of the corporation which are beneficially
owned by such person. The corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the corporation
to determine the qualifications and eligibility of such proposed nominee as a
Director. At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a Director shall furnish to the Clerk of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee.
(c) No person shall be eligible to serve as a Director of the corporation
unless nominated in accordance with the procedures set forth in this paragraph
4. The person presiding at the meeting shall, if the facts warrant, determine
that a nomination was not made in accordance with the procedures prescribed by
these By-Laws, and if the person presiding should so determine, he or she shall
so declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this paragraph 4, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended from time to time (or any successor law), and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
The provisions of this paragraph 4 shall not be construed as implying any right
to elect persons to the Board of Directors at a special meeting, other than any
right that be otherwise be granted under applicable law, the articles of
incorporation of the corporation or elsewhere under these By-Laws.
5. Tenure.
Except as otherwise provided by law, by the Articles of Organization or by
these By-Laws, Directors shall hold office until the next annual meeting of
stockholders or the special meeting held in place thereof and thereafter until
their successors are chosen and qualified.
6. Meetings.
Regular meetings of the Directors may be held without call or notice at such
places and at such times as the Directors may from time to time determine,
provided that any Director who is absent when such determination is made shall
be given notice of the determination. A regular meeting of the Directors may be
held without a call or notice at the same place as the annual meeting of
stockholders, or the special meeting held in place thereof, following such
meeting of stockholders.
Special meetings of the Directors may be held at any time and place
designated in a call by the President, Treasurer or two or more Directors.
7. Notice of Meetings.
Notice of all special meetings of the Directors shall be given to each
Director by the Clerk, or Assistant Clerk, or in case of the death, absence,
incapacity or refusal of such persons, by the officer or one of the Directors
calling the meeting. Notice shall be given to each Director in person or by
telephone or by telegram sent to his usual or last known business or home
address at least twenty-four hours in advance of the meeting, or by written
notice mailed to either such address at least forty-eight hours in advance of
the meeting. Notice need not be given to any Director if a written waiver of
notice, executed by him before or after the meeting, is filed with the records
of the meeting, or to any Director who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him. A notice or
waiver of notice of a Directors' meeting need not specify the purposes of the
meeting.
8. Quorum.
At any meeting of the Directors, a majority of the Directors then in office
shall constitute a quorum. Less than a quorum may adjourn any meeting from time
to time without further notice.
9. Action at Meeting.
At any meeting of the Directors at which a quorum is present the vote of a
majority of those present, unless a different vote is specified by law, by the
Articles of Organization, or by these By-Laws, shall be sufficient to decide any
question brought before such meeting.
10. Action by Consent.
Any action by the Directors may be taken without a meeting if a written
consent thereto is signed by all the Directors and filed with the records of the
Directors' meetings. Such consent shall be treated as a vote of the Directors
for all purposes.
11. Committees
The Directors may, by vote of a majority of the Directors then in office,
elect from their number an executive or other committees and may by like vote
delegate thereto some or all of their powers except those which by Section 55 of
Chapter 156B of the General Laws of Massachusetts, as amended, or by any other
provision of law or by the Articles of Organization or these By-Laws they are
prohibited from delegating. Except as the Directors may otherwise determine, any
such committee may make rules for the conduct of its business, but unless
otherwise provided by the Directors or in such rules, its business shall be
conducted as nearly as may be in the same manner as is provided by these By-Laws
for the Directors.
ARTICLE IV
OFFICERS
1. Enumeration.
The officers of the corporation shall consist of a President, a Treasurer, a
Clerk, and such other officers, including a Chairman of the Board of Directors,
one or more Vice Presidents, Assistant Treasurers, Assistant Clerks and
Secretary as the incorporators at their initial meeting or the directors from
time to time may elect or appoint. The Directors may appoint either the Chairman
of the Board, if any, or the President to be chief executive officer of the
Corporation. In the absence of such appointment, the President shall be chief
executive officer. The chief executive officer shall preside at all meetings of
stockholders.
2. Election.
The President, Treasurer and Clerk shall be elected annually by the
Directors at their first meeting following the annual meeting of stockholders.
Other officers may be chosen by the Directors at such meeting or at any other
time.
3. Vacancies.
If any office becomes vacant by reason of death, resignation, removal,
disqualification or otherwise, the Directors may choose a successor or
successors, who shall hold office for the unexpired term, except as otherwise
provided by law, by the Articles of Organization or by these By-Laws.
4. Qualification.
The President may, but need not be, a Director. No officer need be a
stockholder. Any two or more offices may be held by the same person. The clerk
shall be a resident of Massachusetts unless the corporation shall have appointed
a resident agent. Any officer may be required by the Directors to give bond for
the faithful performance of his duties to the corporation in such amount and
with such sureties as the Directors may determine.
5. Tenure.
Except as otherwise provided by law, by the Articles of Organization or by
these By-Laws, the President, Treasurer and Clerk shall hold office until the
first meeting of the Directors following the annual meeting of stockholders or
the special meeting held in place thereof, and thereafter until his successor is
chosen and qualified; and all other officers shall hold office until the first
meeting of the Directors following the annual meeting of stockholders, unless a
shorter term is specified in the vote choosing or appointing them.
6. President and Vice President.
The President shall, subject to the direction of the Directors (and, if the
chairman of the Board is the chief executive officer, subject also to the
direction of the Chairman of the Board), have general supervision and control of
its business. He shall preside, when present and if he is the chief executive
officer, at all meetings of stockholders and, unless otherwise provided by the
Directors, at all meetings of the Directors.
Any Vice President shall have such powers as the Directors may from time to
time designate.
7. Treasurer and Assistant Treasurers.
The Treasurer shall, subject to the direction and under the supervision of
the Directors have general charge of the financial concerns of the corporation
and the care and custody of the funds and valuable papers of the corporation,
except his own bond, and he shall have power to endorse for deposit or
collection all notes, checks, drafts, and other obligations for the payment of
money payable to the corporation or its order, and to accept drafts on behalf of
the corporation. He shall keep, or cause to be kept, accurate books of account,
which shall be the property of the corporation. If required by the board of
directors, he shall give bond for the faithful performance of his duty in such
form, in such sum, and with such sureties as the Directors shall require.
Any Assistant Treasurer shall have such powers as the Directors may from
time to time designate.
8. Clerk and Assistant Clerk.
The Clerk shall keep an attested copy of the Articles of Organization and
the Articles of Amendment thereto, and of these By-Laws, with a reference on the
margin of said By-Laws to all amendments thereof, all of which documents and
books shall be kept at the principal office of the corporation or at the office
of the Clerk. Unless a Transfer Agent is appointed, the Clerk shall keep or
cause to be kept in Massachusetts, at the principal office of the corporation or
at his office, the stock and transfer records of the corporation, in which are
contained the names of all stockholders and the record address, and the amount
of stock held by each.
In case a Secretary is not elected, the Clerk shall keep a record of the
meetings of the Directors.
Any Assistant Clerk shall have such powers as the Directors may from time to
time designate. In the absence of the Clerk from any meeting of stockholders, an
Assistant Clerk, if one be elected, otherwise a Temporary Clerk designated by
the person presiding at the meeting, shall perform the duties of the Clerk.
9. Secretary and Assistant Secretaries.
If a Secretary is elected, he shall keep a record of the meetings of the
Directors and in his absence, an Assistant Secretary, if one be elected,
otherwise a Temporary Secretary designated by the person presiding at the
meeting, shall keep a record of the meetings of the Directors.
Any Assistant Secretary shall have such powers as the Directors may from
time to time designate.
10. Other Powers and Duties.
Each officer shall, subject to these By-Laws, have in addition to the duties
and powers specifically set forth in these By-Laws, such duties and powers as
are customarily incident to his office, and such duties and powers as the
Directors may from time to time designate.
ARTICLE V
RESIGNATIONS AND REMOVALS
Any Director or officer may resign at any time by delivering his resignation
in writing to the President, the Treasurer or the Clerk or to a meeting of the
Directors. Such resignation shall be effective upon receipt unless specified to
be effective at some other time. A Director (including persons elected by
Directors to fill vacancies in the Board) may be removed from office (a) with or
without cause by the vote of the holders of a majority of the shares issued and
outstanding and entitled to vote in the election of Directors, provided that the
Directors of a class elected by a particular class of stockholders may be
removed only by the vote of the holders of a majority of the shares of such
class, or (b) for cause by vote of a majority of the Directors then in office.
The Directors may remove any officer elected by them with or without cause by
the vote of a majority of the Directors then in office. A Director or officer
may be removed for cause only after reasonable notice and opportunity to be
heard before the body proposing to remove him. No Director or officer resigning
and (except where a right to receive compensation shall be expressly provided in
a duly authorized written agreement with the corporation) no Director or officer
removed, shall have any right to any compensation as such Director or officer
for any period following his resignation or removal, or any right to damages on
account of such removal, whether his compensation be by the month or by the year
or otherwise; unless in the case of a resignation, the Directors, or in the case
of a removal, the body acting on the removal, shall in their or its discretion
provide for compensation.
ARTICLE VI
CAPITAL STOCK
1. Amount Authorized.
The amount of the authorized capital stock and the par value, if any, of the
shares authorized shall be as fixed in the Articles of Organization, as amended
from time to time.
2. Certificates of Stock.
Each stockholder shall be entitled to a certificate of the capital stock of
the corporation in such form as may be prescribed from time to time by the
Directors. The certificate shall be signed by the President or a Vice President,
and by the Treasurer or an Assistant Treasurer, but when a certificate is
countersigned by a transfer agent or a registrar, other than a Director, officer
or employee of the corporation, such signatures may be facsimiles. In case any
officer who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the time of its issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Articles of Organization, the By-Laws or any
agreement to which the corporation is a party, shall have the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement of the existence of such
restriction and a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back either the full
text of the preferences, voting powers, qualifications and special and relative
rights of the shares of each class and series authorized to be issued or a
statement of the existence of such preferences, powers, qualifications, and
rights, and a statement that the corporation will furnish a copy thereof to the
holder of such certificate upon written request and without charge.
3. Transfers.
Subject to the restrictions, if any, stated or noted on the stock
certificates, shares of stock may be transferred on the books of the corporation
by the surrender to the corporation or its transfer agent of the certificate
therefor properly endorsed or accompanied by a written assignment and power of
attorney properly executed, with necessary transfer stamps affixed, and with
such proof of the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required by law, by the
Articles of Organization or by these By-Laws, the Corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the corporation of his
post office address.
4. Record Date.
The Directors may fix in advance a time of not more than sixty (60) days
preceding the date of any meeting of stockholders, or the date for the payment
of any dividend or the making of any distribution to stockholders, or the last
day on which the consent or dissent of stockholders may be effectively expressed
for any purpose, as the record date for determining the stockholders having the
right to notice of and to vote at such meeting, and any adjournment thereof, or
the right to receive such dividend or distribution or the right to give such
consent or dissent. In such case only stockholders of record on such date shall
have such right, notwithstanding any transfer of stock on the books of the
corporation after the record date. Without fixing such record date the Directors
may for any of such purposes close the transfer books for all or any part of
such period.
5. Replacement of Certificates.
In case of the alleged loss or destruction, or the mutilation of a
certificate of stock, a duplicate certificate may be issued in place thereof,
upon such terms as the Directors may prescribe.
ARTICLE VII
MISCELLANEOUS PROVISIONS
1. Fiscal Year.
Except as from time to time otherwise determined by the Directors, the
fiscal year of the corporation shall end on the last Friday of August in each
year.
2. Seal.
The seal of the corporation shall, subject to alteration by the Directors,
consist of a flat-faced circular die with the word "Massachusetts", together
with the name of the corporation and the year of its organization cut or
engraved thereon.
3. Execution of Instruments.
All deeds, leases, transfers, contracts, bonds, notes and other obligations
authorized to be executed by an officer of the corporation in its behalf shall
be signed by the President or the Treasurer except as the Directors may
generally or in particular cases otherwise determine.
4. Voting of Securities.
Except as the Directors may otherwise designate, the President or Treasurer
may waive notice of, and appoint any person or persons to act as proxy or
attorney in fact for this corporation (with or without power of substitution) at
any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this corporation.
5. Inspection of Corporate Records.
The original, or attested copies, of the Articles of Organization, By-Laws
and records of all meetings of the incorporators and stockholders, and the stock
and transfer records, containing the names of all stockholders and the record
address and the amount of stock held by each, shall be kept in Massachusetts at
the principal office of the corporation, or at an office of its transfer agent
or of the Clerk. Said copies and records need not all be kept in the same
office. They shall be available at all reasonable times to the inspection of any
stockholder for any proper purpose 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.
6. Indemnification.
The corporation shall, to the extent legally permissible, indemnify each of
its Directors and Officers (including persons who serve at its request as
Directors, Officers, or Trustees of another organization in which it has any
interest as a shareholder, creditor or otherwise) against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, and counsel fees, reasonably incurred by him in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he may be involved or with which
he may be threatened, while in office or thereafter, by reason of his being or
having been such a Director or Officer, except with respect to any matter as to
which he shall have been adjudicated in any proceeding not to have acted in good
faith in the reasonable belief that his action was in the best interests of the
corporation; provided, however, that as to any matter disposed of by a
compromise payment by such Director or Officer, pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any other expenses
shall be provided unless such compromise shall be approved as in the best
interests of the corporation, after notice that it involved such
indemnification, (a) by a disinterested majority of the Directors then in
office; or (b) by a majority of the disinterested Directors then in office or,
if there are no disinterested Directors then in office, by a majority of the
Directors then in office, provided in either case that there has been obtained
an opinion in writing of independent legal counsel appointed by a majority of
such disinterested Directors or a majority of the Directors, as the case may be,
to the effect that the indemnification of such Director or Officer is not
prohibited by law; or (c) by the holders of a majority of the outstanding stock
at the time entitled to vote for Directors, voting as a single class, exclusive
of any stock owned by any interested Director or Officer. The right of
indemnification hereby provided shall not be exclusive of or affect any other
rights to which any Director or Officer may be entitled. As used in this
paragraph, the terms 'Director' and 'Officer' include their respective heirs,
executors and administrators, and an 'interested' Director or Officer is one
against whom in such capacity the proceedings in question or another proceeding
on the same or similar grounds is then pending. Nothing contained in this
Section shall affect any rights to indemnification to which corporate personnel
other than Directors and Officers may be entitled by contract or otherwise under
law.
7. Amendments.
These By-Laws may at any time be amended by vote of the stockholders,
provided that notice of the substance of the proposed amendment is stated in the
notice of the meeting, or may be amended by vote of a majority of the Directors
then in office, except that no amendment may be made by the Directors which
changes the date of the annual meeting of stockholders or which alters the
provisions of these By-Laws with respect to removal of Directors or the election
of committees by Directors and delegation of powers thereto, or amendment of
these By-Laws. No change in the date of the annual meeting may be made within
sixty (60) days before the date fixed in these By-Laws. Not later than the time
of giving notice of the meeting of stockholders next following the making,
amending or repealing by the Directors of any By-Law, notice thereof stating the
substance of such change shall be given to all stockholders entitled to vote on
amending the By-Laws.
8. Provisions Relative to Transactions With Interested Persons.
The corporation may enter into contracts and transact business with one or
more of its directors, officers or stockholders or with any corporation,
organization or other concern in which any one or more of its directors,
officers or stockholders are directors, officers, stockholders partners or
otherwise interested; and, in the absence of fraud, no such contract or
transaction shall be invalidated or in any way affected by the fact that such
directors, officers or stockholders of the corporation have or may have
interests which are or might be adverse to the interest of the corporation even
though the vote or action of directors, officers or stockholders having such
adverse interest may have been necessary to obligate the corporation upon such
contract or transaction. In the absence of fraud, no director, officer or
stockholder having such adverse interest shall be liable to the corporation or
to any stockholder or creditor thereof or to any other person for loss incurred
by it under or by reason of such contract or transaction, nor shall any such
director, officer or stockholder be accountable for any gains or profits
realized thereon.
9. Optional Redemption of Shares Acquired in Control Share Acquisitions
The corporation is authorized pursuant to Chapter 110D of the Massachusetts
General Laws to redeem, at the option of the corporation but without requiring
the agreement of the person who has made a control share acquisition, all but
not less than all shares acquired in such control share acquisition from such
person for the fair value of such shares if:
(i) no control share acquisition statement has been delivered; or
(ii) a control share acquisition statement has been delivered and
voting rights were not authorized for such shares by the
stockholders in accordance with the provisions of section five
of said Chapter 110D.
Notice of such redemption shall be given by the corporation not later than
sixty days after the date on which the stockholders of the corporation voted not
to authorize voting rights for the shares to be redeemed, or if no control share
acquisition statement has been delivered prior to the date on which notice of
redemption is given by the corporation, not later than sixty days after the
first date on which the Board of Directors of the corporation has actual
knowledge of such control share acquisition.
For purposes of this provision, fair value shall be determined as of the
date on which stockholders of the corporation voted not to authorize voting
rights for the shares to be redeemed, or, if no control share acquisition
statement is delivered, as of the date on which the corporation determines to
make a redemption under this provision. Such value shall be determined in
accordance with procedures adopted by the corporation and without regard to the
effect of the denial of voting rights under the provisions of section five of
said Chapter 110D.
* * *
As amended March 21, 1995