EXHIBIT 3.3
AMENDED AND RESTATED BY-LAWS
OF
NEXAR TECHNOLOGIES, INC.
(the "Corporation")
ARTICLE I.
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Certificate of Incorporation
----------------------------
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 as are set forth in the certificate of incorporation filed pursuant to
the General Corporation Law of Delaware which is hereby made a part of these
by-laws.
The term "certificate of incorporation" in these by-laws, unless the
context requires otherwise, includes not only the original certificate of
incorporation filed to create the Corporation but also all other restated
certificates, amendments, agreements of merger or consolidation, plans of
reorganization, or other instruments, howsoever designated, filed pursuant to
the General Corporation Law of Delaware which have the effect of amending or
supplementing in some respect the Corporation's original certificate of
incorporation.
ARTICLE II.
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Annual Meeting
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The annual meeting of stockholders shall be held within six months of
the end of the previous fiscal year of the Corporation, within or without the
State of Delaware, on the date and at the time fixed, from time to time, by the
directors. Purposes for which an annual meeting is to be held, in addition to
those prescribed by law, by the certificate of incorporation or by these
by-laws, may be specified by the directors or the president and shall be
included in the notice of the meeting. If the board of directors determines
that, in the interest of an informed stockholder vote on any matter, it is
appropriate to adjourn the annual meeting of stockholders to a later date in
order to make available information materially relevant to consideration of such
matter, the president or other officer presiding at such meeting may defer any
action on such matter and, without a stockholder vote on the matter of
adjournment, adjourn the meeting for the purpose of considering and acting on
such matter at a session to be convened at a later date. When the annual meeting
is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than thirty days, or if
after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
ARTICLE III.
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Special Meetings of Stockholders
--------------------------------
Special meetings of the stockholders may be held either within or
without the State of Delaware, at such time and place and for such purposes as
shall be specified in a call for such meeting made by the board of directors,
the Chief Executive Officer or the President of the Corporation or by the
Secretary within 10 days after receipt of the written request of a majority of
the directors.
ARTICLE IV.
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Notice of Stockholders' Meetings
--------------------------------
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, which notice shall be given
not less than ten nor more than sixty days before the date of the meeting,
except where longer notice is required by law, to each stockholder entitled to
vote at such meeting, by leaving such notice with him or by mailing it, postage
prepaid, directed to him at his address as it appears upon the records of the
Corporation. In case of the death, absence, incapacity or refusal of the
secretary, such notice may be given by a person designated either by the
secretary or by the person or persons calling the meeting or by the board of
directors. When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
An affidavit of the secretary or an assistant secretary or of the
transfer agent of the Corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
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ARTICLE V.
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Quorum of Stockholders; Stockholder List
----------------------------------------
At any meeting of the stockholders, a majority of all shares issued and
outstanding and entitled to vote upon a question to be considered at the meeting
shall constitute a quorum when represented at such meeting by the holders
thereof in person or by their duly constituted and authorized attorney or
attorneys, but holders of a lesser interest may adjourn any meeting from time to
time, and the meeting may be held as adjourned without further notice. When a
quorum is present at any meeting, a majority of the stock so represented thereat
and voting on any question brought before such meeting shall be determinative,
except where a larger vote is required by law, by the certificate of
incorporation or by these by-laws, and except that the vote required for the
election of directors shall be as set forth in the certificate of incorporation.
The secretary or other officer having charge of the stock ledger shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours for a period of at least ten days prior to the
meeting, either at a place within the city or town where the meeting is to be
held, which place shall have been specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. Said list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders required by this Article or
the books of the Corporation, or the stockholders entitled to vote in person or
by proxy at any meeting of stockholders.
ARTICLE VI.
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Proxies and Voting
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Except as otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock held by such stockholder. Directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors. Any other action shall be authorized by a majority of the votes cast
except where the General Corporation Law prescribes a different percentage of
votes and/or a different exercise of voting power, and except as may be
otherwise prescribed by the provisions of the certificate and these bylaws. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy but
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(except as otherwise expressly permitted by law) no proxy shall be voted or
acted upon after three years from its date, unless (a) the proxy provides for a
longer period, or (b) the proxy states that it is irrevocable and is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the corporation generally.
Prior to, but not after, the consummation of an offer and sale of
common stock of the Corporation to the public pursuant to a registration
statement filed by the Corporation on Form S-1 under the Securities Act of 1933,
as amended (the "1933 Act"), unless otherwise provided in the certificate of
incorporation, any action required by law to, or which may, be taken at any
annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote therein
were present and voted. Prompt notice of the taking of such action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE VII.
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Stockholders' Record Date
-------------------------
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action.
If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
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(3) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting,
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
ARTICLE VIII.
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Conduct of Meetings
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Meetings of the stockholders shall be presided over by one of the
following officers in the order of seniority and if present and acting - the
Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the
President, a Vice-President, or, if none of the foregoing is in office and
present and acting, by a chairman to be chosen by the stockholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the Chairman of the meeting shall appoint a secretary of
the meeting.
ARTICLE IX.
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Inspectors
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In advance of any meeting of stockholders, the board of directors shall
appoint one or more inspectors to act at the meeting and make a written report
thereof. If no inspector or alternate is able to act at a meeting os
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. 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 inspectors shall:
(1) Ascertain the number of shares outstanding and the voting power
of each;
(2) Determine the shares represented at a meeting and the validity
of proxies and ballots;
(3) Count all votes and ballots;
(4) Determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors; and
(5) Certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots.
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ARTICLE X.
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Board of Directors
------------------
Except as otherwise provided by law or by the certificate of
incorporation, the business and affairs of the corporation shall be managed by
the board of directors. Subject to the rights of holders of preferred stock,
nominations for the election of directors may be made by the board of directors
or a committee appointed by the board of directors or by any stockholder
entitled to vote in the election of directors generally. However, any
stockholder entitled to vote in the election of directors may nominate one or
more persons for election as directors at a meeting only if written notice of
such stockholder's intent to make such nomination or nominations has been given,
either by personal delivery or by United States mail, postage prepaid, to the
secretary of the corporation not later than 90 days prior to the date of any
annual or special meeting. In the event that the date of such annual or special
meeting was not publicly announced by the corporation by mail, press release or
otherwise more than 90 days prior to the meeting, notice by the stockholder to
be timely must be delivered to the secretary of the corporation not later than
the close of business on the tenth day following the day on which such
announcement of the date of the meeting was communicated to the stockholders.
Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated, by the
board of directors; and (e) the consent of each nominee to serve as a director
of the corporation if so elected.
The classification of the board of directors, the term of each class of
directors and the manner of election and removal of directors shall be as set
forth in the certificate of incorporation. Each director shall hold office until
his successor is elected and qualified or until his earlier resignation or
removal. Any director may resign at any time upon written notice to the
corporation. No director need be a stockholder.
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ARTICLE XI.
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Committees
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The board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The board may designate one or more
directors as alternate members of any committee who may replace any absent or
disqualified member at any meeting of the committee and may define the number
and qualifications which shall constitute a quorum of such committee. Except as
otherwise limited by law, any such committee, to the extent provided in the
resolution appointing such committee, shall have and may exercise the powers of
the board of directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
ARTICLE XII.
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Meeting of the Board of Directors and of Committees
---------------------------------------------------
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may by vote from time to time determine.
Special meetings of the board of directors may be held at any place
either within or without the State of Delaware at any time when called by the
president, treasurer, secretary or two or more directors, reasonable notice of
the time and place thereof being given to each director. A waiver of such notice
in writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to such
notice. In any case it shall be deemed sufficient notice to a director to send
notice by mail at least forty-eight hours, or to deliver personally or to send
notice by telegram at least twenty-four hours, before the meeting, addressed to
him at his usual or last known business or residence address.
Unless otherwise restricted by the certificate of incorporation or by
other provisions of these by-laws, (a) any action required or permitted to be
taken at any meeting of the board of directors or of any committee thereof may
be taken without a meeting if all members of the board or of such committee, as
the case may be, consent thereto in writing and such writing or writings are
filed with the minutes of proceedings of the board or committee, and (b) members
of the board of directors or of any committee designated by the board may
participate in a meeting thereof by means of conference telephone or similar
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communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
ARTICLE XIII.
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Quorum of the Board of Directors
--------------------------------
Except as otherwise expressly provided in the certificate of
incorporation or in these by-laws, a majority of the total number of directors
at the time in office shall constitute a quorum for the transaction of business,
except when a vacancy or vacancies prevents such majority, whereupon a majority
of the directors in office shall constitute a quorum, but a smaller number of
directors may adjourn any meeting from time to time. Except as otherwise so
expressly provided, the vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the board of directors,
provided, however, that the affirmative vote in good faith of a majority of the
disinterested directors, even though the disinterested directors shall be fewer
than a quorum, shall be sufficient to authorize a contract or transaction in
which one or more directors have interest if the material facts as to such
interest and the relation of the interested directors to the contract or
transaction have been disclosed or are known to the directors.
Any member or members of the Board of Directors or of any committee
designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
ARTICLE XIV.
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Waiver of Notice of Meetings
----------------------------
Whenever notice is required to be given under any provision of law or
the certificate of incorporation or these by-laws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the certificate of incorporation or the by-laws.
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ARTICLE XV.
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Officers and Agents
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The Corporation shall have a president, secretary and treasurer, who
shall be chosen by the directors, each of whom shall hold his office until his
successor has been chosen and qualified or until his earlier resignation or
removal. The Corporation may have such other officers and agents as are desired,
each of whom shall be chosen by the board of directors and shall hold his office
for such term and have such authority and duties as shall be determined by the
board of directors. The board of directors may secure the fidelity of any or all
of such officers or agents by bond or otherwise. Any number of offices may be
held by the same person. Each officer shall, subject to these by-laws, have in
addition to the duties and powers herein set forth, such duties and powers as
the board of directors shall from time to time designate. In all cases where the
duties of any officer, agent or employee are not specifically prescribed by the
by-laws, or by the board of directors, such officer, agent or employee shall
obey the orders and instructions of the president. Any officer may resign at any
time upon written notice to the Corporation.
ARTICLE XVI.
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President, Chief Executive Officer
----------------------------------
The president shall, subject to the direction and under the supervision
of the board of directors, be the chief executive officer of the Corporation and
shall have general and active control of its affairs and business and general
supervision over its officers, agents and employees. Except as otherwise voted
by the board, he shall preside at all meetings of the stockholders and of the
board of directors at which he is president. The president shall have custody of
the treasurer's bond, if any. Notwithstanding the foregoing, the board of
directors may provide that an executive committee of the board of directors
shall have general and active control of the affairs and business of the
Corporation and general supervision over its officers, agents and employees, in
which event the president shall not be the chief executive officer but shall
have such duties and authority as may be assigned by the board of directors and
the executive committee.
ARTICLE XVII.
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Secretary
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The secretary shall record all the proceedings of the meetings of the
stockholders and directors in a book, which shall be the property of the
Corporation, to be kept for that purpose; and perform such other duties as shall
be assigned to him by the board of directors. In the absence of the secretary
from any such meeting, a temporary secretary shall be chosen, who shall record
the proceedings of such meeting in the aforesaid book.
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ARTICLE XVIII.
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Treasurer
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The treasurer shall, subject to the direction and under the supervision
of the board of directors, have the care and custody of the funds and valuable
papers of the Corporation, except his own bond, and he shall, except as the
board of directors shall generally or in particular cases authorize the
endorsement thereof in some other manner, have power to endorse for deposit or
collection all notes, checks, drafts and other obligations for the payment of
money to the Corporation or its order. He shall keep, or cause to be kept,
accurate books of account, which shall be the property of the Corporation.
ARTICLE XIX.
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Removals
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The board of directors may, at any meeting called for the purpose, by
vote of a majority of their entire number, remove from office any officer or
agent of the Corporation or any member of any committee appointed by the board
of directors or by any committee appointed by the board of directors or by any
officer or agent of the Corporation.
ARTICLE XX.
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Vacancies
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Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the authorized number of directors, may be filled by a majority
of the directors then in office (though less than a quorum) or by a sole
remaining director and each of the incumbents so chosen shall hold office for
the unexpired term in respect of which the vacancy occurred and until his
successor shall have been duly elected and qualified or for such shorter period
as shall be specified in the filling of such vacancy or, if such vacancy shall
have occurred in the office of director, until such a successor shall have been
chosen by the stockholders.
ARTICLE XXI.
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Certificate of Stock
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Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of the Corporation by the chairman or
vice-chairman of the board of directors (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary, certifying the number of shares owned
by him in the Corporation. If such certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee, or (2) by a registrar
other
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than the Corporation or its employee, any other signatures on the certificate
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed upon a 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 date of issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificates which the Corporation shall issue to represent such
class or series of stock or there shall be set forth on the face or back of the
certificates which the Corporation shall issue to represent such class or series
of stock, a statement that the Corporation will furnish, without charge to each
stockholder who so requests, the designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Any restriction imposed upon the transfer of shares or
registration of transfer of shares shall be noted conspicuously on the
certificate representing the shares subject to such restriction.
ARTICLE XXII.
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Loss of Certificate
-------------------
The Corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen of
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate in its place and upon such other terms or
without any such bond as the board of directors shall prescribe.
ARTICLE XXIII.
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Seal
----
The corporate seal shall, subject to alteration by the board of
directors, consist of a flat-faced circular die with the word "Delaware"
together with the name of the Corporation and the year of its organization cut
or engraved thereon. The corporate seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
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ARTICLE XXIV.
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Execution of Papers
-------------------
Except as otherwise provided in these by-laws or as the board of
directors may generally or in particular cases authorize the execution thereof
in some other manner, all deeds, leases, transfers, contracts, bonds, notes,
checks, drafts and other obligations made, accepted or endorsed by the
Corporation, shall be signed by the president or by the treasurer.
ARTICLE XXV.
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Fiscal Year
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Except as from time to time otherwise provided by the board of
directors, the fiscal year of the Corporation shall end on the last day of
December of each year.
ARTICLE XXVI.
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Restrictions of Transfer
------------------------
The following restrictions are imposed upon the transfer of shares of
the capital stock of the Corporation:
(a) The Corporation shall have the right to purchase, or to direct the
transfer of, the shares of its capital stock in the events and subject to the
conditions and at a price fixed as provided below; each holder of shares of such
capital stock holds his shares subject to this right and by accepting the same
upon original issue or subsequent transfer thereof, the stockholder agrees for
himself, his legal representatives and assigns as follows:
(b) in the event of any change in the ownership of any share or shares
of such capital stock (made or proposed) or in the right to vote thereon
(whether by the holder's act or by death, legal disability, operation of law,
legal processes, order of court, or otherwise, except by ordinary proxies or
powers of attorney) the Corporation has the right to purchase such share or all
or any part of such shares or to require the same to be sold to a purchaser or
purchasers designated by the Corporation or to follow each such method in part
at a price per share equal to the fair value thereof at the close of business on
the last business day next preceding such event as determined by mutual
agreement or, failing such agreement, by arbitration as provided below.
(c) In any such event the owner of the share or shares concerned
therein (being for the purposes of these provisions, all persons having any
property interest therein) shall give notice thereof in detail satisfactory to
the Corporation. Within ten days after receipt of
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said owner's notice, the Corporation shall elect whether or not to exercise its
said rights in respect of said shares and, if it elects to exercise them, shall
give notice of its election.
(d) Failing agreement between the owner and the Corporation as to the
price per share to be paid, such price shall be the fair value of such shares as
determined by three arbitrators, one designated within five days after the
termination of said ten-day period by the registered holder of said share or
shares or his legal representatives, one within said period of five days by the
Corporation and the third within five days after said appointment last occurring
by the two so chosen. Successor arbitrators, if any shall be required, shall be
appointed, within reasonable time, as nearly as may be in the manner provided as
to the related original appointment. No appointment shall be deemed as having
been accomplished unless such arbitrator shall have accepted in writing his
appointment as such within the time limited for his appointment. Notice of each
appointment of an arbitrator shall be given promptly to the other parties in
interest. Said arbitrators shall proceed promptly to determine said fair value.
The determination of the fair value of said share or shares by agreement of any
two of the arbitrators shall be conclusive upon all parties interested in such
shares. Forthwith upon such determination the arbitrators shall mail or deliver
notice of such determination to the owner (as above defined) and to the
Corporation.
(e) Within ten days after agreement upon said price or mailing of
notice of determination of said price by arbitrators as provided below
(whichever shall last occur), the shares specified therein for purchase shall be
transferred to the Corporation or to the purchaser or purchasers designated
therein or in part to each as indicated in such notice of election against
payment of said price at the principal office of the Corporation.
(f) If in any of the said events, notice therefor having been given as
provided above, the Corporation elects in respect of any such shares or any part
thereof not to exercise its said rights, or fails to exercise them or to give
notice or make payment all as provided above, or waives said rights by vote or
in authorized writing, then such contemplated transfer or such change may become
effective as to those shares with respect to which the Corporation elects not to
exercise its rights or fails to exercises them or to give notice or to make
payment, if consummated within thirty days after such election, failure or
waiver by the Corporation, or within such longer period as the Corporation may
authorize.
(g) If the owner's notice in respect of any of such shares of capital
stock is not received by the Corporation as provided above, or if the owner
fails to comply with these provisions in respect of any such shares in any other
regard, the Corporation, at its option and in addition to its other remedies,
may suspend the rights to vote or to receive dividends on said shares, or may
refuse to register on its books any transfer of said shares or otherwise to
recognize any transfer or change in the ownership thereof or in the right to
vote thereon, one or more, until these provisions are complied with to the
satisfaction of the Corporation; and if the required owner's notice is not
received by the Corporation after written demand by the Corporation it may also
or independently proceed as though a proper
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owner's notice has been received at the expiration of ten days after mailing
such demand, and, if it exercises its rights with respect to said shares or any
of them, the shares specified shall be transferred accordingly.
(h) In respect of these provisions with respect to the transfer of
shares of capital stock, the Corporation may act by its board of directors. Any
notice or demand under said provisions shall be deemed to have been sufficiently
given if in writing delivered by hand or addressed by mail postpaid, to the
Corporation at its principal office or to the owner (as above defined) or to the
holder registered on the books of the Corporation (or his legal representative)
of the share or shares in question at the address stated in his notice or at his
address appearing on the books of the Corporation.
(i) Nothing herein contained shall prevent the pledging of shares, if
there is neither a transfer of the legal title thereto nor a transfer on the
books of the Corporation into the name of the pledgee, but no pledgee or person
claiming thereunder shall be entitled to make or cause to be made any transfer
of pledged shares by sale thereof or otherwise (including in this prohibition
transfer on the books of the Corporation into the name of the pledgee) except
upon compliance herewith and any such pledge shall be subject to those
conditions and restrictions.
(j) Anything to the contrary contained herein notwithstanding, the
following transactions shall be exempt from the provisions of this by-law:
(1) A stockholder's transfer of any or all shares held either
during such stockholder's lifetime or on death by will or intestacy to or to a
trust or a custodian for the benefit of such stockholder or such stockholder's
immediate family. "Immediate family" as used herein shall mean spouse, lineal
descendant, father, mother, brother, sister, aunt, uncle, niece or nephew.
(2) A stockholder's transfer of any or all of such
stockholder's shares to any other stockholder of the Corporation.
(3) A stockholder's transfer of any or all of such
stockholder's shares to a person who, at the time of such transfer, is an
officer or director of the Corporation.
(4) A corporate stockholder's transfer of any or all of its
shares (i) pursuant to and in accordance with the terms of any merger,
consolidation, reclassification of shares or capital reorganization of the
corporate stockholder, or (ii) to any or all of its stockholders.
(5) A transfer by a stockholder which is a limited or general
partnership to any or all of its partners or retired partners.
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In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this by-law, and there
shall be no further transfer of such stock except in accordance with this
by-law.
(k) The restrictions on transfer contained in this Article XXVI shall
terminate immediately prior to the time securities of the Corporation are first
offered to the public pursuant to a registration statement on Form S-1 filed
with, and declared effective by, the United States Securities and Exchange
Commission under the 1933 Act.
(1) Notwithstanding the foregoing provisions of this Article
XXVI with respect to the determination of purchase price of shares of stock, in
the event of any inconsistency between such provisions and those of employee
purchase or other agreements between the Corporation and persons who purchase
shares of its capital stock, those of such employee purchase or other agreements
shall govern.
ARTICLE XXVII.
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Amendments
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Except as otherwise provided by law or by the certificate of
incorporation, these by-laws, as from time to time altered or amended, may be
made, altered or amended at any annual or special meeting of the stockholders
called for the purpose, of which the notice shall specify the subject matter of
the proposed alteration or amendment or new by-law or the article or articles to
be affected thereby. If the certificate of incorporation so provides, these
by-laws may also be made, altered or amended by a majority of the whole number
of directors.
ds1/297351
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