EXHIBIT 3.14
BY-LAWS
of
PLIERS INTERNATIONAL INC.
A Delaware Corporation
Adopted: October 13, 1991
Secretary: /s/ Peggy Leichman
-------------------------
Peggy Leichman, Secretary
BY-LAWS
TABLE OF CONTENTS
ARTICLE I - STOCKHOLDERS........................................................................ 1
SECTION 1.1. ANNUAL MEETING..................................................................... 1
SECTION 1.2. SPECIAL MEETINGS................................................................... 1
SECTION 1.3. NOTICE OF MEETING.................................................................. 1
SECTION 1.4. QUORUM............................................................................. 2
SECTION 1.5. VOTING AND PROXIES................................................................. 2
SECTION 1.6. ACTION AT MEETING.................................................................. 2
SECTION 1.7. ACTION WITHOUT MEETING............................................................. 2
SECTION 1.8. VOTING OF SHARES OF CERTAIN HOLDERS................................................ 2
SECTION 1.9. STOCKHOLDER LISTS.................................................................. 3
ARTICLE II - BOARD OF DIRECTORS................................................................. 3
SECTION 2.1. POWERS............................................................................. 3
SECTION 2.2. NUMBER OF DIRECTORS; QUALIFICATIONS................................................ 4
SECTION 2.3. NOMINATION OF DIRECTORS............................................................ 5
SECTION 2.4. ELECTION OF DIRECTORS.............................................................. 5
SECTION 2.5. VACANCIES; REDUCTION OF THE BOARD.................................................. 5
SECTION 2.6. ENLARGEMENT OF THE BOARD........................................................... 5
SECTION 2.7. TENURE AND RESIGNATION............................................................. 5
SECTION 2.8. REMOVAL............................................................................ 6
SECTION 2.9. MEETINGS........................................................................... 6
SECTION 2.10. NOTICE OF MEETING................................................................. 6
SECTION 2.11. AGENDA............................................................................ 6
SECTION 2.12. QUORUM............................................................................ 7
SECTION 2.13. ACTION AT MEETING................................................................. 7
SECTION 2.12. ACTION WITHOUT MEETING............................................................ 7
SECTION 2.15. COMMITTEES........................................................................ 7
ARTICLE III. OFFICERS........................................................................... 7
SECTION 3.1. ENUMERATION........................................................................ 7
SECTION 3.2. ELECTION........................................................................... 8
SECTION 3.3. QUALIFICATION...................................................................... 8
SECTION 3.4. TENURE............................................................................. 8
SECTION 3.5. REMOVAL............................................................................ 8
SECTION 3.6. RESIGNATION........................................................................ 8
SECTION 3.7. VACANCIES.......................................................................... 8
SECTION 3.8. PRESIDENT.......................................................................... 8
SECTION 3.9. VICE-PRESIDENT(S).................................................................. 8
SECTION 3.10. TREASURER AND ASSISTANT TREASURERS................................................ 8
SECTION 3.11. SECRETARY AND ASSISTANT SECRETARIES............................................... 9
SECTION 3.12 OTHER POWERS AND DUTIES............................................................ 9
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ARTICLE IV. - CAPITAL STOCK..................................................................... 9
SECTION 4.1. STOCK CERTIFICATES................................................................. 9
SECTION 4.2. TRANSFER OF SHARES................................................................. 10
SECTION 4.3. RECORD HOLDERS..................................................................... 10
SECTION 4.4. RECORD DATE........................................................................ 10
SECTION 4.5. TRANSFER AGENT AND REGISTRAR FOR SHARES OF CORPORATION............................. 11
SECTION 4.6. LOSS OF CERTIFICATES............................................................... 11
SECTION 4.7. RESTRICTIONS ON TRANSFER........................................................... 11
SECTION 4.8. MULTIPLE CLASSES OF STOCK.......................................................... 12
ARTICLE V. - DIVIDENDS.......................................................................... 12
SECTION 5.1. DECLARATION OF DIVIDENDS........................................................... 12
SECTION 5 2. RESERVES........................................................................... 12
ARTICLE VI. - POWERS OF OFFICERS TO CONTRACT WITH THE CORPORATION............................... 12
ARTICLE VII. - INDEMNIFICATION.................................................................. 13
SECTION 7.1. DEFINITIONS........................................................................ 13
SECTION 7.2. RIGHT TO INDEMNIFICATION IN GENERAL................................................ 15
SECTION 7.3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION........... 15
SECTION 7.4. PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.................................. 15
SECTION 7.5. INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL...................... 16
SECTION 7.6. INDEMNIFICATION FOR EXPENSES OF A WITNESS.......................................... 16
SECTION 7.7. ADVANCEMENT OF EXPENSES............................................................ 16
SECTION 7.8. NOTIFICATION AND DEFENSE OF CLAIM.................................................. 17
SECTION 7.9. PROCEDURES......................................................................... 18
SECTION 7.10. ACTION BY THE CORPORATION......................................................... 18
SECTION 7.11. NON-EXCLUSIVITY................................................................... 19
SECTION 7.12. INSURANCE......................................................................... 19
SECTION 7.13. NO DUPLICATIVE PAYMENT............................................................ 19
SECTION 7.14. EXPENSES OF ADJUDICATION.......................................................... 19
SECTION 7.15. SEVERABILITY...................................................................... 19
ARTICLE VIII.................................................................................... 20
SECTION 8.1 RESTRICTION ON TRANSFER............................................................. 20
SECTION 8.2 EXCEPTION FOR AUTHORIZED TRANSFEREES................................................ 20
SECTION 8.3 VOLUNTARY TRANSFERS................................................................. 20
SECTION 8.4 TRANSFER EVENTS..................................................................... 21
SECTION 8.5 FIRST RIGHT OF PURCHASE............................................................. 21
SECTION 8.6 TRANSFERS IN VIOLATION OF ARTICLE................................................... 22
SECTION 8.7 PURCHASE PRICE...................................................................... 22
SECTION 8.8 TENDERS............................................................................. 23
SECTION 8.9 WAIVER, DISPOSITION OF STOCK........................................................ 23
SECTION 8.10 NOTICES............................................................................ 23
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ARTICLE IX - MISCELLANEOUS PROVISIONS........................................................... 24
SECTION 9.1. CERTIFICATE OF INCORPORATION....................................................... 24
SECTION 9.2. FISCAL YEAR........................................................................ 24
SECTION 9.3. CORPORATE SEAL..................................................................... 24
SECTION 9.4. EXECUTION OF INSTRUMENTS............................................................ 24
SECTION 9.5. VOTING OF SECURITIES............................................................... 24
SECTION 9.6. EVIDENCE OF AUTHORITY.............................................................. 24
SECTION 9.7. CORPORATE RECORDS.................................................................. 24
SECTION 9.8. CHARITABLE CONTRIBUTIONS........................................................... 25
ARTICLE X. - AMENDMENTS......................................................................... 25
SECTION 10.1. AMENDMENT BY STOCKHOLDERS......................................................... 25
SECTION 10.2. AMENDMENT BY BOARD OF DIRECTORS................................................... 25
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BY-LAWS
OF
PLIERS INTERNATIONAL
ARTICLE I
Stockholders
Section 1.1. Annual Meeting. The annual meeting of the stockholders of the
corporation shall be held on such date as shall be fixed by The Board of
Directors, at such time and place within or without the State of Delaware as may
be designated in the notice of meeting. If the day fixed for the annual meeting
shall fall on a legal holiday, the meeting shall be held on the next succeeding
day not a legal holiday. If the annual meeting is omitted on the day herein
provided, a special meeting may be held in place thereof, and any business
transacted at such special meeting in lieu of annual meeting shall have the same
effect as if transacted or held at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the stockholders may be
called at any time by the president or by the board of directors. Special
meetings of the stockholders shall be held at such time, date and place within
or outside of the State of Delaware as may be designated in the notice of such
meeting.
Section 1.3. Notice of Meeting. A written notice stating the place, date,
and hour of each meeting of the stockholders, and, in the case of a special
meeting, the purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at such meeting, and to each stockholder who, under
the Certificate of Incorporation or these By-laws, is entitled to such notice,
by delivering such notice to such person or leaving it at their 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,
at least ten (10) days and not more than sixty (60) before the meeting. Such
notice shall be given by the secretary, an assistant secretary, or any other
officer or person designated either by the secretary or by the person or persons
calling the meeting.
The requirement of notice to any stockholder may be waived (i) by a
written waiver of notice, executed before or after the meeting by the
stockholder or his attorney thereunto duly authorized, and filed with the
records of the meeting, (ii) if communication with such stockholder is unlawful,
(iii) by attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice, or (iv) as otherwise excepted by law. A waiver
of notice of any regular or special meeting of the stockholders need not specify
the purposes of the meeting.
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If a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.4. Quorum. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present.
Section 1.5. Voting and Proxies. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the corporation, unless otherwise provided by law or by the Certificate of
Incorporation. Stockholders may vote either in person or by written proxy, but
no proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. Proxies shall be filed with the
secretary of the meeting, or of any adjournment thereof. Except as otherwise
limited therein, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
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.
Section 1.6. Action at Meeting. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office, and a majority of the votes properly cast upon any question other
than election to an office shall decide such question, except where a larger
vote is required by law, the Certificate of Incorporation or these by-laws. No
ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 1.7. Action Without Meeting. Any action required or permitted to
be taken at any meeting of the stockholders may be taken without a meeting
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the minimum
number of votes necessary to authorize or take such action at a meeting at which
shares entitled to vote thereon were present and voted and copies are delivered
to the corporation in the manner prescribed by law.
Section 1.8. Voting of Shares of Certain Holders. Shares of stock of the
corporation standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, or proxy as the by-laws of such corporation
may prescribe, or, in the absence of such provision, as the board of directors
of such corporation may determine.
Shares of stock of the corporation standing in the name of a deceased
person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed
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guardian or conservator without a transfer of such shares into the name of such
administrator, executor, court appointed guardian or conservator. Shares of
capital stock of the corporation standing in the name of a trustee or fiduciary
may be voted by such trustee or fiduciary.
Shares of stock of the corporation standing in the name of a receiver may
be voted by such receiver, and shares held by or under the control of a receiver
may be voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by which
such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledger on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or its proxy shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by the corporation in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares.
Section 1.9. Stockholder Lists. The secretary (or the corporation's
transfer agent or other person authorized by these By-laws or by law) 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 where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The 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.
ARTICLE III.
Board of Directors
Section 2.1. Powers. Except as reserved to the stockholders by law, by the
Certificate of Incorporation or by these By-laws, the business of the
corporation shall be managed under the direction of the board of directors, who
shall have and may exercise all of the powers of the corporation.
Section 2.2. Number of Directors; Qualifications. The board of directors
shall consist of such number of directors, not less than 1 nor more than 5 as
shall be fixed initially by the incorporator and thereafter by the board of
directors. No director need be a stockholder.
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Section 2.3. Nomination of Directors.
(a) Nominations for the election of directors may be made by the board of
directors or by any stockholder entitled to vote for the election of directors.
Nominations by stockholders shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the secretary of
the corporation not less than 14 days nor more man 60 days prior to any meeting
of the stockholders called for the election of directors; provided, however,
that if less than 21 written days' notice of the meeting is given to
stockholders, such notice of nomination by a stockholder shall be delivered or
mailed, in the manner prescribed above, to the secretary of the corporation not
later than the close of the fifth day following the day on which notice of the
meeting was mailed to stockholders.
(b) Each notice under subsection (a) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
and (iii) the number of shares of stock of the corporation which are
beneficially owned by each such nominee.
(c) The chairman of the meeting of stockholders shall determine whether or
not a nomination was made in accordance with the procedures of this Section 2.3,
and if he shall determine that it was not, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 2.4. Election of Directors. The initial Board of directors shall
be designated in the certificate of incorporation, or if not so designated,
elected by the incorporator at the first meeting thereof. Thereafter, directors
shall be elected by the stockholders at their annual meeting or at any special
meeting the notice of which specifies the election of directors as an item of
business for such meeting.
Section 2.5 Vacancies; Reduction of the Board. Any vacancy in the board of
directors, however occurring, including a vacancy resulting from the enlargement
of the board of directors, may be filled by the stockholders or by the directors
then in office or by a sole remaining director. In lieu of filling any such
vacancy the stockholders or board of directors may reduce the number of
directors, but not to a number less than one(1). When one or more directors
shall resign from the board of directors, effective at a future date, a majority
of the directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective.
Section 2.6. Enlargement of the Board. 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.
Section 2.7. Tenure and Resignation. Except as otherwise provided by law,
by the Certificate of Incorporation or by these By-laws, directors shall hold
office until the next annual meeting of stockholders and thereafter until their
successors are chosen and qualified. Any director may resign by delivering or
mailing postage prepaid a written resignation to the corporation
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at its principal office or to the president, secretary or assistant secretary,
if any. Such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some other event.
Section 2.8. Removal. A director, whether elected by the stockholders or
directors, may be removed from office with or without cause at any annual or
special meeting of stockholders by vote of a majority of the stockholders
entitled to vote in the election of such directors, or for cause by a vote of a
majority of the directors then in office; provided, however, that a director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section 2.9. Meetings. Regular meetings of the board of directors may be
held without call or notice at such times and such places within or without the
State of Delaware as the board may, from time to time, determine, provided that
notice of the first regular meeting following any such determination shall be
given to directors absent from such determination. A regular meeting of the
board of directors shall be held without notice immediately after, and at the
same place as, the annual meeting of the stockholders or the special meeting of
the stockholders held in place of such annual meeting, unless a quorum of the
directors is not then present. Special meetings of the board of directors may be
held at any time and at any place designated in the call of the meeting when
called by the president, treasurer, or one or more directors. Members of the
board of directors or any committee elected thereby may participate in a meeting
of such board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at the meeting.
Section 2.10. Notice of Meeting. It shall be sufficient notice to a
director to send notice by mail at least seventy-two (72) hours before the
meeting addressed to such person at his usual or last known business or
residence address or to give notice to such person in person or by telephone at
least twenty-four (24) hours before the meeting. Notice shall be given by the
secretary, or in his absence or unavailability, may be given by an assistant
secretary, if any, or by the officer or directors calling the meeting. The
requirement of notice to any director may be waived by a written waiver of
notice, executed by such person before or after the meeting or meetings and
filed with the records of the meeting, or by attendance at the meeting without
protesting prior thereto or at its commencement the lack of notice. A notice or
waiver of notice of a directors' meeting need not specify the purposes of the
meeting.
Section 2.11. Agenda. Any lawful business may be transacted at a meeting
of the board of directors, notwithstanding the fact that the nature of the
business may not have been specified in the notice or waiver of notice of the
meeting.
Section 2.12. Quorum. At any meeting of the board of directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business. Any meeting may be adjourned by a majority of the votes
cast upon the question, whether or not a quorum is present, and the meeting may
be held as adjourned without further notice.
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Section 2.13. Action at Meeting. Any motion adopted by vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the board of directors, except where a different vote is
required by law, by the Certificate of Incorporation or by these By-laws. The
assent in writing of any director to any vote or actions of the directors taken
at any meeting, whether or not a quorum was present and whether or not the
director had or waived notice of the meeting, shall have the same effect as if
the director so assenting was present at such meeting and voted in favor of such
vote or action.
Section 2.14. Action Without Meeting. Any action by the directors may be
taken without a meeting if all of the directors consent to the action in writing
and the consents are filed with the records of the directors' meetings. Such
consent shall be treated for all purposes as a vote of the directors at a
meeting.
Section 2.15. Committees. The board of directors may, by the affirmative
vote of a majority of the directors then in office, appoint an executive
committee or other committees consisting of one or more directors and may by
vote delegate to any such committee some or all of their powers except those
which by law, the Certificate of Incorporation or these By-laws they may not
delegate. In the absence or disqualification of a member of a committee, the
members of the committee present and not disqualified, whether or not they
constitute a quorum, may by unanimous vote appoint another member of the board
of directors to act at the meeting in place of the absence or disqualified
member. Unless the board of directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the board of directors or such rules, its meetings shall be called,
notice given or waived, its business conducted or its action taken as nearly as
may be in the same manner as is provided in these By-laws with respect to
meetings or for the conduct of business or the taking of actions by the board of
directors. The board of directors shall have power at any time to fill vacancies
in, change the membership of, or discharge any such committee at any time. The
board of directors shall have power to rescind any action of any committee, but
no such rescission shall have retroactive effect.
ARTICLE III.
Officers
Section 3.1. Enumeration. The officers shall consist of a president, a
treasurer, a secretary and such other officers and agents (including one or more
vice-presidents, assistant treasurers and assistant secretaries), as the board
of directors may, in their discretion, determine.
Section 3.2. Election. The president, treasurer and secretary shall be
elected annually by the director at their first meeting following the annual
meeting of the stockholders or any special meeting held in lieu of the annual
meeting. Other officers may be chosen by the directors at such meeting or at any
other meeting.
Section 3.3. Qualifications. An officer may, but need not, be a director
or stockholder. Any two or more offices may be held by the same person. Any
officer may be required by the
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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. The premiums for such bonds may be paid by the corporation.
Section 3.4. Tenure. Except as otherwise provided by the Certificate of
Incorporation or these By-laws, the term of office of each officer shall be for
one year or until his successor is elected and qualified or until his earlier
resignation or removal.
Section 3.5. Removal. Any officer may be removed from office, with or
without cause, by the affirmative vote of a majority of the directors then in
office; provided, however, that an officer may be removed for cause only after
reasonable notice and opportunity to be heard by the board of directors prior to
action thereon.
Section 3.6. Resignation. Any officer may resign by delivering or mailing
postage prepaid a written resignation to the corporation at its principal office
or to the president secretary, or assistant secretary, if any, and such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some event.
Section 3.7. Vacancies. A vacancy in any office arising from any cause may
be filled for the unexpired portion of the term by the board of directors.
Section 3.8. President. The president shall be the chief executive officer
of the corporation Except as otherwise voted by the board of directors, the
president shall preside at all meetings of the stockholders and of the board of
directors at which present. The president shall have such duties and powers as
are commonly incident to the office and such duties and powers as the board of
directors shall from time to time designate.
Section 3.9. Vice-President(s). The vice-president(s), if any, shall have
such powers and perform such duties as the board of directors may from time to
time determine.
Section 3.10. Treasurer and Assistant Treasurers. The treasurer, subject
to the direction and under the supervision and control of the board of
directors, shall have general charge of the financial affairs of the
corporation. The treasurer shall have custody of all funds, securities and
valuable papers of the corporation, except as the board of directors may
otherwise provide. The treasurer shall keep or cause to be kept full and
accurate records of account which shall be the property of the corporation, and
which shall be always open to the inspection of each elected officer and
director of the corporation. The treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as may
be authorized by the board of directors. The treasurer shall have the power to
endorse for deposit or collection all notes, checks, drafts, and other
negotiable instruments payable to the corporation. The treasurer shall perform
such other duties as are incidental to the office, and such other duties as may
be assigned by the board of directors.
Assistant treasurers, if any, shall have such powers and perform such
duties as the board of directors may from time to time determine.
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Section 3.11. Secretary and Assistant Secretaries. The secretary shall
record, or cause to be recorded, all proceedings of the meetings of the
stockholders and directors (including committees thereof) in the book of records
of this corporation. The record books shall be open at reasonable times to the
inspection of any stockholder, director, or officer. The secretary shall notify
the stockholders and directors, when required by law or by these By-laws, of
their respective meetings, and shall perform such other duties as the directors
and stockholders may from time to time prescribe. The secretary shall have the
custody and charge of the corporate seal, and shall affix the seal of the
corporation to all instruments requiring such seal, and shall certify under the
corporate seal the proceedings of the directors and of the stockholders, when
required. In the absence of the secretary at any such meeting, a temporary
secretary shall be chosen who shall record the proceedings of the meeting in the
aforesaid books.
Assistant secretaries, if any, shall have such powers and perform such
duties as the board of directors may from time to time designate.
Section 3.12. Other Powers and Duties. Subject to these By-laws and to
such limitations as the board of directors may from time to time prescribe, the
officers of the corporation shall each have such powers end duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the board of directors.
ARTICLE IV.
Capital Stock
Section 4.1. Stock Certificates. Each stockholder shall be entitled to a
certificate representing the number of shares of the capital stock of the
corporation owned by such person in such form as shall, in conformity to law, be
prescribed from time to time by the board of directors. Each certificate shall
be signed by the president or vice-president and treasurer or assistant
treasurer or such other officers designated by the board of directors from time
to time as permitted by law, shall bear the seal of the corporation, and shall
express on its face its number, date of issue, class, the number of shares for
which, and the name of the person to whom, it is issued. The corporate seal and
any or all of the signatures of corporation officers may be facsimile if the
stock, certificate is manually counter-signed by an authorized person on behalf
of a transfer agent or registrar other than the corporation or its employee.
If an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have ceased to be
such before the certificate is issued, it may be issued by the corporation with
the same effect as if he were such officer, transfer agent or registrar at the
time of its issue.
Section 4.2. Transfer of Shares. Title to a certificate of stock and to
the shares represented thereby shall be transferred only on the books of the
corporation by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of at-
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torney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred, a new
certificate or certificates shall be issued according to the interests of the
parties.
Section 4.3. Record Holders. Except as otherwise may be required by law,
by the Certificate of Incorporation or by these By-laws, the corporation shall
be entitled to treat the record hold 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.
Section 4.4. Record Date. In order that the corporation may determine the
stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or 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 days prior to any
other action. In such case only stockholders of record on such record date
shall be so entitled notwithstanding any transfer of stock on the books of the
corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive 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; (ii) 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; and (iii) 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.
Section 4.5. Transfer Agent and Registrar for Shares of Corporation. The
board of directors may appoint a transfer agent and a registrar of the
certificates of stock of the corporation. Any transfer agent so appointed shall
maintain, among other records, a stockholders' ledger, setting forth the names
and addresses of the holders of all issued shares of stock of the corporation,
the number of shares held by each, the certificate numbers representing such
shares, and the date of issue of the certificates representing such shares. Any
registrar so appointed shall maintain, among other records, a share register,
setting forth the total number of shares of each class of shares which the
corporation is authorized to issue and the total number of shares actually
issued. The stockholders' ledger and the share register are hereby identified as
the stock transfer books of the corporation; but as between the stockholders'
ledger and the share register, the names and addresses of stockholders, as they
appear on the stockholders' ledger maintained by the transfer agent shall be the
official list of stockholders of record of the corporation. The
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name and address of each stockholder of record, as they appear upon the
stockholders' ledger, shall be conclusive evidence of who are the stockholders
entitled to receive notice of the meetings of stockholders, to vote at such
meetings, to examine a complete list of the stockholders entitled to vote at
meetings, and to own, enjoy and exercise any other property or rights deriving
from such shares against the corporation. Stockholders, but not the corporation,
its directors, officers, agents or attorneys, shall be responsible for notifying
the transfer agent, in writing, of any changes in their names or addresses from
time to time, and failure to do so will relieve the corporation, its other
stockholders, directors, officers, agents and attorneys, and its transfer agent
and registrar, of liability for failure to direct notices or other documents,
or pay over or transfer dividends or other property or rights, to a name or
address other than the name and address appearing in the stockholders' ledger
maintained by the transfer agent.
Section 4.6. Loss of Certificates. In case of the loss, destruction or
mutilation of a certificate of stock, a replacement certificate may be issued in
place thereof upon such terms as the board of directors may prescribe,
including, in the discretion of the board of directors, a requirement of bond
and indemnity to the corporation.
Section 4.7. Restriction on Transfer. Every certificate for shares of
stock which are subject to any restriction on transfer, whether pursuant to the
Certificate of Incorporation, the By-laws or any agreement to which the
corporation is a party, shall have the fact of 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 that the corporation will
furnish a copy to the holder of such certificate upon written request and
without charge.
Section 4.8. Multiple Classes of Stock. The amount and classes of the
capital stock and the par value, if any, of the shares, shall be as fixed in the
Certificate of Incorporation. At all times when there are two or more classes of
stock, the several classes of stock shall conform to the description and the
terms and have the respective preferences, voting powers, restrictions and
qualifications set forth in the Certificate of Incorporation and these By-laws.
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 (i) 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 (ii) 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.
ARTICLE V.
Dividends
Section 5.1. Declaration of Dividends. Except as otherwise required by law
or by the Certificate of Incorporation, the board of directors may, in its
discretion, declare what, if any, dividends shall be paid from the surplus or
from the net profits of the corporation for the current or preceding fiscal
year, or as otherwise permitted by law. Dividends may be paid in cash, in
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property, in shares of the corporation's stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may
designate.
Section 5.2. Reserves. Before the payment of any dividend and before
making any distribution of profits, the board of directors, from time to time
and in its absolute discretion, shall have power to set aside out of the surplus
or net profits of the corporation such sum or sums as the board of directors
deems proper and sufficient as a reserve fund to meet contingencies or for such
other purpose as the board of directors shall deem to be in the best interests
of the corporation, and the board of directors may modify or abolish any such
reserve.
ARTICLE VI
Powers of Officers to Contract
With the Corporation
Any and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and perform any
contract or agreement of any nature between the corporation and themselves, or
any and all of the individuals from time to time constituting the board of
directors of the corporation, or any firm or corporation in which any such
director may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall thereby derive
personal or corporate profits or benefits or otherwise; provided, that (i) the
material acts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii)
if the material facts as to such person's relationship or interest are disclosed
or are known to the stockholders entitled to vote thereon, and the contract is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee thereof,
or the stockholders. Any director of the corporation who is interested in any
transaction as aforesaid may nevertheless be counted in determining the
existence of a quorum at any meeting of the board of directors which shall
authorize or ratify any such transaction. This Article shall not be construed to
invalidate any contract or other transaction which would otherwise be valid
under the common or statutory law applicable thereto.
ARTICLE VII
Indemnification
Section 7.1. Definitions. For purposes of this Article VII the following
terms shall have the meanings indicated:
"Corporate Status" describes the status of a person who is or was a
director, Officer, employee, agent, trustee or fiduciary of the corporation or
of any other corporation, partnership,
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joint venture, trust, employee benefit plan or other enterprise which such
person is or was serving at the express written request of the corporation.
"Court" means the Court of Chancery of the State of Delaware, the court in
which the Proceeding in respect of which indemnification is sought by a Covered
Person shall have been brought or is pending, or another court having subject
matter jurisdiction and personal jurisdiction over the parties.
"Covered Person" means a person who is a present or former director or
Officer of the corporation and shall include such person's legal
representatives, heirs, executors and administrators.
"Disinterested" describes any individual, whether or not that individual
is a director, Officer, employee or agent of the corporation, who is not and was
not and is not threatened to be made a party to the Proceeding in respect of
which indemnification, advancement of Expenses or other action is sought by a
Covered Person.
"Expenses" shall include, without limitation, all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
"Good Faith" shall mean a Covered Person having acted in good faith and in
a manner such Covered Person reasonably believed to be in or not opposed to the
best interests of the corporation or, in the case of an employee benefit plan,
the best interests of the participants or beneficiaries of said plan, as the
case may be, and, with respect to any Proceeding which is criminal in nature,
having had no reasonable cause to believe such Covered Person's conduct was
unlawful.
"Improper Personal Benefit" shall include, but not be limited to, the
personal gain in fact by reason of a person's Corporate Status of a financial
profit, monies or other advantage not also accruing to the benefit of the
corporation or to the stockholders generally and which is unrelated to his usual
compensation including, but not limited to, (i) in exchange for the exercise of
influence over the corporation's affairs, (ii) as a result of the diversion of
corporate opportunity, or (iii) pursuant to the use or communication of
confidential or inside information for the purpose of generating a profit from
trading in the corporation's securities. Notwithstanding the foregoing,
"Improper Personal Benefit" shall not include any benefit, directly or
indirectly, related to actions taken in order to evaluate, discourage, resist
prevent or negotiate any transaction with or proposal from any person or entity
seeking control of, or a controlling interest in, the corporation.
"Independent Counsel" means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and may include law firms or members
thereof that are regularly
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retained by the corporation but not by any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing,
the term "Independent Counsel" shall not include any person who, under the
standards of professional conduct then prevailing and applicable to such
counsel, would have a conflict of interest in representing either the
corporation or Covered Person in an action to determine the Covered Person's
rights under this Article.
"Officer" means the president, vice presidents, treasurer, assistant
treasurers), secretary, assistant secretary and such other executive officers as
are appointed by the board of directors of the corporation and explicitly
entitled to indemnification hereunder.
"Proceeding" includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation (including
any internal corporate investigation), administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, other than
one initiated by the Covered Person, but including one initiated by a Covered
Person for the purpose of enforcing such Covered Person's rights under this
Article to the extent provided in Section 7.14 of this Article. "Proceeding"
shall not include any counterclaim brought by any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2. Right to Indemnification in General.
(a) Covered Persons. The corporation may indemnify, and may advance
Expenses, to each Covered Person who is, was or is threatened to be made a party
or otherwise involved in any Proceeding, as provided in this Article and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to time permit.
The indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Covered Person.
(b) Employees and Agents. The corporation may, to the extent authorized
from time to time by the board of directors, grant indemnification and the
advancement of Expenses to any employee or agent of the corporation to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of Expenses of Covered Persons.
Section 7.3 Proceedings Other Than Proceedings by or in the Right of the
Corporation. Each Covered Person may be entitled to the rights of
indemnification provided in this Section 7.3 if, by reason of such Covered
Person's Corporate Status, such Covered Person is, was or is
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threatened to be made, a party to or is otherwise involved in any Proceeding,
other than a Proceeding by or in the right of the corporation. Each Covered
Person may be indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlements, actually and reasonably incurred by such Covered
Person or on such Covered Person's behalf in connection with such Proceeding or
any claim, issue or matter therein, If such Covered Person acted in Good Faith
and such Covered Person has not been adjudged during the course of such
proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding.
Section 7.4. Proceedings by or in the Right of the Corporation. Each
Covered Person may be entitled to the rights of indemnification provided in this
Section 7.4 if, by reason of such Covered Person's Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is otherwise
involved in any Proceeding brought by or in the right of the corporation to
procure a judgment in its favor. Such Covered Person may be indemnified against
Expenses, judgments, penalties, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection with such Proceeding if such Covered Person acted in Good Faith and
such Covered Person has not been adjudged during the course of such proceeding
to have derived an Improper Personal Benefit from the transaction or occurrence
forming the basis of such Proceeding. Notwithstanding the foregoing, no such
indemnification shall be made in respect of any claim, issue or matter in such
Proceeding as to which such Covered Person shall have been adjudged to be liable
to the corporation if applicable law prohibits such indemnification; provided,
however, that, if applicable law so permits, indemnification shall nevertheless
be made by the corporation in such event if and only to the extent that the
Court which is considering the matter shall so determine.
Section 7.5. Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any provision of this Article to the contrary, to
the extent that a Covered Person is, by reason of such Covered Person's
Corporate Status, a party to or is otherwise involved in and is successful, on
the merits or otherwise, in any Proceeding, such Covered Person shall be
indemnified to the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection therewith. If such Covered Person is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the corporation
shall indemnify such Covered Person to the maximum extent permitted by law,
against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7.5 and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
Section 7.6. Indemnification for Expenses of a Witness. Notwithstanding
any provision of this Article to the contrary, to the extent that a Covered
Person is, by reason of such Covered Person's Corporate Status, a witness in any
Proceeding, such Covered Person shall be indemni-
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fied against all Expenses actually and reasonably incurred by such Covered
Person or on such Covered Person's behalf in connection therewith.
Section 7.7. Advancement of Expenses. Notwithstanding any provision of
this Article to the contrary, the corporation may advance all reasonable
Expenses which, by reason of a Covered Person's Corporate Status, were incurred
by or on behalf of such Covered Person in connection with any Proceeding, within
thirty (30) days after the receipt by the corporation of a statement or
statements from such Covered Person requesting such advance or advances, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by the Covered Person
and shall include or be preceded or accompanied by an undertaking by or on
behalf of the Covered Person to repay any Expenses if such Covered Person shall
be adjudged to be not entitled to be indemnified against such Expenses. Any
advance and undertaking to repay pursuant to this Section 7.7 may be unsecured
interest-free, as the corporation sees fit. Advancement of Expenses pursuant to
this Section 7.7 shall not require approval of the board of directors or the
stockholders of the corporation, or of any other person or body. The secretary
of the corporation shall promptly advise the Board in writing of the request for
advancement of Expenses, of the amount and other details of the request and of
the undertaking to make repayment provided pursuant to this Section 7.7.
Section 7.8. Notification and Defense of Claim. Promptly after receipt by
a Covered Person of notice of the commencement of any Proceeding, such Covered
Person shall, if a claim is to be made against the corporation under this
Article, notify the corporation of the commencement of the Proceeding. The
failure to notify the corporation will not relieve the corporation from any
liability which it may have to such Covered Person otherwise than under this
Article. With respect to any such Proceedings to which such Covered Person
notifies the corporation:
(a) The corporation will be entitled to participate in the defense at its
own expense.
(b) Except as otherwise provided below in this subparagraph (b), the
corporation (jointly with any other indemnifying party similarly notified) will
be entitled to assume the defense with counsel reasonably satisfactory to the
Covered Person. After notice from the corporation to the Covered Person of its
election to assume the defense of a suit, the corporation will not be liable to
the Covered Person under this Article for any legal or other expenses
subsequently incurred by the Covered Person in connection with the defense of
the Proceeding other than reasonable costs of investigation or as otherwise
provided below in this subparagraph (b). The Covered Person shall have the right
to employ his own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the corporation of its assumption of the
defense shall be at the expense of the Covered Person except as provided in this
paragraph. The fees and expenses of counsel shall be at the expense of the
corporation if (i) the employment of counsel by the Covered Person has been
authorized by the corporation, (ii) the Covered Person shall have concluded
reasonably that there may be a conflict of interest between the corporation and
the Covered Person in the conduct of the defense of such action and such
conclusion is confirmed in writing by the corporation's outside counsel
regularly employed
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by it in connection with corporate matters, or (iii) the corporation shall not
in Fact have employed counsel to assume the defense of such Proceeding. The
corporation shall be entitled to participate in, but shall not be entitled to
assume the defense of any Proceeding brought by or in the right of the
corporation or as to which the Covered Person shall have made the conclusion
provided for in (ii) above and such conclusion shall have been so confirmed by
the corporation's said outside counsel.
(c) Notwithstanding any provision of this Article to the contrary, the
corporation shall not be obligated to indemnify the Covered Person under this
Article for any amounts paid in settlement of any Proceeding effected without
its written consent. The corporation shall not settle any Proceeding or claim in
any manner which would impose any penalty, limitation or disqualification of the
Covered Person for any purpose without such Covered Person's written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d) If it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b) above, payment to
the Covered Person of the additional amounts for which he is to be indemnified
shall be made within ten (10) days after such determination.
Section 7.9. Procedures.
(a) Method of Determination. A determination (as provided for by this
Article or if required by applicable law in the specific case) with respect to a
Covered Person's entitlement to indemnification shall be made either (a) by the
board of directors by a majority vote of a quorum consisting of Disinterested
directors, or (b) in the event that a quorum of the board of directors
consisting of Disinterested directors is not obtainable or, even if obtainable,
such quorum of Disinterested directors so directs, by Independent Counsel in a
written determination to the board of directors, a copy of which shall be
delivered to the Covered Person seeking indemnification, or (c) by the vote of
the holders of a majority of the corporation's capital stock outstanding at the
time entitled to vote thereon.
(b) Initiating Request. A Covered Person who seeks indemnification under
this Article shall submit a Request for Indemnification, including such
documentation and information as is reasonably available to such Covered Person
and is reasonably necessary to determine whether and to what extent such Covered
Person is entitled to indemnification.
(c) Presumptions. In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall not presume that the Covered Person is or is not entitled to
indemnification under this Article.
(d) Burden of Proof. Each Covered Person shall bear the burden of going
forward and demonstrating sufficient facts to support his claim for entitlement
to indemnification under this Article. That burden shall be deemed satisfied by
the submission of an initial Request for Indemnification pursuant to Section
7.9(b) above.
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(e) Effect of Other Proceedings. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of a Covered Person to indemnification or create a
presumption that a Covered Person did not act in Good Faith.
(f) Action of Others. The knowledge, actions, or failure to act, of any
director, officer, employee, agent, trustee or fiduciary of the enterprise whose
daily activities the Covered Person was actually responsible for may be imputed
to a Covered Person for purposes of determining the right to indemnification
under this Article.
Section 7.10. Action by the Corporation. Any action, payment, advance
determination other than a determination made pursuant to Section 7.9(a) above,
authorization, requirement, grant of indemnification or other action taken by
the corporation pursuant to this Article shall be effected exclusively through
any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11. Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these By-Laws,
any agreement, a vote of stockholders or a resolution of the board of directors,
or otherwise. No amendment, alteration, rescission or replacement of this
Article or any provision hereof shall be effective as to an Covered Person with
respect to any action taken or omitted by such Covered Person in such Covered
Person's Corporate Status or with respect to any state of facts then or
previously existing or any Proceeding previously or thereafter brought or
threatened based in whole or to the extent based in part upon any such state of
facts existing prior to such amendment, alteration, rescission or replacement.
Section 7.12. Insurance. The corporation may maintain, at its expense, an
insurance policy or policies to protect itself and any Covered Person, officer,
employee or agent of the corporation or another enterprise against liability
arising out of this Article or otherwise, whether or not the corporation would
have the power to indemnify any such person against such liability under the
Delaware General Corporation Law.
Section 7.13. No Duplicative Payment. The corporation shall not be liable
under this Article to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that a Covered Person has otherwise actually
received such payment under any insurance policy, contract agreement or
otherwise.
Section 7.14. Expenses of Adjudication. In the event that any Covered
Person seeks a judicial adjudication, or an award in arbitration, to enforce
such Covered Person's rights under, or to recover damages for breach of,
this Article, the Covered Person shall be entitled to recover from the
corporation, and shall be indemnified by the corporation against, any and all
expenses (of the types described in the definition of Expenses in Section 7.1 of
this Article) actually and
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reasonably incurred by such Covered Person in seeking such adjudication or
arbitration, but only if such Covered Person prevails therein. If it shall be
determined in such adjudication or arbitration that the Covered Person is
entitled to receive part but not all of the indemnification of expenses sought,
the expenses incurred by such Covered Person in connection with such
adjudication or arbitration shall be appropriately prorated.
Section 7.15. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining provisions
of this Article (including without limitation, each portion of any Section of
this Article containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII
Section 8.1. Restriction on Transfer. For purposes of this Article VIII,
the term "Stock" shall mean the common stock, $.01 par value, of the
corporation. Except to the extent and in the manner provided herein or as
provided by agreement among all the stockholders of the corporation and the
corporation, a stockholder of the corporation may not sell, assign, transfer,
pledge, hypothecate, or otherwise dispose (including by gift or otherwise) of
any of his shares of Stock.
Section 8.2 Exception for Authorized Transferees. The restrictions of
Sections 8.3 and 8.4 of this Article VII shall not apply to transfers of Stock
to the following persons (hereinafter "Authorized Transferees"):
(a) the stockholder as the sole trustee of a trust revocable by the
stockholder alone;
(b) a corporation, of which the stockholder transferring Stock owns,
directly or indirectly, not less than a majority of the capital
stock which is entitled to vote for the election of directors; or
(c) the stockholder's spouse or issue;
provided, that the Stock held by such Authorized Transferee shall remain subject
to the provisions of this Article VIII.
Section 8.3 Voluntary Transfers. Neither a Stockholder nor his Authorized
Transferee may sell, assign, pledge or otherwise dispose of any shares of Stock,
or any interest therein now
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held or hereafter acquired, without first giving written notice thereof to the
corporation. The written notice shall include the name of the transferee and all
material terms of such transfer and, in the case of a transfer for fair value,
shall be accompanied by a copy of the bona fide written offer to purchase such
Stock upon the terms set forth in the written notice. The written notice to the
corporation shall be deemed for all purposes to give the corporation a first
right of purchase (sometimes referred to as a right of first refusal) as
provided herein. If the corporation declines or fails to exercise its first
right of purchase within the time provided, the stockholder may, within 60 days
from the date said right terminates, transfer the Stock to the proposed
transferee upon substantially the terms set forth in the original notice to the
corporation.
Section 8.4 Transfer Events.
(a) The corporation shall have a first right of purchase for all shares
of Stock held by a stockholder as provided in Section 8.5,
immediately upon the happening of any of the following events (each
a "Transfer Event"):
(i) the death of a stockholder;
(ii) a stockholder or Authorized Transferee voluntarily files a
petition under any bankruptcy or insolvency law or a petition
for the appointment of a receiver, or makes an assignment for
the benefit of creditors;
(iii) a stockholder or Authorized Transferee is subjected
involuntarily to such a petition or assignment, or any
creditor or other person obtains an attachment or other legal
or equitable interest in any Stock of a stockholder, and such
involuntary petition, assignment or attachment is not
discharged within 30 days after creation; or
(iv) a stockholder or Authorized Transferee is subject to a
judgment, court order or decree or by operation of law is
otherwise required to transfer Stock to other than an
Authorized Transferee.
(b) In the event of death of a stockholder, his executor or
administrator shall, within 90 days after death, give written
notice thereof to the corporation and shall give the corporation a
first right of purchase as provided herein. A stockholder shall,
within 10 days of the occurrence of a Transfer Event specified in
clauses (ii) through (iv) of subparagraph (a), give written notice
thereof to the corporation. If the corporation declines or fails to
exercise timely its first right of purchase as provided in Section
8.5, then the legal representative, beneficiary, trustee, assignee,
receiver or other transferee who obtained the Stock by reason of the
Transfer Event may retain the Stock, subject to the provisions of
this Article VIII.
Section 8.5. First Right of Purchase. Upon receipt of written notice of
intent to make a voluntary transfer under Section 8.3 or upon the occurrence of
a Transfer Event specified in Section 8.4, the corporation shall have a right to
purchase any or all of the shares of Stock to which
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such notice or Transfer Event relates at the price specified herein before any
other action is taken to sell, assign, transfer, pledge, or otherwise dispose of
the Stock. Such right shall continue for a period of 30 days from the receipt of
written notice under Section 8.3 or the receipt of written notice of a Transfer
Event, and in any event, shall continue for 15 days from the date of the receipt
by the corporation of an appraisal made pursuant to Section 8.7(a). If the
corporation elects to exercise such first right of purchase, it shall so notify
the holder of such shares of Stock, specifying the manner of payment and time
and place for tender of certificates representing all such shares of Stock.
Section 8.6. Transfers in Violation of Article. If any transfer of shares
of Stock is made or attempted contrary to the provisions of this Article VIII,
or if shares of Stock are not offered to the corporation as required herein, the
corporation shall have the right to purchase said shares from the owner thereof
or his transferee at any time before or after the transfer, as herein provided.
In the event that the corporation elects to exercise its first right of
purchase, it may do so by cancelling the certificate(s) representing the Stock
and depositing the purchase price, as determined pursuant to Section 8.7 hereof,
in a bank account for the benefit of a stockholder. In addition to any other
legal or equitable remedies which it may have, the corporation may enforce its
rights by actions for specific performance (to the extent permitted by law) and
may refuse to recognize any transferee as one of its stockholders for any
purpose, including without limitation dividend and voting rights, until there
has been compliance with all applicable provisions of this Article VIII.
Section 8.7. Purchase Price.
(a) Except as provided in subparagraph (b) of this Section, the purchase
price per share of Stock which the corporation elects to purchase hereunder
shall be the fair market value per share, as determined by appraisal, as of the
last day of the fiscal quarter immediately preceding the receipt of the written
notice under Section 8.3, or the occurrence of a Transfer Event, multiplied by
the number of shares of Stock to be purchased pursuant to such notice. Not later
than 10 days after the date of receipt by the corporation of notice of its
right to purchase, the corporation and the stockholder or Authorized Transferee
shall select an appraiser or, failing the selection of a mutually acceptable
appraiser within such period, within an additional 10 day period, the
corporation shall appoint an appraiser, the stockholder or Authorized Transferee
whose shares are being purchased shall appoint a second appraiser, and such two
appraisers shall appoint a third appraiser, or failing action within such period
by any party or the appraisers, any unappointed appraiser or appraisers shall be
appointed by the American Arbitration Association, Boston, Massachusetts, upon
application of any party or appraiser. Within 20 days from his (their)
appointment, the appraiser(s) shall proceed by majority vote, if necessary, to
determine the value of the Stock, and such determination shall be final and
binding upon all interested persons. The corporation shall promptly furnish to
the appraiser(s) such information concerning its financial condition, earnings,
capitalization, business prospects and sales of its capital stock as he (they)
may reasonably request. Within such 20 day period, the appraiser(s) shall, in
writing, promptly notify the corporation, the stockholder whose shares of Stock
are being purchased, and any other interested person known to the appraiser(s),
of the final determination of value. The parties shall each pay the fees and
expenses of any appraiser appointed by or for each of them, and shall pay
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equally the fees and expenses of a single mutually acceptable appraiser or the
third appraiser, if selection of a third appraiser is necessary.
(b) Notwithstanding any contrary provisions hereof, in the event of a
proposed sale by any stockholder, or of his Authorized Transferee, to a third
party in a bona fide transaction for fair value payable in cash or the
equivalent, currently or in future installments, the purchase price of said
Stock shall be the value offered by such third party and the corporation shall
have the first right of purchase, exercisable within the period specified in
Section 8.5, to purchase said Stock at such price upon terms substantially
equivalent to those offered by such third party. The board of directors may
impose reasonable requirements for ascertaining that such third party offer is a
bona fide offer. Such first right of purchase shall not apply to a proposed
assignment, transfer, exchange, pledge or any other sale or disposition of Stock
which does not constitute a bona fide transfer for fair value (as determined by
the board of directors of the corporation), and the provisions of subparagraph
(a) of this Section 8.7 shall apply to such other transactions.
Section 8.8. Tenders. All shares of Stock which the corporation has
elected to purchase hereunder shall be tendered to the corporation, or to one or
more substitute purchasers designated by it, at the principal office of the
corporation at a reasonable date and time specified by it (in any event within
60 days after the corporation's election to purchase), by delivery of
certificates representing such shares, endorsed in blank and in proper form for
transfer against payment of the purchase price in cash or by certified or bank
check, or upon such terms as are applicable under Section 8.7(b).
Section 8.9. Waiver, Disposition of Stock. From time to time, the
corporation may waive its rights hereunder either generally or with respect to
one or more specific transfers which have been proposed, attempted or made. All
action to be taken by the corporation hereunder shall be taken by vote of a
majority of its board of directors. Any Stock which the corporation has elected
to purchase hereunder may be disposed of by the board of directors in such
manner as it deems appropriate.
Section 8.10. Notices. All notices and elections under this Article VIII
shall be in writing and shall be delivered or sent by registered or certified
mail, postage prepaid, to the corporation at its principal place of business and
to any stockholder at the address then listed in the stock transfer records of
the corporation.
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ARTICLE VIX.
Miscellaneous Provisions
Section 9.1. Certificate of Incorporation. All references in these By-laws
to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the corporation, as amended and in effect from time to time.
Section 9.2. Fiscal Year. Except as from time to time otherwise provided
by the board of directors, the fiscal year of the corporation shall end on the
October 31st of each year.
Section 9.3. Corporate Seal. The board of directors shall have the power
to adopt and alter the seal of the corporation.
Section 9.4. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes, and other obligations authorized to be executed by an
officer of the corporation on its behalf shall be signed by the president or the
treasurer except as the board of directors may generally or in particular cases
otherwise determine.
Section 9.5. Voting of Securities. Unless the board of directors otherwise
provides, the president or the treasurer may waive notice of and act on behalf
of this corporation, or appoint another person or persons to act as proxy or
attorney in fact for this corporation with or without discretionary power and/or
power of substitution, at any meeting of stockholders or shareholders of any
other corporation or organization, any of whose securities are held by this
corporation.
Section 9.6. Evidence of Authority. A certificate by the secretary or any
assistant secretary as to any action taken by the stockholders, directors or any
officer or representative of the corporation shall, as to all persons who rely
thereon in good faith, be conclusive evidence of such action. The exercise of
any power which by law, by the Certificate of Incorporation, or by these
By-laws, or under any vote of the stockholders or the board of directors, may be
exercised by an officer of the corporation only in the event of absence of
another officer or any other contingency shall bind the corporation in favor of
anyone relying thereon in good faith, whether or not such absence or contingency
existed.
Section 9.7. Corporate Records. The original, or attested copies, of the
Certificate of Incorporation, By-laws, records of all meetings of the
incorporators and stockholders, and the stock transfer books (which shall
contain the names of all stockholders and the record address and the amount of
stock held by each) shall be kept in Delaware at the principal office of the
corporation, or at an office of the corporation, or at an office of its transfer
agent or of the secretary or of the assistant secretary, if any. Said copies and
records need not all be kept in the same office. They shall be available at all
reasonable times to inspection of any stockholder for any purpose but not to
secure a list of stockholders for the purpose of selling said list or copies
thereof or for using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the corporation.
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Section 9.8. Charitable Contributions. The board of directors from time to
time may authorize contributions to be made by the corporation in such amounts
as it may determine to be reasonable to corporations, trusts, funds or
foundations organized and operated exclusively for charitable, scientific or
educational purposes, no part of the net earning of which inures to the private
benefit of any stockholder or individual.
ARTICLE X.
Amendments
Section 10.1. Amendment by Stockholders. Prior to the issuance of stock,
these By-laws may be amended, altered or repealed by the incorporator, After
stock has been issued, these By-laws may be amended altered or repealed by the
stockholders at any annual or special meeting by vote or a majority of all
shares outstanding and entitled to vote, except that where the effect of the
amendment would be to reduce any voting requirement otherwise required by law,
the Certificate of Incorporation or these By-laws, such amendment shall require
the vote that would have been required by such other provision. Notice and a
copy of any proposal to amend these By-laws must be included in the notice of
meeting of stockholders at which action is taken upon such amendment.
Section 10.2. Amendment by the Board of Directors. These By-laws may be
amended or altered by the board of directors at a meeting duly called for the
purpose by majority vote of the directors then in office, except that directors
shall not amend the By-laws in a manner which:
(a) changes the stockholder voting requirements for any action;
(b) alters or abolishes any preferential right or right of redemption
applicable to a class or series of stock with shares already outstanding;
(c) alters the provisions of Articles VII and X hereof; or
(d) permits the board of directors to take any action which under law, the
Certificate of Incorporation, or these By-laws is required to be taken by the
stockholders.
Any amendment of these By-laws by me board of directors may be altered or
repealed by the stockholders at any annual or special meeting of stockholders.
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