Exhibit 3.4
AMENDED AND RESTATED
BY-LAWS
OF
GLOBE MANUFACTURING CO.
By-Laws
-------
Table of Contents
-----------------
Page
----
ARTICLE 1 - Stockholders 1
Section 1.1 Place of Meetings.......................................... 1
Section 1.2 Annual Meeting............................................. 1
Section 1.3 Special Meetings........................................... 1
Section 1.4 Notice of Meetings......................................... 2
Section 1.5 Quorum..................................................... 2
Section 1.6 Adjournments............................................... 2
Section 1.7 Voting and Proxies......................................... 2
Section 1.8 Action at Meeting.......................................... 3
Section 1.9 Action without Meeting..................................... 3
ARTICLE 2 - Directors........................................................ 3
Section 2.1 Powers..................................................... 3
Section 2.2 Number, Election and Qualification......................... 3
Section 2.3 Enlargement of the Board................................... 4
Section 2.4 Tenure..................................................... 4
Section 2.5 Vacancies.................................................. 4
Section 2.6 Resignation................................................ 4
Section 2.7 Removal.................................................... 4
Section 2.8 Regular Meetings........................................... 4
Section 2.9 Special Meetings........................................... 4
Section 2.10 Meetings by Telephone Conference Calls..................... 4
Section 2.11 Notice of Special Meetings................................. 5
Section 2.12 Quorum..................................................... 5
Section 2.13 Action at Meeting.......................................... 5
Section 2.14 Action by Consent.......................................... 5
Section 2.15 Committees................................................. 5
Section 2.16 Compensation of Directors.................................. 6
ARTICLE 3 - Officers......................................................... 6
Section 3.1 Enumeration................................................ 6
i
By-Laws
-------
Table of Contents
-----------------
Page
----
Section 3.2 Election................................................... 6
Section 3.3 Qualification.............................................. 6
Section 3.4 Tenure..................................................... 6
Section 3.5 Resignation and Removal.................................... 6
Section 3.6 Vacancies.................................................. 7
Section 3.7 Chairman of the Board and Vice-Chairman of the Board....... 7
Section 3.8 President.................................................. 7
Section 3.9 Vice Presidents............................................ 7
Section 3.10 Treasurer and Assistant Treasurers......................... 8
Section 3.11 Clerk and Assistant Clerks................................. 8
Section 3.12 Secretary and Assistant Secretaries........................ 8
Section 3.13 Salaries................................................... 9
ARTICLE 4 - Capital Stock.................................................... 9
Section 4.1 Issue of Capital Stock..................................... 9
Section 4.2 Certificate of Stock....................................... 9
Section 4.3 Transfers.................................................. 9
Section 4.4 Record Date................................................10
Section 4.5 Replacement of Certificates................................10
ARTICLE 5 - Miscellaneous Provisions.........................................11
Section 5.1 Fiscal Year................................................11
Section 5.2 Seal.......................................................11
Section 5.3 Voting of Securities.......................................11
Section 5.4 Corporate Records..........................................11
Section 5.5 Evidence of Authority......................................11
Section 5.6 Articles of Organization...................................11
Section 5.7 Severability...............................................11
Section 5.8 Pronouns...................................................11
ARTICLE 6 - Amendments.......................................................12
ii
B Y - L A W S
OF
GLOBE MANUFACTURING CO.
ARTICLE 1 - Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held within
the Commonwealth of Massachusetts unless the Articles of Organization permit the
holding of stockholders' meetings outside Massachusetts, in which event such
meetings may be held either within or without Massachusetts. Meetings of
stockholders shall be held at the principal office of the corporation unless a
different place is fixed by the Board of Directors or the President and stated
in the notice of the meeting.
1.2 Annual Meeting. The annual meeting of stockholders shall be held
within six months after the end of each fiscal year of the corporation on a date
to be fixed by the Board of Directors or the President (which date shall not be
a legal holiday in the place where the meeting is to be held) at the time and
place to be fixed by the Board of Directors or the President and stated in the
notice of the meeting. The purposes for which the annual meeting is to be held,
in addition to those prescribed by law, by the Articles of Organization or by
these By-Laws, may be specified by the Board of Directors or the President. If
no annual meeting is held in accordance with the foregoing provisions, a special
meeting may be held in lieu of the annual meeting, and any action taken at that
special meeting shall have the same effect as if it had been taken at the annual
meeting, and in such case all references in these By-Laws to the annual meeting
of stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called by
the President or by the Board of Directors. In addition, upon written
application of one or more stockholders who are entitled to vote and who hold at
least the Required Percentage (as defined below) of the capital stock entitled
to vote at the meeting, special meetings shall be called by the Clerk, or in
case of the death, absence, incapacity or refusal of the Clerk, by any other
officer.
For purposes of this Section 1.3, the "Required Percentage" shall be (i)
10% at any time at which the corporation shall not have a class of voting stock
registered under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and (ii) 80% or such lesser percentage as shall constitute the maximum
percentage permitted by law for this purpose at any time at which the
corporation shall have a class of voting stock registered under the Exchange
Act.
Any request for a call of a special meeting of stockholders (a "Call") by
the holders of the Required Percentage of the capital stock entitled to vote at
the meeting shall be accompanied by
a written statement setting forth the reason or reasons for the Call and the
purpose or purposes of such special meeting.
In the absence of a quorum at any special meeting called pursuant to a
Call, such special meeting may be postponed or adjourned from time to time only
by the officer of the corporation entitled to preside at such meeting.
1.4 Notice of Meetings. A written notice of each meeting of stockholders,
stating the place, date and hour thereof, and the purposes for which the meeting
is to be held, shall be given by the Clerk, Assistant Clerk or other person
calling the meeting at least seven days before the meeting to each stockholder
entitled to vote at the meeting and to each stockholder who by law, by the
Articles of Organization or by these By-Laws is entitled to such notice, by
leaving such notice with him or at his residence or usual place of business, or
by mailing it postage prepaid and addressed to him at his address as it appears
in the records of the corporation. Whenever any notice is required to be given
to a stockholder by law, by the Articles of Organization or by these By-Laws, no
such notice need be given if a written waiver of notice, executed before or
after the meeting by the stockholder of his authorized attorney, is filed with
the records of the meeting.
1.5 Quorum. Unless the Articles of Organization otherwise provide, the
holders of a majority of the number of shares of the stock issued, outstanding
and entitled to vote on any matter shall constitute a quorum with respect to
that matter, except that if two or more classes of stock are outstanding and
entitled to vote as separate classes, then in the case of each such class a
quorum shall consist of the holders of a majority of the number of shares of the
stock of that class issued, outstanding and entitled to vote. Shares owned
directly or indirectly by the corporation shall not be counted in determining
the total number of shares outstanding for this purpose.
1.6 Adjournments. Except as otherwise provided in Section 1.3 hereof,
any meeting of stockholders may be adjourned to any other time and to any other
place at which a meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting, although less than a quorum,
or by any officer entitled to preside or to act as clerk of such meeting, if no
stockholder is present. It shall not be necessary to notify any stockholder of
any adjournment. Any business which could have been transacted at any meeting of
the stockholders as originally called may be transacted at any adjournment of
the meeting.
1.7 Voting and Proxies. Each stockholder shall have one vote for each
share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by the Articles of Organization. Stockholders may vote either in person or by
written proxy dated not more than six months before the meeting named in the
proxy. Proxies shall be filed with the clerk of the meeting, or of any adjourned
meeting, before being voted. Except as otherwise limited by their terms, a proxy
shall entitle the persons
2
named in the proxy to vote at any adjournment of such meeting, but shall not be
valid after final adjournment of such meeting. A proxy with respect to stock
held in the name of two or more persons shall be valid if executed by any one of
them, unless at or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of them. A proxy purported
to be executed by or on behalf of a stockholder shall be deemed valid unless
challenged at or prior to its exercise.
1.8 Action at Meeting. When a quorum is present at any meeting, the
holders of a majority of the stock present or represented and voting on a matter
(or if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of a majority of the
stock of that class present or represented and voting on a matter), shall decide
any matter to be voted on by the stockholders, except when a larger vote is
required by law, the Articles of Organization or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election. No ballot shall be required for
such election unless requested by a stockholder present or represented at the
meeting and entitled to vote in the election. The corporation shall not directly
or indirectly vote any share of its own stock.
1.9 Action without Meeting. Any action required or permitted to be taken
at any meeting of the stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action in writing and
the written consents are filed with the records of the meetings of stockholders.
Each such consent shall be treated for all purposes as a vote at a meeting.
ARTICLE 2 - Directors
2.1 Powers. The business of the corporation shall be managed by a Board
of Directors, who may exercise all the powers of the corporation except as
otherwise provided by law, by the Articles of Organization or by these By-Laws.
In the event of a vacancy in the Board of Directors, the remaining Directors,
except as otherwise provided by law, may exercise the powers of the full Board
until the vacancy is filled.
2.2 Number, Election and Qualification. The number of Directors which
shall constitute the whole Board of Directors shall be determined by vote of the
stockholders or the Board of Directors, but shall consist of not less than three
Directors (except that whenever there shall be only two stockholders the number
of Directors shall be not less than two and whenever there shall be only one
stockholder or prior to the issuance of any stock, there shall be at least one
Director). The number of Directors may be decreased at any time and from time to
time either by the stockholders or by a majority of the Directors then in
office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more Directors. The
Directors shall be elected at the annual meeting of stockholders by such
3
stockholders as have the right to vote on such election. No Director need be a
stockholder of the corporation.
2.3 Enlargement of the Board. The number of Directors may be increased at
any time and from time to time by the stockholders or by a majority of the
Directors then in office.
2.4 Tenure. Each Director shall hold office until the next annual meeting
of stockholders and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
2.5 Vacancies. Unless and until filled by the stockholders, any vacancy
in the Board of Directors, however occurring, including a vacancy resulting from
an enlargement of the Board, may be filled by vote of a majority of the
Directors present at any meeting of Directors at which a quorum is present. Each
such successor shall hold office for the unexpired term of his predecessor and
until his successor is chosen and qualified or until his earlier death,
resignation or removal.
2.6 Resignation. Any Director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Clerk. 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.
2.7 Removal. A Director may be removed from office with or without cause
by vote of the holders of a majority of the shares entitled to vote in the
election of Directors. However, the Directors elected by the holders of a
particular class or series of stock may be removed from office with or without
cause only by vote of the holders of a majority of the outstanding shares of
such class or series. In addition, a Director may be removed from office for
cause by vote of a majority of the Directors then in office. A Director may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
2.8 Regular Meetings. Regular meetings of the Directors may be held
without call or notice at such places, within or without Massachusetts, and at
such times, as the Directors may from time to time determine, provided that any
Director who is absent when such determination is made shall be given notice of
the determination. A regular meeting of the Directors may be held without a call
or notice immediately after and at the same place as the annual meeting of
stockholders.
2.9 Special Meetings. Special meetings of the Directors may be held at
any time and place, within or without Massachusetts, designated in a call by the
Chairman of the Board, President, Treasurer, two or more Directors or by one
Director in the event that there is only a single Director in office.
4
2.10 Meetings by Telephone Conference Calls. Directors or members of any
committee designated by the Directors may participate in a meeting of the
Directors or such 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 a meeting.
2.11 Notice of Special Meetings. Notice of any special meeting of the
Directors shall be given to each Director by the Secretary or Clerk or by the
officer or one of the Directors calling the meeting. Notice shall be duly given
to each Director (i) by notice given to such Director in person or by telephone
at least 48 hours in advance of the meeting, (ii) by sending a telegram or
telex, or by delivering written notice by hand, to his last known business or
home address at least 48 hours in advance of the meeting, or (iii) by mailing
written notice to his last known business or home address at least 72 hours in
advance of the meeting. Notice need not be given, to any Director if a written
waiver of notice, executed by him before or after the meeting, is filed with the
records of the meeting, or to any Director who attends the meeting without
protesting prior to the meeting or at its commencement the lack of notice to
him. A notice or waiver of notice of a Directors' meeting need not specify the
purposes of the meeting. If notice is given in person or by telephone, an
affidavit of the Secretary, Clerk, officer or Director who gives such notice
that the notice has been duly given shall, in the absence of fraud, be
conclusive evidence that such notice was duly given.
2.12 Quorum. At any meeting of the Board of Directors, a majority of the
Directors then in office shall constitute a quorum provided, however, that so
long as Section 2.3 of the Shareholders' Agreement dated as of December ___,
1992 among the corporation and the Shareholders and all other individuals named
on the signature pages thereto (the "Agreement") is in effect, a majority of the
Directors then in office, including at least one Goldman Director and one
Rodgers Director (as such terms are defined in the Agreement), shall constitute
a quorum. Less than a quorum may adjourn any meeting from time to time without
further notice.
2.13 Action at Meeting. At any meeting of the Board of Directors at which
a quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, by the Articles
of Organization or by these By-Laws.
2.14 Action by Consent. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if all the
Directors consent to the action in writing and the written consents are filed
with the records of the Directors' meetings. Each such consent shall be treated
for all purposes as a vote at a meeting.
2.15 Committees. The Board of Directors may, by vote of a majority of the
Directors then in office, elect from their number an executive committee or
other committees and may by like vote delegate to committees so elected some or
all of their powers to the extent permitted by
5
law. Except as the Board of Directors may otherwise determine, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the Directors or in such rules, its business shall be conducted as
nearly as possible in the same manner as is provided by these By-Laws for the
Directors. The Board of Directors shall have the power at any time to fill
vacancies in any such committee, to change its membership or to discharge the
committee.
2.16 Compensation of Directors. Directors may be paid such compensation
for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment shall
preclude any Director from serving the corporation in any other capacity and
receiving compensation therefor.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall consist of a
President, a Treasurer, a Clerk and such other officers with such other titles
as the Board of Directors may determine, including, but not limited to, a
Chairman of the Board, a Vice Chairman of the Board, a Secretary and one or more
Vice Presidents, Assistant Treasurers, Assistant Clerks and Assistant
Secretaries.
3.2 Election. The President, Treasurer and Clerk shall be elected
annually by the Board of Directors at their first meeting following the annual
meeting of stockholders. Other officers may be chosen or appointed by the Board
of Directors at such meeting or at any other meeting.
3.3 Qualification. Neither the President nor any other officer need be a
director or stockholder. Any two or more offices may be held by the same person.
The Clerk shall be a resident of Massachusetts unless the corporation has a
resident agent appointed for the purpose of service of process. Any officer may
be required by the Directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the Directors
may determine. The premiums for such bonds may be paid by the corporation.
3.4 Tenure. Except as otherwise provided by law, by the Articles of
Organization or by these By-Laws, the President, Treasurer and Clerk shall hold
office until the first meeting of the Directors following the next annual
meeting of stockholders and until their respective successors are chosen and
qualified; and all other officers shall hold office until the first meeting of
the Directors following the annual meeting of stockholders, unless a different
term is specified in the vote choosing or appointing them, or until his earlier
death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President, Clerk or Secretary. Such
6
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.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of Directors then in office. 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.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his resignation or removal, or any right to damages on
account of such removal, whether his compensation be by the month or the year or
otherwise, unless such compensation is expressly provided in a duly authorized
written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in
any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President, Treasurer
and Clerk. Each such successor shall hold office for the unexpired term of his
predecessor and until his successor is chosen and qualified, or until he sooner
dies, resigns or is removed.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of
Directors may appoint a Chairman of the Board and may designate him as Chief
Executive Officer. If the Board of Directors appoints a Chairman of the Board,
he shall perform such duties and possess such powers as are assigned to him by
the Board of Directors. If the Board of Directors appoints a Vice-Chairman of
the Board, he shall, in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the Board and
shall perform such other duties and possess such other powers as may from time
to time be vested in him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he shall
preside at all meetings of the stockholders and, if he is a Director, at all
meetings of the Board of Directors. Unless the Board of Directors has designated
the Chairman of the Board or another officer as Chief Executive Officer, the
President shall be the Chief Executive Officer of the corporation. The President
shall perform such other duties and shall possess such other powers as the Board
of Directors may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall
7
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the President. The Board
of Directors may assign to any Vice President the title of Executive Vice
President, Senior Vice President or any other title selected by the Board of
Directors.
3.10 Treasurer and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned to him by
the Board of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Treasurer, the Assistant Treasurer (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
3.11 Clerk and Assistant Clerks. The Clerk shall perform such duties and
shall possess such powers as the Board of Directors or the President may from
time to time prescribe. In addition, the Clerk shall perform such duties and
have such powers as are incident to the office of the clerk, including without
limitation the duty and power to give notices of all meetings of stockholders
and special meetings of the Board of Directors, to attend all meetings of
stockholders and the Board of Directors and keep a record of the proceedings, to
maintain a stock ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate seal and to
affix and attest to the same on documents.
Any Assistant Clerk shall perform such duties and possess such powers as
the Board of Directors, the President or the Clerk may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Clerk, the Assistant Clerk (or if there shall be more than one, the Assistant
Clerks in the order determined by the Board of Directors) shall perform the
duties and exercise the powers of the Clerk.
In the absence of the Clerk or any Assistant Clerk at any meeting of
stockholders or Directors, the person presiding at meeting shall designate a
temporary clerk to keep a record of the meeting.
8
3.12 Secretary and Assistant Secretaries. If a Secretary is appointed, he
shall attend all meetings of the Board of Directors and shall keep a record of
the meetings of the Directors. He shall, when required, notify the Directors of
their meetings, and shall possess such other powers and shall perform such other
duties as the Board of Directors or the President may from time to time
prescribe.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
3.13 Salaries. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issue of Capital Stock. Unless otherwise voted by the stockholders,
the whole or any part of any unissued balance of the authorized capital stock of
the corporation or the whole or any part of the capital stock of the corporation
held in its treasury may be issued or disposed of by vote of the Board of
Directors, in such manner, for such consideration and on such terms as the
Directors may determine.
4.2 Certificate of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the corporation in such form as may be
prescribed from time to time by the Directors. The certificate shall be signed
by the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, but when a certificate is countersigned by a transfer agent or a
registrar, other than a Director, officer or employee of the corporation, such
signature may be a facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the time of its
issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Articles of Organization, the By-Laws, applicable
securities laws or any agreement to which the corporation is a party, shall have
conspicuously noted on the face or back of the certificate either the full text
of the restriction or a statement of the existence of such restrictions and a
statement that the corporation will furnish a copy of the restrictions to the
holder of such certificate upon written request and without charge. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back either the full
text of the preferences, voting powers, qualifications and special and
9
relative rights of the shares of each class and series authorized to be issued
or a statement of the existence of such preferences, powers, qualifications and
rights and a statement that the corporation will furnish a copy thereof to the
holder of such certificate upon written request and without charge.
4.3 Transfers. Subject to the restrictions, if any, stated or noted on
the stock certificates, shares of stock may be transferred on the books of the
corporation by the surrender to the corporation or its transfer agent of the
certificate representing such shares properly endorsed or accompanied by a
written assignment or power of attorney properly executed, and with such proof
of authority or the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required by law, by the
Articles of Organization or by these By-Laws, the corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect thereto, regardless of any transfer, pledge or other disposition of
such stock until the shares have been transferred on the books of the
corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the corporation of his
post office address and of his taxpayer identification number.
4.4 Record Date. The Board of Directors may fix in advance a time not
more than 60 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend or the making of any distribution to
stockholders or the last day on which the consent or dissent of stockholders may
be effectively expressed for any purpose, as the record date for determining the
stockholders having the right to notice of and to vote at such meeting, and any
adjournment, or the right to receive such dividend or distribution or the right
to give such consent or dissent. In such case only stockholders of record on
such record date shall have such right, notwithstanding any transfer of stock on
the books of the corporation after the record date. Without fixing such record
date the Directors may for any of such purposes close the transfer books for all
or any part of such period.
If no record date is fixed and the transfer books are not closed, the
record date for determining the stockholders having the right to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
before the day on which notice is given, and the record date for determining the
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors acts with respect to such purpose.
4.5 Replacement of Certificates. In case of the alleged loss or
destruction or the mutilation of a certificate of stock, a duplicate certificate
may be issued in place of the lost, destroyed or mutilated certificate, upon
such terms as the Directors may prescribe, including the presentation of
reasonable evidence of such loss, destruction or mutilation and the giving of
such
10
indemnity as the Directors may require for the protection of the corporation or
any transfer agent or registrar.
ARTICLE 5 - Miscellaneous Provisions
5.1 Fiscal Year. Except as otherwise set forth in the Articles of
Organization or as otherwise determined from time to time by the Board of
Directors, the fiscal year of the corporation shall in each year end on December
31.
5.2 Seal. The seal of the corporation shall, subject to alteration by the
Directors, bear its name, the word "Massachusetts" and the year of its
incorporation.
5.3 Voting of Securities. Except as the Board of Directors may otherwise
designate, the President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-fact for this
corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
5.4 Corporate Records. The original, or attested copies, of the Articles
of Organization, By-Laws and records of all meetings of the incorporators and
stockholders, and the stock records, which shall contain the names of all
stockholders and the record address and the amount of stock held by each, shall
be kept in Massachusetts at the principal office of the corporation, or at an
office of its transfer agent or of the Clerk. These copies and records need not
all be kept in the same office. They shall be available at all reasonable times
for the inspection of any stockholder for any proper purpose, but not to secure
a list of stockholders for the purpose of selling the list or copies of the list
or of using the list for a purpose other than in the interest of the applicant,
as a stockholder, relative to the affairs of the corporation.
5.5 Evidence of Authority. A certificate by the Clerk or Secretary, or an
Assistant Clerk or Assistant Secretary, or a temporary Clerk or temporary
Secretary, as to any action taken by the stockholders, Directors, any committee
or any officer or representative of the corporation shall as to all persons who
rely on the certificate in good faith by conclusive evidence of such action.
5.6 Articles of Organization. All references in these By-Laws to the
Articles of Organization shall be deemed to refer to the Articles of
Organization of the corporation, as amended and in effect from time to time.
5.7 Severability. Any determination that any provision of these By-Laws
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
11
5.8 Pronouns. All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identify of the
person or persons may require.
ARTICLE 6 - Amendments
These By-Laws may be amended by vote of the holders of a majority of the
shares of each class of the capital stock at the time outstanding and entitled
to vote at any annual or special meeting of stockholders, if notice of the
substance of the proposed amendment is stated in the notice of such meeting. If
authorized by the Articles of Organization, the Directors, by a majority of
their number then in office, may also make, amend or repeal these By-Laws, in
whole or in part, except with respect to (a) the provisions of these By-Laws
governing (i) the removal of Directors and (ii) the amendment of these By-Laws
and (b) any provision of these By-Laws which by law, the Articles of
Organization or these By-Laws requires action by the stockholders.
Not later than the time of giving notice of the meeting of stockholders
next following the making, amending or repealing by the Directors of any By-Law,
notice stating the substance of such change shall be given to all stockholders
entitled to vote on amending the By-Laws.
Any By-Law adopted by the Directors may be amended or repealed by the
stockholders entitled to vote on amending the By-Laws.
12