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EXHIBIT 3.2
BY-LAWS
of
VOICETEK CORPORATION
(A Massachusetts corporation)
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BY-LAWS
of
VOICETEK CORPORATION
TABLE OF CONTENTS
Page
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ARTICLE 1 Articles of Organization.....................................................1
ARTICLE 2 Fiscal Year..................................................................1
ARTICLE 3 Meetings of Stockholders.....................................................1
Section 3.1 Annual Meeting...............................................................1
Section 3.2 Special Meetings.............................................................3
Section 3.3 Place of Meetings............................................................3
Section 3.4 Notice of Meetings...........................................................4
Section 3.5 Quorum.......................................................................4
Section 3.6 Action without Meeting.......................................................5
Section 3.7 Proxies and Voting...........................................................6
ARTICLE 4 Directors....................................................................6
Section 4.1 Enumeration, Election and
Term of Office.............................................................6
Section 4.2 Powers.......................................................................8
Section 4.3 Meetings of Directors........................................................9
Section 4.4 Quorum of Directors..........................................................9
Section 4.5 Consent in Lieu of Meeting and Participation
in Meetings by Communications Equipment..................................10
Section 4.6 Committees..................................................................10
ARTICLE 5 Officers....................................................................11
Section 5.1 Enumeration, Election and
Term of Office............................................................11
Section 5.2 President and Chairman of the Board.........................................12
Section 5.3 Treasurer and Assistant Treasurer...........................................12
Section 5.4 Clerk and Assistant Clerk...................................................13
Section 5.5 Secretary of the Board and Assistant Secretary............................. 13
Section 5.6 Temporary Clerk and Temporary Secretary.....................................14
Section 5.7 Other Powers and Duties.....................................................14
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ARTICLE 6 Resignations, Removals and Vacancies........................................14
Section 6.1 Resignations................................................................14
Section 6.2 Removals....................................................................14
Section 6.3 Vacancies...................................................................15
ARTICLE 7 Indemnification of Directors and Others.....................................16
Section 7.1 Definitions.................................................................16
Section 7.2 Right to Indemnification....................................................17
Section 7.3 Indemnification Not Available...............................................17
Section 7.4 Compromise or Settlement....................................................17
Section 7.5 Advances....................................................................18
Section 7.6 Not Exclusive...............................................................18
Section 7.7 Insurance...................................................................18
ARTICLE 8 Stock.......................................................................18
Section 8.1 Stock Authorized............................................................18
Section 8.2 Issue of Authorized Unissued Capital Stock..................................19
Section 8.3 Certificates of Stock.......................................................19
Section 8.4 Replacement Certificate.....................................................20
Section 8.5 Transfers...................................................................20
Section 8.6 Record Date.................................................................21
ARTICLE 9 Miscellaneous Provisions....................................................22
Section 9.1 Execution of Papers.........................................................22
Section 9.2 Voting of Securities........................................................22
Section 9.3 Corporate Seal..............................................................22
Section 9.4 Corporate Records...........................................................22
ARTICLE 10 Amendments..................................................................23
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BY-LAWS
of
VOICETEK CORPORATION
ARTICLE 1
Articles of Organization
The name and purposes of the Corporation shall be as set forth in the
Articles of Organization. These By-Laws, the powers of the Corporation and its
Directors and stockholders, and all matters concerning the conduct and
regulation of the business of the Corporation, shall be subject to such
provisions in regard thereto, if any, as are set forth in the Articles of
Organization. All references in these By-Laws to the Articles of Organization
shall be construed to mean the Articles of Organization of the Corporation as
from time to time amended or restated.
ARTICLE 2
Fiscal Year
Except as from time to time otherwise determined by the Directors, the
fiscal year of the Corporation shall be the twelve months ending on December 31.
ARTICLE 3
Meetings of Stockholders
Section 3.1 Annual Meeting
The annual meeting of the stockholders shall be held at 10:00 o'clock
A.M. on the 2nd Tuesday of April in each year. Purposes for which an annual
meeting is to be held, additional to those prescribed by law and by these
By-Laws, may be specified by the President or by the Directors.
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If such annual meeting has not been held on the day herein provided
therefor, a special meeting of the stockholders in lieu of the annual meeting
may be held, and any business transacted or elections held at such special
meeting shall have the same effect as if transacted or held at the annual
meeting, and in such case all references in these By-Laws, except in this
Section 3.1, to the annual meeting of the stockholders shall be deemed to refer
to such special meeting. Any such special meeting shall be called, and the
purposes thereof shall be specified in the call, as provided in Section 3.2 of
this Article 3.
To be properly brought before the meeting, business must be of a nature
that is appropriate for consideration at an annual meeting and must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before the annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Clerk of the Corporation. To be timely, each such notice must
be given either by personal delivery or by United States mail, postage prepaid,
to the Clerk of the Corporation not later than (1) with respect to a matter to
be brought before an annual meeting of stockholders or special meeting in lieu
of an annual meeting, sixty (60) days prior to the date set forth in the By-Laws
for the annual meeting and (2) with respect to a matter to be brought before a
special meeting of the stockholders not in lieu of an annual meeting, the close
of business on the tenth (10th) day following the date on which notice of such
meeting is first given to stockholders. The notice shall set forth (i)
information concerning the stockholder, including his or her name and address;
(ii) a representation that the stockholder is
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entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to present the matter specified in the notice, and (iii) such other
information as would be required to be included in a proxy statement soliciting
proxies for the presentation of such matter to the meeting.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be transacted at the annual meeting except in accordance with the
procedures set forth in this Section; provided, however, that nothing in this
Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with these
By-Laws.
Section 3.2 Special Meetings
A special meeting of the stockholders may be called at any time by the
President, or by a majority of the Directors acting by vote or by written
instrument or instruments signed by them. A special meeting of the stockholders
shall be called by the Clerk, or in the case of the death, absence, incapacity
or refusal of the Clerk, by any other officer, upon written application of one
or more stockholders who hold at least thirty (30) percent in interest of the
capital stock entitled to vote thereat. Such call shall state the time, place
and purposes of the meeting. In the event that none of the officers is able or
willing to call a special meeting, the supreme judicial or superior court, upon
application of one or more stockholders who hold at least thirty (30) percent in
interest of the capital stock entitled to vote thereat, shall have jurisdiction
in equity to authorize one or more of such stockholders to call a meeting by
giving notice as is required by law.
Section 3.3 Place of Meetings
All meetings of the stockholders shall be held at the principal office
of the Corporation in Massachusetts, unless a different place within
Massachusetts or, if permitted by the Articles of
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Organization, elsewhere within the United States is designated by the President,
or by a majority of the Directors acting by vote or by written instrument or
instruments signed by them. Any adjourned session of any meeting of the
stockholders shall be held at such place within Massachusetts or, if permitted
by the Articles of Organization, elsewhere within the United States as is
designated in the vote of adjournment.
Section 3.4 Notice of Meetings
A written notice of the place, date and hour of all meetings of
stockholders stating the purposes of the meeting shall be given at least seven
(7) days before the meeting to each stockholder entitled to vote thereat, by
leaving such notice with him or at his residence or usual place of business, or
by mailing it, postage prepaid, and addressed to such stockholder at his address
as it appears in the records of the Corporation. Such notice shall be given by
the Clerk, or in the case of the death, absence, incapacity or refusal of the
Clerk, by any other officer or by a person designated either by the Clerk, by
the person or persons calling the meeting, by any stockholder or group of
stockholders applying for such meeting pursuant to Section 3.2 of Article 3 of
these By-Laws or by the Board of Directors. Whenever notice of a meeting is
required to be given a stockholder under any provision of law, of the Articles
of Organization, or of these By-Laws, a written waiver thereof, executed before
or after the meeting by such stockholder or his attorney thereunto authorized,
and filed with the records of the meeting, shall be deemed equivalent to such
notice.
Section 3.5 Quorum
At any meeting of the stockholders, a quorum for the election of any
Director or for the consideration of any question shall consist of a majority in
interest of all stock issued, outstanding
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and entitled to vote at such election or upon such question, respectively,
except that if two or more classes of stock are entitled to vote as separate
classes for the election of any Director or upon any question, then in the case
of each such class a quorum for the election of any Director or for the
consideration of such question shall consist of a majority in interest of all
stock of that class issued, outstanding and entitled to vote thereon. Stock
owned by the Corporation, if any, shall be disregarded in determining any
quorum. Whether or not a quorum is present, any meeting may be adjourned from
time to time by a majority of the votes properly cast upon the question, and the
meeting may be held as adjourned without further notice.
When a quorum for an election is present at any meeting, a plurality of
the votes properly cast for any office shall elect such office. When a quorum
for the consideration of a question is present at any meeting, a majority of the
votes properly cast upon the question shall decide the question; except that if
two or more classes of stock are entitled to vote as separate classes upon such
question, then in the case of each such class a majority of the votes of such
class properly cast upon the question shall decide the vote of that class upon
the question; and except in any case where a larger vote is required by law or
by the Articles of Organization.
Section 3.6 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. Such consents shall be
treated for all purposes as a vote at a meeting.
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Section 3.7 Proxies and Voting
Except as may otherwise be provided in the Articles of Organization,
stockholders entitled to vote shall have one vote for each share of stock
entitled to vote owned by them. Stockholders entitled to vote may vote in person
or by proxy. No proxy dated more than six (6) months before the meeting named
therein shall be valid and no proxy shall be valid after the final adjournment
of such meeting; provided, however, that a proxy coupled with an interest
sufficient in law to support an irrevocable power, including, without
limitation, an interest in the shares or in the Corporation generally, may be
irrevocable if it so provides, need not specify the meeting to which it relates,
and shall be valid and enforceable until the interest terminates, or for such
shorter period as may be specified in the proxy. 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 the exercise of the proxy the Corporation receives
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on behalf of a stockholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger. Proxies shall be filed with the Clerk, or person
performing the duties of clerk, at the meeting, or any adjournment thereof,
before being voted.
The Corporation shall not, directly or indirectly, vote upon any share
of its own stock.
ARTICLE 4
Directors
Section 4.1 Enumeration, Election and Term of Office
The business and affairs of this corporation shall be managed under the
direction of a Board of Directors consisting of not fewer than three (3) nor
more than fifteen (15) Directors, the
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exact number to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors, such Board of
Directors to be divided into such classes and elected by such stockholders as
have the right to vote thereon, for such terms as are provided in the Articles
of Organization. Each Director shall hold office until his successor shall have
been elected and qualified, subject to Article 6 of these By-Laws. Whenever used
in these By-Laws, the phrase "entire Board of Directors" shall mean that number
of Directors fixed by the most recent resolution adopted pursuant to the
preceding sentence prior to the date as of which a determination of the number
of Directors then constituting the entire Board of Directors shall be relevant
for any purpose under these By-Laws. Subject to the foregoing limitations and
the requirements of the Articles of Organization, the Board of Directors may be
enlarged by the stockholders at any meeting or by the affirmative vote of a
majority of the entire Board of Directors then in office.
Nominations for the election of Directors may be made by the Board of
Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote generally in the election of Directors. However,
any stockholder entitled to vote generally in the election of Directors may
nominate one or more persons for election as Directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Clerk of the Corporation not later than (1) with
respect to an election to be held at an annual meeting of stockholders or
special meeting in lieu of an annual meeting, sixty (60) days prior to the date
for the annual meeting set forth in the By-Laws and (2) with respect to an
election to be held at a special meeting of stockholders not in lieu of an
annual meeting, the close of business on the tenth (10th) day
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following the date on which notice of such meeting is first given to
stockholders. Each such notice to the Clerk shall set forth (i) the name and
address of the stockholder and each of his or her nominees; (ii) a
representation that the stockholder is entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (iii) a description of all arrangements or
understandings between the stockholder and each such nominee; (iv) such other
information as would be required to be included in a proxy statement soliciting
proxies or the election of the nominees of such stockholder; and (v) the consent
of each nominee to serve as a Director of the Corporation if so elected. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a Director of the Corporation. The presiding
officer of the meeting may, if the facts warrant, determine that a nomination
was not made in accordance with the foregoing procedure, and if such officer
should so determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded.
No Director need be a stockholder. Any election of Directors by the
stockholders shall be by ballot if so requested by any stockholder entitled to
vote thereon.
Section 4.2 Powers
The business of the Corporation shall be managed by the Board of
Directors, which shall exercise all the powers of the Corporation except as
otherwise required by law, by the Articles of Organization or by these By-Laws.
In the event of one or more vacancies in the Board of Directors, the remaining
Directors, if at least two (2) Directors still remain in office, may exercise
the powers of the full Board until such vacancy or vacancies are filled.
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Section 4.3 Meetings of Directors
Regular meetings of the Directors may be held without notice at such
places and at such times as may be fixed from time to time by the Directors. A
regular meeting of the Directors may be held without notice immediately
following an annual meeting of stockholders or any special meeting held in lieu
thereof.
Special meetings of Directors may be called by the Chairman of the
Board, the President, the Treasurer or any two (2) or more Directors, or if
there shall be less than three (3) Directors, by any one (1) Director, and shall
be held at such time and place as specified in the call. Reasonable notice of
each special meeting of the Directors shall be given to each Director. Such
notice may be given by the Secretary or Assistant Secretary of the Board, the
Clerk or any Assistant Clerk or by the officer or one of the Directors calling
the meeting. Notice to a Director shall in any case be sufficient if sent by
telegram or telecopier at least forty-eight (48) hours or by mail at least
ninety-six (96) hours before the meeting addressed to the Director at his or her
usual or last known business or residence address, or if given to him or her at
least forty-eight (48) hours before the meeting in person or by telephone or by
handing him or her a written notice. Notice of a meeting need not be given to
any Director if a written waiver of notice, executed by him or her before or
after the meeting, is filed with the records of the meeting, or to any Director
who attends the meeting without protesting prior thereto or at its commencement
the lack of notice to him or her. A notice or waiver of notice need not specify
the purposes of the meeting.
Section 4.4 Quorum of Directors
At any meeting of the Directors, a quorum for any election or for the
consideration of any question shall consist of a majority of the Directors then
in office. Whether or not a quorum is
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present any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting, the votes of a
majority of the Directors present shall be requisite and sufficient for election
to any office and shall decide any question brought before such meeting, except
in any case where a larger vote is required by law, by the Articles of
Organization or by these By-Laws.
Section 4.5 Consent in Lieu of Meeting and Participation
in Meetings by Communications Equipment
Any action required or permitted to be taken at any meeting of the
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
meetings of the Directors. Such consents shall be treated for all purposes as a
vote of the Directors at a meeting.
Members of the Board of Directors or any Committee designated 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 a meeting.
Section 4.6 Committees
By vote of a majority of the Directors then in office, the Directors
may elect from their own number an Executive Committee or other Committees and
may by like vote delegate to any such Committee some or all of their powers
except those which by law may not be delegated.
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ARTICLE 5
Officers
Section 5.1 Enumeration, Election and Term of Office
The officers of the Corporation shall include a President, a Treasurer
and a Clerk, who shall be chosen by the Directors at their first meeting
following an annual meeting of the stockholders. Each of the officers shall hold
office until the next annual election to the office which he or she holds and
until his or her successor is chosen and qualified or until he or she sooner
dies, resigns, is removed or becomes disqualified. The Directors may choose one
of their number to be Chairman of the Board and determine his or her powers,
duties and term of office. The Directors may at any time appoint such other
officers, including one or more Vice Presidents, Assistant Treasurers, Assistant
Clerks, a Secretary of the Board and an Assistant Secretary of the Board as they
deem wise, and may determine their respective powers, duties and terms of
office.
The Corporation may also designate individuals as divisional, group, or
segment vice presidents or vice presidents of a particular function, which
individual shall carry such title on a non-executive basis and not as an
executive officer of the Corporation. Said non-executive vice presidents may be
designated by the Board of Directors or by the President pursuant to Board
resolutions so-authorizing the President to appoint non-executive vice
presidents on a particular occasion or from time to time in his or her
discretion, said honorary vice presidents to be titled "Vice President (specific
area of function)."
No officer need be a stockholder or a Director except that the Chairman
of the Board shall be a Director. The same person may hold more than one office,
except that no person shall be both President and Clerk.
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Section 5.2 President and Chairman of the Board
The President shall be the Chief Executive Officer of the Corporation
and, subject to the control and direction of the Directors, shall have general
supervision and control of the business of the Corporation. The President shall
preside at all meetings of the stockholders at which he or she is present, and,
if the President is a Director, at all meetings of the Directors, if there shall
be no Chairman of the Board or in the absence of the Chairman of the Board.
If there shall be a Chairman of the Board, such person shall make his
or her counsel available to the other officers of the Corporation, and shall
have such other duties and powers as may from time to time be conferred on him
or her by the Directors. The Chairman of the Board shall preside at all meetings
of the Directors at which he or she is present, and, in the absence of the
President, at all meetings of stockholders.
Section 5.3 Treasurer and Assistant Treasurer
The Treasurer shall have the custody of the funds and valuable books
and papers of the Corporation, except such as are directed by these By-Laws to
be kept by the Clerk or by the Secretary of the Board. The Treasurer shall
perform all other duties usually incident to such office, and shall be at all
times subject to the control and direction of the Directors. If required by the
Directors, the Treasurer shall give bond in such form and amount and with such
sureties as shall be determined by the Directors.
If the Treasurer is absent or unavailable, any Assistant Treasurer
shall have the duties and powers of Treasurer and shall have such further duties
and powers as the Directors shall from time to time determine.
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Section 5.4 Clerk and Assistant Clerk
If the Corporation shall not have a resident agent appointed pursuant
to law, the Clerk shall be a resident of the Commonwealth of Massachusetts. The
Clerk shall record all proceedings of the stockholders in a book to be kept
therefor. In case a Secretary of the Board is not elected, the Clerk shall also
record all proceedings of the Directors in a book to be kept therefor.
If the Corporation shall not have a transfer agent, the Clerk shall
also keep or cause to be kept the stock and transfer records of the Corporation,
which shall contain the names of all stockholders and the record address and the
amount of stock held by each.
If the Clerk is absent or unavailable, any Assistant Clerk shall have
the duties and powers of the Clerk and shall have such further duties and powers
as the Directors shall from time to time determine.
Section 5.5 Secretary of the Board and Assistant Secretary
If a Secretary of the Board is elected, such person shall record all
proceedings of the Directors in a book to be kept therefor.
If the Secretary of the Board is absent or unavailable, any Assistant
Secretary shall have the duties and powers of the Secretary and shall have such
further duties and powers as the Directors shall from time to time determine.
If no Secretary or Assistant Secretary has been elected, or if, having
been elected, no Secretary or Assistant Secretary is present at a meeting of the
Directors, the Clerk or an Assistant Clerk shall record the proceedings of the
Directors.
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Section 5.6 Temporary Clerk and Temporary Secretary
If no Clerk or Assistant Clerk shall be present at any meeting of the
stockholders, or if no Secretary, Assistant Secretary, Clerk or Assistant Clerk
shall be present at any meeting of the Directors, the person presiding at the
meeting shall designate a Temporary Clerk or Secretary to perform the duties of
Clerk or Secretary.
Section 5.7 Other Powers and Duties
Each officer shall, subject to these By-Laws and to the control and
direction of the Directors, have in addition to the duties and powers
specifically set forth in these By-Laws, such duties and powers as are
customarily incident to such office and such additional duties and powers as the
Directors may from time to time determine.
ARTICLE 6
Resignations, Removals and Vacancies
Section 6.1 Resignations
Any Director or officer may resign at any time by delivering his or her
resignation in writing to the President or the Clerk or to a meeting of the
Directors. Such resignations shall take effect at such time as is specified
therein, or if no such time is so specified, then upon delivery thereof to the
President or the Clerk or to a meeting of the Directors.
Section 6.2 Removals
Directors, including Directors elected by the Directors to fill
vacancies in the Board, may be removed from office (a) with cause by vote of the
holders of a majority of the shares issued and outstanding and entitled to vote
generally in the election of Directors; (b) with or without cause by vote of the
holders of at least 80% of the votes entitled to be cast by the holders of all
shares of the
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Corporation entitled to vote generally in the election of Directors, voting
together as a single class; (c) with cause by vote of a.majority of the
Directors then in office; or (d) without cause by vote of at least 80% of the
Directors then in office (including the Director to be removed in calculating
said percentage); provided that the Directors of a class elected by a particular
class of stockholders may be removed only by vote of the holders of a majority
of the shares of such class.
The Directors may terminate or modify the authority of any agent or
employee. The Directors may remove any officer from office with or without
assignment of cause by vote of a majority of the Directors then in office.
If cause is assigned for removal of any Director or officer, such
Director or officer may be removed only after reasonable notice and opportunity
to be heard before the body proposing to remove him.
No Director or officer who resigns or is removed shall have any right
to any compensation as such Director or officer for any period following his
resignation or removal, or any right to damages on account of such removal,
whether his compensation be by the month or by the year or otherwise; provided,
however, that the foregoing provision shall not prevent such Director or officer
from obtaining damages for breach of any contract of employment legally binding
upon the Corporation.
Section 6.3 Vacancies
Any vacancy in the Board of Directors, including a vacancy resulting
from an enlargement of the Board, may be filled by the Directors by vote of a
majority of the remaining Directors then in office, though less than a quorum,
or by the stockholders at a meeting called for the purpose, provided that any
vacancy created by the stockholders may be filled by the stockholders at the
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same meeting. Any Director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of Directors
in which the new Directorship was created or the vacancy occurred and until such
Directors' successor shall have been elected and qualified or until he or she
sooner dies, resigns, is removed or becomes disqualified.
If the office of any officer becomes vacant, the Directors may choose
or appoint a successor by vote of a majority of the Directors present at the
meeting at which such choice or appointment is made.
Each such successor shall hold office for the unexpired term of the
Director's predecessor and until a successor shall be chosen or appointed and
qualified, or until he or she sooner dies, resigns, is removed or becomes
disqualified.
ARTICLE 7
Indemnification of Directors and Others
Section 7.1 Definitions
For purposes of this Article 7:
(a) "Director/officer" means any person who is serving or has served as
a Director, officer or employee of the Corporation appointed or elected by the
Board of Directors or the stockholders of the Corporation, or any Director,
officer or employee of the Corporation who is serving or has served at the
request of the Corporation as a Director, officer, trustee, principal, partner,
employee or other agent of any other organization.
(b) "Proceeding" means any action, suit or proceeding, civil or
criminal, brought or threatened in or before any court, tribunal, administrative
or legislative body or agency.
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(c) "Expense" means any fine or penalty, and any liability fixed by a
judgment, order, decree or award in a Proceeding, any amount reasonably paid in
settlement of a Proceeding and any professional fees and other disbursements
reasonably incurred in connection with a Proceeding.
Section 7.2 Right to Indemnification
Except as limited by law or as provided in Sections 7.3 and 7.4 of this
Article 7, each Director/officer (and his heirs and personal representatives)
shall be indemnified by the Corporation against any Expense incurred by such
Director/officer in connection with each Proceeding in which he or she is
involved as a result of his or her serving or having served as a
Director/officer.
Section 7.3 Indemnification not Available
No indemnification shall be provided to a Director/officer with respect
to a Proceeding as to which it shall have been adjudicated that he or she did
not act in good faith in the reasonable belief that his or her action was in the
best interests of the Corporation.
Section 7.4 Compromise or Settlement
In the event that a Proceeding is compromised or settled so as to
impose any liability or obligation on a Director/officer or upon the
Corporation, no indemnification shall be provided as to said Director/officer
with respect to such Proceeding if such Director/officer shall have been
adjudicated not to have acted in good faith in the reasonable belief that his or
her action was in the best interests of the Corporation.
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Section 7.5 Advances
The Corporation shall pay sums on account of indemnification in advance
of a final disposition of a Proceeding upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he or
she is not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof,
which undertaking may be accepted without reference to the financial ability of
such person to make repayment.
Section 7.6 Not Exclusive
Nothing in this Article 7 shall limit any lawful rights to
indemnification existing independently of this Article 7.
Section 7.7 Insurance
The provisions of this Article 7 shall not limit the power of the Board
of Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against any Expense, whether or not the Corporation would
have the power to indemnify such Director/officer against such Expense under
this Article 7.
ARTICLE 8
Stock
Section 8.1 Stock Authorized
The total number of shares and the par value, if any, of each class of
stock which the Corporation is authorized to issue, and if more than one class
is authorized, the descriptions, preferences, voting powers, qualifications and
special and relative rights and privileges as to each class and any series
thereof, shall be as stated in the Articles of Organization.
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Section 8.2 Issue of Authorized Unissued Capital Stock
Any unissued capital stock from time to time authorized under the
Articles of Organization and amendments thereto may be issued by vote of the
Directors. No stock shall be issued unless the cash, so far as due, or the
property, services or expenses for which it was authorized to be issued, has
been actually received or incurred by, or conveyed or rendered to, the
Corporation, or is in its possession as surplus.
Section 8.3 Certificates of Stock
Each stockholder shall be entitled to a certificate in such form as may
be prescribed from time to time by the Directors, stating the number and the
class and the designation of the series, if any, of the shares held by such
stockholder. Such certificates shall be signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer. Such signatures may be
facsimiles if the certificate is signed by a transfer agent, or by a registrar,
other than a Director, officer or employee of the Corporation. In case any
officer who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or she
were such officer at the time of its issue.
Every certificate issued by the Corporation for shares of stock at a
time when such shares are subject to any restriction on transfer pursuant to the
Articles of Organization, the By-Laws or any agreement to which the Corporation
is a party, shall have the restriction noted conspicuously on the certificate
and shall also set forth on the face or back of the certificate either the full
text of the restriction, or a statement of the existence of such restriction and
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and
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without charge. Every stock certificate issued by the Corporation at a time when
it is authorized to issue more than one class or series of stock shall set forth
upon the face or back of the certificate either the full text of the
preferences, voting powers, qualifications and special and relative rights of
the shares of each class and series, if any, authorized to be issued, as set
forth in the Articles of Organization, 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.
Section 8.4 Replacement Certificate
In case of the alleged loss or destruction or the mutilation of a
certificate of stock, a new certificate may be issued in place thereof, upon
such conditions as the Directors may determine.
Section 8.5 Transfers
Subject to the restrictions, if any, imposed by the Articles of
Organization, the By-Laws or any agreement to which the Corporation is a party,
shares of stock shall be transferred on the books of the Corporation only by the
surrender to the Corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment of such shares or by a written power of attorney to sell, assign or
transfer such shares, properly executed, with necessary transfer stamps affixed,
and with such proof that the endorsement, assignment or power of attorney is
genuine and effective as the Corporation or its transfer agent may reasonably
require. Except as may otherwise be required by law, 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
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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 or her post office address.
Section 8.6 Record Date
The Directors may fix in advance a time, which shall be not more than
sixty (60) days before the date of any meeting of stockholders or the date for
the payment of any dividend or the making of any distribution to stockholders or
the last day on which the consent or dissent of stockholders may be effectively
expressed for any purpose, as the record date for determining the stockholders
having the right to notice of and to vote at such meeting and any adjournment
thereof or the right to receive such dividend or distribution or the right to
give such consent or dissent, and in such case only stockholders of record on
such date shall have such right, notwithstanding any transfer of stock on the
books of the Corporation after the record date; or without fixing such record
date the Directors may for any 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:
(1) The record date for determining 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 next preceding the day on which notice is given.
(2) 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
acts with respect thereto.
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ARTICLE 9
Miscellaneous Provisions
Section 9.1 Execution of Papers
All deeds, leases, transfers, contracts, bonds, notes, releases,
checks, drafts and other obligations authorized to be executed on behalf of the
Corporation shall be signed by the President or the Treasurer except as the
Directors may generally or in particular cases otherwise determine.
Section 9.2 Voting of Securities
Except as the Directors may generally or in particular cases otherwise
determine, the President or the Treasurer may, on behalf of the Corporation (i)
waive notice of any meeting of stockholders or shareholders of any other
corporation, or of any association, trust or firm, of which any securities are
held by this Corporation; (ii) appoint any person or persons to act as proxy or
attorney-in-fact for the Corporation, with or without substitution, at any such
meeting; and (iii) execute instruments of consent to stockholder or shareholder
action taken without a meeting.
Section 9.3 Corporate Seal
The seal of the Corporation shall be a circular die with the name of
the Corporation, the word "Massachusetts" and the year of its incorporation cut
or engraved thereon, or shall be in such other form as the Board of Directors or
the stockholders may from time to time determine.
Section 9.4 Corporate Records
The original, or attested copies, of the Articles of Organization,
By-Laws, and the records of all meetings of incorporators and stockholders, and
the stock and transfer 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 for inspection by the stockholders at the principal
office of the
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Corporation or at an office of the Clerk, or if the Corporation shall have a
transfer agent or a resident agent, at an office of either of them. Said copies
and records need not all be kept in the same office.
ARTICLE 10
Amendments
These By-Laws may be altered, amended or repealed or new By-Laws
enacted by the affirmative vote of a majority of the entire Board of Directors
(if notice of the proposed alteration or amendment is contained in the notice of
the meeting at which such vote is taken or if all Directors are present) or at
any regular meeting of the stockholders (or at any special meeting thereof duly
called for that purpose) by the affirmative vote of a majority of the shares
represented and entitled to vote at such meeting (if notice of the proposed
alteration or amendment is contained in the notice of such meeting).
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