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LTX CORPORATION
BY-LAWS
TABLE OF CONTENTS
Title Page
Article I - General
Section 1.1 Offices ................................................ 1
Section 1.2 Seal ................................................... 1
Section 1.3 Fiscal Year ............................................ 1
Article II - Stockholders
Section 2.1 Place of Meeting ....................................... 1
Section 2.2 Annual Meetings ........................................ 1
Section 2.3 Special Meetings ....................................... 1
Section 2.4 Notice of Meetings ..................................... 2
Section 2.5 Quorum ................................................. 2
Section 2.6 Voting ................................................. 2
Section 2.7 Inspectors of Election ................................. 3
Section 2.8 Action Without Meeting ................................. 3
Section 2.9 Application for Special Meeting ........................ 3
Article III - Directors
Section 3.1 Powers ................................................. 5
Section 3.2 Number, Election and Term of Office .................... 5
Section 3.3 Place of Meetings ...................................... 6
Section 3.4 Annual Meetings ........................................ 6
Section 3.5 Regular Meetings ....................................... 6
Section 3.6 Special Meetings ....................................... 6
Section 3.7 Notice of Meetings ..................................... 6
Section 3.8 Quorum ................................................. 7
Section 3.9 Voting ................................................. 7
Section 3.10 Action Without Meeting ................................. 7
Section 3.11 Meetings by Telephone Conference Calls ................. 7
Section 3.12 Resignations ........................................... 7
Section 3.13 Removal ................................................ 7
Section 3.14 Enlargement of the Board of Directors;
Vacancies .............................................. 7
Section 3.15 Compensation of Directors .............................. 8
Section 3.16 Committees ............................................. 8
Section 3.17 Issuance of Stock ...................................... 8
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TABLE OF CONTENTS
(Continued)
Title Page
Article IV - Officers
Section 4.1 Officers .............................................. 8
Section 4.2 Election and Term of Office ........................... 8
Section 4.3 Chairman of the Board ................................. 9
Section 4.4 President ............................................. 9
Section 4.5 Vice President ........................................ 9
Section 4.6 Treasurer and Assistant Treasurer ..................... 9
Section 4.7 Clerk and Assistant Clerk ............................. 9
Section 4.8 Secretary and Assistant Secretary ..................... 10
Section 4.9 Resignation ........................................... 10
Section 4.10 Removal ............................................... 10
Section 4.11 Vacancies ............................................. 10
Section 4.12 Subordinate Officers .................................. 10
Section 4.13 Compensation .......................................... 10
Article V - Stock
Section 5.1 Stock Certificates .................................... 10
Section 5.2 Transfer of Stock ..................................... 11
Section 5.3 Fixing Date for Determination of
Stockholders' Rights .................................. 11
Section 5.4 Lost, Mutilated or Destroyed Certificates ............. 12
Article VI - Miscellaneous Management Provisions
Section 6.1 Execution of Instruments .............................. 12
Section 6.2 Corporate Records ..................................... 12
Section 6.3 Voting of Securities Owned by Corporation ............. 12
Section 6.4 Conflict of Interest .................................. 13
Section 6.5 Indemnification ....................................... 13
Section 6.6 Transactions with Related Persons ..................... 14
Article VII - Amendments
Section 7.1 General ............................................... 16
Section 7.2 Date of Annual Meeting of Stockholders ................ 16
Article VIII
Section 8.1 Control Share Acquisitions ............................ 17
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LTX CORPORATION
B Y - L A W S
ARTICLE I - GENERAL
SECTION 1.1. OFFICES. The principal office of the corporation shall be
in Westwood, Massachusetts. The corporation may also have offices at such other
place or places within or without Massachusetts as the Board of Directors may
from time to time determine or the business of the corporation may require.
SECTION 1.2. SEAL. The seal of the corporation shall be in the form of a
circle inscribed with the name of the corporation, the year of its incorporation
and the word "Massachusetts". When authorized by the Board of Directors and to
the extent not prohibited by law, a facsimile of the corporate seal may be
affixed or reproduced.
SECTION 1.3. FISCAL YEAR. The fiscal year of the corporation shall be
the twelve months ending July 31 of each year.
ARTICLE II - STOCKHOLDERS
SECTION 2.1. PLACE OF MEETING. Meetings of stockholders shall be held at
the principal office of the corporation or, to the extent permitted by the
Articles of Organization, at such other place within the United States as the
Board of Directors may from time to time designate.
SECTION 2.2. ANNUAL MEETINGS. The annual meeting of stockholders shall
be held within six months after the end of the corporation's fiscal year
specified by these By-laws. The date and hour of the annual meeting shall be
fixed by the Board of Directors. The purposes for which the annual meeting is to
be held, in addition to those prescribed by law, by the Articles of Organization
or these By-laws, may be specified by the Board of Directors or the President.
In the event that no date for the annual meeting is established or if no annual
meeting is held in accordance with the foregoing provisions, a special meeting
may be held in lieu thereof, and any action taken at such meeting shall have the
same effect as if taken at the annual meeting.
SECTION 2.3. SPECIAL MEETINGS. Special meetings of stockholders may be
called by the President or by the Board of Directors, and shall be called by the
Clerk or, in case of death, absence, incapacity or refusal of the Clerk, by any
other officer, upon written application of one or more stockholders who hold at
least forty percent in interest of the capital stock entitled to vote at the
meeting. At any special meeting only business to which a reference shall have
been contained in the notice of such meeting be transacted.
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SECTION 2.4. NOTICE OF MEETINGS. Written or printed notice of each
meeting of stockholders, stating the place, date and hour and the purposes of
the meeting shall be given by the Clerk or other officer calling the meeting at
least seven days, but not more than sixty days, before the meeting to each
stockholder entitled to vote at the meeting or entitled to such notice by
leaving such notice with him at his residence or usual place of business or by
mailing it, postage prepaid, and addressed to the stockholder at his address as
it appears in the records of the corporation. No notice need be given to any
stockholder if he, or his authorized attorney, waives such notice by a writing
executed before or after the meeting and filed with the records of the meeting
or by his presence, in person or by proxy, at the meeting. Any person authorized
to give notice of any such meeting may make affidavit of such notice, which, as
to the facts therein stated, shall be conclusive. It shall be the duty of every
stockholder to furnish to the Clerk of the corporation or to the transfer agent,
if any, of the class of stock owned by him, his current post office address.
SECTION 2.5. QUORUM. At all meetings of stockholders the holders of a
majority in interest of all capital stock entitled to vote at such meeting or,
if two or more classes of stock are issued, outstanding and entitled to vote as
separate classes, a majority in interest of each class, present in person or
represented by proxy, shall constitute a quorum. The announcement of a quorum by
the officer presiding at the meeting shall constitute a conclusive determination
that a quorum is present. The absence of such an announcement shall have no
significance. Shares of its own stock held by the corporation or held for its
use and benefit shall not be counted in determining the total number of shares
outstanding at any particular time. If a quorum is not present or represented,
the stockholders present or represented and entitled to vote at such meeting, by
a majority vote, may adjourn the meeting from time to time, without notice other
than announcement at the meeting until a quorum is present or represented. At
any adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted if the meeting had
been held as originally called. The stockholders present at a duly organized
meeting may continue to transact business until adjournment notwithstanding the
withdrawal of one or more stockholders so as to leave less than a quorum.
SECTION 2.6. VOTING. Except as otherwise provided by law or the Articles
of Organization, at all meetings of stockholders each stockholder shall have one
vote for each share of stock entitled to vote and registered in his name and a
proportionate vote for a fractional share. Any stockholder may vote in person or
by proxy dated not more than six months prior to the meeting and filed with the
Clerk of the meeting. Every proxy shall be in writing, subscribed by a
stockholder or his authorized attorney-in-fact, and dated. 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. No
proxy shall be valid after the final adjournment of the meeting. Voting on all
matters, including the election of directors, shall be by voice vote unless
voting by ballot is requested by any
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stockholder. Except as otherwise provided by law, the Articles of Organization,
or these By-laws, at all meetings of stockholders all questions shall be
determined by a vote of a majority of the shares voting, or, if two or more
classes of stock are entitled to vote as separate classes, a vote of a majority
of the shares voting of each class voting, present in person or represented by
proxy. The corporation shall not, directly or indirectly, vote shares of its own
stock.
SECTION 2.7. INSPECTORS OF ELECTION. Two inspectors may be appointed by
the Board of Directors before or at each meeting of stockholders, or, if no such
appointment shall have been made, the presiding officer may make such
appointment at the meeting. At the meeting for which they are appointed, such
inspectors shall open and close the polls, receive and take charge of the
proxies and ballots, and decide all questions touching on the qualifications of
voters, the validity of proxies and the acceptance and rejection of votes. If
any inspector previously appointed shall fail to attend or refuse or be unable
to serve, the presiding officer shall appoint an inspector in his place.
SECTION 2.8. ACTION WITHOUT MEETING. Any action which may be taken by
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.
SECTION 2.9. APPLICATION FOR SPECIAL MEETING. (a) In order that the
corporation may determine the stockholders entitled to apply for a special
meeting pursuant to Section 2.3, the Board of Directors shall fix a record date,
in accordance with the procedures set forth below, to determine the stockholders
entitled to make such application (the "Application Record Date"). Any
stockholder of record seeking to have stockholders apply for a special meeting
shall, by sending a written request to the Clerk of the corporation by hand or
by certified or registered mail, return receipt requested, request the Board of
Directors to fix an Application Record Date. The Board of Directors shall
promptly, but in all events within 5 Business Days (as defined herein) after the
date on which a valid request to fix an Application Record Date is so delivered,
affirmatively vote and fix the Application Record Date. The Application Record
Date shall not precede the date of the vote fixing the Application Record Date
and shall not be more than 10 days after the date of the vote of the Board of
Directors fixing the Application Record Date. If no Application Record Date has
been fixed by the Board of Directors within 5 Business Days after the date on
which such valid request is delivered to the Clerk, the Application Record Date
shall be the first date on which a signed valid request that the Board of
Directors fix an Application Record Date is delivered to the corporation as set
forth above. To be valid, such written request shall be signed by one or more
stockholders of record (or their duly authorized proxies or other
representatives), shall bear the date of signature of each such stockholder (or
proxy or other representative) and shall set forth (i) a brief description of
the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in
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such business of such stockholders and the beneficial owners, if any, on whose
behalf the request is made; and (ii) as to the stockholders making the request
and the beneficial owners, if any, on whose behalf the request is made (x) the
name and address of such stockholders as they appear on the corporation's books,
and of such beneficial owners, and (y) the class and number of shares of the
corporation which are owned beneficially and of record by such stockholders and
such beneficial owners.
(b) In order for a stockholder or stockholders to request a
special meeting, a written application for a special meeting signed by the
holders of record, as of the close of business on the Application Record Date,
of shares representing at least forty percent in interest of the capital stock
of the corporation entitled to vote at such special meeting must be delivered to
the Clerk of the corporation at the principal executive offices of the
corporation by hand or by certified or registered mail, return receipt
requested, and must be so received by the corporation within 60 days after the
Application Record Date. To be valid, the written application shall set forth
(i) a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholders and the beneficial
owners, if any, on whose behalf the application is made; and (ii) as to the
stockholders making the application and the beneficial owners, if any, on whose
behalf the application is made (x) the name and address of such stockholders as
they appear on the corporation's books, and of such beneficial owners, and (y)
the class and number of shares of the corporation which are owned beneficially
and of record by such stockholders and such beneficial owners.
(c) As provided in Section 2.7, there shall be appointed an
independent inspector of elections to act as an agent of the corporation for the
purpose of promptly performing a ministerial review of the validity of any
purported written application for a special meeting received by the Clerk. For
the purpose of permitting the inspectors to perform such review, no purported
application shall be deemed to have been delivered to the corporation until such
date as the independent inspectors certify to the corporation that the
application has been validly submitted by the holders of record, as of the close
of business on the Application Record Date, of at least forty percent in
interest of the capital stock of the corporation entitled to vote at such
special meeting. Nothing contained in this paragraph (c) shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any request, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
(d) Within 5 Business Days following the date that a valid
application for a special meeting is deemed pursuant to paragraph (c) hereof to
have been delivered to the corporation (the "Delivery Date"), the Board of
Directors shall set
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the record date (the "Special Meeting Record Date") for the special meeting to
be held pursuant to such application (the "Application Special Meeting"), and
the hour and day of the Application Special Meeting. The Special Meeting Record
Date shall not precede the date of the vote of the Board of Directors setting
the Special Meeting Record Date and shall not be later than 15 Business Days
following the date of such vote. The date of the Application Special Meeting
shall be not less than 10 nor more than 50 days after the Special Meeting Record
Date. In the event that the directors then in office fail, within 5 Business
Days after the Delivery Date, to designate an hour and date for an Application
Special Meeting and the Special Meeting Record Date, then the Application
Special Meeting shall be held at 12:00 p.m. local time on the 60th day after the
Delivery Date or, if such 60th day is not a Business Day, on the first preceding
Business Day, and the Special Meeting Record Date shall be the close of business
on the 30th day before such meeting date (or if such day is not a Business Day,
on the close of business on the next Business Day).
(e) For purposes of these By-laws, "Business Day" shall mean
any day other than a Saturday, a Sunday or a day on which banking institutions
in the Commonwealth of Massachusetts are authorized or obligated by law or
executive order to close.
ARTICLE III - DIRECTORS
SECTION 3.1. POWERS. Except as otherwise provided by law, the Articles
of Organization or these By-laws, the business of the corporation shall be
managed by a Board of Directors who may exercise all the powers of the
corporation.
SECTION 3.2. NUMBER, ELECTION AND TERM OF OFFICE. The number of
directors shall be not less than three, 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, the number of directors shall be
not less than one.
No stockholder shall nominate any person to serve as a director of the
corporation (other than a nominee of the Board of Directors) unless such
stockholder has provided at least sixty days' advance written notice thereof to
the Clerk of the corporation, together with such information concerning the
identity, background and experience of the nominee as the Board of Directors may
require and any other information which would be required in a proxy statement
soliciting proxies for the election of such nominee as a director of the
corporation (whether or not proxies are solicited).
The Board of Directors shall be divided into three classes, such classes
to be as nearly equal in number as possible. One of such classes of directors
shall be elected annually by the stockholders. Subject to the foregoing
requirements and applicable law, the Board of Directors may, from time to time,
fix the number of directors and their respective classifications, provided that
any such action does not operate to remove a director elected by the
stockholders other than in the manner specified in
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the Articles of Organization or the By-laws. Except as otherwise provided in
accordance with these By-laws, the members of each class shall be elected for a
term of three years and shall serve until their successors are elected and
qualified. Any successor to a director whose seat becomes vacant shall serve for
the remainder of the term of his predecessor and until his successor is elected
and qualified. Except as otherwise provided by law, by the Articles of
Organization or by these By-laws, a director shall hold office until the annual
meeting of stockholders held in the third year following the year of his
election and thereafter until his successors is chosen and qualified.
SECTION 3.3. PLACE OF MEETINGS. Meetings of the Board of Directors may
be held at any place within or without the Commonwealth of Massachusetts.
SECTION 3.4. ANNUAL MEETINGS. A meeting of the Board of Directors for
the election of officers and the transaction of general business shall be held
each year beginning in 1977, at the place of and immediately after the final
adjournment of the annual meeting of stockholders or the special meeting in lieu
of the annual meeting. No notice of such annual meeting need be given.
SECTION 3.5. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held, without notice, at such time and place as the Board of
Directors may determine. Any director not present at the time of the
determination shall be advised, in writing, of any such determination.
SECTION 3.6. SPECIAL MEETINGS. Special meetings of the Board of
Directors, including meetings in lieu of the annual or regular meetings, may be
held upon notice at any time upon the call of the President and shall be called
by the President or the Clerk or, in case of the death, absence, incapacity or
refusal of the Clerk, by any other officer, upon written application, signed by
any two directors, stating the purpose of the meeting.
SECTION 3.7. NOTICE OF MEETINGS. Wherever notice of any meetings of the
Board of Directors is required by these By-laws or by vote of the Board of
Directors, such notice shall state the place, date and hour of the meeting and
shall be given to each director by the President, Clerk or other officer calling
the meeting at least two days prior to such meeting if given in person by
telephone or by telegram or at least four days prior to such meeting if given by
mail. Notice shall be deemed to have been duly given, if by mail, by depositing
the notice in the post office as a first class letter, postage prepaid, or, if
by telegram, by completing and filing the notice on a telegraph blank and paying
the requisite fee at any telegraph office, the letter or telegram being
addressed to the director at his last known mailing address as it appears on the
books of the corporation. No notice need be given to any director who waives
such notice by a writing executed before or after the meeting and filed with the
records of the meeting or by his attendance at the meeting without protesting at
or before the commencement of the meeting the lack of notice to him. No notice
of adjourned meetings of the Board of Directors need be given.
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SECTION 3.8. QUORUM. At all meetings of the Board of Directors, a
majority of the directors then in office, but in no event less than two
directors, shall constitute a quorum. If a quorum is not present, those present
may adjourn the meeting from time to time until a quorum is obtained. At any
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted if the meeting had been held as
originally called.
SECTION 3.9. VOTING. At any meeting of the Board of Directors the vote
of a majority of those present shall decide any matter except as otherwise
provided by law, the Articles of Organization or these By-laws.
SECTION 3.10. ACTION WITHOUT MEETING. Any action which may 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 meetings of the Board of Directors. Such consents shall
be treated for all purposes as a vote at a meeting.
SECTION 3.11. MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors or
members of any committee designated by the Board of Directors may participate in
a meeting of the Board of 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.
SECTION 3.12. RESIGNATIONS. Any director may resign by giving written
notice to the President or Clerk. Such resignation shall take effect at the time
or upon the event specified therein, or, if none is specified, upon receipt.
Unless otherwise specified in the resignation, its acceptance shall not be
necessary to make it effective.
SECTION 3.13. REMOVAL. A director whose term is classified in accordance
with these By-laws may be removed from office only for cause by vote of either
(a) the holders of a majority of the shares outstanding and entitled to vote in
the election of directors (b) a majority of the directors then in office.
"Cause" shall mean, in the case of the removal of a director whose term is
classified in accordance with these By-laws, only (i) conviction of a felony
(ii) declaration of unsound mind by order of court, (iii) gross dereliction of
duty, (iv) commission of an action involving moral turpitude, or (v) commission
of an action that constitutes intentional misconduct or a knowing violation of
law if such action in either event results both in an improper substantial
personal benefit and a material injury to the corporation. A director may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
SECTION 3.14. ENLARGEMENT OF THE BOARD OF DIRECTORS; VACANCIES. The
number of directors whose terms are classified in accordance with the provisions
of these By-laws may be increased by the directors by affirmative vote of a
majority of the
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directors then in office. Any vacancy at any time existing in the Board of
Directors among those directors whose terms are classified in accordance with
these By-laws, whether resulting from an increase in the size of the Board of
Directors, from the death, resignation, disqualification or removal of a
director or otherwise, shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors.
SECTION 3.15. 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.
SECTION 3.16. COMMITTEES. The Board of Directors may, by vote of a
majority of the directors then in office, appoint from their number one or more
committees and delegate to such committees some or all of their powers to the
extent permitted by law, the Articles of Organization or these By-laws. Except
as the Board of Directors may otherwise determine, any such committee shall be
governed in the conduct of its business by the rules governing the conduct of
the business of the Board of Directors contained in these By-laws and may, by
majority vote of the entire committee, make other rules for the conduct of its
business. The Board of Directors shall have power at any time to fill vacancies
in any such committees, to change its membership or to discharge the committee.
SECTION 3.17. ISSUANCE OF STOCK. The Board of Directors shall have power
to issue and sell or otherwise dispose of such shares of the corporation's
authorized but unissued capital stock to such persons and at such times and for
such consideration, cash, property, services, expenses, or otherwise, and upon
such terms as it shall determine from time to time.
ARTICLE IV - OFFICERS
SECTION 4.1. OFFICERS. 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 of Directors, a Secretary, one or more Vice Presidents,
Assistant Treasurers and Assistant Clerks, and Assistant Secretaries. Any two
offices may be held by the same person except that the Clerk shall not also
serve as President or Treasurer. Any officer may be required to give a bond for
the faithful performance of his duties in such form and with such sureties as
the Board of Directors may determine.
SECTION 4.2. ELECTION AND TERM OF OFFICE. Except for the initial
officers and except as provided in Section 4.11, the President, Treasurer and
Clerk shall be elected by the Board of Directors at its annual meeting or at the
special meeting held in lieu of the annual meeting and shall hold office until
the following annual meeting of the Board of Directors or the special meeting in
lieu of said annual meeting and until
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their successors are chosen and qualified. Other officers may be chosen by the
Board of Directors at the annual meeting or any other meeting and shall hold
office for such period as the Board of Directors may prescribe.
SECTION 4.3. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders and directors and
shall have such other duties as may be assigned to him from time to time by the
Board of Directors.
SECTION 4.4. PRESIDENT. Unless the Board of Directors otherwise
determines, the President shall be the chief executive officer of the
corporation. He shall have the general control and management of the
corporation's business and affairs. He need not be a director. Unless there is a
Chairman of the Board, the President shall preside at all meetings of the Board
of Directors and of the stockholders.
SECTION 4.5. VICE PRESIDENTS. The Vice President, or if there be more
than one, the Vice Presidents, shall perform such of the duties of the President
on behalf of the corporation as may be respectively assigned to him or them from
time to time by the Board of Directors or the President. The Board of Directors
may designate a Vice President as the Executive Vice President, and in the
absence or inability of the President to act, such Executive Vice President
shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the Board of Directors.
SECTION 4.6. TREASURER AND ASSISTANT TREASURER. The Treasurer shall be
the principal financial officer of the corporation. He shall have custody and
control over all funds and securities of the corporation, maintain full and
adequate accounts of all moneys received and paid by him on account of the
corporation and, subject to the control of the Board of Directors, discharge all
duties incident to the office of Treasurer. Any Assistant Treasurer shall
perform such of the duties of the Treasurer and such other duties as the Board
of Directors, the President or the Treasurer may designate. The Treasurer shall
have authority, in connection with the normal business of the corporation, to
sign contracts, bids, bonds, powers of attorney and other documents when
required.
SECTION 4.7. CLERK AND ASSISTANT CLERK. The Clerk shall be the principal
recording officer of the corporation. He shall record all proceedings of the
stockholders and discharge all duties incident to the office of Clerk. Unless a
Secretary is appointed by the Board of Directors to perform such duties, the
Clerk shall record all proceedings of the Board of Directors and of any
committees appointed by the Board of Directors. Any Assistant Clerk shall
perform such of the duties of the Clerk and such other duties as the Board of
Directors, the President or the Clerk may designate. In the absence of the Clerk
or any Assistant Clerk from any meeting of stockholders, the Board of Directors
or any committee appointed by the Board of Directors, a Temporary Clerk
designated by the person presiding at the meeting shall perform the duties of
the Clerk. The Clerk shall be a resident of the
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Commonwealth of Massachusetts unless a resident agent has been appointed by the
corporation pursuant to law to accept service of process.
SECTION 4.8. SECRETARY AND ASSISTANT SECRETARY. If appointed by the
Board of Directors, the Secretary shall record all proceedings of the Board of
Directors and discharge all duties incident to the office of Secretary. Any
Assistant Secretary shall perform such of the duties of the Secretary and such
other duties as the Board of Directors, President or Secretary may designate.
The Board of Directors and any committee appointed by the Board of Directors may
appoint a Secretary and one or more Assistant Secretaries to perform the
functions of the Secretary and Assistant Secretary for such committee.
SECTION 4.9. RESIGNATION. Any officer may resign by giving written
notice to the President or Clerk. Such resignation shall take effect at the time
or upon the event specified therein, or, if none is specified, upon receipt.
Unless otherwise specified in the resignation, its acceptance shall not be
necessary to make it effective.
SECTION 4.10. REMOVAL. An officer may be removed from office with cause,
after reasonable notice and opportunity to be heard, or without cause, in either
case, by vote of a majority of the directors then in office.
SECTION 4.11. 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.
SECTION 4.12. SUBORDINATE OFFICERS. The Board of Directors may, from
time to time, authorize any officer to appoint and remove subordinate officers
and to prescribe their powers and duties. The term "subordinate officers" shall
in no event include the President, Treasurer and Clerk.
SECTION 4.13. COMPENSATION. The Board of Directors may fix the
compensation of all officers of the corporation and may authorize any officer
upon whom the power of appointing subordinate officers may have been conferred
to fix the compensation of such subordinate officers.
ARTICLE V - STOCK
SECTION 5.1. STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate or certificates of stock of the corporation in such form as the
Board of Directors may from time to time prescribe. Each certificate shall be
duly numbered and entered in the books of the corporation as it is issued, shall
state the holder's name and the number and the class and the designation of the
series, if any, of his shares, shall be signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer and may, but need not,
be sealed with the seal of the corporation. If any stock certificate is signed
by a transfer agent, or by a registrar, other than a director, officer or
employee of the corporation, the signatures thereon of the officers may be
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facsimiles. In case any officer who has signed or whose facsimile signature has
been placed on any certificate shall have ceased to be such officer before such
certificate is issued, it may nevertheless be issued by the corporation and
delivered with the same effect as if he were such officer at the time of its
issue. Every certificate of stock which is 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 restrictions noted
conspicuously on the certificate and shall also set forth on the face or back of
the certificate either (i) the full text of the restriction, or (ii) 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 without charge. Every certificate issued at a time when the corporation is
authorized to issue more than one class or series of stock shall set forth upon
the face or back of the certificate either (i) 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 (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.
SECTION 5.2. TRANSFER OF STOCK. Subject to any transfer restrictions
then in force, the shares of stock of the corporation shall be transferable only
upon its books by the holders thereof in person or by their duly authorized
attorneys or legal representatives. Such transfer shall be effected by delivery
of the old certificate, together with a duly executed assignment and power to
transfer endorsed thereon or attached thereto and with such proof of the
authenticity of the signature and such proof of authority to make the transfer
as the corporation or its agents may reasonably require, to the person in charge
of the stock and transfer books and ledgers or to such other person as the Board
of Directors may designate, who shall thereupon cancel the old certificate and
issue a new certificate. The corporation may treat the holder of record of any
share or shares of stock as the owner of such stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have notice thereof, express or
otherwise.
SECTION 5.3. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS' RIGHTS. The
Board of Directors may fix in advance a time, not exceeding sixty 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 date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or the last date on which the consent or
dissent of stockholders may be effectively expressed for any purpose, as the
record date for determining the stockholders entitled to notice of, and to vote
at, such meeting and any adjournment thereof, to receive such dividend or
distribution, to receive such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to
express such consent or dissent. In such case only stockholders of record on the
date so fixed shall have such right,
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notwithstanding any transfer of stock on the books of the corporation after the
record date. In lieu of fixing such record date, the Board of Directors may
close the stock transfer books for all or any part of such period. In any case
in which the Board of Directors does not fix a record date or provide for the
closing of the transfer books, the record date shall be the thirtieth day next
preceding the date of such meeting, the dividend payment or distribution date,
the date for allotment of rights, the date for exercising of rights in respect
of any such change, conversion or exchange of capital stock, or the date for
expressing such consent or dissent, as the case may be.
SECTION 5. 4. LOST, MUTILATED OR DESTROYED CERTIFICATES. No certificates
for shares of stock of the corporation shall be issued in place of any
certificate alleged to have been lost, mutilated or destroyed, except upon
production of such evidence of the loss, mutilation or destruction and upon
indemnification of the corporation and its agents to such extent and in such
manner as the Board of Directors may prescribe and as required by law.
ARTICLE VI - MISCELLANEOUS MANAGEMENT PROVISIONS
SECTION 6.1. EXECUTION OF INSTRUMENTS. Except as otherwise provided in
these By-laws or as the Board of Directors may generally or in particular cases
authorize the execution thereof in some other manner, all instruments,
documents, deeds, leases, transfers, contracts, bonds, notes, checks, drafts and
other obligations made, accepted or endorsed by the corporation shall be signed
by the President or a Vice President, or by the Treasurer or an Assistant
Treasurer, or by the Clerk. Facsimile signatures may be used in the manner and
to the extent authorized generally or in particular cases by the Board of
Directors.
SECTION 6.2. CORPORATE RECORDS. The original, or attested copies, of the
Articles of Organization, By-laws, and 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 the Commonwealth of Massachusetts at the principal office
of the corporation, or at an office of its Clerk, its resident agent or its
transfer agent. The copies and records need not all be kept in the same office.
They shall be available at all reasonable times for inspection by any
stockholder for any proper purpose. They shall not be available for inspection
to secure a list of stockholders or other information for the purpose of selling
such list or information or copies thereof or of using the same for a purpose
other than in the interest of the applicant, as a stockholder, relative to the
affairs of the corporation.
SECTION 6.3. VOTING OF SECURITIES OWNED BY THIS CORPORATION. Subject
always to the specific directions of the Board of Directors, (a) any shares or
other securities issued by any other corporation and owned or controlled by this
corporation may be voted in person at any meeting of security holders of such
other corporation by the President of this corporation if he is present at such
meeting, or in his absence by the
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Treasurer of this corporation if he is present at such meeting, and (b)
whenever, in the judgment of the President, it is desirable for this corporation
to execute a proxy or written consent in respect to any shares or other
securities issued by any other corporation and owned by this corporation, such
proxy or consent shall be executed in the name of this corporation by the
President, without the necessity of any authorization by the Board of Directors,
affixation of corporate seal or countersignature or attestation by another
officer, provided that if the President is unable to execute such proxy or
consent by reason of sickness, absence from the United States or other similar
cause, the Treasurer may execute such proxy or consent. Any person or persons
designated in the manner above stated as the proxy or proxies of this
corporation shall have full right, power and authority to vote the shares or
other securities issued by such other corporation and owned by this corporation
the same as such shares or other securities might be voted by this corporation.
SECTION 6.4. CONFLICT OF INTEREST. No contract or other transaction of
the corporation shall, in the absence of fraud, be affected or invalidated by
the fact that any stockholder, director or officer of the corporation or any
corporation, firm or association of which he may be a director, officer,
stockholder or member may be a party to or may have an interest, pecuniary or
otherwise, in, any such contract or other transaction, provided that the nature
and extent of his interest was disclosed to, or known by, the entire Board of
Directors before acting on such contract or other transaction. Except in the
case of any contract or other transaction between the corporation and any other
corporation controlling, controlled by or under common control with the
corporation, any director of the corporation who is also a director, officer,
stockholder or member of any corporation, firm or association with which the
corporation proposes to contract or transact any business, or who has an
interest, pecuniary or otherwise, in any such contract or other transaction, may
not be counted in determining the existence of a quorum at any meeting of the
Board of Directors which shall authorize any such contract or such transaction,
and such director shall not participate in the vote to authorize any such
contract or transaction. Any such contract or transaction may be authorized or
approved by a majority of the directors then in office and not disqualified by
this Section 6.4 to vote on such matters, even though the disinterested
directors do not constitute a quorum.
SECTION 6.5. INDEMNIFICATION. (a) The corporation shall indemnify each
director and officer against all judgments, fines, settlement payments and
expenses, including reasonable attorneys' fees, paid or incurred in connection
with any claim, action, suit or proceeding, civil or criminal, to which he may
be made a party or with which he may be threatened by reason of his being or
having been a director or officer of the corporation, or, at its request, a
director, officer, stockholder or member of any other corporation, firm,
association or other organization or by reason of his serving or having served,
at its request, in any capacity with respect to any employee benefit plan, or by
reason of any action or omission by him in such capacity, whether or not he
continues to be a director or officer at the time of incurring such expense
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or at the time the indemnification is made. No indemnification shall be made
hereunder (i) with respect to payments and expenses incurred in relation to
matters as to which he shall be finally adjudged in such action, suit or
proceeding not to have acted in good faith and in the reasonable belief that his
action was in the best interest of the corporation (or, to the extent that such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan),
or (ii) otherwise prohibited by law. The foregoing right of indemnification
shall not be exclusive of other rights to which any director or officer may
otherwise be entitled and shall inure to the benefit of the executor or
administrator of such director or officer. The corporation may pay the expenses
incurred by any such proceeding in advance of the final disposition of such
action, suit or proceeding, upon receipt of an undertaking by such person to
repay such payment if it is determined that such person is not entitled to
indemnification hereunder.
(b) The Board of Directors may, without stockholder approval,
authorize the corporation to enter into agreements, including any amendments or
modification thereto, with any of its directors, officers or other persons
described in paragraph (a) above providing for indemnification of such persons
to the maximum extent permitted under applicable law and the corporation's
Articles of Organization and By-laws.
(c) No amendment to or repeal of this section shall have any
adverse effect on (i) the right of any director or officer under any agreement
entered into prior thereto, or (ii) the rights of any director or officer
hereunder relating to his service, for which he would otherwise be entitled to
indemnity hereunder, during any period prior to such amendment or repeal.
SECTION 6.6. TRANSACTIONS WITH RELATED PERSONS. The affirmative vote of
the holders of not less than seventy-five percent of all outstanding shares of
capital stock of the corporation entitled to vote thereon and the affirmative
vote of holders not less than two-thirds of all such outstanding shares not held
by any Related Person (as hereinafter defined) shall be required for the
approval or authorization of any Related Person Transaction (as hereinafter
defined), whether or not any stockholder approval or authorization of such
Related Person Transaction would otherwise be required; provided, however, that
the seventy-five percent and two-thirds voting requirements shall not be
applicable if:
(1) The "Continuing Directors" of the corporation (as hereinafter
defined) by a two-thirds vote of the Continuing Directors then in office have
approved the Related Person Transaction; or
(2) The Related Person Transaction is solely between the corporation and
another corporation, one hundred percent of the shares of outstanding capital
stock entitled to vote generally in the election of directors of which is owned
directly or indirectly by the corporation.
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For the purposes of the preceding and succeeding paragraphs:
(i) The term "Continuing Director" shall mean a director who was a
member of the Board of Directors of the corporation immediately prior to the
time that any Related Person involved in a Related Person Transaction became a
Related Person.
(ii) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with its
Affiliates and Associates (as such terms are defined in Rule 12b-2, or any
successor rule, promulgated under the Securities Exchange Act of 1934),
beneficially owns (as defined in Rule 13d-3, or any successor rule, promulgated
under the Securities Exchange Act of 1934) in the aggregate ten percent or more
of all outstanding shares of capital stock of the corporation, entitled to vote
generally for directors and any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity. Without limiting the
foregoing, any shares of stock of the corporation that any Related Person has
the right to acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed beneficially owned by
the Related Person.
(iii) The term "Related Person Transaction" shall mean generally any
business, financial, employment or other agreement or arrangement with any
Related Person, or any action, consent or other arrangement which affects the
rights or obligations of the corporation with respect to a Related Person, and
shall include, but shall not be limited to, the following:
(a) any merger, consolidation or share exchange of the
corporation or any of its subsidiaries with or into (i) any Related Person, or
(ii) any other corporation (whether or not itself a Related Person) which is, or
after such merger, consolidation or share exchange would be, an Affiliate of a
Related Person; in each case irrespective of which corporation or company is
surviving entity;
(b) any merger or consolidation of a Related Person with or into
the corporation or a subsidiary of the corporation;
(c) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security device, of all or
any tangible or intangible assets of the corporation or of a subsidiary of the
corporation to a Related Person;
(d) any sale, lease, exchange, transfer, loan or other
disposition of all or any tangible or intangible assets of a Related Person to
the corporation or a subsidiary of the corporation;
(e) the issuance of any securities or the loan of any asset of
the corporation or a subsidiary of the corporation to a Related Person;
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(f) any recapitalization that would have the effect of
increasing the voting power of a Related Person with respect to the corporation;
(g) any loan or other extension of credit by the corporation to
a Related Person or by a Related Person of the corporation;
(h) any employment or consulting agreement or arrangement
between the corporation and a Related Person;
(i) any agreement, contract or other arrangement providing for
any of the transactions described in this definition of Related Person
Transaction.
Anything in these By-laws to the contrary notwithstanding, this Section
6.6 shall not be repealed, modified or amended in any respect, unless such
action is approved by the affirmative vote of the holders of not less than
seventy-five percent of all outstanding shares of capital stock of the
corporation entitled to vote thereon and by the affirmative vote of holders of
not less than two-thirds of all such outstanding shares held by any Related
Person; provided however, that any amendment, declared advisable by the
affirmative vote of two-thirds of the Continuing Directors then in office may be
approved by the affirmative vote of the holders of not less than two-thirds of
all outstanding shares of capital stock of the corporation entitled to vote
thereon.
ARTICLE VII - AMENDMENTS
SECTION 7.1. GENERAL. These By-laws may be amended, added to or
repealed, in whole or in part, (a) by vote of the stockholders at a meeting,
where the substance of the proposed amendment is stated in the notice of the
meeting, or (b) by vote of a majority of the directors then in office, except
that no amendment may be made by the Board of Directors on matters reserved to
the stockholders by law or the Articles of Organization or which changes the
provisions of these By-laws relating to meetings of Stockholders, to the removal
of directors or to the requirements for amendment of these By-laws. Notice of
any amendment, addition or repeal of any By-law by the Board of Directors
stating the substance of such action shall be given to all stockholders not
later than the time when notice is given of the meeting of stockholders next
following such action by the Board of Directors. Any By-law adopted by the Board
of Directors may be amended or repealed by the stockholders.
SECTION 7.2. DATE OF ANNUAL MEETING OF STOCKHOLDERS. No amendment of
these By-laws changing the date of the annual meeting of stockholders may be
made within sixty days before the date fixed in these By-laws for such meeting.
Notice of such change shall be given to all stockholders at least twenty days
before the new date fixed for the meeting.
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ARTICLE VIII
SECTION 8.1. CONTROL SHARE ACQUISITIONS. Massachusetts General Law ch
110D shall not apply to Control Share acquisitions.
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