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RESTATED BY-LAWS
OF
SAFETY 1ST, INC.
AS AMENDED THROUGH NOVEMBER 11, 1997
TABLE OF CONTENTS
ARTICLE I ARTICLES OF ORGANIZATION
ARTICLE II STOCKHOLDERS
Section l Annual Meeting
Section 2 Special Meetings
Section 3 Place of Meetings
Section 4 Notice of Business
Section 5 Notices
Section 6 Quorum
Section 7 Voting and Proxies
Section 8 Action at Meeting
Section 9 Action without Meeting by Written Consent
Section 10 Record Date
ARTICLE III DIRECTORS
Section 1 Powers
Section 2 Nomination; Eligibility to Serve
Section 3 Number and Election
Section 4 Vacancies
Section 5 Enlargement of the Board of Directors
Section 6 Tenure
Section 7 Resignation
Section 8 Removal
Section 9 Annual Meeting
Section 10 Regular Meetings
Section 11 Special Meetings
Section 12 Notices
Section 13 Quorum
Section 14 Action at Meeting
Section 15 Action by Written Consent
Section 16 Committees
Section 17 Telephone Conference Meetings
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ARTICLE IV OFFICERS
Section l Enumeration
Section 2 Election and Vacancies
Section 3 Qualification
Section 4 Tenure
Section 5 Resignation
Section 6 Removal
Section 7 Chief Executive Officer
Section 8 Chairman of the Board
Section 9 President
Section 10 Vice-Presidents
Section 11 Treasurer
Section 12 Assistant Treasurers
Section 13 Clerk
Section 14 Assistant Clerks
Section 15 Secretary and Assistance Secretaries
ARTICLE V PROVISIONS RELATING TO CAPITAL STOCK
Section l Number and Par Value
Section 2 Issuance and Consideration
Section 3 Certificates of Stock
Section 4 Uncertificated Shares
Section 5 Transfer of Stock
Section 6 Lost or Destroyed Certificates
ARTICLE VI STOCK IN OTHER CORPORATIONS
ARTICLE VII INSPECTION OF RECORDS
ARTICLE VIII EXECUTION OF INSTRUMENTS
ARTICLE IX CONTROL SHARES ACQUISITIONS
ARTICLE X SEAL
ARTICLE XI FISCAL YEAR
ARTICLE XII INTERESTED DIRECTORS AND OFFICERS
ARTICLE XIII INDEMNIFICATION
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Section 1 Indemnification
Section 2 Acts in Good Faith
Section 3 Opinion of Counsel
Section 4 Payments in Advance of Disposition
Section 5 Definitions
Section 6 No limit On Other Rights
ARTICLE XIV AMENDMENTS
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ARTICLE I
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 of
its Directors and stockholders, or of any class of stockholders if there shall
be more than one class or series of stock, and all matters concerning the
conduct and regulation of the business and affairs of the Corporation shall be
subject to such provisions in regard thereto, if any, as are set forth in the
Articles of Organization as from time to time in effect.
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 II
STOCKHOLDERS
Section 1. Annual Meeting.
The annual meeting of stockholders shall be held within six months after
the end of the Corporation's fiscal year specified in these By-Laws. The date
and hour of the annual meeting shall be fixed by the 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 by these By-Laws, may be specified by the
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. Special Meetings.
So long as the Corporation has a class of voting stock registered under the
Securities Exchange Act of 1934, as amended, special meetings of the
stockholders may be called by the
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President or by the directors and shall be called by the Clerk, or in 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 40
percent in interest of the capital stock entitled to vote at the meeting.
Section 3. Place of Meetings.
All meetings of the stockholders shall be held at the principal office of
the Corporation in Massachusetts, or to the extent permitted by the Articles of
Organization, at such other place within the United States as shall be fixed by
the Board of Directors or the President and specified in the notice of meeting.
Any adjourned session of any meeting of the stockholders shall be held at the
same city or town as the initial session, or within Massachusetts, in either
case at the place designated in the vote of adjournment.
Section 4. Notice of Business.
At any meeting of the stockholders, only such business shall be conducted
as shall have been brought before the meeting (a) by or at the direction of the
Board of Directors or (b) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of the notice provided for in this
Section, who shall be entitled to vote at such meeting and who complies with the
notice procedures set forth in this Section. For business to be properly brought
before a stockholder meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Clerk of the Corporation. To be timely,
a stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation in the case of an annual meeting
not less than 150 days prior to the date such meeting was held in the prior
year, or in the case of any other meeting not less than 60 days nor more than 90
days prior to the meeting; provided, however, that in the event that less than
70 days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholders to be timely must be
received no later than the close of business on the seventh day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever is earlier. A stockholder's notice to the Clerk
shall set forth as to each matter the
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stockholder proposes to bring before the meeting (a) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, and any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder and any other stockholders known by such stockholder to be
supporting such proposal, and (d) any material interest of the stockholder in
such business. Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at a stockholder meeting except in accordance with
the procedures set forth in this Section. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the provisions of the
By-Laws, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
Section 5. Notices.
A written notice, stating the place, day and hour of all meetings of
stockholders shall be given by the Clerk or Assistant Clerk (or the person or
persons calling the meeting), at least seven (7) days before the meeting, to
each stockholder entitled to vote thereat and to each stockholder who, by law,
the Articles of Organization, or these By-Laws, is entitled to such notice, by
leaving such notice with him or at his residence or usual place of business, or
by mailing it, postage prepaid, and addressed to such stockholder at his address
as it appears upon the books of the Corporation. Such notice, if the meeting is
called otherwise than by the Clerk, may be a copy of the call of the meeting;
and if the meeting is not otherwise called, such notice given by the Clerk shall
constitute a call of the meeting by him. Notices of all meetings of stockholders
shall state the purposes for which the meetings are called. No notice need be
given to any stockholder if a written waiver of notice, executed before or
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after the meeting by the stockholder or his attorney, thereunto authorized is
filed with the records of the meeting.
Section 6. Quorum.
Unless otherwise provided by law, the Articles of Organization or these
By-Laws, at any meeting of stockholders a quorum for the transaction of business
shall consist of one or more individuals appearing in person and/or as proxies
and owning and/or representing a majority of the shares of the Corporation then
outstanding and entitled to vote, provided that less than such quorum shall have
power to adjourn the meeting from time to time and the meeting may be held as
adjourned without further notice.
Section 7. Voting and Proxies.
Each stockholder shall have one vote for each share of stock entitled to
vote, and a proportionate vote for any fractional share entitled to vote, held
by him of record according to the records of the Corporation, unless otherwise
provided by law or the Articles of Organization. Stockholders may vote either in
person or by written proxy dated not more than six months before the meeting
named therein. Proxies shall be filed with the Clerk before being voted at any
meeting or any adjournment thereof. Except as otherwise limited therein, proxies
shall entitle the persons named therein to vote at the meeting specified therein
and at any adjourned session of such meeting but shall not be valid after final
adjournment of the meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by any one of them unless at or
prior to exercise of the proxy the Corporation receives a specific written
notice to the contrary from any one of them. A proxy 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.
Section 8. Action at Meeting.
When a quorum is present at any meeting, the holders of a majority in
interest of the stock having voting power, present or represented by proxy and
voting on a matter, shall decide any matter to be voted on by the stockholders,
including the election
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of officers and directors, except where a different vote is required by law, the
Articles of Organization, these By-Laws or any Agreement between the Corporation
and the stockholders. Any election by stockholders shall be determined by a
plurality of the votes cast by the stockholders entitled to vote at the
election. No ballot shall be required for such election unless requested by a
stockholder present or represented at the meeting and entitled to vote in the
election.
Section 9. Action without Meeting by Written Consent.
Any action by stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action by a writing
filed with the records of the meetings of stockholders. Such consent shall be
treated for all purposes as a vote at a meeting.
Section 10. Record Date.
The directors may fix in advance a time which shall be not more than sixty
(60) days prior to (a) the date of any meeting of stockholders, (b) the date for
the payment of any dividend or the mailing of any distribution to stockholders,
or (c) 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, the right to receive such dividend or distribution, or the
right to give such consent or dissent. In such case only stockholders of record
on such record date shall have such right, notwithstanding any transfer of stock
on the books of the Corporation after the record date. Without fixing such
record date the directors may for any of such purposes close the transfer books
for all or any part of such period.
If no record date is fixed and the transfer books are not closed:
(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.
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(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.
ARTICLE III
DIRECTORS
Section 1. Powers.
Except as otherwise provided by law, the Articles of Organization or these
By-Laws, the Board of Directors, subject to any action at any time taken by such
stockholders as then have the right to vote, shall have the entire charge,
control and management of the Corporation, its property and business and may
exercise all or any of its powers. In particular, and without limiting the
generality of the foregoing, the directors may from time to time issue all or
any part of the unissued capital stock of the Corporation authorized under the
Articles of Organization, and may determine, subject to any requirement of law,
the consideration for which stock is to be issued and the manner of allocating
such consideration between capital and surplus. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
Section 2. Nomination; Eligibility to Serve.
Except as otherwise provided in Section 4 of this Article concerning the
filling of vacancies on the Board of Directors, only persons who are nominated
in accordance with the procedures set forth in this Section shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote for the election of
directors at the meeting and who complies with the notice procedures set forth
in this Section. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Clerk. To be timely, a stockholder's notice shall be delivered to or
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mailed and received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the seventh day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made, whichever is
earlier. Such stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected), and (b) as to
the stockholder giving the notice, (i) the names and addresses, as they appear
on the Corporation's books, of such stockholder and any other stockholders known
by such stockholder to be supporting the election of the proposed nominee(s) and
(ii) the class and number of shares of the Corporation which are beneficially
owned by such stockholder and any other stockholders known by such stockholder
to be supporting the election of the proposed nominee(s). At the request of the
Board of Directors, any person nominated by the Board of Directors for election
as a director shall furnish to the Clerk that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded. Notwithstanding
the foregoing provisions of this Section, a stockholder shall also comply with
all applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the matters set forth
in this Section.
Section 3. Number and Election.
The number of directors shall be not less than three (3), except whenever
there shall be only two (2) stockholders, the
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number of directors shall be not less than two (2) and whenever there shall be
only one stockholder the number of directors shall be not less than one (1).
Except as otherwise provided by these By-Laws or in the Articles of
Organization, the number of directors that shall constitute the whole Board of
Directors shall be fixed, and the directors elected, by the stockholders at the
annual meeting. No director need be a stockholder.
Section 4. Vacancies.
Any vacancy at any time existing in the Board of Directors, 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.
Section 5. Enlargement of the Board of Directors.
The number of directors may be increased by the directors by the
affirmative vote of a majority of the directors then in office or by the
stockholders at any meeting.
Section 6. Tenure.
Except as otherwise provided by law, by the Articles of Organization or by
these By-Laws, directors shall hold office until the next annual meeting of
stockholders and thereafter until their successors are chosen and qualified.
Section 7. Resignation.
Any director may resign by delivering his written resignation to the
Corporation at its principal office or to the President or Clerk. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
Section 8. Removal.
A director may be removed from office (a) with or without cause by vote of
the holders of a majority of the shares entitled to vote in the election of
directors or (b) for cause by vote of
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a majority of the directors then in office. A director may be removed for cause
only after reasonable notice and opportunity to be heard before the body
proposing to remove him.
Section 9. Annual Meeting.
Immediately after each annual meeting of stockholders, or the special
meeting held in lieu thereof, and at the place thereof, if a quorum of the
directors is present, there shall be a meeting of the directors without notice;
but if such a quorum of the directors is not present, or if present does not
proceed immediately thereafter to hold a meeting of the directors, the annual
meeting of the directors shall be called in the manner hereinafter provided with
respect to the call of special meetings of directors.
Section 10. Regular Meetings.
Regular meetings of the directors may be held at such times and places as
shall from time to time be fixed by resolution of the Board and no notice need
be given of regular meetings held at times and places so fixed, provided,
however, that any resolution relating to the holding of regular meetings shall
remain in force only until the next annual meeting of stockholders, or the
special meeting held in lieu thereof, and that if at any meeting of directors,
at which a resolution is adopted fixing the times or place or places for any
regular meetings, any director is absent, no meeting shall be held pursuant to
such resolution until either each such absent director has in writing or by
telegram approved the resolution or seven days have elapsed after a copy of the
resolution certified by the Clerk has been mailed, postage prepaid, addressed to
each such absent director at his last known home or business address.
Section 11. Special Meetings.
Special meetings of the directors may be called by the President, by the
Chairman of the Board, by the Clerk, by the Secretary, by any two directors, or
by one director in the event that there is only one director, and shall be held
at the place designated in the notice or call thereof.
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Section 12. Notices.
Notices of any special meeting of the directors shall be given to each
director by the Clerk or Secretary (a) by mailing to him, postage prepaid, and
addressed to him at his address as registered on the books of the Corporation,
or if not so registered, at his last known home or business address, a written
notice of such meeting at least four days before the meeting, or (b) by
delivering such notice by hand or by telegram, telecopy or telex to him at least
48 hours before the meeting at such address, notice of such meeting, or (c) by
giving notice to such director in person or by telephone at least 48 hours in
advance of the meeting. Such notice, if the meeting is called otherwise than by
the Clerk or Secretary, may be a copy of the call of the meeting; and if the
meeting is not so otherwise called, such notice given by the Clerk or Secretary
shall constitute a call of the meeting by him. If the Clerk or Secretary refuses
or neglects for more than 24 hours after receipt of a call to give notice of
such special meeting, or if the offices of Clerk and Secretary are vacant or the
Clerk and Secretary are absent from the Commonwealth of Massachusetts or
incapacitated, such notice may be given by the officer or one of the directors
calling the meeting. Notice need not be given to any director if a written
waiver of notice, executed by him before or after the meeting, is filed with the
records of the meeting, or to any director who attends the meeting without
protesting prior thereto or at its commencement the lack of notice to him. A
notice or waiver of notice of a directors' meeting need not specify the purposes
of the meeting.
Section 13. Quorum.
At any meeting of the directors, a majority of the directors then in office
shall constitute a quorum for the transaction of business; provided always that
any number of directors (whether one or more and whether or not constituting a
quorum) present at any meeting or at any adjourned meeting may make any
reasonable adjournment thereof.
Section 14. Action at Meeting.
At any meeting of the directors at which a quorum is present, the action of
the directors on any matter brought before
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the meeting shall be decided by vote of a majority of those present, unless a
different vote is required by law, the Articles of Organization or these
By-Laws.
Section 15. Action by Written Consent.
Any action by the directors may be taken without a meeting if a written
consent thereto is signed by all the directors and filed with the records of the
directors' meetings. Such consent shall be treated as a vote of the directors
for all purposes.
Section 16. Committees.
The directors may elect from their number an executive or other committees
and may, by like vote, delegate thereto some or all of their powers except those
which by law, the Articles of Organization or these By-Laws they are prohibited
from delegating. Except as the directors may otherwise determine, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the directors or in such rules, its business shall be conducted as
nearly as may be in the same manner as is provided by these By-Laws for the
directors. Such committee shall keep a record of its acts and proceedings and
report the same from time to time to the Board of Directors. The directors shall
have the power to fill vacancies in, change the membership of, or to disband,
any such committee.
Section 17. Telephone Conference Meetings.
One or more members of the Board of Directors or any committee thereof 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.
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ARTICLE IV
OFFICERS
Section 1. Enumeration.
The officers of the Corporation shall be a President, a Treasurer, a Clerk,
and such Vice Presidents, Assistant Treasurers, Assistant Clerks, Secretary,
Assistant Secretaries and other officers as may from time to time be determined
by the directors. The Board of Directors, by a majority vote of the directors
then in office, also may appoint one of its members to the office of Chairman of
the Board, may designate that officer as Chief Executive Officer and from time
to time may define the powers and duties of that office notwithstanding any
other provisions of these By-Laws.
Section 2. Election and Vacancies.
The President, Treasurer and Clerk shall be elected annually by the
directors at their first meeting following the annual meeting of stockholders,
or the special meeting held in lieu thereof. Other officers may be chosen by the
directors at such meeting or at any other meeting. Any vacancy at any time
existing in any office may be filled by the directors at any meeting and such
successor in office shall hold office for the unexpired term of his predecessor.
Section 3. Qualification.
The President may, but need not be, a director. No officer need be a
stockholder. Any two or more offices may be held by the same person. The Clerk
shall be a resident of Massachusetts unless the Corporation has a resident agent
appointed for the purpose of service of process. Any officer may be required by
the directors to give bond for the faithful performance of his duties to the
Corporation in such amount and with such sureties as the directors may
determine. The premiums for such bonds may be paid by the Corporation.
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Section 4. Tenure.
Except as otherwise provided by law, by the Articles of Organization or by
these By-Laws, the President, Treasurer and Clerk each shall hold office until
the first meeting of the directors following the next annual meeting of
stockholders, or the special meeting held in lieu thereof, and thereafter until
his successor is chosen and qualified. Other officers shall hold office until
the first meeting of the directors following the next annual meeting of
stockholders, or the special meeting held in lieu thereof, unless a shorter term
is specified in the vote choosing or appointing them. Election or appointment of
an officer shall not in and of itself create contract rights. The Board of
Directors may, however, authorize the Corporation to enter into an employment
contract with any officer in accordance with applicable law, but no contract
right shall impair the right of the Board of Directors to remove any officer at
any time in accordance with Article IV, Section 6 hereof.
Section 5. Resignation.
Any officer may resign by delivering his written resignation to the
Corporation at its principal office or to the President or Clerk, and such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
Section 6. Removal.
The directors may remove any officer appointed by the directors with or
without cause by a vote of a majority of the entire number of directors then in
office; provided, that an officer may be removed for cause only after reasonable
notice and opportunity to be heard by the Board of Directors prior to action
thereon.
Section 7. Chief Executive Officer.
The Chief Executive Officer of the Corporation shall be the Chairman of the
Board, if any, the President or such other officer as is designated by the
directors and shall, subject to the control of the directors, have general
charge and supervision of the business of the Corporation. If no such
designation is
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made, the President shall be the Chief Executive Officer. Unless the Board of
Directors otherwise specifies, if there is no Chairman of the Board, the Chief
Executive Officer shall preside, or designate the person who shall preside, at
all meetings of the stockholders and of the Board of Directors.
Section 8. Chairman of the Board.
If a Chairman of the Board of Directors is elected, he shall have the
duties and powers specified in these By-Laws and shall have such other duties
and powers as may be determined by the directors. Unless the Board of Directors
otherwise specifies, the Chairman of the Board shall preside, or designate the
person who shall preside, at all meetings of the stockholders and of the Board
of Directors.
Section 9. President.
The President shall be the Chief Executive Officer of the Corporation
except as the Board of Directors may otherwise provide. It shall be his duty and
he shall have the power to see that all orders and resolutions of the directors
are carried into effect. He shall from time to time report to the directors all
matters within his knowledge which the interests of the Corporation may require
to be brought to its notice. The President shall perform such duties and have
such powers additional to the foregoing as the directors shall designate.
Section 10. Vice Presidents.
In the absence or disability of the President, his powers and duties shall
be performed by the Vice President, if only one, or, if more than one, by the
one designated for the purpose by the directors. Each Vice President shall have
such other powers and perform such other duties as the directors shall from time
to time designate. The directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President and any other title selected by
the directors.
Section 11. Treasurer.
Except as the directors shall otherwise determine, the Treasurer shall be
the Chief Financial and Accounting Officer of
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the Corporation and shall be in charge of its funds and valuable papers, books
of account and accounting records, and shall have such other duties and powers
as may be designated from time to time by the directors.
Section 12. Assistant Treasurers.
In the absence or disability of the Treasurer, his powers and duties shall
be performed by the Assistant Treasurer, if only one, or, if more than one, by
the one designated for the purpose by the directors. Each Assistant Treasurer
shall have such other powers and perform such other duties as the directors
shall from time to time designate.
Section 13. Clerk.
The Clerk shall record in books kept for the purpose all votes and
proceedings of the stockholders and, if there be no Secretary or Assistant
Secretary, of the directors at their meetings. Unless the directors shall
appoint a transfer agent and/or registrar or other officer or officers for the
purpose, the Clerk shall be charged with the duty of keeping, or causing to be
kept, accurate records of all stock outstanding, stock certificates issued and
stock transfers; and, subject to such other or different rules as shall be
adopted from time to time by the directors, such records may be kept solely in
the stock certificate books. The Clerk shall perform such duties and have such
powers additional to the foregoing as the directors shall designate.
Section 14. Assistant Clerks.
In the absence of the Clerk from any meeting of the stockholders or, if
there be no Secretary or Assistant Secretary, from any meeting of the directors,
the Assistant Clerk, if one be elected, or, if there be more than one, the one
designated for the purpose by the directors, otherwise a Temporary Clerk
designated by the person presiding at the meeting, shall perform the duties of
the Clerk. Each Assistant Clerk shall have such other powers and perform such
other duties as the directors may from time to time designate.
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Section 15. Secretary and Assistant Secretaries.
If a Secretary is elected, he shall keep a record of the meetings of the
directors and in his absence, an Assistant Secretary, if one be elected, or, if
there be more than one, the one designated for the purpose by the directors,
otherwise a Temporary Secretary designated by the person presiding at the
meeting, shall perform the duties of the Secretary. Each Assistant Secretary
shall have such other powers and perform such other duties as the directors may
from time to time designate.
ARTICLE V
PROVISIONS RELATING TO CAPITAL STOCK
Section 1. Number and Par Value.
The total number of shares and the par value, if any, of each class and
series of stock which the Corporation is authorized to issue shall be as stated
in the Articles of Organization.
Section 2. Issuance and Consideration.
Any unissued capital stock from time to time authorized under the Articles
of Organization may be issued by vote of the stockholders or by vote of the
directors. Stock may be issued for cash, tangible or intangible property,
services, or for a debt or note or expenses. Stock having par value shall not be
issued for cash, property, services, or expenses worth less than the par value.
For the purpose of this Section 2, a debt or note of the purchaser, secured or
unsecured, shall not be considered property.
Section 3. Certificates of Stock.
Each stockholder shall be entitled to a certificate or certificates
representing in the aggregate the shares owned by him and certifying the number
and class thereof, which shall be in such form as the directors shall adopt
unless such shares are uncertificated as provided in these By-Laws. Each
certificate of stock shall be signed by the President or a Vice President and by
the Treasurer or an Assistant Treasurer, but such signatures may
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be facsimiles when a certificate is countersigned by a transfer agent or 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 were
such officer at the time of its issue. Every certificate for shares of stock
which are subject to any restriction on transfer pursuant to the Articles of
Organization, the By-Laws 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 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 to the holder of such certificate upon written
request and without charge. Every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall set forth on
its face or back either the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of each class and
series authorized to be issued or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 4. Uncertificated Shares.
The directors may provide by resolution that some or all of any or all
classes and series of its shares shall be uncertificated shares. Such resolution
shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. If the Corporation entitles any stockholder of a
class or series to receive a certificate representing shares of such class or
series, all other holders of shares of such class or series shall be so
entitled. The initial transaction statement sent with respect to the issuance or
transfer of uncertificated shares which 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 such restriction noted
conspicuously on the statement and shall also set forth 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 of such
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restriction to the holder of such uncertificated share upon written request and
without charge. The initial transaction statement sent with respect to the
issuance of transfer of uncertificated shares when the Corporation is authorized
to issue more than one class or series of stock shall set forth either the full
text of the preferences, voting powers, qualifications and special and relative
rights of 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 uncertificated
share upon written request and without charge.
Section 5. Transfer of Stock.
Subject to the restrictions, if any, stated or noted on the stock
certificate, shares of stock may be transferred on the books of the Corporation
by the surrender to the Corporation or its transfer agent of the certificate
therefor properly endorsed or accompanied by written assignment and power of
attorney properly executed, with necessary transfer stamps affixed, and with
such proof of the authenticity of signature as the Corporation or its transfer
agent may reasonable require. Except as may be otherwise required by law, by the
Articles of Organization or by these By-Laws, the Corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
Corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the Corporation of its
post office address and any subsequent changes therein.
Section 6. Lost or Destroyed Certificates.
The Board of Directors of the Corporation may, subject to Massachusetts
General Laws, Chapter 156B, Section 29, as amended from time to time, determine
the conditions upon which a new certificate of stock may be issued in place of
any certificate
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alleged to have been lost, destroyed, or mutilated. The Board of Directors may,
in their discretion, require the owner of a lost, mutilated or destroyed
certificate, or his legal representative, to give a bond, sufficient in their
opinion, with or without surety, to indemnify the Corporation against any loss
or claim which may arise by reason of the issue of the shares in place of such
lost, mutilated or destroyed stock certificate.
ARTICLE VI
STOCK IN OTHER CORPORATIONS
Except as the directors may otherwise designate, the President or Treasurer
may waive notice of, and appoint any person or persons to act as proxy or
attorney in fact for this Corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other Corporation or
organization, the securities of which may be held by this Corporation.
ARTICLE VII
INSPECTION OF RECORDS
Books, accounts, documents and records of the Corporation shall be open to
inspection by any director at all times during the usual hours of business. The
original, or attested copies, of the Articles of Organization, By-Laws and
records of all meetings of the incorporators and stockholders, and the stock 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 at the principal office of the Corporation, or at an office of its
transfer agent or of the Clerk or the resident agent, if any, of the
Corporation. Said copies and records need not all be kept in the same office.
They shall be available at all reasonable times to the inspection of any
stockholder for any proper purpose but not to secure a list of stockholders or
other information for the purpose of selling said 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.
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ARTICLE VIII
EXECUTION OF INSTRUMENTS
Except as the directors may generally or in particular cases authorize the
execution thereof in some other manner, all deeds, leases, transfers, contracts,
bonds, notes, checks, drafts and other obligations made, accepted or endorsed by
the Corporation shall be signed by the Chairman of the Board, if any, the
President, the Vice-President or the Treasurer.
ARTICLE IX
CONTROL SHARES ACQUISITIONS
The provisions of Chapter 110D of the Massachusetts General Laws relating
to regulation of "Control Share Acquisitions", as they may be amended from time
to time, shall not apply to control share acquisitions (as defined in said
Chapter 110D) of the Corporation.
ARTICLE X
SEAL
The seal of the Corporation shall, subject to alteration by the directors,
be circular in form, bearing its name, the word "Massachusetts," and the year of
its incorporation. The Treasurer shall have custody of the seal and may affix it
(as may any other officer if authorized by the directors) to any instrument
requiring the corporate seal.
ARTICLE XI
FISCAL YEAR
The Fiscal Year of the Corporation shall be the year ending on the last
Saturday in December of a particular calendar year or the first Saturday in
January of the next following calendar year, whichever such Saturday shall fall
closer to December 31.
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ARTICLE XII
INTERESTED DIRECTORS AND OFFICERS
The directors shall have the power to fix their compensation from time to
time. No contract or transaction between the Corporation and one or more of its
directors, officers or stockholders, or between the Corporation and any other
Corporation, partnership, association or other organization in which one or more
of its directors, officers or stockholders are directors or officers, or have a
financial or other interest, shall be void or voidable solely for this reason,
or solely because the director, officer or stockholder is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, nor shall any director, officer or stockholder be
under any liability to the Corporation on account of any such contract or
transaction if
(1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board or committee authorized the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested Directors be less than a quorum; or
(2) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved by
vote of the stockholders; or
(3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction, and if they are stockholders, their
votes may be counted for the
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purpose of a stockholder vote approving such contract or transaction.
ARTICLE XIII
INDEMNIFICATION
Section 1. Indemnification.
Except as limited by law or as provided in Sections 2 and 3 of this
Article, each Officer of this Corporation (and his heirs and personal
representatives) shall be indemnified by this Corporation against all Expense
incurred by him in connection with each Proceeding in which he is involved as a
result of his serving or having served as an Officer of this Corporation or, at
the request of this Corporation, as a director, officer, employee or their agent
of any other organization.
Section 2. Acts in Good Faith.
No indemnification shall be provided to an Officer with respect to a matter
as to which it shall have been adjudicated in any proceeding that he did not act
in good faith in the reasonable belief that his action was in the best interests
of this Corporation.
Section 3. Opinion of Counsel.
In the event that a proceeding is compromised or settled so as to impose
any liability or obligation upon an Officer or upon this Corporation, no
indemnification shall be provided to said Officer with respect to a matter if
this Corporation has obtained an opinion of counsel that with respect to said
matter said Officer did not act in good faith in the reasonable belief that his
action was in the best interests of this Corporation.
Section 4. Payments in Advance of Disposition.
To the extent authorized by the Board of Directors or the stockholders,
this Corporation may pay indemnification in advance of final disposition of a
Proceeding, upon receipt of an undertaking by the person indemnified to repay
the amount of such indemnification if it shall be established that he is not
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entitled to indemnification by an adjudication under Section 2 or by an opinion
of counsel under Section 3 hereof.
Section 5. Definitions.
For the purposes of this Article,
(a) "Officer" means any person who serves or has served as a director or
in any other office filled by election or appointment by the
stockholders or the Board of Directors;
(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; and
(c) "Expense" means 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 a Proceeding.
Section 6. No limit On Other Rights.
Nothing in this Article shall limit any lawful rights to indemnification
existing independently of this Article.
ARTICLE XIV
AMENDMENTS
These By-Laws (other than this Article XIV) may be altered, amended or
repealed by vote of a majority of the directors then in office, except that the
directors shall not take any action prohibited by law or in conflict with the
Articles of Organization. The stockholders shall have the power to amend, alter
or repeal any provision of these By-Laws as provided by law.
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