BY-LAWS
OF
AMERICAN PLAYHOUSE REALTY, INC.
Date Adopted: June 27, 1995 /s/ Jon B. Platt
-------------------
Jon B. Platt, Clerk
BY-LAWS
OF
AMERICAN PLAYHOUSE REALTY, INC.
TABLE OF CONTENTS
[text deleted]
BY-LAWS
OF
AMERICAN PLAYHOUSE REALTY, INC.
(A Massachusetts Corporation)
ARTICLE I.
Stockholders
Section 1.1. Annual Meeting. The annual meeting of the stockholders of
the corporation shall be held on the second Tuesday in the month of February of
each year. The annual meeting shall be held at such place within the United
States as may be designated in the notice of meeting. If the day fixed for the
annual meeting shall fall on a legal holiday, the meeting shall be held on the
next succeeding day not a legal holiday. In the event that no date for the
annual meeting is established, a special meeting may be held in place thereof,
and any business transacted at such special meeting in lieu of annual meeting
shall have the same effect as if transacted or held at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the stockholders may
be called at any time by the president or by the Board of directors and shall be
called by the clerk upon written application of one or more stockholders who
hold shares representing at least ten percent (10%) of the capital stock
entitled to vote at such meeting. Special meetings of the stockholders shall be
held at such time, date and place within or without the United States as may be
designated in the notice of such meeting.
Section 1.3. Notice of Meeting. A written notice stating the place,
date, and hour of each meeting of the stockholders, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be given to
each stockholder entitled to vote at such meeting, and to each stockholder who,
under the Articles of Organization or these By-laws, is entitled to such notice,
by delivering such notice to such person or leaving it at their residence or
usual place of business, or by mailing it, postage prepaid, and addressed to
such stockholder at his address as it appears upon the books of the corporation,
at least seven (7) days and not more than sixty (60) before the meeting. Such
notice shall be given by the clerk, an assistant clerk, or any other officer or
person designated either by the clerk or by the person or persons calling the
meeting.
The requirement of notice to any stockholder may be waived by a written
waiver of notice, executed before or after the meeting by the stockholder or his
attorney thereunto duly authorized, and filed with the records of the meeting,
or if communication with such stockholder is unlawful, or by attendance at the
meeting without protesting prior thereto or at its commencement the lack of
notice. Except as otherwise provided herein, the notice to the stockholders need
not specify the purposes of the meeting.
If a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
Section 1.4. Quorum. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present.
Section 1.5. Voting and Proxies. Each stockholder shall have one vote
for each share of stock entitled to vote owned by such stockholder of record
according to the books of the corporation, unless otherwise provided by law or
by the Articles of Organization. Stockholders may vote either in person or by
written proxy. No proxy dated more than six months prior to the date of the
meeting shall be valid although, unless otherwise limited therein, proxies shall
entitle the persons authorized thereby to vote at any adjournment of such
meeting. Proxies shall be filed with the clerk of the meeting, or of any
adjournment thereof. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to its exercise
and the burden of proving invalidity shall rest on the challenger. A proxy with
respect to stock held in the name of two or more person shall be valid if
executed by one of them unless at or prior to exercise of the proxy the
corporation receives a specific written notice to the contrary from any one of
them.
Section 1.6. Action at Meeting. When a quorum is present at any
meeting, a plurality of the votes properly cast for election to any office shall
elect to such office, and a majority of the votes properly cast upon any
question other than election to an office shall decide such question, except
where a larger vote is required by law, the Articles of Organization or these
by-laws. No ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to vote in the
election.
Section 1.7. Action Without Meeting. Any action required or permitted
to be taken at any meeting of the stockholders may be taken without a meeting if
all stockholders entitled to vote on the matter consent to the action in writing
and the consent shall be treated for all purposes as a vote at a meeting.
Section 1.8. Voting of Shares of Certain Holders. Shares of stock of
the corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may prescribe, or, in the absence of such provision, as the board of
directors of such corporation may determine.
Shares of stock of the corporation standing in the name of a deceased
person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator without a
transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares of capital stock of the corporation
standing in the name of a trustee may be voted by him.
Shares of stock of the corporation standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without
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the transfer thereof into his name if authority so to do be contained in an
appropriate order of the court by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but shares
of its own stock held by the corporation in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares.
ARTICLE II
Board of Directors
Section 2.1. Powers. Except as reserved to the stockholders by law, by
the Articles of Organization or by these By-laws, the business of the
corporation shall be managed under the direction of the board of directors, who
shall have and may exercise all of the powers of the corporation. In particular,
and without limiting the foregoing, the board of directors shall have the power
to issue or reserve for issuance from time to time the whole or any part of the
capital stock of the corporation which may be authorized from time to time to
such person, for such consideration and upon such terms and conditions as they
shall determine, including the granting of options, warrants or conversion or
other rights to stock.
Section 2.2. Number of Directors; Qualifications. The board of
directors shall consist of such number of directors (which shall not be less
than three or less than the number of stockholders, if less than three) as shall
be fixed initially by the incorporator(s) and thereafter by the stockholders.
No director need be a stockholder.
Section 2.3. Nomination of Directors.
(a) Nominations for the election of directors may be made by the board
of directors or by any stockholder entitled to vote for the election of
directors. Nominations by stockholders shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid, to the
clerk of the corporation not less than 14 days nor more than 50 days prior to
any meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the clerk of the corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to stockholders.
(b) Each notice under subsection (a) shall set forth the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
and (iii) the number of shares of stock of the corporation which are
beneficially owned by each such nominee.
(c) The chairman of the meeting of stockholders may, if the acts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure,
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and if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
Section 2.4. Election of Directors. The initial board of directors
shall be elected by the incorporator(s) at the first meeting thereof and
thereafter by the stockholders at their annual meeting or at any special meeting
the notice of which specifies the election of directors as an item of business
for such meeting.
Section 2.5. Vacancies; Reduction of the Board. Any vacancy in the
board of directors, however occurring, including a vacancy resulting from the
enlargement of the board of directors, may be filled by the stockholders or by
the directors then in office or by a sole remaining director. In lieu of filling
any such vacancy the stockholders or board of directors may reduce the number of
directors, but not to a number less than the minimum number required by Section
2.2. When one or more directors shall resign from the board of directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective.
Section 2.6. Enlargement of the Board. The board of directors may be
enlarged by the stockholders at any meeting or by vote of a majority of the
directors then in office.
Section 2.7. Tenure and Resignation. Except as otherwise provided by
law, by the Articles of Organization or by these Bylaws, directors shall hold
office until the next annual meeting of stockholders and thereafter until their
successors are chosen and qualified. Any director may resign by delivering or
mailing postage prepaid a written resignation to the corporation at its
principal office or to the president, clerk or assistant clerk, if any. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
Section 2.8. Removal. A director, whether elected by the stockholders
or directors, may be removed from office with or without cause at any annual or
special meeting of stockholders by vote of a majority of the stockholders
entitled to vote in the election of such director, or for cause by a vote of a
majority of the directors then in office; provided, however, that a director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section 2.9. Meetings. Regular meetings of the board of directors may
be held without call or notice at such times and such places within or without
the Commonwealth of Massachusetts as the Board may, from time to time,
determine, provided that notice of the first regular meeting following any such
determination shall be given to directors absent from such determination. A
regular meeting of the board of directors shall be held without notice
immediately after, and at the same place as, the annual meeting of the
stockholders or the special meeting of the stockholders held in place of such
annual meeting, unless a quorum of the directors is not then present. Special
meetings of the board of directors may be held at any time and at any place
designated in the call of the meeting when called by the president, treasurer,
or one or more directors, members of the board of directors or any committee
elected thereby may participate in a meeting of such board or
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committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time, and participation by such means shall constitute presence in
person at the meeting.
Section 2.10. Notice of Meeting. It shall be sufficient notice to a
director to send notice by mail at least seventy-two (72) hours before the
meeting addressed to such person at his usual or last known business or
residence address or to give notice to such person in person or by telephone at
least twenty-four (24) hours before the meeting. Notice shall be given by the
clerk, assistant clerk, if any, or by the officer or directors calling the
meeting. The requirement of notice to any director may be waived by a written
waiver of notice, executed by such person before or after the meeting or
meetings, and filed with the records of the meeting, or by attendance at the
meeting without protesting prior hereto or at its commencement the lack of
notice. A notice or waiver of notice of a directors, meeting need not specify
the purposes of the meeting.
Section 2.11. Agenda. Any lawful business may be transacted at a
meeting of the board of directors, notwithstanding the fact hat the nature of
the business may not have been specified in the notice or waiver of notice of
the meeting.
Section 2.12. Quorum At any meeting of the board of directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business. Any meeting may be adjourned by a majority of the votes
cast upon the question, whether or not a quorum is present, and the meeting may
be held as adjourned without further notice.
Section 2.13. Action at Meeting. Any motion adopted by vote of the
majority of the directors present at a meeting at which a quorum, is present
shall be the act of the board of directors, except where a different vote is
required by law, by the Articles of Organization or by these By-laws. The assent
in writing of any director to any vote or action of the directors taken at any
meeting, whether or not a quorum was present and whether or not the director had
or waived notice of the meeting, shall have the same effect as if the director
so assenting was present at such meeting and voted in favor of such vote or
action.
Section 2.14. Action Without Meeting. Any action by the directors may
be taken without a meeting if all of the directors consent to the action in
writing and the consents are filed with the records of the directors meetings.
Such consent shall be created for all purposes as a vote of the directors at a
meeting.
Section 2.15. Committees. The board of directors may, by the
affirmative vote of a majority of the directors then in office, appoint an
executive committee or other committees consisting of one or more directors and
may by vote delegate to any such committee some or all of their powers except
those which by law, the Articles of Organization or these By-laws they may not
delegate. Unless the board of directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the board of directors or such rules, its meetings shall be called,
notice given or waived, its business conducted or its action taken as nearly as
may be in the same manner as is provided in these By-laws with respect to
meetings or for the conduct of business or the taking of actions by the board of
directors. The board of directors shall have power at any time to fill vacancies
in, change the membership of, or discharge any such committee
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at any time. The board of directors hall have power to rescind any action of any
committee, but no such rescission shall have retroactive effect.
ARTICLE III
Officers
Section 3.1. Enumeration. The officers shall consist of a resident, a
treasurer, a clerk and such other officers and agents including one or more vice
- -presidents, assistant treasurers assistant clerks, secretaries and assistant
secretaries), with such duties and powers, as the board of directors may, in
their discretion, determine.
Section 3.2. Election. The president, treasurer and clerk shall be
elected annually by the directors at their first meeting following the annual
meeting of the stockholders. Other officers may be chosen by the directors at
such meeting or at any other meeting.
Section 3.3. Qualification. An officer may, but need not, be director
or stockholder and no officer shall be a director solely by virtue of being an
officer. 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.
Section 3.4. Tenure. Except as otherwise provided by the Articles of
Organization or these By-laws, the term of office of each officer shall be for
one year or until his successor is elected and qualified or until his earlier
resignation or removal.
Section 3.5. Removal. Any officer may be removed from office, with or
without cause, by the affirmative vote of a majority of the directors then in
office; provided, however, that an officer may be removed for cause only after
reasonable notice and opportunity to be heard by the board of directors prior to
action thereon.
Section 3.6. Resignation. Any officer may resign by delivering or
mailing postage prepaid a written resignation to the corporation at its
principal office or to the president, clerk, or assistant clerk, if any, and
such resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some event.
Section 3.7. Vacancies. A vacancy in any office arising from any cause
may be filled for the unexpired portion of the term by the board of directors.
Section 3.8. President. The president shall be the chief executive
officer of the corporation. Except as otherwise voted by the board or directors,
the president shall preside at all meetings of the stockholders and of the board
of directors at which present. The president shall have such duties and powers
as are commonly incident to the office and such duties and powers as the board
of directors shall from time to time designate.
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Section 3.9. Vice -Presidents. Vice -presidents, if any, shall have
such powers and perform such duties as the board of directors may from time to
time determine.
Section 3.10. Treasurer and Assistant Treasurers. The treasurer,
subject to the direction and under the supervision and control of the board of
directors, shall have general charge of the financial affairs of the
corporation. The treasurer shall have custody of all funds, securities and
valuable papers of the corporation, except as the board of directors may
otherwise provide. The treasurer shall keep or cause to be kept full and
accurate records of account which shall be the property of the corporation, and
which shall be always open to the inspection of each elected officer and
director of the corporation. The treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as may
be authorized by the board of directors. The treasurer shall have the power to
endorse for deposit or collection all notes, checks, drafts, and other
negotiable instruments payable to the corporation. The treasurer shall have the
power to borrow money and enter into and execute arrangements as to advances,
loans and credits to the corporation. The treasurer shall perform such other
duties as are incidental to the office, and such other duties as may be assigned
by the board of directors.
Assistant treasurers, if any, shall have such powers and perform such
duties as the board of directors may from time to time determine.
Section 3.11. Clerk and Assistant Clerks. The clerk shall record, or
cause to be recorded, all proceedings of the meetings of the stockholders and
directors (including committees thereof) in the book of records of this
corporation. The record books shall be open at reasonable times to the
inspection of any stockholder, director, or officer. The clerk shall notify the
stockholders and directors, when required by law or by these By-laws, of their
respective meetings, and shall perform such other duties as the directors and
stockholders may from time to time prescribe. The clerk shall have the custody
and charge of the corporate seal, and shall affix the seal of the corporation to
all instruments requiring such seal, and shall certify under the corporate seal
the proceedings of the directors and of the stockholders, when required. In the
absence of the clerk at any such meeting, a temporary clerk shall be chosen who
shall record the proceedings of the meeting in the aforesaid books.
Assistant clerk, if any, shall have such powers and perform such duties
as the board of directors may from time to time designate.
Section 3.12. Other Powers and Duties. Subject to these Bylaws and to
such limitations as the board of directors may from time to time prescribe, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the board of directors.
ARTICLE IV
Capital Stock
Section 4.1. Stock Certificates. Each stockholder shall be entitled to
a certificate representing the number of shares of the capital stock of the
corporation owned by such person in such form as shall, in conformity to law, be
prescribed from time to time by the board of directors.
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Each certificate shall be signed by the resident or vice-president and treasurer
or assistant treasurer or such other officers designated by the board of
directors from time to time as permitted by law, shall bear the seal of the
corporation, and shall express on its face its number, date of issue, class, the
number of shares for which, and the name of the person to whom, it is issued.
The corporate seal and any or all of the signatures of corporation officers may
be facsimile if the stock certificate is manually counter-signed by an
authorized person on behalf of a transfer agent or registrar other than the
corporation or its employee.
If an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have ceased to be
such before the certificate is issued, it may be issued by the corporation with
the same effect as if he were such officer, transfer agent or registrar at the
time of its issue.
Section 4.2. Transfer of Shares. Title to a certificate of stock and to
the shares represented thereby shall be transferred only on the books of the
corporation by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred, new
certificate or certificates shall be issued according to the interests of the
parties.
Section 4.3. Record Holders. Except as otherwise may be required by
law, by the Articles of Organization or by these Bylaws, the corporation shall
be entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and the
right to vote with respect thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
Section 4.4. Record Date. In order that the corporation may determine
the stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) days prior to
any other action. In such case only stockholders of record on such record date
shall be so entitled, notwithstanding any transfer of stock on the books of the
corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is necessary, shall be the day on which the first written consent
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is expressed; and (iii) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
Section 4.5. Transfer Agent and Registrar for Shares of Corporation.
The board of directors may appoint a transfer agent and a registrar of the
certificates of stock of the corporation. any transfer agent so appointed shall
maintain, among other records, a stockholders' ledger, setting forth the names
and addresses of the holders of all issued shares of stock of the corporation,
the number of shares held by each, the certificate numbers representing such
shares, and the date of issue of the certificates representing such shares. Any
registrar so appointed shall maintain, among other records, a share register,
setting forth the total number of shares of each class of shares which the
corporation is authorized to issue and the total number of shares actually
issued. The stockholders, ledger and the share register are hereby identified as
the stock transfer books of the corporation; but as between the stockholders'
ledger and the share register, the names and addresses of stockholders, as they
appear on the stockholders,'ledger maintained by the transfer agent shall be the
official list of stockholders of record of the corporation. The name and address
of each stockholder of record, as they appear upon the stockholders' ledger,
shall be conclusive evidence of who are the stockholders entitled to receive
notice of the meetings of stockholders, to vote at such meetings, to examine a
complete list of the stockholders entitled to vote at meetings, and to own,
enjoy and exercise any other property or rights deriving from such shares
against the corporation. Stockholders, but not the corporation, its directors,
officers, agents or attorneys, shall be responsible for notifying the transfer
agent, in writing, of any changes in their names or addresses from time to time,
and failure to do so will relieve the corporation, its other stockholders,
directors, officers, agents and attorneys, and its transfer agent and registrar,
of liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other than
the name and address appearing in the stockholders' ledger maintained by the
transfer agent.
Section 4.6. Loss of Certificates. In case of the loss, destruction or
mutilation of a certificate of stock, a replacement certificate may be issued in
place thereof upon such terms as the board of directors may prescribe,
including, in the discretion of the board of directors, a requirement of bond
and indemnity to the corporation.
Section 4.7. Restrictions on Transfer. Every certificate for shares of
stock which are subject to any restriction on transfer, whether pursuant to the
Articles of Organization, the By-laws or any agreement to which the corporation
is a party, shall have the fact of the restriction noted conspicuously on the
certificate and shall also set forth on the face or back either the full text of
the restriction or a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge.
Section 4.8. Multiple Classes of Stock. The amount and classes of the
capital stock and the par value, if any, of the shares, shall be as fixed in the
Articles of Organization. At all times when there are two or more classes of
stock, the several classes of stock shall conform to the description and the
terms and have the respective preferences, voting powers, restrictions and
qualifications set forth in the Articles of Organization and these By-laws.
Every certificate issued when the
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corporation is authorized to issue more than one class or series of stock shall
set forth on its face or back either (i) the full text of the references, voting
powers, qualifications and special and relative rights of the shares of each
class and series authorized to be issued, or (ii) a statement of the existence
of such preferences, powers, qualifications and rights, and a statement that the
corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
ARTICLE V
Dividends
Section 5.1. Declaration of Dividends. Except as otherwise required by
law or by the Articles of Organization the board of directors may, in its
discretion, declare what, if any, dividends shall be paid by the corporation.
Dividends may be paid in cash, in property, in shares of the corporation's
stock, or in any combination thereof. Dividends shall be payable upon such dates
as the board of directors may designate.
Section 5.2. Reserves. Before the payment of any dividend before making
any distribution of profits, the board of directors, from time to time and in
its absolute discretion, shall have power to set aside out of the surplus or net
profits of the corporation such sum or sums as the board of directors deems
proper and sufficient as a reserve fund to meet contingencies or for such other
purpose as the board of directors shall deem to be in the best interests of the
corporation, and the board of directors may modify or abolish any such reserve.
ARTICLE VI
Powers of Officers to Contract
With the Corporation
Any and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and perform any
contract or agreement of any nature between the corporation and themselves, or
any and all of the individuals from time to time constituting the board of
directors of the corporation, or any firm or corporation in which any such
director may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall hereby derive
personal or corporate profits or benefits or otherwise; provided, that (i) the
material facts of such interest are disclosed or are known to the board of
directors or committee hereof which authorizes such contract or agreement; (ii)
if the material facts as to such person's relationship or interest are disclosed
or are known to the stockholders entitled to vote hereon, and the contract is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee hereof,
or the stockholders. Any director of the corporation who is interested in any
transaction as aforesaid may nevertheless be counted in determining the
existence of a quorum at any meeting of the board of directors which shall
authorize or ratify any such transaction. This Article shall not be construed to
invalidate any contract or other transaction which would otherwise be valid
under the common or statutory law applicable thereto.
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ARTICLE VII
Indemnification
Section 7.1. Definitions. For purposes of this Article VII the
following terms shall have the meanings indicated:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the corporation or
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the express
written request of the corporation.
"Court" means the court in which the Proceeding in respect of which
indemnification is sought by a Covered Person shall have been brought or is
pending, or another court having subject matter jurisdiction and personal
jurisdiction over the parties.
"Covered Person" means a person who is a present or former director or
Officer of the corporation and shall include such person's legal
representatives, heirs, executors and administrators.
"Disinterested" describes any individual, whether or not that
individual is a director, officer, employee or agent of the corporation, who is
not and was not and is not threatened to be made a party to the Proceeding in
respect of which indemnification, advancement of Expenses or other action is
sought by a Covered person.
"Expenses" shall include, without limitation, all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
"Good Faith" shall mean a Covered Person having acted in good faith and
in a manner such Covered Person reasonably believed to be in the best interests
of the corporation or, in the case of an employee benefit plan, the best
interests of the participants or beneficiaries of said plan, as the case may be,
and, with respect to any Proceeding which is criminal in nature, having had no
reasonable cause to believe such Covered Person's conduct was unlawful.
"Improper Personal Benefit" shall include, but not be limited to, the
personal gain in fact by reason of a person's Corporate Status of a financial
profit, monies or other advantage not also accruing to the corporation or to the
stockholders generally and which is unrelated to his usual compensation
including, but not limited to, (i) in exchange for the exercise of influence
over the corporation's affairs, (ii) as a result of the diversion of corporate
opportunity, or (iii) pursuant to the use or communication of confidential or
inside information for the purpose of generating a profit from trading in the
corporation's securities. Notwithstanding the foregoing, "Improper Personal
Benefit" shall not include any benefit, directly or indirectly, related to
actions taken in order to evaluate, discourage, resist, prevent or negotiate any
transaction with or proposal from any person or entity seeking control of, or a
controlling interest in, the corporation.
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"Independent Counsel" means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and may include law firms or
members thereof that are regularly retained by the corporation but not by any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the standards of professional conduct then
prevailing and applicable to such counsel, would have a conflict of interest in
representing either the corporation or Covered Person in an action to determine
the Covered Person's rights under this article.
"Officer" means the president, vice presidents, treasurer, assistant
treasurer (s) , secretary, assistant secretary and such other executive officers
as are appointed by the board of directors of the corporation and explicitly
entitled to indemnification hereunder.
"Proceeding" includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation (including
any internal corporate investigation) , administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, other than
one initiated by the Covered Person, but including one initiated by a Covered
person for the purpose of enforcing such Covered Person's rights under this
Article to the extent provided in Section 7.14 of this article. "Proceeding"
shall not include any counterclaim brought any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2. Right to Indemnification in General.
(a) Covered Persons. The corporation may indemnify, and may advance
Expenses, to each Covered Person who is, was or is threatened to be made a party
or otherwise involved in any Proceeding, as provided in this Article and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to time permit.
The indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Massachusetts Business Corporation Law are in effect, and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
Proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Covered Person.
(b) Employees and Agents. The corporation may, to the extent authorized
from time to time by the board of directors, grant indemnification and the
advancement of Expenses to any employee or agent of the corporation to the
fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of Covered Persons.
(c) Adverse Adjudication. Notwithstanding any provision of this Article
to the contrary, no indemnification shall be provided for any Covered Person
with respect to any matter as to which he shall have been adjudicated in any
Proceeding not to have acted in good Faith.
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Section 7.3. Proceedings Other Than Proceedings by or in the Right of
the Corporation. Each Covered Person may be entitled to the rights of
indemnification provided in this Section 7.3 if, by reason of such Covered
Person's Corporate Status, such Covered Person is, was or is threatened to be
made, a party to or is otherwise involved in any Proceeding, other than a
Proceeding by or in the right of the corporation. Each Covered Person may be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlements, actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection with such Proceeding or any claim, issue
or matter therein, if such Covered Person acted in Good Faith and such Covered
Person has not been adjudged during the course of such proceeding to have
derived an Improper Personal Benefit from the transaction or occurrence forming
the basis of such Proceeding.
Section 7.4. Proceedings by or in the Right of the Corporation. Each
Covered Person may be entitled to the rights of indemnification provided in this
Section 7.4 if, by reason of such covered Person's Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is otherwise
involved in any proceeding brought by or in the right of the corporation to
procure judgment in its favor. Such Covered Person may be indemnified against
Expenses, judgments, penalties, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection with such proceeding if such Covered Person acted in Good Faith and
such covered Person has not been adjudged during the course of such proceeding
to have derived an Improper Personal Benefit from the transaction or occurrence
forming the basis of such Proceeding. Notwithstanding the foregoing, no such
indemnification shall be made in respect of any claim, issue or matter in such
Proceeding as to which such Covered Person shall have been adjudged to be liable
to the corporation if applicable law prohibits such indemnification; provided,
however, that, if applicable law so permits, indemnification shall nevertheless
be made by the corporation in such event if and only to the extent that the
Court which is considering the matter shall so determine.
Section 7.5. Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any provision of this Article to the contrary, to
the extent that a Covered Person is, by reason of such Covered Person's
Corporate Status, a party to or is otherwise involved in and is successful, on
the merits or otherwise, in any Proceeding, such Covered Person may be
indemnified to the maximum extent permitted by law, against all expenses,
judgments, penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection therewith. If such Covered Person is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the corporation may
indemnify such Covered Person to the maximum extent permitted by law, against
all Expenses, judgments, penalties, fines, and amounts paid in settlement,
actually and reasonably incurred by such Covered Person or on such Covered
Person's behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 7.5 and without limitation, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
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Section 7.6. Indemnification for Expenses of a Witness. Notwithstanding
any provision of this Article to the contrary, to the extent that a Covered
Person is, by reason of such Covered Persons's Corporate Status, a witness in
any Proceeding, such Covered Person shall be indemnified against all Expenses
actually and reasonably incurred by such Covered Person or on such Covered
Person's behalf in connection therewith.
Section 7.7. Advancement of Expenses. Notwithstanding any provision of
this Article to the contrary, the corporation may advance all reasonable
Expenses which, by reason of a Covered Person's Corporate Status, were incurred
by or on behalf of such Covered Person in connection with any Proceeding, within
thirty (30) days after the receipt by the corporation of a statement or
statements from such Covered Person requesting such advance or advances, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence he Expenses incurred by the Covered Person
and shall include or be receded or accompanied by an undertaking by or on behalf
of the Covered Person to repay any Expenses if such Covered Person shall be
adjudged to be not entitled to be indemnified against such expenses. Any advance
and undertaking to repay pursuant to this section 7.7 shall be interest-free and
made without reference to the financial ability of the Covered Person to make
such repayment, above and such conclusion shall have been so confirmed by the
corporation's said outside counsel.
[PAGE MISSING]
Section 7.8.
(c) Notwithstanding any provision of this Article to the contrary, the
corporation shall not be obligated to indemnify the Covered Person under this
Article for any amounts paid in settlement of any Proceeding effected without
its written consent. The corporation shall not settle any Proceeding or claim in
any manner which would impose any penalty, limitation or disqualification of the
Covered Person for any purpose without such Covered Person's written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d) If it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b) above, payment to
the Covered Person of the additional amounts for which he is to be indemnified
shall be made within ten (10) days after such determination.
Section 7.9. Procedures.
(a) Method of Determination. A determination (as provided for by this
Article or if required by applicable law in the specific case) with respect to a
Covered Person's entitlement to indemnification shall be made either (a) by the
board of directors by a majority vote of a quorum consisting of Disinterested
directors, or (b) in the event that a quorum of the board of directors
consisting of Disinterested directors is not obtainable or, even if obtainable,
such quorum of Disinterested directors so directs, by Independent Counsel in a
written determination to the board of directors, a copy of which shall be
delivered to the Covered Person seeking indemnification, or (c) by the vote of
the holders of a majority of the corporation's capital stock outstanding at the
time entitled to vote thereon.
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(b) Initiating Request. A Covered Person who seeks indemnification
under this Article shall submit a Request for indemnification, including such
documentation and information as is reasonably available to such Covered Person
and is reasonably necessary to determine whether and to what extent such Covered
Person is entitled to indemnification.
(c) Presumptions. In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity making such
determination shall not presume that the Covered Person is or is not entitled to
indemnification under this Article.
(d) Burden of Proof. Each Covered Person shall bear the burden of going
forward and demonstrating sufficient facts to support his claim for entitlement
to indemnification under this Article. That burden shall be deemed satisfied by
the submission of an initial Request for Indemnification pursuant to section
7.9(b) above.
(e) Effect of Other Proceedings. The termination of any proceeding or
of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of a Covered Person to indemnification or create a
presumption that a Covered Person did not act in Good Faith.
Section 7.10. Action by the Corporation. Any action, payment, advance
determination other than a determination made pursuant to Section 7.9 (a) above,
authorization, requirement, grant of indemnification or other action taken by
the Corporation pursuant to this Article shall be effected exclusively through
any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11. Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Articles of Organization, these By-Laws, any
agreement, a vote of stockholders or a resolution of the board of directors, or
otherwise. No amendment, alteration, rescission or replacement of this Article
or any provision hereof shall be effective as to a Covered Person with respect
to any action taken or omitted by such Covered Person in such Covered Person's
Corporate Status or with respect to any state of facts then or previously
existing or any proceeding previously or thereafter brought or threatened based
in whole or to the extent based in part upon any such state of facts existing
prior to such amendment, alteration, rescission or replacement.
Section 7.12. Insurance. The corporation may maintain, at its expense,
an insurance policy or policies to protect itself and any Covered Person,
officer, employee or agent of the corporation or another enterprise against
liability arising out of this Article or otherwise, whether or not the
corporation would have the power to indemnify any such person against such
liability under the Massachusetts Business Corporation Law.
Section 7.13. No Duplicative Payment. The corporation shall not be
liable under this Article to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that a
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Covered Person has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
Section 7.14. Expenses of Adjudication. In the event that any Covered
Person seeks a judicial adjudication, or an award in arbitration, to enforce
such Covered Person's rights under, or to recover damages for breach of, this
Article, such Covered Person shall be entitled to recover from the corporation,
and shall be indemnified by the corporation against, any and all expenses (of
the types described in the definition of Expenses in Section 7.1 of his Article)
actually and reasonably incurred by such Covered Person in seeking such
adjudication or arbitration, but only if such Covered Person prevails therein.
If it shall be determined in such adjudication or arbitration that the Covered
Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately prorated.
Section 7.15. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the content manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Articles of Organization. All references in these By-laws
to the Articles of Organization shall be deemed to refer to the Articles of
Organization of the corporation, as amended and in effect from time to time.
Section 8.2. Fiscal Year. Except as from time to time otherwise
provided by the board of directors, the fiscal year of the corporation shall end
on the last day of December of each year.
Section 8.3. Corporate Seal. The board of directors shall have the
power to adopt and alter the seal of the corporation.
Section 8.4. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes, and other obligations authorized to be executed by an
officer of the corporation on its behalf shall be signed by the president or the
treasurer except as the board of directors may generally or in particular cases
otherwise determine.
Section 8.5. Voting of Securities. Unless the board of directors
otherwise provides, the president or the treasurer may waive notice of and act
on behalf of this corporation, or appoint
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another person or persons to act as proxy or attorney in fact for this
corporation with or without discretionary power and/or power of substitution, at
any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by this corporation.
Section 8.6. Evidence of Authority. A certificate by the clerk or any
assistant clerk as to any action taken by the stockholders, directors or any
officer or representative of the corporation shall, as to all persons who rely
thereon in good faith, be conclusive evidence of such action. The exercise of
any power which by law, by the Articles of Organization or by these Bylaws, or
under any vote of the stockholders or the board of directors, may be exercised
by an officer of the corporation only in the event of absence of another officer
or any other contingency shall bind the corporation in favor of anyone relying
thereon in good faith, whether or not such absence or contingency existed.
Section 8.7. Corporate Records. The original, or attested copies, of
the Articles of Organization, By-laws, records of all meetings of the
incorporators and stockholders, and the stock transfer books (which shall
contain the names of all stockholders and the record address and the amount of
stock held by each) shall be kept in Massachusetts at the principal office of
the corporation, or at an office of its resident agent, transfer agent or of the
clerk or of the assistant clerk, if any. Said copies and records need not all be
kept in the same office. They shall be available at all reasonable times to
inspection of any stockholder for any purpose but not to secure a list of
stockholders for the purpose of selling said list or copies thereof or of using
the same or a purpose other than in the interest of the applicant, as a
stockholder, relative to the affairs of the corporation.
Section 8.8. Charitable Contributions. The board of directors from time
to time may authorize contributions to be made by the corporation in such
amounts as it may determine to be reasonable to corporations, trusts, funds or
foundations organized and operated exclusively for charitable, scientific or
educational purposes, no part of the net earning of which inures to the private
benefit of any stockholder or individual.
ARTICLE IX
Amendments
Section 9.1. Amendment by Stockholders. Prior to the issuance of stock,
these By-laws may be amended, altered or repealed by the incorporator(s) by
majority vote. After stock has been issued, these By-laws may be amended,
altered or repealed by the stockholders at any annual or special meeting by vote
of a majority of all shares outstanding and entitled to vote, except that where
the effect of the amendment would be to reduce any voting requirement otherwise
required by law, the Articles of Organization or these By-laws, such amendment
shall require the vote that would have been required by such other provision.
Notice and a copy of any proposal to amend these By-laws must be included in the
notice of meeting of stockholders at which action is taken upon such amendment.
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Section 9.2. Amendment by Board of Directors.
(a) These By-laws may be amended, altered or repealed by the board of
directors at a meeting duly called for the purpose by majority vote of the
directors then in office, except that directors shall not amend the By-laws in a
manner which:
(i) changes the stockholder voting requirements for any action;
(ii) alters or abolishes any preferential right or right of redemption
applicable to a class or series of stock with shares already outstanding;
(iii) alters the provisions of Articles VII or IX hereof; or
(iv) permits the board of directors to take any action which under law,
the Articles of Organization or these By-laws is required to be taken by the
stockholders.
(b) If the By-laws are amended or altered by the board of directors,
notice of the amendment, alteration or repeal shall be given to all stockholders
entitled to vote not later than the time of giving notice of the next meeting of
stockholders following such amendment, alteration or repeal.
(c) Any amendment of these By-laws by the board of directors may be
altered or repealed by the stockholders at any annual or special meeting of
stockholders.
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