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EXHIBIT 3.2
Restated as of
June 27, 1996
BY-LAWS
OF
CONCURRENT COMPUTER CORPORATION
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ARTICLE I.
Certificate of Incorporation
These by-laws, the powers of the corporation and of its
directors and stockholders, and all matters concerning the conduct and
regulation of the business of the corporation shall be subject to such
provisions in regard thereto as are set forth in the certificate of
incorporation filed pursuant to the General Corporation Law of the State of
Delaware, which is hereby made a part of these by-laws.
The term "Certificate of Incorporation" in these by-laws unless
the context requires otherwise, includes not only the original certificate of
incorporation filed to create the corporation but also all other certificates,
agreements of merger or consolidation, plans of reorganization, or other
instruments, howsoever designated, filed pursuant to the General Corporation
Law of the State of Delaware which have the effect of amending or supplementing
in some respect the corporation's original certificate of incorporation.
ARTICLE II.
Annual Meeting
An annual meeting of stockholders shall be held for the election
of directors and for the transaction of any other business for the transaction
of which the meeting shall have been properly convened on such day not a legal
holiday in the months of September, October, or November in each year, at such
place, within or without the State of Delaware, and at such time as such day,
place and time shall be fixed by the board of directors and specified in the
notice of the meeting. Any other proper business may be transacted at the
annual meeting. If the annual meeting for election of directors shall not be
held on the date designated therefor, the directors shall cause the meeting to
be held as soon thereafter as convenient.
ARTICLE III.
Special Meetings of Stockholders
Special meetings of the stockholders may be held either within
or without the State of Delaware, at such time and place and for such purposes
as shall be specified in a call for such meeting made by the board of directors
or by a writing filed with the secretary signed by the president or by a
majority of the directors.
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ARTICLE IV.
Notice of Stockholders' Meetings
Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which shall
state the place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, which notice
shall be given not less than ten nor more than fifty days before the date of
the meeting, except where longer notice is required by law, to each stockholder
entitled to vote at such meeting, by leaving such notice with him or by mailing
it, postage prepaid, directed to him at his address as it appears upon the
records of the corporation. In case of the death, absence, incapacity or
refusal of the secretary, such notice may be given by a person designated
either by the secretary or by the person or persons calling the meeting or by
the board of directors. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
An affidavit of the secretary or an assistant secretary or of the
transfer agent of the corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
At an annual or special meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before a meeting business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before a meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary 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 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 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. A stockholder's notice to the Secretary shall
set forth as to each matter the 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, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Provided at all times
that stockholders may only give notice to the Secretary of matters to be
brought before a meeting that are suitable and appropriate for consideration by
stockholders of a public company. Notwithstanding anything in the By-Laws to
the contrary, no business shall be conducted at any meeting except in
accordance with the procedures set forth in this paragraph. The Chairman of
the meeting shall, it the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with
the provisions of
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this paragraph, 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.
Only persons who are nominated in accordance with the procedures
set forth in this paragraph shall be eligible for election as Directors at a
meeting of stockholders. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this paragraph. 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 Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or 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 10th day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director (i) the name, age, business
address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of the
Corporation which are beneficially owned by such person and (iv) any other
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 without limitation such persons' 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 name and
address, as they appear on the Corporation's books, of such stockholder and
(ii) the class and number of shares of the Corporation which are beneficially
owned by such stockholder. 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 Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth in this paragraph. 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.
ARTICLE V.
Quorum of Stockholder; Stockholder List
At any meeting of the stockholders, a majority (based on voting
rights of all shares) of all shares issued and outstanding and entitled to vote
upon a question to be considered at the meeting shall constitute a quorum for
the consideration of such question when represented at such meeting by the
holders thereof in person or by their duly constituted and authorized attorney,
but a less interest may adjourn any meeting from time to time, and the meeting
may be held as adjourned without further notice. When a quorum is present at
any meeting a majority of the stock so represented thereat and entitled to vote
shall, except where a larger vote is required by law, by the certificate of
incorporation or by these by-laws, decide any question brought before such
meeting.
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The secretary or other officer having charge of the stock ledger
shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours for a
period of at least ten days prior to the meeting, either at a place within the
city or town where the meeting is to be held, which place shall have been
specified in the notice of the meeting, or, If not so specified, at the place
where the meeting is to be held. Said list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders required by this Article or the books of the
corporation, or the stockholders entitled to vote in person or, by proxy at any
meeting of stockholders.
ARTICLE VI.
Proxies and Voting
Except as otherwise provided in the certificate of incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one
vote for each share of the capital stock held by such stockholder. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him by proxy but (except as otherwise expressly
permitted by law) no proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period or so long as it is
coupled with an interest sufficient in law to support an irrevocable power.
ARTICLE VII.
Stockholders' Record Date
In order that the corporation may determine the stockholders
entitled to notice or to vote at any meeting of stockholders or any adjournment
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 nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(1) The record date for determining stockholders entitled 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, or, if notice is waived, at the
close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders entitled to
express consent to corporate action in writing without a
meeting, when no prior action by
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the board of directors is necessary, shall be the day on
which the first written consent is expressed.
(3) 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.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, provided, however, that the board of directors may fix a new record
date for the adjourned meeting
ARTICLE VIII.
Board of Directors
Except as otherwise provided by law or by the certificate of
incorporation, the business and affairs of the corporation shall be managed by
the board of directors.
The number of directors shall be such number, not fewer than
three nor more than twelve, as may be determined from time to time by
resolution of the Board of Directors. Directors shall be elected by the
stockholders at the annual meeting. Each director shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Any director may resign at any time upon written notice to the corporation. No
director need be a stockholder.
ARTICLE IX.
Committees
The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist
of one or more of the directors of the corporation. The board may designate
one or more directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee and may define
the number and qualifications which shall constitute a quorum of such
committee. Except as otherwise limited by law, any such committee, to the
extent provided in the resolution appointing such committee, shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board
of directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE X.
Meetings of the Board of Directors and of Committees
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may by vote from time to time determine.
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Special meetings of the board of directors may be held at any
place either within or without the State of Delaware at any time when called by
the chairman of the board, secretary or two or more directors, reasonable
notice of the time and place thereof being given to each director.
Unless otherwise restricted by the certificate of incorporation
or by other provisions of these by-laws, (a) any action required or permitted
to be taken at any meeting of the board of directors or of any committee
thereof may be taken without a meeting if all members of the board or of such
committee, as the case may be, consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the board or committee,
and (b) members of the board of directors or of any committee designated by the
board may participate in a meeting thereof by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation shall constitute
presence in person at such meeting.
ARTICLE XI.
Quorum of the Board of Directors
Except as otherwise expressly provided in the certificate of
incorporation or in these by-laws, a majority of the total number of directors
at the time in office shall constitute a quorum for the transaction of
business, but a less number may adjourn any meeting from time to time. Except
as otherwise so expressly provided, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board of directors, provided, that the affirmative vote in good faith of a
majority of the disinterested directors, even though the disinterested
directors shall be fewer than a quorum, shall be sufficient to authorize a
contract or transaction in which one or more directors have an interest if the
material facts as to such interest and the relation of the interested directors
to the contract or transaction have been disclosed or are known to the
directors.
ARTICLE XII.
Waiver of Notice of Meetings
Whenever notice is required to be given under any provision of
law or the certificate of incorporation or by-laws, a written waiver thereof,
signed by the person entitled to notice whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the certificate of incorporation or the by-laws.
ARTICLE XIII.
Officers and Agents
The corporation shall have a president, secretary and treasurer,
who shall be chosen by the directors, each of whom shall hold his office until
his successor has been chosen and qualified or until his earlier resignation or
removal. The corporation may have
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such other officers and agents as are desired, including without limitation a
chairman of the board of directors and an executive vice president, each of
whom shall be chosen by the board of directors and shall hold his office for
such term and have such authority and duties as shall be determined by the
board of directors. The board of directors may secure the fidelity of any or
all of such officers or agents by bond or otherwise. Any number of offices may
be held by the same person. Each officer shall, subject to these by-laws, have
in addition to the duties and powers herein set forth, such duties and powers
as the board of directors shall from time to time designate. In all cases
where the duties of any officer, agent or employee are not specifically
prescribed by the by-laws, or by the board of directors, such officer, agent or
employee shall obey the orders and instructions of the president. Any officer
may resign at any time upon written notice to the corporation.
ARTICLE XIV.
Chairman of the Board
Except as otherwise voted by the board, the chairman of that board shall
preside at all meetings of the stockholders and of the board of directors at
which he is present.
President & Chief Executive Officer
The president and chief executive officer shall, subject to the
direction and under the supervision of the board of directors, have general and
active control of the corporation's affairs and business, and general
supervision over its officers, agents and employees. In the absence of and
when so designated by the chairman of the board, the president and chief
executive officer shall perform the duties and responsibilities of the chairman
of the board on a temporary basis in accordance with and as specifically
prescribed by the by-laws or as specifically prescribed by the board of
directors. The president and chief executive officer shall have custody of the
treasurer's bond, if any.
ARTICLE XV.
Secretary
The secretary shall record all the proceedings of the meetings of
the stockholders and directors in a book, which shall be the property of the
corporation, to be kept for that purpose. The secretary shall perform such
other duties as shall be assigned to him by the board of directors. In the
absence of the secretary from any such meeting, a temporary secretary shall be
chosen, who shall record the proceedings of such meeting in the aforesaid book.
ARTICLE XVI.
Treasurer
The treasurer shall, subject to the direction and under the
supervision of the board of directors, have the care and custody of the funds
and valuable papers of the corporation, except his own bond, and he shall,
except as the board of directors shall generally or in particular cases
authorize the endorsement thereof in some other manner,
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have power to endorse for deposit or collection all notes, checks, drafts and
other obligations for the payment of money to the corporation or its order.
He shall keep, or cause to be kept, accurate books of account, which shall be
the property of the corporation.
ARTICLE XVII.
Removals
The stockholders may, at any meeting called for the purpose, by vote
of a majority of the capital stock issued and outstanding and entitled to vote
thereon, remove any director from office.
The board of directors may, at any meeting called for the purpose, by
vote of a majority of their entire number remove from office any officer or
agent of the corporation or any member of any committee appointed by the board
of directors or by any committee of the board of directors or by any officer or
agent of the corporation.
ARTICLE XVIII.
Vacancies
Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise and newly created directorships resulting
from any increase in the authorized number of directors, may be filled by a
majority of the directors then in office (though less than a quorum) or by a
sole remaining director, and each of the incumbents so chosen shall hold office
for the unexpired term in respect of which the vacancy occurred and until his
successor shall have been duly elected and qualified or for such shorter period
as shall be specified in the filling of such vacancy or, it such vacancy shall
have occurred in the office of director, until such a successor shall have been
chosen by the stockholders.
ARTICLE XIX.
Certificates of Stock
Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairman or
vice-chairman of the board of directors (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary, certifying the number of shares
owned by him in the corporation. If such certificate is countersigned (1) by a
transfer agent other than the corporation or its employee, or (2) by a
registrar other than the corporation or its employee, any other signatures on
the certificate may be facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be is issued by the
corporation with the same effect as if he were such officer at the date of
issue.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificates which the corporation shall issue to represent
such class or series of stock or there shall be set forth on the face or back
of the certificates which the corporation shall issue to represent such class
or series of stock, a
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statement that the corporation will furnish, without charge to each stockholder
who so requests, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Any restriction imposed upon the transfer of shares or registration of
transfer of shares shall be noted conspicuously on the certificate representing
the shares subject to such restriction.
ARTICLE XX.
Loss of Certificate
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it
on account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate in its place and upon such other terms or
without any such bond which the board of directors shall prescribe.
ARTICLE XXI.
Seal
The corporate seal shall, subject to alteration by the board of
directors, consist of a flat-faced circular die with the word "Delaware"
together with the name of the corporation and the year of its organization cut
or engraved thereon. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE XXII.
Execution of Papers
Except as otherwise provided in these by-laws or as the board of
directors may generally or in particular cases authorize the execution thereof
in some other manner, all deeds, leases, transfers, contracts, bonds, notes,
checks, drafts and other obligations made, accepted or endorsed by the
corporation, shall be signed by the president or by the treasurer.
ARTICLE XXIII.
Indemnification
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving, at the request of the corporation, another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments and fines actually imposed or
reasonably incurred by him in connection with such action, suit or proceeding
unless in any proceeding he shall be finally adjudged not to have acted in good
faith in the reasonable belief that his action was in the best interests of the
corporation; provided, however, that such indemnification shall not cover
liabilities in connection with any matter which shall be disposed of through a
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compromise payment by such person, pursuant to a consent decree or otherwise,
unless such compromise shall be approved as in the best interest of the
corporation, after notice that it involves such indemnification, (a) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, event or proceeding, or (b) if such a quorum
is not obtainable, or, even if obtainable, a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (c) by the
stockholders. Such indemnification may include payment by the corporation of
expenses incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding, upon receipt of
an undertaking by the person indemnified to repay such payment if he shall be
adjudicated to be not entitled to indemnification under these provisions. The
rights of indemnification hereby provided shall not be exclusive of or affect
other rights to which any director, officer, employee, agent or stockholder may
be entitled. As used in this paragraph, the terms "director", "officer",
"employee", "agent" or "stockholder" include their respective heirs, executors
and administrators, and an "interested" director or officer is one against whom
as such the proceeding in question or another proceeding on the same or similar
grounds is then pending. Any indemnification to which a person is entitled
under this paragraph shall be provided although the person to be indemnified is
no longer such a director, officer, employee, agent or stockholder.
Notwithstanding the foregoing, no indemnification shall be provided hereunder
to the extent then prohibited by applicable law.
ARTICLE XXIV.
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 June
of each year.
ARTICLE XXV.
Restrictions on Transfer
The following restrictions are imposed upon the transfer of shares of
the capital stock of the corporation, except that such restrictions shall not
apply to shares of the corporation's Class C Preferred Stock or any shares
issued upon the conversion or otherwise in respect thereof:
(a) The corporation shall have the right to purchase, or to direct
the transfer of, the shares of its capital stock in the events
and subject to the conditions and at a price fixed as provided
below; each holder of shares of such capital stock holds his
shares subject to this right and by accepting the same upon
original issue or subsequent transfer thereof, the stockholder
agrees for himself, his legal representatives and assigns as
hereinafter in this Article XXV provided.
(b) In the event of any change in the ownership of any share or
shares of such capital stock (made or proposed) or in the right
to vote thereon (whether by the holder's act or by death, legal
disability, operation of law, legal processes, order or court,
or otherwise, except by ordinary proxies or powers of attorney)
the corporation has the right to purchase such share or all or
any part of such shares or to require the same to be sold to a
purchaser or purchasers designated by the corporation or to
follow each such method in part at a price per share equal to
the fair value
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thereof at the close of business on the last business day next
preceding such event as determined by mutual agreement or, failing
such agreement, by arbitration as provided below.
(c) In any such event the owner of the share or shares concerned therein
(being for the purposes of these provisions, all persons having any
property interest therein) shall give notice thereof in detail
satisfactory to the corporation. Within ten days after receipt of
said owner's notice, the corporation shall elect whether or not to
exercise its said rights in respect to said shares and, if it elects
to exercise them, shall give notice of its election.
(d) Failing agreement between the owner and the corporation as to the
price per share to be paid, such price shall be the fair value of such
shares as determined by three arbitrators, one designated within five
days after the termination of said ten-day period the registered
holder of said share or shares or his legal representatives, one within
said period of five days by the corporation and the third within five
days after said appointment last occurring by the two so chosen.
Successor arbitrators, if any shall be required, shall be appointed,
within reasonable time, as nearly as may be in the manner provided as
to the related original appointment. No appointment shall be deemed
as having been accomplished unless such arbitrator shall have accepted
in writing his appointment as such within the time limited for his
appointment. Notice of each appointment of an arbitrator shall be
given promptly to the other parties in interest. Said arbitrators
shall proceed promptly to determine said fair value. The
determination of the fair value of said share or shares by agreement
of any two of the arbitrators shall be conclusive upon all parties
interested in such shares. Forthwith upon such determination the
arbitrators shall mail or deliver notice of such determination to the
owner (as above defined) and to the corporation.
(e) Within ten days after agreement upon said price or mailing of notice
of determination of said price by arbitrators as provided below
(whichever shall last occur), the shares specified therein for
purchase shall be transferred to the corporation or to the purchaser
or purchasers designated therein or in part to each as indicated in
such notice of election against payment of said price at the principal
office of the corporation.
(f) If in any of the said events, notice therefor having been given as
provided above, the corporation elects in respect of any such shares
or any part thereof not to exercise its said rights, or fails to
exercise them or to give notice or make payment all as provided above,
or waives said rights by vote or in authorized writing, then such
contemplated transfer or such change may become effective as to those
shares with respect to which the corporation elects not to exercise
its rights or fails to exercise them or to give notice or to make
payment, it consummated within thirty days after such election,
failure to waiver by the corporation, or within such longer period as
the corporation may authorize.
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(g) It the owner's notice in respect of any to such shares of capital
stock is not received by the corporation as provided above, or if the
owner falls to comply with these provisions in respect of any such
shares in any other regard, the corporation, at its option and in
addition to its other remedies, may suspend the rights to vote or to
receive dividends on said shares, or may refuse to register on its
books any transfer of said shares or otherwise to recognize any
transfer or change in the ownership thereof or in right to vote
thereon, one or more, until these provisions are complied with to the
satisfaction of the corporation; and if the required owner's notice is
not received by the corporation after written demand by the
corporation it may also or independently proceed as though a proper
owner's notice had been received at the expiration of ten days after
mailing such demand, and, if it exercises its rights with respect to
said shares or any of them, the shares specified shall be transferred
accordingly.
(h) In respect of these provisions with respect to the transfer of shares
of capital stock, the corporation may act by its board of directors.
Any notice or demand under said provision shall be deemed to have been
sufficiently given it in writing delivered by hand or addressed by
mail postpaid, to the corporation at its principal office or to the
owner (as above defined) or to the holder registered on the books of
the corporation (or his legal representative) of the shares or shares
in question at the address stated in his notice or at his address
appearing on the books of the corporation.
(i) Nothing herein contained shall prevent the pledging of shares, if
there is neither a transfer of the legal title thereto nor a transfer
on the books of the corporation into the name of the pledgee, but no
pledgee or person claiming thereunder shall be entitled to make or
cause to be made any transfer of pledged shares by sale thereof or
otherwise (including in this prohibition transfer on the books of the
corporation into the name of the pledgee) except upon compliance
herewith and any such pledge shall be subject to those conditions and
restrictions.
(j) Anything to the contrary contained herein notwithstanding, the
following transactions shall be exempt from the provisions of this
by-law:
(1) A stockholder's transfer of any or all shares held either during
such stockholder's lifetime or on death by will or intestacy to
or to a trust or a custodian for the benefit of such
stockholder's immediate family. "Immediate family" as used
herein shall mean spouse, lineal descendant, father, mother,
brother, sister, aunt or uncle, or niece or nephew of the
stockholder making such transfer.
(2) A stockholder's transfer of any or all of such stockholder's
shares to any other stockholder of the corporation.
(3) A stockholder's transfer of any or all of such stockholder's
shares to a person who, at the time of such transfer, is an
officer or director of the corporation.
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(4) A corporate stockholder's transfer of any or all of
its shares (i) pursuant to and in accordance with the
terms of any merger, consolidation, reclassification
of shares or capital reorganization of the corporate
stockholder, or (ii) to any or all of its
stockholders.
(5) A transfer by a stockholder which is a limited or
general partnership to any or all of its partners or
retired partners.
In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this by-law, and there
shall be no further transfer of such stock except in accordance with this
by-law.
(k) The restrictions on transfer contained in this Article
XXV shall terminate on either of the following dates,
whichever shall first occur
(1) On July 31, 1996; or
(2) Upon the date securities of the corporation are
first offered to the public pursuant to a
registration statement filed with, and declared
effective by, the United States Securities and
Exchange Commission under the Securities Act of
1933, as amended, (other than an offering
pursuant to (i) an offer on sale of securities
to employees of, or other persons providing
services to, the corporation pursuant to an
employee or similar benefit plan, registered on
Form S-8 or comparable form; or (ii) a merger,
acquisition, or other transaction of the type
described in Rule 145 or comparable rule
promulgated pursuant to such Act, registered on
Form S-14, Form S-15 or similar form).
(l) Notwithstanding the foregoing provisions of this
Article XXV with respect to the determination of
purchase price of shares of stock, in the event of any
inconsistency between such provisions and those of
management purchase or other agreements between the
corporation and persons who purchase shares of its
capital stock, those of such management purchase or
other agreements shall govern.
ARTICLE XXVI.
Amendments
Except as otherwise provided by law or by the certificate of
incorporation, these by-laws, as from time to time altered or amended, may be
made, altered or amended at any annual or special meeting of the stockholders
called for the purpose, of which the notice shall specify the subject matter of
the proposed alteration or amendment or new by-law or the article or articles
to be affected thereby. If the certificate of incorporation so provides, these
by-laws may also be made, altered or amended by a majority of the whole number
of directors. Such action may be taken at any meeting of the board of
directors, of which notice shall have been given as for a meeting of
stockholders.
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