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Exhibit 3.102
BYLAWS
OF
PINE TREE WASTE SERVICES OF MAINE, INC.
Adopted: November 25, 1997
ARTICLE I
NAME
Section 1. NAME. The name of this corporation is stated in the Articles
of Incorporation.
ARTICLE II
REFERENCES, LOCATIONS AND SEAL
Section 1. REFERENCES. References in these Bylaws to the Articles of
Incorporation shall mean this corporation's Articles of Incorporation as amended
from time to time as on file with the Secretary of State of Maine. References in
these Bylaws to the Maine Business Corporation Act and to particular sections of
said Act are to said Act and said sections as amended from time to time. The
headings of Articles and Sections in these Bylaws are for convenience only, and
shall not be taken into account in construing these Bylaws.
Section 2. OFFICE AND LOCATION. The registered office of this corporation
in Maine and the municipality or other place in Maine where it is located are
set forth in the Articles of Incorporation. The principal office and place of
business of this corporation, within or without Maine, shall be at such place as
the Board of Directors shall from time to time fix.
Section 3. SEAL. The seal of this corporation shall be circular in form
with the name of the corporation, the word "Maine" and the year of its
incorporation so engraved on its face that it may be embossed on paper by
pressure, provided that the Board of Directors may adopt a wafer seal in any
form in respect of any particular document, in which case such wafer seal
affixed to such document shall be the corporate seal of this corporation thereon
for all purposes provided by law. The Clerk shall have custody of the corporate
seal and he or the Secretary may affix the same to documents requiring it and
attest the same. The Clerk may permit the President or Secretary to keep a
duplicate of the corporate seal.
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ARTICLE III
MEETINGS OF SHAREHOLDERS
Section 1. PLACE. All meetings of shareholders shall be held at the
registered office of the corporation or at such other place within Maine (or
outside Maine if permitted by the Articles of Incorporation) as shall be fixed
(i) by the Board of Directors, (ii) by the person or persons calling the
meeting, or (iii) in waivers of notice of the meeting signed by all persons
entitled to notice thereof.
Section 2. DATE OF ANNUAL MEETING. The annual meeting of shareholders
shall be held on the third Tuesday of October in each year, if not a legal
holiday, and if a legal holiday, then on the next business day following, at
10:00 A.M., Local Time, or at such other hour as may be fixed by the President
or Board of Directors, for the election of a Board of Directors, and for the
transaction of such other business as may properly come before the meeting. The
annual meeting of shareholders may likewise be held at any date and time fixed
by the President or Board of Directors during a period of 30 days after the date
hereinabove specified. If there shall be a failure for whatever reason to hold
the annual meeting for a period of 30 days after the date hereinbefore
specified, a substitute annual meeting of shareholders may be called by any
person or persons entitled to call a special meeting of shareholders.
Section 3. CALL OF SPECIAL MEETINGS. Special meetings of shareholders for
any purpose or purposes may be called to be held at the date and time fixed in
the call by the President, the Chairman of the Board of Directors (if any), a
majority of the Board of Directors, or the holders of not less than 50% of the
shares entitled to vote at the meeting.
Section 4. NOTICE. Unless waived in the manner prescribed by law, written
notice stating the place, day and time of the meeting and, in case of a special
meeting or when otherwise required by the Maine Business Corporation Act, the
purpose or purposes for which the meeting is called, shall be delivered within
the time period prescribed in Section 604(1) of the Maine Business Corporation
Act, either personally or by mail, by or at the direction of the President,
Secretary, Clerk, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting, and to shareholders of
record not entitled to vote when required by the Maine Business Corporation
Act.
ARTICLE IV
QUORUM AND VOTING OF SHARES
Section 1. QUORUM. The holders of a majority of the shares entitled to
vote thereat shall constitute a quorum at a meeting of shareholders.
Section 2. VOTES. Except as otherwise provided by the Maine Business
Corporation Act, any corporate action shall be authorized by a majority
of the votes cast at the meeting by the holders of shares entitled to vote on
the subject matter. In elections
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of Directors, those candidates who receive the greatest number of votes cast at
the meeting by the holders of shares entitled to vote to elect Directors, even
though not receiving a majority of the votes cast, shall be deemed elected.
ARTICLE V
DIRECTORS
Section 1. NUMBER AND TERM. The number of Directors shall be fixed by
resolution of the shareholders or the Board of Directors within the limits
specified in the Articles of Incorporation. The Directors shall be elected at
the annual meeting of the shareholders, and each Director so elected shall hold
office for one year and until the next succeeding annual meeting and until his
successor shall have been elected and qualified, or until his earlier
resignation, removal from office, death or incapacity.
Section 2. VACANCIES, RESIGNATION AND REMOVAL. Any vacancy in the Board
of Directors, including newly created directorships created by an increase in
the number of Directors, may be filled by a majority of the remaining Directors
or by the sole remaining Director. Any Director may resign his office by
delivering a written resignation to the President or Clerk.
Section 3. POWERS. In the management and control of the business,
property and affairs of the corporation, the Board of Directors is hereby vested
with the power to authorize any and all corporate action, except when
shareholder action is specifically required by the Maine Business Corporation
Act, the Articles of Incorporation or these Bylaws, or except when otherwise
required by a written agreement pursuant to Section 618 of the Maine Business
Corporation Act.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. ANNUAL MEETING. The first meeting of each newly elected Board
of Directors, which shall be the Annual Meeting of the Board of Directors, shall
be held at such time and place as shall be fixed by the shareholders at their
meeting electing them, or if no such time and place are so fixed, said first
meeting shall be held at the place of and immediately following such meeting of
shareholders. In either event, no notice of such meeting shall be necessary.
Such meeting of the Board of Directors may also convene at such place and time
as shall be fixed by the consent in writing of all the Directors.
Section 2. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such time and place as shall from time to time be fixed by the
Board of Directors. Unless action is to be taken with respect to the Articles of
Incorporation or Bylaws, no notice of such regular meetings shall be necessary.
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Section 3. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors (if any), President,
Clerk, Secretary or any other person or persons authorized by Section 709(6) of
the Maine Business Corporation Act. The person or persons calling the special
meeting shall fix the time and place thereof.
Section 4. NOTICE; GENERALLY. Notice of each special meeting of the Board
of Directors shall be given to each Director who has not signed a waiver of
notice before or after the meeting. Notices of meetings of the Board of
Directors shall be given by the Clerk or Secretary or the person or persons
calling the meeting. Neither the business to be transacted nor the purpose of
the meeting need be specified in the notice unless the Maine Business
Corporation Act shall otherwise require. The giving of notice of a special
meeting of the Board of Directors by or at the direction of the person or
persons authorized to call the same shall constitute the call thereof.
Section 5. NOTICE; WHEN AND HOW GIVEN. Notice of meetings of the Board of
Directors may be given by any of the following methods within the time period
specified for that method:
(a) by depositing a copy of the notice in the United States mail, first
class postage prepaid, addressed to the Director at his usual or last known
business or residence address, at least 3 business days before the meeting;
(b) by delivering a copy of the notice to a recognized overnight delivery
or express service addressed to the Director at his usual or last known
business or residence address, including street or the like in the address,
at least 2 business days before the meeting;
(c) by delivering a copy of the notice in hand to the Director at least 24
hours before the meeting;
(d) by reading or causing to be read the notice over the telephone to the
Director at least 24 hours before the meeting;
(e) by sending a telegram containing the contents of the notice addressed
to the Director at his usual or last known business or residence address at
least 2 business days before the meeting;
(f) by transmitting the contents of the notice by telecopy, fax or any
other electronic means for the simultaneous or substantially simultaneous
transmission of data to a telephone or other number held out by the
Director as a number maintained by him for the receipt of the means of
transmission selected at least 24 hours before the meeting; or
(g) by sending a copy of the notice by any usual means of communication
addressed to the Director at his usual or last known business or residence
address,
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including street or the like in the address, at least 3 business days
before the meeting.
Notice to any Director actually received by him at least 24 hours before the
meeting shall be deemed sufficient, notwithstanding the method or means of
communication selected or the time when sent. For the purposes of this Section,
a "business day" is any day other than a Saturday, Sunday or legal holiday in
Maine.
ARTICLE VII
EXECUTIVE AND OTHER COMMITTEES
Section 1. ESTABLISHMENT; AUTHORITY. The Board of Directors, by a
resolution adopted by a majority of the Directors then in office, may designate
from among its members an executive committee and other committees, each
consisting of 2 or more Directors, and may delegate to such committee or
committees any part or all of the authority of the Board of Directors, except as
otherwise provided by Section 713 of the Maine Business Corporation Act relating
to certain amendments, mergers, certain sales, dissolutions, certain
distributions and the like.
Section 2. PROCEDURES. Vacancies in the membership of a committee shall
be filled by resolution adopted by a majority of the Directors then in office.
Committees shall keep minutes of their proceedings and report the same to the
Board of Directors. Members of a committee may be removed from office, with or
without cause, by resolution adopted by a majority of the Directors then in
office. Any person or persons authorized to call a meeting of the Board of
Directors, as well as the chairman of a committee or the committee itself, may
call a meeting of a committee. Except as hereinbefore otherwise provided, so far
as applicable, the provisions of these Bylaws relating to the calling, noticing
and conduct of meetings of the Board of Directors shall govern the calling,
noticing and conduct of meetings of committees.
ARTICLE VIII
OFFICERS
Section 1. NUMBER. The officers of the corporation shall be elected by
the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors may also elect one or more Vice Presidents (one of whom
may be designated by the Board of Directors as the Executive Vice President),
and one or more Assistant Secretaries and Assistant Treasurers. The corporation
shall also have a Clerk who shall not be an officer by reason of such position.
Section 2. WHEN CHOSEN; QUALIFICATIONS; TERM. The Board of Directors at
its initial meeting after the incorporation of the corporation and at each
Annual Meeting thereafter shall elect said officers, who shall hold office until
the next Annual Meeting of
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the Board of Directors and thereafter until their successors are chosen and have
qualified, or until their earlier death, resignation or removal from office;
provided that the Clerk shall not be elected annually and shall hold office
until his death or a change of Clerk is made pursuant to Section 304 of the
Maine Business Corporation Act. No officer must also be a Director.
Section 3. AUTHORITY AND DUTIES. Each officer shall have such authority
and perform such duties as are set forth in the Maine Business Corporation Act
or in these Bylaws, and as shall be determined from time to time by the Board of
Directors. Each officer shall also have such authority and perform such duties
as are usually incumbent upon his office except as the same may be limited from
time to time by the Board of Directors.
Section 4. COMPENSATION OF OFFICERS. The compensation of all officers of
the corporation shall be fixed by the Board of Directors.
Section 5. PRESIDENT. The President shall be the chief executive officer
of the corporation, shall preside at all meetings of the shareholders and of the
Board of Directors at which he is present, and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
Section 6. VICE PRESIDENT. The Vice President, if any, or if there shall
be more than one, the Vice Presidents in the order determined by the Board of
Directors, shall, in case of the absence or disability of the President, have
the authority and perform the duties of the President. If the Board of Directors
shall elect an Executive Vice President, it shall be presumed that he is the
Vice President determined by the Board of Directors first to act in case of the
absence or disability of the President.
Section 7. SECRETARY. The Secretary or the Clerk shall attend all
meetings of the Board of Directors and record all the proceedings of the Board
of Directors in a book kept for that purpose. The Secretary shall perform like
duties for the executive committee. In case of the absence or disability of the
Secretary, or if the corporation shall have no Secretary, all of the powers of
the Secretary may be exercised by the Clerk. The Clerk, Secretary or an
Assistant Secretary may certify all votes, resolutions and actions of the
shareholders and the Board of Directors and its committees.
Section 8. ASSISTANT SECRETARIES. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries, in the order determined by the Board
of Directors, shall, in case of the absence or disability of the Secretary, have
the authority and perform the duties of the Secretary.
Section 9. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities, and shall deposit all such funds in the name and
to the credit of the corporation in such depositories as may be designated by
the Board of Directors. The Treasurer shall keep or cause to be kept all books
and records of account and shall prepare or cause to be prepared all financial
statements required by Section 625 of the Maine
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Business Corporation Act, the Board of Directors or good accounting practices.
The Treasurer shall render to the Board of Directors, whenever required,
accounts of all corporate financial transactions and of the financial condition
of the corporation.
Section 10. ASSISTANT TREASURERS. Except as hereinbefore provided, the
Assistant Treasurer, or, if there shall be more than one, the Assistant
Treasurers, in the order determined by the Board of Directors, shall, in case of
the absence or disability of the Treasurer, have the authority and perform the
duties of the Treasurer.
ARTICLE IX
VOTING SHARES OF OTHER CORPORATIONS
Section 1. VOTING SHARES OF OTHER CORPORATIONS. The Chairman of the Board
of Directors, if any, the President, any Vice President, the Secretary, the
Treasurer and the Clerk of this corporation, in that order, shall have authority
to vote shares of other corporations standing in the name of this corporation,
and the President, Secretary or Clerk is authorized to execute and deliver in
the name and on behalf of this corporation proxies appointing any one or more of
the foregoing officers as the proxy agents of this corporation.
ARTICLE X
LOST STOCK CERTIFICATES
Section 1. LOST STOCK CERTIFICATES. The Board of Directors may authorize,
generally or in a specific case, the appropriate officers to execute and deliver
a replacement certificate for shares of this corporation in substitution for any
certificate for shares theretofore issued alleged to have been lost, destroyed
or stolen. Unless waived by the Board of Directors, the officers executing the
replacement certificate shall require the registered holder thereof to sign and
swear to an affidavit of loss and indemnity agreement in such form as shall be
prescribed by the Clerk. In addition, the Board of Directors may prescribe such
other terms and conditions precedent to the issuance of replacement
certificates, including without limitation the requirement of further
indemnities and surety bonds or insurance policies, as it deems appropriate to
protect the corporation and its officers and agents from any claim that may be
made against it or them with respect to any such certificate alleged to have
been lost, destroyed or stolen. The powers and duties of the Board of Directors
prescribed in this ARTICLE X may be delegated in whole or in part to any
registrar or transfer agent for this corporation.
ARTICLE XI
TRANSFERS AND REGISTRATION OF SHARES
Section 1. STOCK TRANSFER BOOKS. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate representing shares duly
endorsed or
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accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded in the original stock
transfer books of the corporation, provided that the provisions of Article XV of
these Bylaws respecting restrictions on transfers of shares have been complied
with. The original issue of shares of this corporation shall likewise be
recorded in the original stock transfer books of the corporation.
Section 2. REGISTERED SHAREHOLDERS. The corporation shall be entitled to
recognize the person or persons shown on its original stock transfer books as
the owner of shares as the exclusive and only owner thereof for all purposes,
including without limitation the right to (i) receive dividends and other
distributions; (ii) vote (except as otherwise provided in Section 613 of the
Maine Business Corporation Act); and (iii) examine lists, books, minutes or
other materials relating to the corporation. The corporation shall not be bound
to recognize any equitable or other claim to or interest in such shares on the
part of any other person not noted in its original stock transfer books, whether
or not it shall have express or other notice thereof.
ARTICLE XII
INDEMNIFICATION
Section 1. DEFINITIONS. For all purposes of this Article, (i) the term
"Officer" (when capitalized, but not otherwise) shall mean any person who is or
was a Director, the President, the Treasurer, the Secretary or the Clerk of
this corporation; (ii) the term "Employee" (when capitalized, but not otherwise)
shall mean any other person (whether or not a common law employee) who is or was
an officer, employee or agent of this corporation, or is or was serving at the
request of this corporation as a director, officer, trustee, partner, fiduciary,
employee or agent of another corporation, partnership, joint venture, trust,
pension or other employee benefit plan, or other enterprise; and (iii) the term
"Claimant" (when capitalized, but not otherwise) shall mean any Officer or
Employee seeking indemnification under this Article.
Section 2. INDEMNIFICATION. This corporation shall in all cases indemnify
any Officer, and shall have power exercisable by its Board of Directors as
provided in Section 5 hereof to indemnify any Employee, 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, by
reason of the fact that the Claimant is or was an Officer or Employee, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement to the extent actually and reasonably incurred by the Claimant in
connection with such action, suit or proceeding; provided that no
indemnification may be provided for any Claimant with respect to any matter as
to which the Claimant shall have been finally adjudicated:
A. Not to have acted honestly or in the reasonable belief that the
Claimant's action was in or not-opposed to the best interests of this
corporation or its
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shareholders or, in the case of a Claimant serving as a fiduciary of an
employee benefit plan or trust, in or not opposed to the best interests of
that plan or trust, or its participants or beneficiaries; or
B. With respect to any criminal action or proceeding, to have had
reasonable cause to believe that the Claimant's conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order or
conviction adverse to the Claimant, or by settlement or plea of NOLO CONTENDERE
or its equivalent, shall not of itself create a presumption that the Claimant
did not act honestly or in the reasonable belief that the Claimant's action was
in or not opposed to the best interests of this corporation or its shareholders
or, in the case of a person serving as a fiduciary of an employee benefit plan
or trust, in or not opposed to the best interests of that plan or trust or its
participants or beneficiaries and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the Claimant's conduct was
unlawful.
Section 3. DERIVATIVE ACTIONS. Notwithstanding any provision of Section 2
hereof, this corporation shall not indemnify any person with respect to any
claim, issue or matter asserted by or in the right of this corporation as to
which the Claimant is finally adjudicated to be liable to this corporation
unless the court in which the action, suit or proceeding was brought shall
determine that, in view of all the circumstances of the case, the Claimant is
fairly and reasonably entitled to indemnity for such amounts as the court shall
deem reasonable.
Section 4. WHEN DEFENSE SUCCESSFUL. Any provisions of Sections 2, 3 or 5
hereof to the contrary notwithstanding, to the extent that a Claimant has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 2 or 3, or in defense of any claim, issue or
matter therein, the Claimant shall be indemnified against expenses, including
attorneys' fees, actually and reasonably incurred in connection therewith.
Section 5. DETERMINATION IN SPECIFIC CASES. Any indemnification of an
Employee under Section 2 hereof, unless ordered by a court or required by
Section 4 hereof, shall be made by this corporation only as authorized in the
specific case upon a determination that indemnification of the Claimant is
proper in the circumstances and in the best interests of this corporation. Where
such a case specific determination is required, that determination shall be made
by the Board of Directors by a majority vote of a quorum consisting of Directors
who were not parties to the action, suit or proceeding, or if such a quorum is
not obtainable, or even if obtainable if so directed by a majority vote of a
quorum of disinterested Directors, by independent legal counsel in a written
opinion, or by the shareholders. Such a determination once made may not be
revoked and, upon the making of that determination, the Employee may enforce the
indemnification against this corporation by a separate action notwithstanding
any attempted or actual subsequent action by the Board of Directors.
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Section 6. ADVANCES OF EXPENSES. Expenses incurred by or on behalf of an
Employee in defending a civil, criminal, administrative or investigative action,
suit or proceeding may be authorized and paid by this corporation in advance of
the final disposition of that action, suit or proceeding upon a determination,
made in accordance with the procedure established in Section 5 hereof that,
based solely on the facts then known to those making the determination and
without further investigation, the Claimant satisfies the standard of conduct
prescribed by Section 2 hereof.
Expenses incurred by or on behalf of an Officer in defending a civil,
criminal, administrative or investigative action, suit or proceeding shall in
all cases be paid, as reasonably requested from time to time by the Officer, by
this corporation in advance of the final disposition of the action, suit or
proceeding upon receipt by this corporation, at the time of the initial advance,
of:
A. A written undertaking by or on behalf of the Officer to repay all
amounts advanced if the Officer is finally adjudicated:
(1) Not to have acted honestly or in the reasonable belief that his
action was in or not opposed to the best interests of this corporation
or its shareholders, or, in the case of a Claimant serving as a
fiduciary of an employee benefit plan or trust, in or not opposed to
the best interests of that plan or trust, or its participants or
beneficiaries;
(2) With respect to any criminal action or proceeding, to have had
reasonable cause to believe that his conduct was unlawful; or
(3) With respect to any claim, issue or matter asserted in any action,
suit or proceeding brought by or in the right of this corporation, to
be liable to this corporation, unless the court in which the action,
suit or proceeding was brought permits indemnification in accordance
with Section 3 hereof; and
B. A written affirmation by the Officer that he has met the standard of
conduct necessary for indemnification by this corporation as authorized in
this Article.
The undertaking required by paragraph A shall be an unlimited general
obligation of the Officer seeking the advance, but need not be secured and may
be accepted without reference to financial ability to make the repayment.
Section 7. INDEMNIFICATION NOT EXCLUSIVE. The indemnification and
entitlement to advances of expenses provided by this Article shall not be deemed
exclusive of any other rights to which a Claimant may be entitled under any
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in the Claimant's official capacity and as to action in another
capacity while holding an office with this corporation, and shall continue as to
a person who has ceased to be a director, officer,
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employee, agent, trustee, partner or fiduciary and shall inure to the benefit of
the heirs, personal representatives, executors and administrators of such a
person.
Section 8. ENFORCEABLE BY SEPARATE ACTION. A right to indemnification
required by this Article or established pursuant to the provisions of this
Article may be enforced by a separate action against this corporation, if an
order for indemnification has not been entered by a court in any action, suit or
proceeding in respect to which indemnification is sought.
Section 9. MISCELLANEOUS. For purposes of this Article, (i) references to
this "corporation" shall include, in addition to the surviving corporation or
new corporation, any participating corporation in a consolidation or merger;
(ii) this corporation shall be deemed to have requested a person to serve an
employee benefit plan whenever the performance by him of his duties to this
corporation also imposes duties on, or otherwise involves services by him to
the plan or participants or beneficiaries of the plan; and (iii) excise taxes
assessed on a person seeking indemnification with respect to an employee benefit
plan pursuant to applicable law shall be deemed "fines".
Section 10. AMENDMENT. Any amendment, modification or repeal of this
Article shall not deny, diminish or otherwise limit the rights of any Claimant
to indemnification or advances hereunder with respect to any action, suit or
proceeding arising out of any conduct, act or omission occurring or allegedly
occurring at any time prior to the date of such amendment, modification or
repeal.
ARTICLE XIII
FISCAL YEAR
Section 1. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
ARTICLE XIV
EXECUTION OF DOCUMENTS
Section 1. EXECUTION OF DOCUMENTS. Unless the Board of Directors,
Executive Committee or shareholders shall otherwise generally or in any specific
instance provide:
A. Any bill, note or negotiable instrument may be signed or endorsed in the
name and on behalf of this corporation in the ordinary course of business
by the President or Treasurer, acting singly;
B. The President or Treasurer, acting singly, shall in the ordinary course
of business have authority to sign or endorse in the name and on behalf of
this corporation all checks and other orders for the payment of money drawn
on any bank or trust company;
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C. The President or Treasurer, acting singly, shall have authority to make,
in the name and on behalf of this corporation, all contracts in the
ordinary course of business; and
D. Any other instrument, document, deed, bill of sale or other writing of
whatever nature to be executed in the ordinary course of business may be
executed in the name and on behalf of this corporation by the President or
Treasurer, acting singly, and either officer may seal, acknowledge and
deliver the same.
Section 2. ASSISTANTS. Vice Presidents and Assistant Treasurers shall not
have the authority provided in Section 1 unless granted by the Board of
Directors generally or in any specific instance.
ARTICLE XV
RESTRICTIONS ON TRANSFERS OF SHARES
Section 1. RESTRICTIONS ON SALES OF SHARES. If any shareholder of this
corporation, his personal representative, executor, administrator or any person,
firm or corporation claiming by, through or under him, including without
limitation any assignee for the benefit of creditors or trustee in bankruptcy or
receiver, however appointed, of a shareholder (said shareholder or any other
such person being hereinafter called the "transferring party") desires to sell
for a sum or sums of money all or any part of the shares of this corporation
owned by said shareholder or his legal representatives, and has received a bona
fide offer therefor, the transferring party shall first give written notice of
proposed sale to the Treasurer of this corporation, which notice shall state the
number of shares desired to be sold, the amount of the bona fide offer, and the
name of the person to whom he desires to sell the same, and for a period of
forty-five (45) days following receipt of such notice by the Treasurer, this
corporation or any person or persons specified by the Board of Directors (this
corporation or any such person or persons being hereinafter called the
"optionee") shall have an option to purchase such shares for the amount of the
bona fide offer so stated. The option may be exercised by the optionee by
depositing a written notice of election to exercise signed by the optionee in
the United States mails, first class postage prepaid, addressed to the
transferring party at his usual residence or business address, or by delivery of
said signed notice of election to exercise to the transferring party, in either
case within said forty-five (45) day period.
If the optionee does not exercise said option within said forty-five (45)
day period, the transferring party may sell and assign the number of shares
stated in the notice of proposed sale to the person named therein at the price
therein stated, provided said sale is made within seventy-five (75) days
following the Treasurer's receipt of the notice of proposed sale.
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The Board of Directors may by resolution waive the option herein granted
and authorize the sale of shares specified in their resolution to a person named
therein, whether or not the Treasurer has received a notice of proposed sale.
Section 2. RESTRICTIONS ON GIFTS AND OTHER TRANSFERS. If the transferring
party desires to make a transfer or other disposition (including without
limitation gifts, transfers for a consideration other than money, sales not
pursuant to bona fide offers, exchanges or dispositions by way of distribution
pursuant to the terms of any will or trust) of all or any part of the shares of
this corporation owned by said shareholder or his legal representatives, and
such proposed transfer or other disposition is not controlled by Section 1
hereof for any reason, the transferring party shall first give written notice of
proposed transfer to the Treasurer of this corporation, which notice shall state
the number of shares desired to be transferred or otherwise disposed of and the
name of the person to whom the same are to be transferred or disposed of, and
the manner of and reason for the transfer or disposition, and the consideration
(if any) to be received, and the optionee shall have the option to purchase such
shares at the fair value thereof. In the event the transferring party and the
optionee are unable to agree on the amount of the fair value of such shares
within forty-five (45) days after receipt of the notice of proposed transfer by
the Treasurer, the fair value shall be determined by three appraisers, one to be
chosen and compensated by the transferring party (such choice to be made and
announced in writing to the Treasurer within sixty (60) days after his receipt
of the notice of proposed transfer), one to be chosen by the President or Board
of Directors of this corporation (within 30 days after announcement of the
choice of the first appraiser) and compensated by the optionee, and the third to
be chosen by the two appraisers so chosen (within 15 days after the choice of
the second appraiser) and compensated equally by the transferring party and the
optionee. If the transferring party fails to choose an appraiser within the time
set forth in the preceding sentence, the fair value of the shares shall be
determined by two appraisers, the first to be chosen by the President or Board
of Directors of this corporation and the second to be disinterested and chosen
by the first; the compensation of both such appraisers shall be borne equally by
the transferring party and the optionee. In either such event, the decision of
said appraisers or a majority thereof as to fair value shall be final, binding
and conclusive upon all parties. In either such event, the appraisers in
determining fair value of the shares shall take into account appropriate control
premiums or minority discounts, and shall take into account the nonmarketability
of the shares, and shall take into account the going concern value of this
corporation's business, but shall not take into account the value of any
proceeds of any life insurance policies on the life of the transferring party
(or the shareholder represented by the transferring party) in excess of cash
surrender value. The optionee's option pursuant to this Section 2 shall not
expire until the expiration of a period of sixty (60) days after the
determination of fair value by agreement or by the appraisers or a majority of
them, or until thirty (30) days after any judgment with respect to appraisal
hereunder or fair value in an action commenced during or before said 60-day
period has become final, whichever is later.
The option may be exercised by the optionee by depositing a written notice
of election to exercise signed by the optionee in the United States mails, first
class postage prepaid, addressed to the transferring party at his usual
residence or business address, or
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by delivery of said signed notice of election to exercise to the transferring
party, in either case within the later of said periods.
If the optionee does not exercise said option within the later of said two
periods, the transferring party may transfer or dispose of the number of shares
stated in the notice of proposed transfer to the person named therein in the
manner and for the consideration (if any) stated therein, provided that the
transfer or other disposition is made within thirty (30) days following the
expiration of the later of said two periods. The Board of Directors may by
resolution waive the option herein granted and authorize the transfer or other
disposition of shares specified in their resolution to a person named therein,
whether or not the Treasurer has received a notice of proposed transfer.
Section 3. PROVISIONS BINDING. Notwithstanding any other provisions of
these Bylaws, no shares of this corporation shall be sold, transferred or
otherwise disposed of, nor transferred upon the original stock transfer books of
this corporation, nor shall any purported purchaser, transferee or assignee
thereof have any right to demand and require transfer of any shares of this
corporation attempted to be sold or transferred to him, nor have or exercise any
of the rights of a shareholder of this corporation, until after notice given in
accordance with Sections 1 or 2 of this Article and until after expiration of
the option of the optionee or express waiver thereof by the Board of Directors
as therein provided.
All certificates for shares issued by this corporation shall have the
following legend conspicuously printed, typewritten or stamped thereon:
"Transfers of the shares represented by this certificate are subject to and
may be made only upon compliance with the provisions of Article XV of the
Bylaws of this corporation relating to restrictions on sales or transfers
of shares."
Section 4. PLEDGES. Nothing in Sections 1 or 2 of this Article shall in
any way limit or restrict the right of the owner of shares of this corporation
to pledge the same as security; provided, however, that any pledgee of shares of
this corporation shall be subject to and shall comply with the provisions of
said Sections 1 or 2 prior to making any sale, transfer or other disposition of
the pledged shares to any person (including without limitation vesting
beneficial or record ownership in the pledgee) other than the pledgor or his
legal representatives.
ARTICLE XVI
AMENDMENTS TO BYLAWS
Section 1. AMENDMENTS. The Board of Directors shall have the power to
alter, amend or repeal these Bylaws, and to adopt new Bylaws, provided that the
notice, unless notice shall be duly waived, of any regular or special meeting at
which such action is to
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be taken shall either set out the text of the proposed new Bylaw or amendment or
Bylaw to be repealed, or shall summarize the changes to be effected by such
adoption, amendment or repeal, and provided further that the shareholders may
amend or repeal a Bylaw provision adopted by the Board of Directors and in such
case the Board of Directors may not, for two years thereafter, amend or readopt
the Bylaw provision thus amended or repealed by the shareholders.
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