Exhibit 3.1
BYLAWS
OF
ROGERS CORPORATION
Amended and restated effective February 21, 2007
ARTICLE I
SHAREHOLDERS
1. Annual Meeting. The annual meeting of shareholders shall be held on a date
and at a time to be determined by a majority of the Directors then in
office. The purposes for which the annual meeting is to be held, in
addition to those prescribed by law, by the Articles of Organization or by
these Bylaws, shall be for electing Directors and for such other purposes
as shall be specified in the notice for the meeting pursuant to Section 4
of this Article I, and only business within such purpose may be conducted
at the meeting. If no annual meeting is held in accordance with the
foregoing provisions or the time for an annual meeting is not fixed in
accordance with these Bylaws to be held within thirteen (13) months after
the last annual meeting was held, a special meeting may be held in lieu
thereof, and any action taken at such meeting shall have the same effect as
if taken at the annual meeting.
2. Special Meetings. Special meetings of shareholders may be called by the
President or by the Directors. A special meeting of shareholders shall be
called by the Secretary, or in the case of the death, absence, incapacity
or refusal of the Secretary, by any other officer, if the Secretary
receives written demands for a meeting describing the purposes for which
such meeting is to be held signed and dated by holders of at least forty
percent (40%) (or such lesser percentage as may be required by law) of all
votes entitled to be cast on any issue to be considered at the proposed
special meeting. Only business within the purpose or purposes described in
the meeting notice may be conducted at the special meeting of shareholders.
3. Place of Meetings. All meetings of shareholders shall be held at such place
in the United States as is fixed by the Directors or the President and
identified in the notice of the meeting.
4. Notice of Meetings. A written notice of every meeting of shareholders,
stating the place, date and time thereof, and describing the purpose or
purposes for which the meeting is to be held, shall be given by the
Secretary or Assistant Secretary (or any other officer who is authorized to
provide notice of such meeting) no fewer than seven (7) and no more than
sixty (60) days before the meeting date to each shareholder entitled to
vote thereat and to each shareholder, who by law, by the Articles of
Organization or by these Bylaws is entitled to such notice, by mailing it
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postage prepaid and addressed to such shareholder at the shareholder's
address as it appears upon the books of the corporation, or, if permitted
by the corporation, by electronic transmission directed to such shareholder
in such manner as the shareholder shall have specified to the corporation,
including by facsimile transmission, electronic mail or posting on an
electronic network. Notwithstanding the foregoing, in the case of any
special meeting called upon the written demands of shareholders, such
meeting shall be scheduled not less than sixty (60) days nor more than
ninety (90) days after the date on which the Secretary has received
sufficient demands to require that such meeting be called and written
notice thereof shall be given in accordance with the preceding sentence
within thirty (30) days after receipt of such demands. Whenever notice of a
meeting is required to be given to a shareholder under applicable law, the
Articles of Organization or these Bylaws, a written waiver thereof,
executed before or after the meeting by a shareholder, delivered to the
Secretary and filed with the records of the meeting, shall be deemed
equivalent to such notice. In addition, any shareholder who attends the
meeting (a) without objecting to holding the meeting or transacting
business at the meeting at the beginning of the meeting or promptly upon
the shareholder's arrival or who thereafter votes for or assents to action
taken at the meeting waives objection to lack of notice or defective notice
of the meeting or (b) without objecting to the consideration of a
particular matter when it is presented waives objection that the matter is
not within the purposes described in the notice for such meeting.
5. Advance Notice of Business. At any meeting of the shareholders, only such
business shall be conducted as shall have been brought before the meeting
(a) by or at the direction of the Board of Directors or (b) by any
shareholder of the corporation who is a shareholder of record at the time
of giving of the notice provided for in this Section, who shall be entitled
to vote at such meeting and who complies with the notice procedures set
forth in this Section. For business to be properly brought before a
shareholders meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the Secretary. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation in the case of an annual
meeting not less than one hundred fifty (150) days prior to the date such
meeting was held in the prior year, or in the case of any other meeting no
later than the close of business on the seventh day following the day on
which notice of the date of the meeting was mailed or public disclosure was
made, whichever is earlier. A shareholder's notice to the Secretary shall
set forth as to each matter the shareholder 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 names and addresses, as they appear on the corporation's
books, of the shareholder proposing such business and any other
shareholders known by such shareholder to be supporting such proposal, (c)
the class and number of shares of the corporation which are beneficially
owned by the shareholder and any other shareholders known by such
shareholder to be supporting such proposal, and (d) any material interest
of the shareholder in such business. Notwithstanding anything in these
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Bylaws to the contrary, no business shall be conducted at a shareholders
meeting except in accordance with the procedures set forth in this Section.
The Chairperson of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of the Bylaws, and if he or
she should so determine, he or she shall so declare to the meeting and any
such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section, a
shareholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder with respect to the matters set forth in
this Section. In the case of business proposed to be brought before an
annual meeting by a shareholder, the shareholder must comply with the
provisions of Rule 14a-8 under the Exchange Act, or any successor rule
thereto, and, pursuant to such rule, the shareholder must have had such
business included in the notice with respect to such meeting.
6. Quorum. Except as otherwise provided by law, the Articles of Organization
or these Bylaws, a majority of the votes entitled to be cast on a matter by
a voting group shall constitute a quorum with respect to that voting group
for action on that matter, but a lesser number may adjourn any meeting from
time to time without further notice until a quorum is secured. As used in
these Bylaws, a voting group includes all shares of one or more classes or
series that, under the Articles of Organization or the Massachusetts
Business Corporation Act (Chapter 156D of the Massachusetts General Laws),
as in effect from time to time (the "MBCA"), are entitled to vote and to be
counted together collectively on a matter at a meeting of shareholders.
7. Voting and Proxies. Each shareholder entitled to vote shall have one vote
for each share of stock entitled to vote held by such shareholder of record
according to the records of the corporation, unless otherwise provided by
the Articles of Organization. Shareholders may vote either in person or by
written proxy dated not more than eleven (11) months before the meeting
named therein. Proxies shall be filed with the Secretary or other officer
or agent authorized to tabulate votes at the meeting, or of any adjournment
thereof, before being voted. Except as otherwise limited therein, proxies
shall entitle the person or persons named therein to vote at any
adjournment of such meeting but shall not be valid after final adjournment
of such meeting. A proxy with respect to stock held in the name of two or
more persons shall be valid if executed by one of them if the person
signing appears to be acting on behalf of all of the co-owners, unless at
or prior to exercise of the proxy the corporation receives a specific
written notice to the contrary from any one of them. Subject to Section
7.24 of the MBCA and to any express limitation on the proxy's authority
appearing on the face of the appointment form, the corporation is entitled
to accept the proxy's vote or other action as that of the shareholder
making the appointment.
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8. Action at Meeting. With respect to each voting group, when a quorum is
present at any meeting with respect to a matter, a plurality of the votes
properly cast for election of a Director shall effect such election and,
upon any matter other than an election of a Director, votes properly cast
in the voting group favoring the matter exceeding the votes properly cast
in the voting group opposing the matter shall constitute favorable action
on the matter, except when a larger number of affirmative votes is required
by law, the Articles of Organization or these Bylaws or when the Board of
Directors requires a larger aggregate number of affirmative votes upon such
matter (to the extent permitted by law). No ballot shall be required for
such action unless requested by a shareholder present or represented at the
meeting and entitled to vote on such matter. Absent special circumstances,
the corporation, except in a fiduciary capacity, shall not directly or
indirectly vote any share of its stock.
9. Meetings by Remote Communications. Unless otherwise provided in the
Articles of Organization, if authorized by the Directors, subject to such
guidelines and procedures as the Board of Directors may adopt, shareholders
and proxyholders not physically present at a meeting of shareholders may,
by means of remote communications: (a) participate in a meeting of
shareholders; and (b) be deemed present in person and vote at a meeting of
shareholders, provided that: (1) the corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at
the meeting by means of remote communication is a shareholder or
proxyholder; (2) the corporation shall implement reasonable measures to
provide such shareholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the
shareholders, including an opportunity to read or hear the proceedings of
the meeting substantially concurrently with such proceedings; and (3) if
any shareholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action
shall be maintained by the corporation.
ARTICLE II
DIRECTORS
1. Powers. The business and affairs of the corporation shall be managed under
the direction of the Board of Directors, which may exercise all the powers
of the corporation except as otherwise provided by law, by the Articles of
Organization or by these Bylaws. In the event of a vacancy in the Board of
Directors, the remaining Directors, except as otherwise provided by law,
may exercise the powers of the full Board until the vacancy is filled.
2. Election. A Board of Directors of such number, not less than seven, nor
more than fifteen, as shall be fixed by the Directors, shall be elected by
the shareholders at the annual meeting.
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3. Vacancies. Any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from the enlargement of the Board of
Directors, shall be filled by a majority of the Directors then in office,
though less than a quorum.
4. Enlargement of the Board. The number of the Board of Directors may be
increased at any time by vote of a majority of the Directors then in
office.
5. Tenure. 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 shareholders and thereafter until their successors are
chosen and qualified. Any Director may resign by delivering his or her
written resignation to the Board of Directors, the Chairman of the Board of
Directors (if any) or the corporation. Such resignation shall be effective
upon receipt unless it is specified to be effective at some later time.
6. Removal. A Director may be removed from office (a) with or without cause by
vote of a majority of the shareholders or (b) for cause by vote of
two-thirds of the Directors then in office. A removal for cause shall state
the cause. A Director may be removed for cause only after reasonable notice
and opportunity to be heard before the body proposing to remove him or her.
7. Meetings. Regular meetings of the Directors may be held without call or
notice at such places and at such times as the Directors may from time to
time determine. Special meetings of the Directors may be held at any time
and place designated in the notice of meeting, when called by the Chairman
of the Board of Directors (if any), President, Secretary or two or more
Directors. Unless otherwise provided by law or the Articles of
Organization, members of the Board of Directors may participate in a
meeting of such Directors by means of a conference telephone or similar
communications equipment by means of which all Directors participating in
the meeting can hear each other at the same time, and participation by such
means shall constitute presence in person at such meeting.
8. Notice of Meetings. No notice need be given for a regular meeting of the
Board of Directors. Notice of all special meetings of the Directors shall
be given to each Director by or at the direction of the Chairman of the
Board of Directors (if any), President or the Secretary, or in case of the
death, absence, incapacity or refusal of the Secretary, by the officer or
one of the Directors calling the meeting. Notice shall be given to each
Director in person or by telephone, or by telegram, telecopy or other
electronic means sent to his or her business or home address (which may
include his or her telecopy number or electronic mail address) or such
other address as may be given in writing by the Director to the
corporation, at least two (2) days in advance of the meeting. Notice need
not be given to any Director if a written waiver of notice, executed by the
Director before or after the meeting, or delivered by means of electronic
transmission, is filed with the records of the meeting, or to any Director
who attends the meeting without objecting to holding the meeting or
transacting business at the meeting at the beginning of the meeting or
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promptly upon the Director's arrival or who thereafter votes for or assents
to action taken at the meeting. A notice or waiver of notice of a
Director's meeting need not specify the purposes of the meeting.
9. Quorum. At any meeting of the Directors, a majority of the Directors then
in office shall constitute a quorum, but a smaller number may make a
determination pursuant to Section 8.55 or Section 8.56 of the MBCA, or any
successor provision, that indemnification is permissible in a specific
proceeding. Less than a quorum may adjourn any meeting from time to time
without further notice.
10. Action at Meeting. At any meeting of the Directors at which a quorum is
present (or such smaller number as may make a determination pursuant to
Section 8.55 or 8.56 of the MBCA or any successor provision), the vote of a
majority of those present, unless a different vote is specified by law, by
the Articles of Organization, or by these Bylaws, shall be sufficient to
decide any matter.
11. Action by Consent. Any action by the Directors required or permitted to be
taken at any meeting of the Directors may be taken without a meeting if all
Directors consent thereto in writing or by means of electronic transmission
and such consent is filed with the records of the Directors' meetings. Such
consent shall be treated as a vote of the Directors for all purposes.
12. Committees. The Directors may elect from their number an executive or other
committees and may delegate thereto some or all of their powers except
those which by law, the Articles of Organization, or these Bylaws they are
prohibited from delegating. Except as the Directors may otherwise
determine, any such committee may make rules for the conduct of its
business, but unless otherwise provided by the Directors or in such rules,
its business shall be conducted as nearly as may be in the same manner as
is provided by these Bylaws for the Directors. If power to bind the
corporation is delegated to such a committee, such election, removal,
delegation and/or determination shall be by a majority of the Directors
then in office.
13. Issuance of Stock. The Directors are authorized, at any time, to provide
for the issuance of unissued capital stock from time to time authorized
under the Articles of Organization of the corporation.
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ARTICLE III
OFFICERS
1. Enumeration. The officers of the corporation shall consist of a President,
a Treasurer, a Secretary, and such other officers, including, as appointed
by the Directors, a Chairman of the Board of Directors, a Chief Executive
Officer, a Chief Operating Officer, one or more Vice Presidents, Assistant
Treasurers and Assistant Secretaries, as the Directors may from time to
time appoint. Any such officer that is appointed by the Board of Directors
shall be a "Board Appointed Officer."
2. Appointment. The President, Treasurer and Secretary shall be appointed by
the Directors at their first meeting following the annual meeting of
shareholders, provided that the Directors may fill vacancies in such
offices at any time. Other officers may be appointed by the Directors at
such meeting or at any other meeting. The President and such other Board
Appointed Officers as may be authorized by the Board of Directors may
appoint one or more other officers or assistant officers.
3. Qualification. The President need not be a Director but, if any is
appointed, the Chairman of the Board of Directors shall be a Director.
Other officers may be Directors but need not be. No officer need be a
shareholder. Any two or more offices may be held by the same person.
4. Tenure. Except as otherwise provided by law, by the Articles of
Organization or by these Bylaws, the President, Treasurer and Secretary
shall each hold office until the first meeting of the Directors following
the annual meeting of shareholders and thereafter until his or her
successor is chosen and qualified; and all other officers shall hold office
until the first meeting of the Directors following the annual meeting of
shareholders, unless a shorter term is specified in the vote choosing or
appointing them. Any officer may resign by delivering a written resignation
to the corporation, and such resignation shall be effective upon receipt
unless it is specified to be effective at a later time.
5. Removal. The Directors may remove any appointed officer with or without
cause.
6. Chief Executive Officer, Chairman of the Board of Directors, President and
Vice Presidents. The Chief Executive Officer or, if there is no Chief
Executive Officer, the President of the corporation shall, subject to the
direction of the Directors, have general supervision and control of its
business. Unless otherwise provided by the Directors, the Chief Executive
Officer shall preside, when present, at all meetings of shareholders and
(unless a Chairman of the Board of Directors has been appointed and is
present) of the Directors. If a Chairman of the Board of Directors is
appointed he or she shall preside at all meetings of the Board of Directors
at which he or she is present. Any Vice President shall have such powers
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(a) as the Directors may from time to time designate, or (b) in the absence
of specific delegation by the Directors, then as the Chief Executive
Officer (if any) or the President may from time to time designate.
7. Treasurer and Assistant Treasurers. Except as the Directors shall otherwise
determine, the Treasurer shall have general charge of the financial affairs
of the corporation and shall cause to be kept accurate books of account. He
or she shall have custody of all funds, securities, and valuable documents
of the corporation, except as the Directors may otherwise provide. Any
Assistant Treasurer shall have such powers (a) as the Directors may from
time to time designate, or (b) in the absence of specific delegation by the
Directors, then as the Chief Executive Officer (if any) or the President
may from time to time designate.
8. Secretary and Assistant Secretaries. Except as provided in the following
sentence, the Secretary shall keep a record of the meetings of Directors
and shareholders. In the absence of the Secretary from any meeting of the
Directors or the shareholders, an Assistant Secretary, if one be appointed,
otherwise a Temporary Secretary designated by the person presiding at the
meeting, shall perform the duties of the Secretary. Any Assistant Secretary
shall have such powers (a) as the Directors may from time to time
designate, or (b) in the absence of specific delegation by the Directors,
then as the Chief Executive Officer (if any) or the President may from time
to time designate.
9. Other Officers. Other officers of the corporation, if any, shall have such
powers, duties and titles as may be designated from time to time by the
Board of Directors or by the Chief Executive Officer (if any) or the
President.
10. Other Powers and Duties. Each officer shall, subject to these Bylaws, have
in addition to the duties and powers specifically set forth in these
Bylaws, such duties and powers as are customarily incident to his or her
office and such duties and powers (a) as the Directors may from time to
time designate, or (b) in the absence of specific delegation by the
Directors, then as the Chief Executive Officer (if any) or the President
may from time to time designate.
11. Employment Contracts. The corporation may enter into employment contracts
with officers authorized by the Board of Directors extending beyond the
terms of office of the Directors. An employment contract shall be valid
despite any inconsistent provision of these Bylaws relating to terms of
officers and removal of officers with or without cause but shall not affect
the authority of the Board of Directors to remove officers. Any removal or
failure to reappoint an officer shall be without prejudice to the officer's
contract rights, if any.
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ARTICLE IV
CAPITAL STOCK
1. Certificates of Stock. The Directors may authorize the issue without
certificates of some or all of the shares of any or all of the
corporation's classes or series of stock. Except to the extent the Board of
Directors has determined to issue shares without certificates, each
shareholder shall be entitled to a certificate of the capital stock of the
corporation stating the number, the class and the designation of the
series, if any, of the shares the certificate represents, in such form as
may, in conformity with applicable law, be prescribed from time to time by
the Directors. The certificate shall be signed by (a) the Chairman of the
Board of Directors (if any), President or a Vice President, and (b) the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary.
In case any officer who has signed or whose facsimile signature has been
placed on such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the corporation with the same
effect as if he or she were such officer at the time of its issue.
2. Transfers. Subject to the restrictions, if any, stated or noted on the
stock certificates, shares of stock may be transferred on the books of the
corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
corporation or its transfer agent may reasonably require. The corporation
may conclusively presume that the record holder of a stock certificate as
shown on its books is the absolute owner of the shares represented thereby
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
Bylaws, and that the shareholder's record address is the shareholder's
correct address. It shall be the duty of each shareholder to notify the
corporation of his or her post office address.
3. Record Date. The Directors may fix in advance a time which shall be not
more than seventy (70) days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend or the making of
any distribution of shareholders, or the last day on which the consent or
dissent of shareholders may be effectively expressed for any purpose, and
which in the case of such a dividend or distribution shall be at least ten
days after the meeting at which such dividend or distribution is declared,
as the record date for determining the shareholders having the right to
notice of and to vote at such meeting, and any adjournment thereof, or the
right to receive such dividend or distribution or the right to give such
consent or dissent. In such case only shareholders of record on such record
date shall have such right, notwithstanding any transfer of stock on the
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books of the corporation after the record date. Without fixing such record
date the Directors may for any of such purposes except the payment of a
dividend or the making of a distribution to shareholders close the transfer
books for all or any part of such period. A determination of shareholders
entitled to notice of or to vote at a shareholders meeting is effective for
any adjournment of the meeting unless the Board of Directors fixes a new
record date, which it shall do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
4. Replacement of Certificates. In case of the alleged loss or destruction or
the mutilation of a certificate of stock, a duplicate certificate may be
issued in place thereof, upon such terms as the corporation may prescribe.
ARTICLE V
INDEMNIFICATION
1. Definitions. In this Article V the following words shall have the following
meanings unless the context requires otherwise:
"Corporation" includes any domestic or foreign predecessor entity of the
corporation in a merger.
"Director" or "officer" means, as applicable, an individual who is or was a
Director or an officer, respectively, of the corporation or who, while a
Director or officer of the corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee,
or agent of another domestic or foreign corporation, partnership, joint
venture, trust, employee benefit plan, or other entity. A Director or
officer is considered to be serving an employee benefit plan at the
corporation's request if his or her duties to the corporation also impose
duties on, or otherwise involve services by, him or her to the plan or to
participants in or beneficiaries of the plan. "Officer" means a person
appointed an officer in the manner set forth in Article III, Section 2 of
these Bylaws and "Director" or "officer" includes, unless the context
requires otherwise, the estate or personal representative of a Director or
officer.
"Disinterested Director" means a Director who, at the time of a vote or
selection referred to in Section 4 of this Article V, is not (i) a party to
the proceeding, or (ii) an individual having a familial, financial,
professional, or employment relationship with the Director whose
indemnification or advance for expenses is the subject of the decision
being made, which relationship would, in the circumstances, reasonably be
expected to exert an influence on the Director's judgment when voting on
the decision being made.
"Expenses" shall include counsel fees and disbursements.
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"Liability" means the obligation to pay a judgment, settlement, penalty,
fine including an excise tax assessed with respect to an employee benefit
plan, or reasonable expenses incurred with respect to a proceeding.
"Party" means an individual who was, is, or is threatened to be made, a
defendant or respondent in a proceeding.
"Proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative and whether formal or informal.
2. Indemnification of Directors and Officers.
(a) Except as otherwise provided in this Article V, the corporation
shall indemnify to the fullest extent permitted by law an individual who is
a party to a proceeding because he or she is a Director or officer against
liability incurred in the proceeding if: (1) (i) he or she conducted
himself or herself in good faith; and (ii) he or she reasonably believed
that his or her conduct was in the best interests of the corporation or
that his or her conduct was at least not opposed to the best interests of
the corporation; and (iii) in the case of any criminal proceeding, he or
she had no reasonable cause to believe his or her conduct was unlawful; or
(2) he or she engaged in conduct for which he or she shall not be liable
under (a) Article 6 of the Articles of Organization as in effect on August
26, 2004, or (b) a provision of the Articles of Organization authorized by
Section 2.02(b)(4) of the MBCA or any successor provision to such Section
2.02(b)(4).
(b) A Director's or officer's conduct with respect to an employee
benefit plan for a purpose he or she reasonably believed to be in the
interests of the participants in, and the beneficiaries of, the plan is
conduct that satisfies the requirement that his or her conduct was at least
not opposed to the best interests of the corporation.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent, is not, of
itself, determinative that the Director or officer did not meet the
relevant standard of conduct described in this Section 2.
(d) Unless ordered by a court, the corporation may not indemnify a
Director or officer under Section 8.54(a)(3) of the MBCA or any successor
provision to such Section 8.54(a)(3) if his or her conduct did not satisfy
the standards set forth in subsection (a) or subsection (b) above.
3. Advance for Expenses. The corporation shall, before final disposition of a
proceeding, advance funds to pay for or promptly reimburse all of the
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reasonable expenses incurred by a Director or officer who is a party to a
proceeding because he or she is a Director or officer if he or she delivers
to the corporation:
(a) a written affirmation of his or her good faith belief that he or
she has met the relevant standard of conduct described in Section 2 of this
Article V or that the proceeding involves conduct for which liability has
been eliminated under (i) Article 6 of the Articles of Organization as in
effect on August 26, 2004, or (ii) a provision of the Articles of
Organization as authorized by Section 2.02(b)(4) of the MBCA or any
successor provision to such Section 2.02(b)(4); and
(b) his or her written undertaking to repay any funds advanced if he
or she is not wholly successful, on the merits or otherwise, in the defense
of such proceeding and it is ultimately determined pursuant to Section 4 of
this Article V or by a court of competent jurisdiction that he or she has
not met the relevant standard of conduct described in Section 2 of this
Article V. The foregoing undertaking must be an unlimited general
obligation of the Director or officer but need not be secured and shall be
accepted without reference to the financial ability of the Director or
officer to make repayment.
4. Determination of Indemnification. The determination of whether a Director
has met the relevant standard of conduct set forth in Section 2 of this
Article V shall be made:
(a) if there are two or more Disinterested Directors, by the Board of
Directors by a majority vote of all the Disinterested Directors, a majority
of whom shall for such purpose constitute a quorum, or by a majority of the
members of a committee of two or more Disinterested Directors appointed by
vote of the Board of Directors;
(b) by special legal counsel (1) selected in the manner prescribed in
Section 4 (a) of this Article V; or (2) if there are fewer than two
Disinterested Directors, selected by the Board of Directors, in which
selection Directors who do not qualify as Disinterested Directors may
participate; or
(c) by the shareholders, but shares owned by or voted under the
control of a Director who at the time does not qualify as a Disinterested
Director may not be voted on the determination.
5. Insurance. The corporation may purchase and maintain insurance on behalf of
an individual who is a Director or officer of the corporation, or who,
while a Director or officer of the corporation, serves at the corporation's
request as a director, officer, partner, trustee, employee, or agent of
another domestic or foreign corporation, partnership, joint venture, trust,
employee benefit plan, or other entity, against liability asserted against
or incurred by him or her in that capacity or arising from his or her
status as a Director or officer, whether or not the corporation would have
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power to indemnify or advance expenses to him or her against the same
liability under this Article V.
6. Application of this Article.
(a) The corporation shall not be obligated to indemnify or advance
expenses to a Director or officer of a predecessor of the corporation,
pertaining to conduct with respect to the predecessor, unless otherwise
specifically provided through a vote of the Board of Directors, an
agreement or otherwise.
(b) This Article V shall not limit the corporation's power to (1) pay
or reimburse expenses incurred by a Director or an officer in connection
with his or her appearance as a witness in a proceeding at a time when he
or she is not a party to the proceeding or (2) indemnify, advance expenses
to or provide or maintain insurance on behalf of an employee or agent.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article V shall not be considered exclusive of
any other rights to which any Director or officer seeking indemnification
or advancement of expenses may be entitled under any agreement, statute,
vote of shareholders or otherwise.
(d) Each person who is or becomes a Director or officer shall be
deemed to have served or to have continued to serve in such capacity in
reliance upon the indemnity provided for in this Article V. All rights to
indemnification under this Article V shall be deemed to be provided by a
contract between the corporation and the person who serves as a Director or
officer of the corporation at any time while these Bylaws and the relevant
provisions of the MBCA are in effect and any repeal or modification thereof
shall not affect any rights or obligations then existing.
(e) If the laws of The Commonwealth of Massachusetts are hereafter
amended from time to time or are succeeded by new provisions of applicable
law to increase the scope of permitted indemnification, indemnification
hereunder shall be provided to the fullest extent permitted or required by
any such amendment or successor provision.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
1. Fiscal Year. The fiscal year of the corporation shall begin on the Monday
nearest January 1 and end on the Sunday nearest December 31.
2. Seal. The seal of the corporation shall, subject to alteration by the
Directors, bear its name, the word "Massachusetts", and the year of its
incorporation.
3. 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, a Vice
President or the Treasurer except as the Directors may generally or in
particular cases otherwise determine.
4. Voting Upon Securities of Other Corporations. Unless otherwise ordered by
the Board of Directors, the Chief Executive Officer (if any), the
President, any Vice President, or the Treasurer, acting singly, shall have
full power and authority on behalf of the corporation to attend any
meetings of security holders of any corporation in which this corporation
may hold securities, and to vote or give any consent on behalf of the
corporation as such security holder at any such meeting or otherwise, and
in connection therewith he or she shall possess and exercise any and all
rights and powers incident to the ownership of securities which, as the
owner thereof, this corporation might possess and exercise, and he or she
may delegate such powers of the corporation to a proxy or proxies. The
Board of Directors may confer like powers upon any other person or persons
from time to time, and may revoke any such power so granted at its
pleasure.
5. Corporate Records. The original, or attested copies, of the Articles of
Organization, Bylaws and records of all meetings of the incorporators and
shareholders, and the stock and transfer records, which shall contain the
names of all shareholders and the record address and the amount of stock
held by each, shall be kept in Massachusetts at the principal office of the
corporation, or at an office of its transfer agent or of the Secretary.
Said copies and records need not all be kept in the same office. They shall
be available at all reasonable times to the inspection of any shareholder
for any proper purpose but not to secure a list of shareholders for the
purpose of selling said list or copies thereof or of using the same for a
purpose other than in the interest of the applicant, as a shareholder,
relative to the affairs of the corporation.
6. Articles of Organization. All references in these Bylaws to the Articles of
Organization shall be deemed to refer to the Articles of Organization of
the corporation, as restated and/or amended and in effect from time to
time.
7. Amendments. These Bylaws may at any time be amended by vote of the
shareholders, provided that notice of the substance of the proposed
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amendment is stated in the notice of the meeting. In addition they may be
amended by vote of a majority of the Directors then in office, except with
respect to removal of Directors, the election of committees by Directors
and delegation of powers thereto, or amendment of these Bylaws, and except
with respect to any provision which by law, the Articles of Organization as
heretofore or from time to time amended, or other provisions of these
Bylaws, requires action by the shareholders. Not later than the time of
giving notice of the meeting of shareholders next following the making,
amending or repealing by the Directors of any Bylaw provision, notice
thereof stating the substance of such change shall be given to all
shareholders entitled to vote on amending the Bylaws. Any Bylaw provision
adopted by the Directors may be amended or repealed by the shareholders.
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