AMENDED
AND RESTATED BY-LAWS
of
AWARE,
INC.
Amended
and Restated as of December 6, 2007.
ARTICLE
I
Shareholders
Section
1.1
Annual
Meetings
.
The
annual meeting of Shareholders shall be held on the third Wednesday in May
in
each year (or if that be a legal holiday in the place where the meeting is
to be
held, on the next succeeding full business day) at 10:00 a.m. unless a different
day or hour is fixed by the Board of Directors or the Chief Executive Officer
or
the President and stated in the notice of the meeting. The purposes for which
the annual meeting is to be held, in addition to those prescribed by law,
the
Articles of Organization, or these By-Laws, may be specified by the Board
of
Directors or Chief Executive Officer or the President. If no annual meeting
is
held in accordance with the foregoing provisions, a special meeting may be
held
in lieu thereof, and any action taken at such meeting shall have the same
effect
as if taken at the annual meeting.
Notwithstanding
any other provision in
these By-Laws, the Board of Directors may change the date, time and place
of any
annual or special meeting of the Shareholders (other than a special meeting
called upon the written application of Shareholders (a “Meeting Requested by
Shareholders”)) prior to the time for such meeting, including, without
limitation, by postponing or deferring the date of any such annual or special
meeting (other than a Meeting Requested by Shareholders) previously called
or by
canceling any special meeting previously called (other than a Meeting Requested
by Shareholders).
Section
1.2
Special
Meetings
.
Subject
to the rights of the holders of any class or series of preferred shares of
the
Corporation, special meetings of Shareholders entitled to vote may be called
by
the President or by the Chief Executive Officer or by the Board of Directors.
So
long as the Corporation does not have a class of voting shares registered
under
the Securities Exchange Act of 1934, as amended (including any successor
statute, the “Exchange Act”), upon written application of one or more
Shareholders who hold at least ten percent (10%) in interest of the shares
entitled to vote at the meeting, special meetings of the Shareholders entitled
to vote 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 Corporation
does have a class of voting shares registered under the Exchange Act, upon
written application of one or more Shareholders who hold at least thirty-five
percent (35%) in interest of the shares entitled to vote at the meeting,
special
meetings of the Shareholders entitled to vote shall be called by the Secretary,
or in the case of the death, absence, incapacity or refusal of the Secretary,
by
any other officer. The call for the meeting shall state the place, date,
hour
and purposes of the meeting. Business transacted at any special meeting of
the
Shareholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting.
Section
1.3
Place of
Meetings
.
All
meetings of Shareholders shall be held at the principal office of the
Corporation unless a different place within the United States is fixed by
the
Board of Directors or the Chief Executive Officer or the President and stated
in
the notice of the meeting.
In
addition, the Board of Directors may
authorize that any Shareholder or proxy not physically present at a meeting
may
participate in the meeting by means of remote communication and, if so
authorized, such Shareholder shall be deemed present in person and entitled
to
vote. In the event that any Shareholder or proxy is permitted to participate
in
a meeting by means of remote electronic communication: (i) the Corporation
shall
implement reasonable measures to verify that each person present and permitted
to vote at a meeting by means of remote communication is a Shareholder or
proxy;
(ii) the Corporation shall implement reasonable measures to provide such
Shareholders and proxies a reasonable opportunity to participate in the meeting
and vote; and (iii) if a Shareholder or proxy votes or takes other action
by
means of remote communication at the meeting, a record of the vote or other
action shall be maintained by the Corporation.
Section
1.4
Notice of
Meeting
.
A
written notice of the place, date and hour of all meetings of Shareholders
stating the purposes of the meeting shall be given at least seven (7) days,
and
not more than sixty (60) days, before the meeting by the Secretary, or in
case
of the death, absence, incapacity or refusal of the Secretary, by any other
officer or by a person designated either by the Secretary, by the person
or
persons calling the meeting or by the Board of Directors, to each Shareholder
entitled to vote thereat and to each Shareholder who by law, the Articles
of
Organization or these By-Laws is entitled to such notice, by leaving such
notice
with him or at his residence or usual place of business, or by mailing it
postage prepaid and addressed to him at his address as it appears upon the
books
of the Corporation, or by electronic means. If notice is given by mail, such
notice shall be deemed given when dispatched. If notice is not given by mail
and
is given by leaving such notice at the Shareholder’s residence or usual place of
business, it shall be deemed given when so left. If notice is given by
electronic means, it must be directed to an electronic mail address furnished
to
the Corporation by the Shareholder for the purpose of receiving notice. All
notices shall state the place, date and hour of the meeting, and if it is
a
special meeting, the purposes for which the meeting is called. No notice
need be
given to any Shareholder if a written waiver of notice, executed before or
after
the meeting by the Shareholder or his authorized attorney, is filed with
the
records of the meeting. A waiver of notice of any meeting need not specify
the
purposes of such meeting. Every Shareholder who is present at a meeting (whether
in person or by proxy) shall be deemed to have waived notice thereof. In
the
case of a special meeting of Shareholders requested by Shareholder(s) pursuant
to Article I,
Section
1.2
of these By-Laws, on payment by those Shareholder(s) to the
Corporation of the costs of notice of the meeting as provided in this
Section
1.4,
the Secretary shall send the written notice to each Shareholder
entitled to vote thereat and to each Shareholder who by law, the Articles
of
Organization or these By-Laws is entitled to such notice.
Section
1.5
Notice of
Shareholder Business at a Meeting of the Shareholders
. The following
provisions of this Section 1.5 shall apply to the conduct of business at
any
meeting of the Shareholders. As used in this Section 1.5,the term
annual meeting shall include a special meeting in lieu of an annual
meeting.
(a)
At
any meeting of the
Shareholders, only such business shall be conducted as shall have been brought
before the meeting (i) pursuant to the Corporation’s notice of meeting, (ii) by
or at the direction of the Board of Directors or (iii) by any Shareholder
of the
Corporation who is a Shareholder of record at the time of giving of the notice
provided for in paragraph (b) of this Section 1.5, who is entitled to vote
at
such meeting and who complies with the notice procedures set forth in paragraph
(b) of this
Section
1.5
.
(b)
For business to be properly brought before any meeting of the Shareholders
by a
Shareholder pursuant to clause (iii) of paragraph (a) of this Section 1.5,
the
Shareholder must have given timely notice thereof in writing to the Secretary
of
the Corporation. To be timely, a Shareholder’s notice must be
delivered to or mailed to and received at the principal executive offices
of the
Corporation (i) in the case of an annual meeting, not less than sixty (60)
days
nor more than ninety (90) days prior to the date specified in
Section
1.1
above for such annual meeting, regardless of any postponements,
deferrals or adjournments of that meeting to a later date; provided, however,
that if a special meeting in lieu of an annual meeting of Shareholders is
to be
held on a date prior to the date specified in
Section
1.1
above, and if less than seventy (70) days’ notice or prior public
disclosure of the date of such special meeting in lieu of an annual meeting
is
given or made, notice by the Shareholder to be timely must be so delivered
or
received not later than the close of business on the tenth (10th) day following
the earlier of the day on which notice of the date of such special meeting
in
lieu of an annual meeting was mailed or the day on which public disclosure
was
made of the date of such special meeting in lieu of an annual meeting; and
(ii)
in the case of a special meeting (other than a special meeting in lieu of
an
annual meeting), not later than the tenth (10th) day following the earlier
of
the day on which notice of the date of the scheduled meeting was mailed or
the
day on which public disclosure was made of the date of the scheduled
meeting. A Shareholder’s notice to the Secretary shall set forth as
to each matter the Shareholder proposes to bring before the meeting (w) a
brief
description of the business desired to be brought before the meeting and
the
reasons for conducting such business at the meeting, (x) the name and address,
as they appear on the Corporation’s books, of the Shareholder proposing such
business, the name and address of the beneficial owner, if any, on whose
behalf
the proposal is made, and the name and address of any other Shareholders
or
beneficial owners known by such Shareholder to be supporting such proposal,
(y)
the class and number of shares of the Corporation which are owned beneficially
and of record by such Shareholder of record, by the beneficial owner, if
any, on
whose behalf the proposal is made and by any other Shareholders or beneficial
owners known by such Shareholder to be supporting such proposal, and (z)
any
material interest of such Shareholder of record and/or of the beneficial
owner,
if any, on whose behalf the proposal is made, in such proposed business and
any
material interest of any other Shareholders or beneficial owners known by
such
Shareholder to be supporting such proposal in such proposed business, to
the
extent known by such Shareholder.
(c)
Notwithstanding anything in these By-Laws to the contrary, no business shall
be
conducted at a meeting except in accordance with the procedures set forth
in
this
Section
1.5.
The person presiding at the meeting shall, if the facts
warrant, determine that business was not properly brought before the meeting
and
in accordance with the procedures prescribed by these By-Laws, and if he
should
so determine, he shall so declare at the meeting and any such business not
properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this
Section
1.5
, a Shareholder shall also comply with all applicable requirements
of
the Exchange Act and the rules and regulations thereunder with respect to
the
matters set forth in this
Section
1.5.
This
Section
1.5
shall not prevent the consideration and approval or disapproval at
the meeting of reports of officers, Directors and committees of the Board
of
Directors, but, in connection with such reports, no new business shall be
acted
upon at such meeting unless properly brought before the meeting as provided
in
these By-Laws.
Section
1.6
Quorum
.
The
holders of a majority in interest of all shares issued, outstanding and entitled
to vote at a meeting, present in person or represented by proxy, shall
constitute a quorum. The vote of a majority in interest of any quorum shall
be
sufficient to transact business unless otherwise provided by law, the Articles
of Organization, or these By-Laws. If two or more classes of shares are
outstanding and entitled to vote as separate classes, then in the case of
each
such class, a quorum shall consist of the holders of a majority in interest
of
the shares of that class issued, outstanding and entitled to vote, present
in
person or represented by proxy.
Section
1.7
Voting
.
Shareholders entitled to vote shall have one vote for each share entitled
to
vote held by them of record according to the records of the Corporation,
and a
proportionate vote for each fractional share so held, unless otherwise provided
or required by law, the Articles of Organization or these By-Laws. The vote
for
each share held in the name of two or more persons shall be cast in accordance
with the decision of any one of them unless at or prior to the time the vote
is
cast the Corporation receives a specific written notice to the contrary from
any
one of them (which notice to the contrary need not be in writing if given
in
person at the meeting at which the vote is to be cast), in which case the
vote
for each share held in the name of such persons shall be cast in accordance
with
the decision of a majority of such persons. The Corporation shall not
directly or indirectly vote any of its own shares. The Corporation may, however,
vote any shares, including its own shares, held by it, directly or indirectly,
in a fiduciary capacity; provided, however, that no provision of these By-Laws
shall be construed to limit the voting rights and powers relating to shares
held
pursuant to a plan which is intended to be an “employee shares ownership plan”
as defined in the Internal Revenue Code, as now or hereafter in
effect.
Section
1.8
Action at
Meeting
.
When a
quorum is present, a majority of the shares present or represented and voting
on
a matter, (or if there are two or more classes or series of shares entitled
to
vote as separate classes or series, then in the case of each such class or
series, a majority of the shares of that class or series present or represented
and voting on a matter,) shall decide any matter to be voted on by the
Shareholders, except where a larger vote is required by law, the Articles
of
Organization or these By-Laws. Any election to any office by Shareholders
shall
be determined by a plurality of the votes cast by the Shareholders entitled
to
vote at the election. No ballot shall be required for such election unless
requested by a Shareholder present or represented at the meeting and entitled
to
vote in the election.
Section
1.9
Electronic
Action
.
Any
vote, consent, waiver, proxy appointment or other action by a Shareholder
shall
be considered given in writing, dated and signed if it consists of an electronic
transmission that sets forth or is delivered with information from which
the
Corporation can determine: (a) the date the transmission was sent; and (b)
that
the sender of the transmission was the relevant Shareholder, proxy, or agent,
or
a person authorized to act on any of their behalf. The date on which
the electronic transmission was sent shall be considered the date on which
it
was signed. The electronic transmission shall be considered received by the
Corporation if it has been sent to any address specified by the Corporation
for
the purpose or, if no address has been specified, to the principal office
of the
Corporation, addressed to the Secretary or other officer or agent having
custody
of the records of proceedings of Shareholders.
Section
1.10
Proxies
.
Any
Shareholder entitled to vote may vote either in person or by proxy appointed
by
written appointment form signed by the Shareholder. An appointment form shall
be
valid for the period stated therein, or, if no period is stated, for a period
of
eleven (11) months from the date the Shareholder signed the form, or (if
undated) the date of its receipt by the Secretary or other agent of the
Corporation authorized to tabulate votes. Appointment forms shall be filed
with
the Secretary of the meeting, or of any adjournment thereof, before being
voted.
Except as otherwise limited therein, appointment forms appointing proxies
for a
particular meeting shall entitle the persons named therein to vote at any
adjournment of such meeting but shall not be valid after final adjournment
of
such meeting. An appointment of a proxy is revocable by the Shareholder unless
the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest sufficient in law to support an
irrevocable power; such appointment is revoked when the interest with which
it
is coupled is extinguished. An appointment form with respect to shares held
in
the name of two or more persons shall be valid if executed by one of them
unless
at or prior to exercise of the appointment the Corporation receives a specific
written notice to the contrary from any one of them. In the event an attempt
is
made to cast conflicting votes, in person or by exercise of an appointment
form,
by the several persons in whose names the shares stand, the vote or votes
to
which those persons are entitled shall be cast as directed by a majority
of
those holding such shares and present in person or by proxy at such meeting,
but
no votes shall be cast for such shares if a majority does not
agree. An appointment form purporting to be executed by or on behalf
of a Shareholder shall be deemed valid unless successfully challenged at
or
prior to its exercise, and the burden of proving invalidity shall rest on
the
challenger. An appointment form need not be sealed or attested.
Section
1.11
Vacancies
.
The
Shareholders may, at a special meeting called for the purpose, choose a
successor to a Director or other officer whose office may have become vacant
by
reason of his death, resignation, retirement, disqualification, removal from
office, or otherwise, and the person so chosen shall displace any successor
thereto chosen by the Board of Directors pursuant to Article II, Section
2.7
hereof, and such successor chosen by the Shareholders shall hold office for
the
unexpired term in respect of which such vacancy occurred and until his successor
is chosen and qualified, or until his earlier death, resignation or
removal.
Section
1.12
Adjournments
.
Any
meeting of Shareholders may be adjourned to any other date, time or place
at
which a meeting of Shareholders may be held under these By-Laws by a majority
of
the votes properly cast upon the question, whether or not a quorum is present,
or, if no Shareholder is present, by any officer entitled to preside at or
to
act as Secretary of such meeting, and the meeting may be held as adjourned
without further notice. It shall not be necessary to notify any Shareholder
of
any adjournment if the date, time or place of the adjourned meeting is announced
at the meeting at which adjournment is taken, unless (i) the meeting of
Shareholders is adjourned to a date more than one hundred and twenty (120)
days
after the date fixed for the original meeting, or (ii) after the adjournment
a
new record date is fixed for the adjourned meeting. Any business which could
have been transacted at any meeting of the Shareholders as originally called
may
be transacted at any adjournment thereof.
Section
1.13
Conduct of
Business
.
The
Chief Executive Officer or his designee, or, if the office of Chief Executive
Officer shall be vacant, then a person appointed by the Board of Directors,
shall preside at any meeting of Shareholders as the chairman of the
meeting. In addition to his powers pursuant to
Section
1.5(c)
, the person presiding at any meeting of Shareholders shall
determine the order of business and the procedures at the meeting, including
such regulation of the manner of voting and the conduct of discussion as
seem to
him in order.
ARTICLE
II
Directors
Section
2.1
Powers
.
The
business of the Corporation shall be managed by a Board of Directors who
shall
have and may exercise all the powers of the Corporation except as otherwise
reserved to the Shareholders by law, the Articles of Organization, or these
By-Laws. 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. Without limiting the generality of
the
foregoing, the Board of Directors shall have the power, unless otherwise
provided by law, to purchase and to lease, pledge, mortgage and sell all
property of the Corporation (including to issue or sell the shares of the
Corporation) and to make such contracts and agreements as they deem
advantageous, to fix the price to be paid for or in connection with any property
or rights purchased, sold, or otherwise dealt with by the Corporation, to
borrow
money, issue bonds, notes and other obligations of the Corporation, and to
secure payment thereof by mortgage or pledge of all or any part of the property
of the Corporation. The Board of Directors may determine the compensation
to be
paid to Directors for their service as Directors. The Board of Directors,
or
such officer or committee as the Board of Directors may designate, may determine
the compensation and duties, in addition to those prescribed by these By-Laws,
of all officers, agents and employees of the Corporation.
Section
2.2
Number, Election,
and Term of Office
.
The
Board of Directors shall be composed of such number as shall be fixed from
time
to time by a vote of a majority of the entire Board of Directors; provided,
however, that no decrease in the number comprising the entire Board of Directors
made pursuant to this
Section
2.2
shall shorten the term of any incumbent Director. The Board of
Directors shall be divided into three (3) classes, as nearly equal in number
as
possible. The Directors need not be Shareholders. At each annual meeting
of
Shareholders, the successors to the class of Directors whose term expires
at
that meeting shall be elected to hold office for a term continuing until
the
annual meeting held in the third year following the year of their election
and
until their successors are duly elected and qualified or until their earlier
resignation, death or removal; provided, than in the event of failure to
hold
such an annual meeting or to hold such election at such meeting, the election
of
Directors may be held at any special meeting of the Shareholders called for
that
purpose. Directors, except those appointed by the Board of Directors
to fill vacancies, shall be elected by a plurality vote of the Shareholders,
voting by ballot either in person or by proxy. As used in these By-Laws,
the
expression “entire Board of Directors” means the number of Directors in office
at a particular time.
Section
2.3
Chairman of the
Board and Vice-Chairman of the Board
.
The
Board of Directors may appoint a Chairman of the Board and may designate
the
Chairman of the Board as Chief Executive Officer. If the Board of Directors
appoints a Chairman of the Board, he shall perform such duties and possess
such
powers as are designated to him by the Board of Directors. If the Board of
Directors appoints a Vice-Chairman of the Board, he shall, in the absence
or
disability of the Chairman of the Board, perform the duties and exercise
the
powers of the Chairman of the Board and shall perform such other duties and
possess such other powers as may from time to time be vested in him by the
Board
of Directors. Unless the Board of Directors otherwise provides, the Chairman
of
the Board shall preside, when present, at all meetings of the Board of Directors
and of any committee of the Board of Directors to which he shall have been
elected.
Section
2.4
Enlargement of
the
Board
.
The
number of Directors may be increased at any meeting of the Shareholders or
by
the Directors by a vote of a majority of the Directors then in
office.
Section
2.5
Resignation
.
Any
Director may resign by delivering his written resignation to the Corporation
at
its principal office or to the Chief Executive Officer or President or
Secretary, except that no Director shall resign by delivering such resignation
to himself. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other
event.
Section
2.6
Removal
.
Any
Director may be removed from office with or without cause by vote of the
holders
of a majority of the shares entitled to vote in the election of Directors,
provided that any Director elected by the holders of a particular class of
shares may be removed from office only by vote of the holders of a majority
of
the shares of such class. In addition, a Director may be removed from office
for
cause by vote of a majority of the Directors then in office. A Director may
be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section
2.7
Vacancies
.
If the
office of any Director, or any other office, becomes vacant by reason of
death,
resignation, retirement, disqualification, removal from office, or otherwise,
including by enlargement of the Board of Directors, the Board of Directors
or
remaining Directors if less than a quorum may, by vote of a majority of the
Directors present at the meeting at which such election or appointment is
made,
choose a successor or successors, who shall hold office for the unexpired
term
in respect of which such vacancy occurred and until his successor is elected
or
appointed and qualified, or until his earlier death, resignation or
removal.
Section
2.8
Regular
Meetings
.
Regular
meetings of the Board of Directors may be held without call or notice at
such
places and at such times as the Board of Directors may from time to time
determine, provided that any Director who is absent when such times and places
are fixed shall be given notice of the fixing of such times and places. A
regular meeting of the Board of Directors may be held without call or notice
immediately following and at the same place as the annual meeting of the
Shareholders or the special meeting held in lieu thereof.
Section
2.9
Special
Meetings
.
Special
meetings of the Board of Directors may be held at any time and place designated
in a call of the meeting and may be called by the Chairman of the Board,
Chief
Executive Officer, President, Treasurer, two or more Directors, or one Director
whenever he is the sole Director in office.
Section
2.10
Notice of Special
Meetings
.
Notice
of each special meeting of the Board of Directors shall be given to each
Director by the Secretary, or if there be no Secretary, by the Clerk or
Assistant Clerk, or in the case of the death, absence, incapacity or refusal
of
such person, 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,
facsimile transmission or electronic mail at least forty-eight (48) hours
in
advance of the meeting addressed to him at his usual or last known business
or
residence address. Notice may also be given by mail provided it is mailed
at
least ninety-six (96) hours in advance of the meeting. Notice need not be
given
to any Director if a written waiver of notice, executed by him before or
after
the meeting, is filed with the records of the meeting, or to any Director
who
attends the meeting without protesting prior thereto or at its commencement
the
lack of notice to him. Neither notice of a meeting or waiver of a notice
need
specify the purposes of the meeting.
Section
2.11
Quorum
.
At any
meeting of the Board of Directors, a majority of the Directors then in office
shall constitute a quorum. In the event that one or more directors shall
be
disqualified to vote at any meeting, then the required quorum shall be reduced
by one for each such director so disqualified; provided, however, that in
no
case shall less than one-third (1/3) of the total number of Directors constitute
a quorum. Less than a quorum may adjourn any meeting from time to time without
further notice.
Section
2.12
Action at
Meetings
.
At any
meeting of the Board of Directors at which a quorum is present, the votes
of a
majority of those present shall be sufficient to take any action, except
in any
case where a larger vote is required by law, the Articles of Organization,
or
these By-Laws.
Section
2.13
Action by
Consent
.
Any
action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if all Directors then in office
consent
to the action in writing signed by each Director, or by electronic transmission
delivered to the Corporation to the address specified by the Corporation
for the
purpose or, if no address is specified, to the principal office of the
Corporation addressed to the Secretary; provided, that such written consents
and/or electronic transmissions shall be included in the minutes or filed
with
the records of the meetings of the Board of Directors reflecting the action
taken. Action taken by written consent is effective when the last Director
signs
or delivers the consent, unless the consent specifies a different effective
date. Consents given in accordance with this provision shall be treated as
a
vote of the Directors for all purposes.
Section
2.14
Meetings by
Telephone Conference Calls
.
Any
member of the Board of Directors or any committee thereof may participate
in a
meeting of the Board of Directors or such committee by means of conference
telephone (or similar communications equipment) by means of which all persons
participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at such meeting.
In addition, any member of the Board of Directors not physically present
at a
Shareholder meeting may participate in such meeting by means of conference
telephone (or similar communications equipment) by means of which all persons
present in person at the meeting and the Director attending via conference
call
can hear each other at the same time, and participation by such means shall
constitute presence in person at the Shareholder meeting.
Section
2.15
Committees
.
The
Board of Directors may, by vote of a majority of the whole Board then in
office,
elect from their number an executive committee, an audit committee, a
compensation committee, and other committees, and may by like vote delegate
thereto some or all of their powers except those which by law, the Articles
of
Organization, or these By-Laws they are prohibited from delegating. Each
committee shall consist of two or more directors. 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. 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. Each such committee shall keep minutes and make such reports as the
Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any such committee may make rules for
the
conduct of its business, but unless otherwise provided by the Board of Directors
or in such rules, its business shall be conducted as nearly as is possible
in
the same manner as is provided by these By-Laws for the Directors.
Section
2.16
Compensation
of
Directors
.
Directors may be paid such compensation for their services and such
reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any Director
from serving the Corporation or any of its parent or subsidiary Corporations
in
any other capacity and receiving compensation therefor.
Section
2.17
Director Conflict
of Interest
.
A
conflict of interest transaction is a transaction with the Corporation in
which
a Director (an “Interested Director”) has a material direct or indirect
interest. Without limiting the interests that may create conflict of
interest transactions, a Director has an indirect interest in a transaction
if
another entity in which he has a material financial interest or in which
he is a
general partner (a “Related Party”) is a party to the transaction, or if another
entity of which he is a Director, officer, or trustee or in which he holds
another position is a party to the transaction and the transaction is or
should
be considered by the Board of Directors of the Corporation.
A
conflict of interest transaction is not voidable by the Corporation solely
because of the Director’s interest in the transaction if: (a) the material facts
of the transaction and the Director’s interest were disclosed or known to the
Board or a committee of the Board, and the Board or committee authorized,
approved or ratified the transaction by the vote of a majority of the Directors
on the Board or committee who have no direct or indirect interest in the
transaction, but a transaction may not be authorized, approved, or ratified
by a
single Director; or (b) the material facts of the transaction and the Director’s
interest were disclosed or known to the Shareholders entitled to vote and
they
authorized, approved, or ratified the transaction by the vote of a majority
of
the shares entitled to vote; or (c) the transaction was fair to the
Corporation. In the case of (b) above, shares owned by or voted under
the control of any Interested Director or Related Party shall not be entitled
to
vote. The provisions of this Section 2.17 supplement, and are in
addition to, any provisions set forth in the Articles of Organization related
to
the subject matter of this Section 2.17.
ARTICLE
III
Officers
Section
3.1
Enumeration
.
The
officers of the Corporation shall consist of a President, a Treasurer, a
Secretary, and such other officers, if any, as the Board of Directors may
in its
discretion elect or appoint, including, without limitation, a Clerk and one
or
more Vice Presidents, Assistant Treasurers and Assistant
Secretaries.
Section
3.2
Election
.
The
President, the Treasurer and the Secretary shall be elected annually by the
Board of Directors at its first meeting following the annual meeting of
Shareholders or special meeting in lieu thereof. Other officers, if any,
may be
elected or appointed by the Board of Directors at such meeting or at any
other
time.
Section
3.3
Qualification
.
None of
the officers of the Corporation need be a resident of Massachusetts if the
Corporation has a Resident Agent appointed for the purpose of service of
process. Any officer may be a Director, Shareholder, or both. No officer
need be
a Director or a Shareholder. Any two or more offices may be held by the same
person. Any officer may be required by the Board of Directors to give bond
for
the faithful performance of his duties to the Corporation in such amount
and
with such sureties as the Board of Directors may determine. The premiums
for
such bonds may be paid by the Corporation.
Section
3.4
Tenure
.
Except
as otherwise provided by law, the Articles of Organization, or these By-Laws,
the President, the Treasurer and the Secretary each shall hold office until
the
first meeting of the Board of Directors following the annual meeting of
Shareholders or special meeting in lieu thereof and until their respective
successors are chosen and qualified, unless a different period shall have
been
specified by the terms of his election or appointment, or in each case until
his
earlier death, resignation or removal. Except as otherwise provided by law,
the
Articles of Organization, or these By-Laws, all other officers each shall
hold
office until the first meeting of the Board of Directors following the annual
meeting of Shareholders and until their respective successors are chosen
and
qualified, unless a different period shall have been specified by the terms
of
his election or appointment, or in each case until his earlier death,
resignation or removal.
Section
3.5
Resignation
.
Any
officer may resign by delivering his written resignation to the Corporation at
its principal office or to the Chief Executive Officer or President or
Secretary, except that no officer shall resign by delivering such resignation
to
himself. Such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some other
event.
Section
3.6
Removal
.
The
Board of Directors may remove any officer from office with or without cause
by
vote of a majority of the Directors then in office. However, an officer may
be
removed for cause only after reasonable notice and opportunity to be heard
by
the Board of Directors prior to action thereon. Except as the Board of Directors
may otherwise determine, no officer who resigns or is removed shall have
any
right to any compensation as an officer for any period following his resignation
or removal, or any right to damages on account of such removal, unless such
compensation is expressly provided for in a duly authorized written agreement
with the Corporation; provided, however, that the foregoing provision shall
not
prevent an officer from obtaining damages from breach of any contract of
employment legally binding upon the Corporation.
Section
3.7
Vacancies
.
The
Board of Directors may fill any vacancy occurring in any office for any reason
and may, in its discretion, leave unfilled for such period as it may determine
any offices other than those of the President, the Treasurer and the Secretary.
Each such successor shall hold office for the unexpired term of his predecessor
and until his successor is elected or appointed and qualified, or until his
earlier death, resignation or removal.
Section
3.8
Chief Executive
Officer
.
The
Chief Executive Officer shall, subject to the direction of the Board of
Directors, have general supervision and control of the Corporation’s business.
Unless otherwise provided by the Board of Directors, when present, the Chief
Executive Officer shall preside at all meetings of the
Shareholders.
Section
3.9
President and
Vice
Presidents
.
The
President shall serve as the chief operating officer of the Corporation and
shall have such powers and shall perform such other duties as the Board of
Directors may from time to time designate. Unless the Board of Directors
has
designated the Chairman of the Board as Chief Executive Officer or has
designated another person as Chief Executive Officer, the President shall
also
serve as the Chief Executive Officer of the Corporation. Any Vice President
shall have such powers and shall perform such duties as the Board of Directors
or the President may from time to time designate, and shall report to the
President or Chief Executive Officer. In the event of the absence, inability
or
refusal to act of the President, the Vice President (or if there shall be
more
than one, the Vice Presidents in the order determined by the Board of Directors)
shall perform the duties of the President and when so performing shall have
all
the powers of and be subject to all the restrictions upon the President.
The
Board of Directors may assign to any Vice President the title of Executive
Vice
President, Senior Vice President or any other title selected by the Board
of
Directors.
Section
3.10
Treasurer and
Assistant Treasurers
.
The
Treasurer shall, subject to the direction of the President or the Chief
Executive Officer and the Board of Directors, have general charge of the
financial affairs of the Corporation and shall cause to be kept accurate
books
of account. He shall have custody of all funds, securities, and valuable
documents of the Corporation, except as the President or Chief Executive
Officer
may otherwise provide. Any Assistant Treasurer shall have such powers as
the
Board of Directors, the President or the Chief Executive Officer or the
Treasurer may from time to time designate, and shall report to the
Treasurer.
Section
3.11
Secretary and
Assistant Secretaries
.
The
Secretary shall keep a record of the meetings of the Shareholders and of
the
Board of Directors. Unless a transfer agent is appointed, the Secretary shall
keep or cause to be kept in Massachusetts, at the principal office of the
Corporation or at his office, the shares and transfer records of the Corporation
in which are contained the name and record address of and the number of shares
held by each Shareholder. Any Assistant Secretary shall have such powers
as the
Board of Directors, the President or the Chief Executive Officer or the
Secretary may from time to time designate. In the absence of the Secretary
from
any meeting of the Shareholders or any meeting of the Board of Directors,
an
Assistant Secretary if one be elected or appointed, otherwise a temporary
Secretary designated by the person presiding at the meeting, shall perform
the
duties of the Secretary.
Section
3.12
Other Powers
and
Duties
.
In
addition to the duties and powers specifically set forth in these By-Laws
and
subject to these By-Laws, each officer shall have such duties and powers
as are
customarily incident to his office and such duties and powers as the Board
of
Directors or the Chief Executive Officer or the President may from time to
time
designate.
Section
3.13
Compensation
.
Officers of the Corporation shall be entitled to such salaries, compensation
or
reimbursement as shall be fixed or allowed from time to time by the Board
of
Directors.
ARTICLE
IV
Shares
Section
4.1
Issue of
Authorized and Unissued Shares
.
Any
unissued shares from time to time authorized under the Articles of Organization
may be issued by vote of the Board of Directors. The Board of
Directors may determine the consideration for which shares are to be issued
and
the manner of allocating such consideration between capital and surplus,
and,
before the Corporation issues shares, shall determine that the consideration
received or to be received is adequate.
Section
4.2
Share
Certificates
.
Each
Shareholder shall be entitled to a certificate in a form selected by the
Board
of Directors stating the number and the class and the designation of the
series,
if any, of the shares held by him, except that the Board of Directors may
provide by resolution that some or all of any or all classes and series of
shares of the Corporation shall be uncertificated shares, to the extent
permitted by law. Such certificate shall be signed by (i) the Chief Executive
Officer or President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, either by manual or facsimile signatures, and shall
bear
the corporate seal or its facsimile. In case any officer who has signed or
whose
facsimile signature has been placed on such certificate shall have ceased
to be
such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the time of
its
issue.
Every
share certificate subject to any restriction on transfer pursuant to the
Articles of Organization, these By-Laws, or any agreement to which the
Corporation is a party shall have noted conspicuously on the face or back
of the
certificate either the full text of the restriction or a statement of the
existence of such restriction and a statement that the Corporation will furnish
a copy thereof to the holder of such certificate upon written request and
without charge. Every certificate issued when the Corporation is authorized
to
issue more than one class or series of shares shall set forth on its face
or
back either the full text of the preferences, voting powers, qualifications
and
special and relative rights of the shares of each class and series, if any,
authorized to be issued as set forth in the Articles of Organization or a
statement of the existence of such preferences, powers, qualifications and
special and relative rights of the shares of each class and series, if any,
and
a statement that the Corporation will furnish a copy thereof to the holder
of
such certificate upon written request and without charge.
Section
4.3
Transfer of
Shares
.
Subject
to any restrictions imposed by the Articles of Organization, these By-Laws,
or
any agreement to which the Corporation is a party, and unless otherwise provided
by the Board of Directors, shares shall be transferred on the books of the
Corporation only, if such shares are certificated, by the surrender to the
Corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment of such shares or
by a
written power of attorney to sell, assign or transfer such shares, properly
executed, with necessary transfer stamps affixed, or upon proper instructions
from the holder of uncertificated shares, in each case with such proof of
authority or the authenticity of signature as the Corporation or its transfer
agent may reasonably require.
Except
as
may be otherwise required by law, the Corporation shall be entitled to treat
the
record holder of shares as shown on its books as the owner of such shares
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
shares, until the shares have been transferred on the books of the Corporation
in accordance with the requirements of these By-Laws. In anticipation of
Shareholder's meetings, the declaration or payment of dividends, or the
attachment to shares of any subscription or other rights, the transfer books
of
the shares of the Corporation may be closed for such period as the Board
of
Directors may from time to time determine. It shall be the duty of each
Shareholder to notify the Corporation of his post office address and of his
taxpayer identification number and his failure to do so shall constitute
a
waiver by him of the right to receive any dividend or distribution or any
notices given to the Shareholders during the period that such failure
continues.
Section
4.4
Record
Date
.
The
Board of Directors may fix in advance a time of not more than seventy (70)
days,
nor less than seven (7) days, before: (i) the date of any meeting of the
Shareholders; or (ii) the date for the payment of any dividend or the making
of
any distribution to Shareholders; or (iii) the last day on which the consent
or
dissent of Shareholders may be effectively expressed for any purpose, as
the
record date for determining the Shareholders having the right to notice of
and
to vote at such meeting or any adjournment thereof, or the right to receive
such
dividend or distribution, or the right to give such consent or dissent. If
a
record date is set, only Shareholders of record on such record date shall
have
such right, notwithstanding any transfer of shares on the books of the
Corporation after the record date. Without fixing such record date the Board
of
Directors may for any of such purposes close the transfer books for all or
any
part of such period.
If
no
record date is fixed, then the record date for determining Shareholders having
the right to notice of or to vote at a meeting of Shareholders shall be at
the
close of business on the day next preceding the day on which notice is given,
or, if no notice is sent, at the close of business on the day before the
day on
which the meeting is held. The record date for determining Shareholders for
any
other purpose shall be at the close of business on the day on which the Board
of
Directors acts with respect thereto. If any meeting of Shareholders is adjourned
to a date more than one hundred and twenty (120) days after the date fixed
for
the original meeting, the Board of Directors shall fix a new record date.
If any
meeting of Shareholders is adjourned to a date equal to or less than one
hundred
and twenty (120) days after the date fixed for the original meeting, the
determination of Shareholders of record entitled to notice of or to vote
at the
original meeting shall apply to any adjournment of such meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section
4.5
Replacement of
Certificates
.
Except
as otherwise provided by law, the Board of Directors may determine the
conditions upon which a new share certificate may be issued in the place
of any
certificate alleged to have been lost, mutilated, or destroyed. They may,
in
their discretion, require the owner of a lost, mutilated, or destroyed
certificate, or his legal representative, to give a bond, sufficient in their
opinion, with or without surety, to indemnify the Corporation against any
loss
or claim which may arise by reason of the issue of a certificate in place
of
such lost, mutilated, or destroyed share certificate.
Section
4.6
Transfer Agent
and
Registrar
.
The
Board of Directors may appoint a transfer agent or a registrar or both for
its
shares of any class or series thereof and require all certificates for such
shares to bear the signature or facsimile thereof of any such transfer agent
or
registrar.
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.1
Fiscal
Year
.
Except
as from time to time otherwise determined by the Board of Directors, the
fiscal
year of the Corporation shall be the twelve months ending December 31 of
each
year.
Section
5.2
Seal
.
The
seal of the Corporation shall, subject to alteration by the Board of Directors,
bear its name, the word "Massachusetts" and the year of its
incorporation.
Section
5.3
Execution of
Instruments
.
All
deeds, leases, transfers, contracts, bonds, notes, releases, checks, drafts
and
other obligations authorized to be executed by an officer of the Corporation
in
its behalf shall be signed by the Chief Executive Officer or President or
Treasurer except as the Board of Directors may generally or in particular
cases
otherwise determine.
Section
5.4
Voting of
Securities
.
Except
as the Board of Directors may otherwise designate, the Chief Executive Officer
or President or Treasurer may on behalf of the Corporation vote or take any
action with respect to shares or beneficial interest of any other corporation,
or of any association, trust or firm, of which any securities are held by
this
Corporation, and may appoint any person or persons to act as proxy or attorney
in fact for the Corporation (with or without power of substitution) at any
meeting thereof.
Section
5.5
Corporate
Records
.
The
original, or attested copies, of the Articles of Organization, By-Laws and
records of all meetings of the incorporators and Shareholders, and the share
and
transfer records, which shall contain the names of all Shareholders and the
record address and the number of shares 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 or of its Resident Agent. Such 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 or other information for the purpose
of
selling such list or information 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.
Section
5.6
Articles of
Organization
.
All
references in these By-Laws to the Articles of Organization shall be construed
to mean the Articles of Organization of the Corporation, as from time to
time
amended or restated.
Section
5.7
Amendments
.
These
By-Laws at any time may be amended by vote of the Shareholders, provided
that
notice of the substance of the proposed amendment is stated in the notice
of the
meeting, or may be amended by vote of a majority of the Directors then in
office, except that no amendment may be made by the Directors which alters
the
provisions of these By-Laws with respect to removal of Directors, election
of
committees by Directors and delegation of powers thereto, or amendment of
these
By-Laws. Not later than the time of giving notice of the meeting of Shareholders
next following the making, amendment or repealing by the Directors of any
of
these By-Laws, notice thereof stating the substance of such change shall
be
given to all Shareholders entitled to vote on amending these
By-Laws.
Section
5.8
Indemnification
of
Officers and Directors
.
The
Corporation shall, to the fullest extent permitted by law, indemnify each
of its
Director
s
and officers (including persons who serve at its request as Directors, officers,
or trustees of another organization in which it has any interest as a
Shareholder, creditor or otherwise or in any capacity with respect to any
employee benefit plan), against all liabilities and expenses, including amounts
paid in satisfaction of judgments, in settlement or as fines and penalties,
and
counsel fees, reasonably incurred by him in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which he may be involved or with which he may be threatened, while in
office
or thereafter, by reason of his being or having been such a Director or officer,
if: (a) he conducted himself in good faith and in the reasonable belief that
his
conduct was in the best interests of the Corporation or at least not opposed
to
the best interests of the Corporation, and, in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful;
or
(b) he engaged in conduct for which he shall not be liable under the Articles
of
Organization; provided, however, that the Corporation shall not indemnify
or
advance expenses to any person in connection with any action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall be provided although the person to be indemnified is
not
currently a Director, officer, partner, trustee, employee or agent of the
Corporation or such other organization or no longer serves with respect to
any
such employee benefit plan.
Notwithstanding
the foregoing, no indemnification shall be provided unless a determination
has
been made that indemnification is permitted by law for a specific
proceeding:
(a)
if
there are
two (2) or more disinterested Directors, by the Board of Directors by a majority
vote of all the disinterested Directors, a majority of whom for such purpose
shall constitute a quorum, or by a majority of the members of a committee
of two
(2) or more disinterested Directors appointed by vote; or
(b)
by
special
legal counsel selected either (i) in the manner prescribed in clause (a)
above,
or (ii) if there are fewer than two (2) disinterested Directors, by the Board
of
Directors, in which case Directors who do not qualify as disinterested Directors
may participate in the selection; or
(c)
by
the
holders of a majority of the shares of the Corporation’s outstanding shares at
the time entitled to vote for Directors, voting as a single voting group,
exclusive of any shares owned by or voted under the control of any interested
Director or officer.
The
right
of indemnification hereby provided shall not be exclusive of or affect any
other
rights to which any Director or officer may be entitled; nothing contained
in
this section shall affect any rights to indemnification to which employees,
independent contractors or agents, other than Directors and officers, may
be
entitled by contract or otherwise under law. As used in this paragraph, the
terms “Director” and “officer” include their respective heirs, executors and
administrators, and an “interested” Director or officer is one against whom in
such capacity the proceedings in question or another proceeding on the same
or
similar grounds is then pending.
Any
repeal or modification of the foregoing provisions of this section shall
not
adversely affect any right or protection of a Director or officer of the
Corporation with respect to any acts or omissions of such Director or officer
occurring prior to such repeal or modification. The right of indemnification
herein provided may be incorporated into individual indemnification agreements
between the Corporation and any Director or officer.
Section
5.9
Advance for
Expenses
.
The
Corporation shall, before final disposition of a proceeding and to the fullest
extent permitted by law, advance funds to pay for or reimburse the reasonable
expenses incurred by a Director, officer or other person who is a party to
a
proceeding for which he would be or may be entitled to indemnification as
set
forth in these By-Laws, provided that he delivers to the Corporation a written
affirmation of his good faith belief that he has met the relevant standard
of
conduct described in these By-Laws, and his written undertaking to repay
any
funds advanced if he is not entitled to mandatory indemnification under
applicable law and it is ultimately determined that he has not met the relevant
standard for indemnification set forth in these By-Laws.
Section
5.10
Evidence of
Authority
.
A
certificate by the Secretary or any Assistant or temporary Secretary as to
any
matter relative to the Articles of Organization, By-Laws, records of the
proceedings of the incorporators, Shareholders, Board of Directors, any
committee of the Board of Directors, or share and transfer records or as
to any
action taken by any person or persons as an officer or agent of the Corporation,
shall as to all persons who rely thereon in good faith be conclusive evidence
of
the matters so certified.
Section
5.11
Severability
.
Any
determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
Section
5.12
Pronouns
.
All
pronouns used in these By-Laws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or
persons
may require.
Section
5.13
Control Share
Acquisition
.
Until
such time as this section shall be repealed or these By-Laws shall be amended
to
provide otherwise, including, without limitation, during any time that the
Corporation shall be an "issuing public corporation" as defined in Chapter
110D
of the Massachusetts General Laws, the provisions of Chapter 110D of the
Massachusetts General Laws shall not apply to "control share acquisitions"
of
the Corporation within the meaning of such Chapter 110D.
Section
5.14
Dividends
.
Except
as otherwise provided by law or by the Articles of Organization, the Board
of
Directors may declare and pay dividends upon the shares of the Corporation,
which dividends may be paid either in cash, securities of the Corporation
or
other property.
Section
5.15
Ratification
.
Any
action taken on behalf of the Corporation by the Directors or any officer
or
representative of the Corporation which requires authorization by the
Shareholders or the Directors of the Corporation shall be deemed to have
been
authorized if subsequently ratified by the Shareholders entitled to vote
or by
the Directors, as the case may be, at a meeting held in accordance with these
By-Laws.
Section
5.16
Reliance Upon
Books, Records and Reports
.
Each
Director or officer of the Corporation shall be entitled to rely on information,
opinions, reports or records, including financial statements, books of account
and other financial records, in each case presented by or prepared by or
under
the supervision of (i) one or more officers or employees of the Corporation
whom
the Director or officer reasonably believes to be reliable and competent
in the
matters presented, (ii) counsel, public accountants or other persons as to
matters which the Director or officer reasonably believes to be within such
person’s professional or expert competence, or (iii) in the case of a Director,
a duly constituted committee of the Board of Directors upon which he does
not
serve, as to matters within its delegated authority, which committee the
Director reasonably believes to merit confidence, but he shall not be considered
to be acting in good faith if he has knowledge concerning the matter in question
that would cause such reliance to be unwarranted. The fact that a
Director or officer so performed his duties shall be a complete defense to
any
claim asserted against him by reason of his being or having been a Director
or
officer of the Corporation, except as expressly provided by
statute.
Section
5.17
Terminology
.
For
purposes of these By-Laws, the terms “Stockholder” and “Shareholder” have the
same meaning and the terms “stock” and “shares” have the same
meaning.
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