Annual Report — [x] Reg. S-K Item 405 — Form 10-K
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1: 10-K405 Annual Report -- [x] Reg. S-K Item 405 HTML 711K
2: EX-3.C Articles of Incorporation/Organization or By-Laws 18 73K
3: EX-4.D Instrument Defining the Rights of Security Holders 203 644K
4: EX-10.TT Material Contract 8 31K
5: EX-11 Statement re: Computation of Earnings Per Share 2 7K
6: EX-12 Statement re: Computation of Ratios 2 7K
7: EX-21 Subsidiaries of the Registrant 2 9K
8: EX-23 Consent of Experts or Counsel 1 7K
EX-3.C — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3 (c)
AMENDED AND RESTATED
BY-LAWS of HASBRO, INC
(as amended from time to time)
ARTICLE I
OFFICES
Section 1.1. The office of Hasbro, Inc. (the "Corporation") within the
State of Rhode Island shall be located in the City of Pawtucket, County of
Providence.
Section 1.2. Other Offices. The Corporation may also have offices and
places of business at such other places within or without the State of Rhode
Island as the Board of Directors may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1. Place. All meetings of shareholders of the Corporation shall
be held at such place within or without the State of Rhode Island as shall be
stated in the notice of the meeting.
Section 2.2. Annual Meeting. Commencing with the year 1995, a meeting of
the shareholders of the Corporation shall be held annually on the second
Wednesday in the month of May of each year, if not a legal holiday, and if a
legal holiday, then on the next secular day following, or on such other date and
at such time and place as the Board of Directors shall determine, and at such
meeting, the shareholders shall transact such business as may properly be
brought before the meeting.
Section 2.3. Special Meetings. Special meetings of the shareholders of the
Corporation, for any purpose or purposes, unless otherwise prescribed by statute
or by the Restated Articles of Incorporation (the "Articles of Incorporation"),
may be called by the Chairman of the Board, any Vice Chairman, any Chief
Operating Officer, President, or the Board of Directors.
Section 2.4. Notice of Meetings. Written notice of each meeting of
shareholders of the
Corporation stating the place, date and hour thereof, and in the case of a
special meeting of shareholders, specifying the purpose or purposes thereof, and
the person or persons by whom or at whose direction such meeting has been
called, shall be given to each shareholder entitled to vote thereat, at his
address as it appears on the records of the Corporation, not less than ten (10)
nor more than sixty (60) days prior to the meeting.
Section 2.5. Quorum. At each meeting of the shareholders of the
Corporation, the holders of a majority of shares of the Corporation entitled to
vote thereat, present in person or by proxy, shall constitute a quorum, except
as may be otherwise provided by the Articles of Incorporation or these By-Laws.
If, however, a quorum shall not be present on the date specified in the original
notice of meeting, the shareholders entitled to vote thereat, present in person
or by proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
At any such adjourned meeting, at which a quorum shall be present, the
shareholders, present in person or by proxy, may transact any business which
might have been transacted had a quorum been present on the date specified in
the original notice of meeting.
Section 2.6. Voting. At any meeting of the shareholders of the Corporation,
each shareholder having the right to vote shall be entitled to vote in person or
by proxy appointed by an instrument in writing subscribed by such shareholder or
otherwise appointed in accordance with the provisions of Section 2.7 of these
By-Laws. Except as may be otherwise provided by the Articles of Incorporation,
each holder of record of Common Stock shall be entitled to one vote for every
share of such stock standing in his name on the book of the Corporation. All
elections of directors by shareholders shall be determined by the vote of the
holders of a majority of the stock having voting power and represented in person
or by proxy at such meeting and, except as otherwise provided by statute, the
Articles of Incorporation or Article XII of these By-Laws, all other matters
shall be decided by the vote of the holders of a majority of the stock having
voting power and represented in person or by proxy at such meeting.
Section 2.7. Proxies. Each proxy shall be either (i) executed in writing by
the shareholder or his duly authorized attorney or (ii) provided through
instructions transmitted by or on behalf of the shareholder by telegram,
cablegram, or other means of electronic transmission, including Internet and
telephonic transmissions, which in the case of this subsection (ii) are both (A)
consistent with the procedures of the Corporation designed to verify that such
instructions have been authorized by such shareholder and (B) comply with the
applicable requirements of the Rhode Island Business Corporation Act for such
proxies. No proxy shall be valid after the expiration of eleven (11) months from
the date of its execution unless it shall have specified therein a longer
duration. Each proxy shall be revocable at the pleasure of the person executing
it or of his personal representative, except in those cases where an irrevocable
proxy is permissible under applicable law.
Section 2.8. Consents. Action shall be taken by the shareholders only by
unanimous written consent or at annual or special meetings of shareholders of
the Corporation except that, if and with the percentage of the outstanding
Preference Stock or any series thereof (the "Required Percentage") set forth in
the resolution or resolutions adopted by the Board of Directors with respect to
the Preference Stock, action may be taken without a meeting, without prior
notice and without a vote, if consent in writing setting forth the action so
taken, shall be signed by the holders of the Required Percentage of the
outstanding Preference Stock or any series thereof entitled to vote thereon.
Section 2.9. Shareholder Proposals. Any new business proposed by any
shareholder to be taken up at the annual meeting of shareholders shall be stated
in writing and filed with the Secretary of the Corporation at least 150 days
before the date of the annual meeting, and all business so stated, proposed and
filed shall, if appropriate under applicable law, be considered at the annual
meeting, but no other proposal shall be acted upon at the annual meeting. These
provisions shall not prevent the consideration and approval or disapproval at
the annual meetings of reports of officers, directors and committees, but in
connection with such reports no new business shall be acted upon at such annual
meeting unless stated and filed as herein provided. The business to be taken up
at a special meeting of shareholders shall be confined to that set forth in the
notice of special meeting.
Section 2.10. Nomination of Directors.
(a) Except as otherwise expressly provided in the Articles of Incorporation
or pursuant to applicable law, only persons who are nominated in accordance with
the following procedures shall be eligible for election as directors of the
Corporation. Nominations of persons for election to the Board of Directors may
be made at any annual meeting of shareholders (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by any
shareholder of the Corporation (I) who is a shareholder of record on the date of
the giving of notice provided for in this Section 2.10 and on the record date
for the determination of shareholders entitled to vote at such annual meeting
and (ii) who complies with the notice-procedure set forth in this Section 2.10.
(b) In addition to any other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation (as more fully
described below). To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the one year anniversary date of the immediately preceding annual meeting of
shareholders; provided that in the event that the annual meeting is not called
for at a date that is not within the thirty (30) days before or after such
anniversary date, notice by the shareholder in order to be timely must be so
received not later than the close of business on the 10th day following the day
on which notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever first occurs.
(c) To be in proper written form, a shareholder's notice to the Secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election or reelection as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series or number of shares of capital stock of
the Corporation that are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
shareholder giving the notice (i) the name and record address of such
shareholder, (ii) the class or series and number of shares of capital stock of
the Corporation that are owned beneficially or of record by such shareholder,
(iii) a description of all arrangements or understandings between such
shareholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
shareholder, (iv) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such
shareholder that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. The Corporation may require that any
proposed nominee furnish such other information as may reasonably be required by
the Corporation to determine the eligibility of such proposed nominee to serve
as director of the Corporation. Such written notice from the nominating
shareholder must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director, if elected.
(d) Except as otherwise expressly provided in the Articles of Incorporation
or pursuant to applicable law, no person shall be eligible for election as a
director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 2.10. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
Section 3.1. Board of Directors. The property and business of the
Corporation shall be managed by its Board of Directors, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are
not, by statute or by the Articles of Incorporation or by these By-Laws,
directed or required to be exercised or done by the shareholders. Directors need
not be shareholders.
Section 3.2. Number. The number of directors of the Corporation (exclusive
of directors that may be elected by the holders of any one or more series of the
Preference Stock voting separately as a class or classes) that shall constitute
the entire Board of Directors (the "Entire Board of Directors") shall be 17,
unless otherwise determined from time to time by resolution adopted by the
affirmative vote of a majority of the Entire Board of Directors, except that if
an Interested Person (as hereinafter defined in Article XIII of these By-Laws)
exists, such majority must include the affirmative vote of at least a majority
of the Continuing Directors (as hereinafter defined in Article XIII of these
By-Laws).
Section 3.3. Election. Directors shall be elected at the annual meeting of
shareholders, or as otherwise provided in the Articles of Incorporation or in
these By-Laws.
Section 3.4. Term of Office, Classes. Except with respect to any directors
elected by holders of any one or more series of Preference Stock voting
separately as a class or classes, the Board of Directors shall be divided into
three (3) classes in respect of term of office, designated Class I, Class II and
Class III. Each class shall contain one-third (1/3) of the Entire Board of
Directors, or such other number that will cause all three (3) classes to be as
nearly equal in number as possible, with the terms of office of one class
expiring each year. At the annual meeting of shareholders in 1985, directors of
Class I shall be elected to serve until the annual meeting of shareholders to be
held in 1986; the directors of Class II shall be elected to serve until the
annual meeting of shareholders to be held in 1987; and the directors of Class
III shall be elected to serve until the annual meeting of shareholders to be
held in 1988; provided that in each case, directors shall continue to serve
until their successors shall be elected and shall qualify or until their earlier
death, resignation or removal. At each
subsequent annual meeting of shareholders, one (1) class of directors shall be
elected to serve until the annual meeting of shareholders held three (3) years
next following and until their successors shall be elected and shall qualify or
until their earlier death, resignation or removal. No decrease in the number of
directors shall have the effect of shortening the term of office of any
incumbent director. Any increase or decrease in the number of directors shall be
apportioned among the classes so as to make all classes as nearly equal in
number as possible.
Section 3.5. Removal. Except as otherwise required by law and subject to
the terms of any one or more classes or series of outstanding capital stock of
the Corporation, any director may be removed; provided, however, such removal
must be for cause and must be approved by at least a majority vote of the Entire
Board of Directors or by at least a majority of the votes held by the holders of
shares of the Corporation then
entitled to be voted at an election for that director, except that if an
Interested Person exists, such removal must be approved (1) by at least a
majority vote of the Entire Board of Directors, including a majority of the
Continuing Directors, or (2) by at least 80% of the votes held by the holders of
shares of the Corporation then entitled to be voted at an election for that
director, including a majority of the votes held by holders of shares of the
Corporation then entitled to vote at an election for that director that are not
beneficially owned or controlled, directly or indirectly, by any Interested
Person. For purposes of this Section 3.5, the Entire Board of Directors will not
include the director who is the subject of the removal determination, nor will
such director be entitled to vote thereon. However, nothing in the preceding
sentence shall be construed as preventing a director who is the subject of
removal determination (but who has not yet actually been removed in accordance
with this Section 3.5) from voting on any other matters brought before the Board
of Directors, including, without limitation, any removal determination with
respect to any other director or directors.
Section 3.6. Vacancies. Except as otherwise provided by the terms of any
one or more classes or series of outstanding capital stock of the Corporation,
any vacancy occurring on the Board of Directors, including any vacancy created
by reason of any increase in the number of directors, shall be filled by the
affirmative vote of at least a majority of the remaining directors, whether or
not such remaining directors constitute a quorum, except that if an Interested
Person exists, such majority of the remaining directors must include a majority
of the Continuing Directors. A director elected to fill a vacancy shall serve
for the unexpired term of his or her predecessor in office.
ARTICLE IV
MEETINGS OF THE BOARD
Section 4.1. Time and Place. Meetings of the Board of Directors may be held
either within or without the State of Rhode Island. Regular meetings of the
Board of Directors may be held without notice at such time and place as shall
from time to time be determined by the Board. Each special meeting of the Board
of Directors shall be held at such time and place as shall be stated in the
notice of the meeting.
Section 4.2. First Meeting. The first meeting of each newly elected Board
of Directors shall be held within ten (10) days following each annual meeting of
the shareholders, at such time and place either within or without the State of
Rhode Island, as shall be announced at the annual meeting of
shareholders, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present.
Section 4.3. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, any Vice Chairman, any Chief
Operating Officer, the President, or the Secretary, and at the written request
of any two (2) directors, shall be called by the Secretary. Written notice of
each special meeting of directors, stating the time and place thereof, shall be
served upon each director, personally, by mail or by telegraph, at least two (2)
days before such meeting.
Section 4.4. Quorum and Voting. At all meetings of the Board of Directors a
majority of the entire Board of Directors shall be necessary and sufficient to
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Articles of Incorporation or by these By-Laws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without further
notice other than announcement at the meeting, until a quorum shall be present.
Section 4.5. Telephone Conference Meetings. Meetings of the directors may
be held by means of a 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 a
meeting.
Section 4.6. Consents. Any action allowed or required to be taken at a
meeting of the Board of Directors or by any committee thereof, may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed before or after such action by all of the directors, or all of the
members of the committee, as the case may be.
ARTICLE V
COMMITTEES OF DIRECTORS.
Section 5.1. Designation; Powers. The Board of Directors may, by resolution
or resolutions adopted by a majority of the Entire Board of Directors, designate
from among its members an Executive Committee, or other Committees, each
consisting of three (3) or more directors, and each of which, to the extent
provided in any such resolution, shall have all the authority of the Board,
except as provided by law, the Articles of Incorporation or these By-Laws. The
Board of Directors may designate one or more directors as alternate members of
any such Committee who may replace any absent member or members at any meeting
of such Committee.
Section 5.2. Tenure and Reports. Each such Committee shall serve at the
pleasure of the Board of Directors. It shall keep minutes of its meetings and
report the same to the Board.
ARTICLE VI
NOTICES
Section 6.1. Delivery of Notices. Notices to directors and shareholders
shall be in writing and may be delivered personally or by mail. Notice by mail
shall be deemed to be given at the time when the same shall be deposited in the
post office or a letter box, in a postpaid, sealed wrapper, and shall be
addressed to directors or shareholders at their addresses appearing on the books
of the Corporation. Notice to directors may also be given by telecopy.
Section 6.2. Waiver of Notice. Whenever any notice is required to be given
by any statute, the Articles of Incorporation or these By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto. Any
shareholder attending a meeting of shareholders in person or by proxy, or any
director attending a meeting of the Board of Directors or any committee thereof,
without protesting such lack of notice prior to the meeting or at its
commencement, shall be deemed conclusively to have waived notice of such
meeting. Any shareholder signing a unanimous or other written consent pursuant
to Section 2.8 hereof or any director signing a unanimous written consent
pursuant to Section 4.6 hereof shall be deemed conclusively to have waived
notice of the action taken by such consent.
ARTICLE VII
OFFICERS
Section 7.1. Officers. The officers of the Corporation shall be a Chairman
of the Board, a Chief Executive Officer, a President, one or more Chief
Operating Officers, one or more Vice Chairmen, a President, Hasbro Toys (U.S.),
a President, Hasbro Games (U.S.), one or more Vice Presidents, a Treasurer, a
Controller, and a Secretary, each of whom shall be elected annually by the
directors at their annual meeting, and shall hold office at the pleasure of the
Board of Directors. Any person may hold two or more such offices.
Section 7.2. Additional Officers. The Board of Directors may appoint such
other officers and agents, including, without limitation, Assistant Vice
Presidents, Assistant Secretaries, Assistant Treasurers and Assistant
Controllers with such powers and duties as it shall deem necessary or
appropriate. All such officers or agents shall hold office at the pleasure of
the Board of Directors.
Section 7.3. Authorities and Duties. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-Laws, or, to the
extent not so provided, as may be prescribed by the Board of Directors.
Section 7.4. Salaries. The salaries or other compensation of all officers
of the Corporation shall be fixed by the Board of Directors. The salaries or
other compensation of all other employees and agents of the Corporation may be
fixed by the Board of Directors. However, the Board of Directors may delegate to
one or more officers or employees authority to employ and to fix the salaries or
other compensation of any such employees or agents.
Section 7.5. The Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and shall have such powers and
perform such duties as may from time to time be assigned to him by the Board of
Directors.
Section 7.6. The Vice Chairman. In the absence of the Chairman of the
Board, the Vice Chairman (and if there is more than one Vice Chairman, the Vice
Chairmen in order of their seniority or as otherwise determined by the Board)
shall preside at all meetings of the Board of Directors and shall have such
powers and perform such duties as may from time to time be assigned to him by
the Board of Directors.
Section 7.7. The Chief Operating Officers. In the absence of the Chairman
of the Board and any Vice Chairman, any Chief Operating Officer (and if there is
more than one Chief Operating Officer, in order of their seniority or as
otherwise determined by the Board) shall preside at all meetings of the Board of
Directors and shall have such powers and perform such duties as may from time to
time be assigned to him by the Board of Directors.
Section 7.8. The President. In the absence of the Chairman of the Board,
any Vice Chairman and the Chief Operating Officers, the President shall preside
at all meetings of the Board of Directors and shall have such powers and perform
such duties as may from time to time be assigned to him by the Board of
Directors.
Section 7.9. The Vice Presidents. The Vice Presidents in the order of their
seniority, as indicated by their titles (Executive, Senior, etc.) or as
otherwise determined by the Board of Directors, shall, in the absence of the
Chairman of the Board, any Vice Chairmen, the Chief Operating Officers and the
President, perform the duties and exercise the powers of the Chairman of the
Board, the Vice Chairmen, the Chief Operating Officers and the President, shall
perform such other duties as the Board of Directors shall prescribe and shall
generally assist the Chairman of the Board, the Vice Chairmen, the Chief
Operating Officers and the President.
Section 7.10. The Secretary. The Secretary shall attend meetings of the
Board of Directors and shareholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose and shall perform like duties
for the standing committees of the Board of Directors when required. He shall
give, or cause to be given, notice of meetings of the shareholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board, the Vice
Chairmen, the Chief Operating Officers and the President, under whose collective
supervision he shall be. He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors, affix the same to
any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary or
Treasurer. He shall keep in safe custody the certificate books and stock books
and such other books and papers as the Board of Directors may direct and shall
perform all other duties incident to the office of Secretary.
Section 7.11. Assistant Secretaries. The Assistant Secretaries in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe.
Section 7.12. The Treasurer. The Treasurer shall have the care and custody
of the corporate funds, and other valuable effects, including securities, and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board, taking proper vouchers
for such disbursements, and shall render to the Chairman of the Board, the Vice
Chairmen, the Chief Operating Officers, the President and the Board of
Directors, at the regular meetings of the Board, or whenever they may require
it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond for such term, in such sum and with
such surety or sureties as shall be satisfactory to the Board for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 7.13. Assistant Treasurers. The Assistant Treasurer shall, in the
absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the Board of
Directors may prescribe.
Section 7.14. Execution of Instruments. Each of the Chairman of the Board,
the Vice Chairman, the Chief Operating Officers, the President and the Executive
Vice Presidents shall have the power to sign on behalf of the Corporation bonds,
notes, deeds, mortgages, guarantees and any and all contracts, agreements and
instruments of a contractual nature pertaining to matters which arise in the
normal conduct and ordinary course of the business of the Corporation, except in
cases in which the signing and execution thereof shall have been expressly
delegated by the Board of Directors of the Corporation to some other officer or
agent of the Corporation.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1. Form. The certificates of stock of the corporation shall be in
such form as shall be determined by the Board of Directors and shall be numbered
consecutively and entered in the books of the Corporation as they are issued.
Each certificate shall exhibit the registered holder's name and the number and
class of shares, and shall be signed by the Chairman of the Board, any Vice
Chairman, any Chief Operating Officer, the President, any Executive Vice
President, Senior Vice President, or Vice President and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, and shall bear
the seal of the Corporation or an engraved or printed facsimile thereof. Where
any such certificate is signed by a transfer agent or by a registrar, the
signature of the Chairman of the Board, any Vice Chairman, any Chief Operating
Officer, the President, Executive Vice President, Senior Vice President, Vice
President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may
be a facsimile. In case any officer, transfer agent or registrar, who has
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates, shall cease to be such officer, transfer agent or
registrar of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer, transfer agent or registrar of the
Corporation.
Section 8.2. Registered Shareholders. The Corporation shall be entitled to
(1) recognize the exclusive right of a person registered on its books as the
owner of shares as entitled to receive dividends and notices of meetings of
shareholders and to vote as such owner; and (2) hold liable for calls and
assessments a person registered on its books as the owner of shares; and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise required by law.
Section 8.3. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed, and upon such
other terms as the Board of Directors may prescribe; and the Board of Directors
may, in its discretion and as a condition precedent to the issuance of a new
certificate or certificates, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum and with such surety or sureties as it may direct
as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 8.4. Record Date.
(a) For the purpose of determining the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of any dividend
or the allotment of any rights, or for the purpose of any other action, the
Board may fix, in advance, a date as the record date for any such determination
of shareholders. Such date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting nor more than sixty (60) days prior to
any other action.
(b) If no record date is fixed:
(1) The record date for the determination of shareholders entitled 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 given, the day on which the meeting is held.
(2) The record date for determining shareholders for any purpose other
than that specified in subparagraph (1) shall be at the close of business on the
day on which the resolution of the Board relating thereto is adopted.
(c) When a determination of shareholders of record entitled to notice of or
to vote at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof, unless the
Board fixes a new record date under this section for the
adjourned meeting.
Section 8.5. Fractional Shares. The Corporation may (1) issue fractions of
a share, (2) arrange for the disposition of fractional interests by those
entitled thereto, (3) pay in cash the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined, or (4)
issue scrip in registered or bearer form which shall entitle the holder to
receive a certificate for a full share upon the surrender of such scrip
aggregating a full share. A certificate for a fractional share shall, but scrip
shall not, unless otherwise provided therein, entitle the holder to exercise
voting rights, to receive dividends thereon, and to participate in any of the
assets of the Corporation in the event of liquidation. The Board of Directors
may cause scrip to be issued subject to the condition that it shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the condition that the shares for which scrip is
exchangeable may be sold by the Corporation and the proceeds thereof distributed
to the holders of scrip, or subject to any other conditions which the Board of
Directors may deem advisable.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Dividends. Subject always to the provisions of the law and the
Articles of Incorporation, the Board of Directors shall have full power to
determine whether any, and if any, what part of any, funds legally available for
the payment of dividends shall be declared in dividends and paid to
shareholders; the division of the whole or any part of such funds of the
Corporation shall rest wholly within the lawful discretion of the Board of
Directors, and it shall not be required at any time, against such discretion, to
divide or pay any part of such funds among or to the shareholders as dividends
or otherwise; and the Board of Directors may fix a sum which may be set aside or
reserved over and above the capital paid in of the Corporation as working
capital for the Corporation or as a reserve for any proper purpose, and from
time to time may increase, diminish, and vary the same in its absolute judgment
and discretion.
Section 9.2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 9.3. Seal. The corporate seal shall have inscribed thereon the name
of the Corporation, the year of its organization and the words "Incorporated,
Rhode Island". Said seal may be used by causing it or a facsimile thereof to be
impressed, affixed or otherwise reproduced.
Section 9.4. Instruments for the Payment of Money. All checks or other
instruments for the payment of money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
ARTICLE X
INDEMNIFICATION
Section 10.1. Without limiting the provisions of Section 10.2 , each person
who at any time serves or shall have served as a director or officer of the
Corporation or who, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a member of any committee of the
Board of Directors or as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan shall be indemnified to the
full extent permitted by Title 7-1.1-4.1 of the Rhode Island Business
Corporation Act, as the same may be amended from time to time.
Section 10.2. Nothing contained in this ARTICLE X shall affect any rights
to indemnification to which directors and officers may be entitled by agreement,
vote of shareholders or disinterested directors or otherwise.
ARTICLE XI
AMENDMENTS
Section 11.1. Power to Amend. The Board of Directors is authorized to
adopt, repeal, alter, amend or rescind these By-Laws by the affirmative vote of
at least a majority of the Entire Board of Directors, except that if an
Interested Person exists, such Board action must be taken by the affirmative
vote of at least a majority of the Entire Board of Directors, including a
majority of the Continuing Directors. The shareholders may adopt, repeal, alter,
amend or rescind the By-Laws of the Corporation by the vote of at least 66-2/3%
of the votes held by holders of shares of Voting Stock (as hereinafter defined)
except that if an Interested Person exists, such shareholder action must be
taken by the vote of at least 80% of the votes held by holders of shares of
Voting Stock, including an Independent Majority of Shareholders (as hereinafter
defined in Article XIII of these By-Laws).
ARTICLE XII
BUSINESS COMBINATIONS
Section 12.1. Subject to Section 12.2 of this Article XII, but
notwithstanding any other provisions of these By-Laws or of the Articles of
Incorporation or the fact that no vote for such a transaction may be required by
law or that approval by some lesser percentage of shareholders may be permitted
by law, neither the Corporation nor any Subsidiary shall be party to a Business
Combination (as hereinafter defined in Article XIII of these By-Laws) unless all
of the following conditions are met:
(1) After becoming an Interested Person and prior to consummation of such
Business
Combination:
(a) such Interested Person shall not have acquired any newly issued
shares of capital stock, directly or indirectly, from the Corporation or a
Subsidiary (except upon exercise or conversion of warrants or other rights,
including preemptive rights, or convertible securities acquired by an Interested
Person prior to becoming an interested Person or upon compliance with the
provisions of this Article XII or as a result of a pro rata stock dividend or
stock split) ;
(b) such Interested Person shall not have received the benefit, directly
or indirectly (except proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax credits provided by the
Corporation or a Subsidiary, or have made any major changes in the Corporation's
business or equity capital structure;
(c) except as approved by a majority of the Continuing Directors, there
shall have been (i) no reduction in the annual rate of dividends paid on voting
Stock (except as necessary to reflect a pro rata stock dividend or stock split)
and (ii) an increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of Voting Stock; and
(d) such Interested Person shall have taken steps to insure that the
Board of Directors of the Corporation included at all times representation by
Continuing Directors proportionate to the ratio that the number of shares of
Voting Stock (as hereinafter defined in Article XIII of these By-Laws) from time
to time owned by shareholders who are not Interested Persons bears to all shares
of Voting Stock outstanding at the time in question (with a Continuing Director
to occupy any resulting fractional position among the directors); and
(2) The Business Combination shall have been approved by at least a
majority of the Entire Board of Directors of the Corporation, including a
majority of the Continuing Directors; and
(3) A shareholder's meeting shall have been called for the purpose of
approving the Business Combination and a proxy statement complying with the
requirements of the Exchange Act, as amended, or any successor statute or rule,
whether or not the Corporation is then subject to such requirements, shall be
mailed to all shareholders of the Corporation not less than thirty (30) days
prior to the date of such meeting for the purpose of soliciting shareholder
approval of such Business Combination and shall contain at the front thereof, in
a prominent place, (a) any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors may
choose to state, and (b) the opinion of a reputable national investment banking
firm as to the fairness (or lack thereof) of the terms of such Business
Combination, from the point of view of the remaining shareholders of the
Corporation (such investment banking firm to be engaged by a majority of the
Continuing Directors solely on behalf of the remaining shareholders and paid a
reasonable fee for their services, which fee shall not be contingent upon the
consummation of the transaction); and
(4) The Business Combination shall have been approved by at least 80% of
the votes held by the holders of the outstanding Voting Stock, including an
Independent Majority of Shareholders.
Section 12.2. The approval requirements of Section 12.1 shall not apply to
any particular Business Combination, and such Business Combination shall require
only such affirmative shareholder vote as is required by law, any other
provision of the Articles of Incorporation or of these By-Laws, the terms of any
outstanding classes or series of capital stock of the Corporation or any
agreement with any national securities exchange, if the Business Combination is
approved by a majority of the Entire Board of Directors, including the
affirmative vote of at least 66-2/3% of the Continuing Directors.
Section 12.3. The Board of Directors of the Corporation, when evaluating
any offer of another Person (the "Offering Person") (i) to make a tender or
exchange offer for any equity security of the Corporation or (ii) to effect any
Business Combination (as defined in Article XIII of these By-Laws, except that
for purposes of this Section 12.3 the term "Person" shall be substituted for the
term "Interested Person"), shall, in connection with the exercise of the Board's
judgment in determining what is in the best interests of the Corporation as a
whole, be authorized to give due consideration to such factors as the Board of
Directors determines to be relevant, including, without limitation:
(a) the relationships between the consideration offered by the Offering
Person and (x) the market price of the voting Stock over a period of years, (y)
the current and future value of the Corporation as an independent entity and (z)
political, economic and other factors bearing on securities prices and the
Corporation's financial condition and future prospects;
(b) the interests of all of the Corporation's shareholders, including
minority shareholders;
(c) whether the proposed transaction might violate federal, state, local
or foreign laws;
(d) the competence, experience and integrity of the Offering Person and
its management; and
(e) the social, legal and economic effects upon employees, suppliers,
customers, licensors, licensees and other constituents of the Corporation and
its Subsidiaries and on the communities in which the Corporation and its
Subsidiaries operate or are located.
In connection with any such evaluation, the Board of Directors is
authorized to conduct such investigations and to engage in such legal
proceedings as the Board of Directors may determine.
Section 12.4. As to any particular transaction, the Continuing Directors
shall have the power and duty to determine, on the basis of information known to
them:
(a) The amount of Voting Stock beneficially owned by any Person (as
hereinafter defined in Article XIII of these By-Laws);
(b) Whether a Person is an Affiliate (as herein after defined in Article
XIII of these By-Laws) or Associate (as hereinafter defined in
Article XIII of these By-Laws) of another;
(c) Whether a Person has an agreement, arrangement or understanding
with, or is acting in concert with, another;
(d) Whether the assets subject to any Business Combination constitute a
Substantial Part (as hereinafter defined in Article XIII of these
By-Laws);
(e) Whether a proposed transaction is proposed, directly or indirectly,
by or on behalf of any Person;
(f) Whether a proposed amendment of any Article of the Articles of
Incorporation would have the effect of modifying or permitting
circumvention of the provisions of Article Eighth through Twelfth of
the Articles of Incorporation; and
(g) Such other matters with respect to which a determination is required
under Articles Eighth through Twelfth of the Articles
ofIncorporation.
Any such determination shall be conclusive and binding for all purposes of the
Articles of Incorporation and of these By-Laws.
Section 12.5. The affirmative votes required by this Article XII is in
addition to the vote of the holders of any class or series of capital stock of
the Corporation otherwise required by law, the Articles of Incorporation or
these By-Laws, any resolution which has been adopted by the Board of Directors
providing for the issuance of a class or series of capital stock or any
agreement between the Corporation and any national securities exchange.
Section 12.6. Nothing contained in this Article XII shall be construed to
relieve any Interested Person from any fiduciary or other obligation imposed by
law.
ARTICLE XIII
DEFINITIONS
For the purposes of these By-Laws:
(1) The term "beneficial owner" and correlative terms shall have the
meaning as set forth in Rule 13d-3 of the General Rules and Regulations (the
"General Rules") promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Exchange Act of 1934 (the "Exchange Act"), as
in effect on June 5, 1985, except that the words "within sixty days" in Rule
13d-3(d) (1) (i) shall be omitted.
(2) The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined)
(i) with an Interested Person, any Affiliate (as hereinafter defined) or
Associate (as hereinafter defined) of an Interested Person or any Person (as
hereinafter defined) acting in concert with an Interested Person (including,
without limitation, any Person, which after such merger or consolidation, would
be an Affiliate or Associate of an Interested Person), in each case irrespective
of which Person is the surviving entity in such merger or consolidation, or (ii)
proposed, directly or indirectly, by or on behalf of an Interested Person;
(b) any sale, lease, exchange, transfer, distribution to shareholders or
other disposition, including, without limitation, a mortgage, pledge or other
security device, by the Corporation or any Subsidiary (in a single transaction
or a series of separate or related transactions) of all, substantially all or
any Substantial Part (as hereinafter defined) of the assets or business of the
Corporation or a Subsidiary (including, without limitation, any securities of a
Subsidiary) (i) to or with an Interested Person, or (ii) proposed, directly or
indirectly, by or on behalf of an Interested Person;
(c) the purchase, exchange, lease or other acquisition, including,
without limitation, a mortgage, pledge or other security device, by the
Corporation or any Subsidiary (in a single transaction or a series of separate
or related transactions) of all, substantially all or any Substantial Part of
the assets or business of (i) an Interested Person, or (ii) any Person, if such
purchase, exchange, lease or other acquisition is proposed, directly or
indirectly, by or on behalf of an Interested Person;
(d) the issuance of any securities, or of any rights, warrants or
options to acquire any securities, by the Corporation or a Subsidiary to an
Interested Person (except (i) as a result of a pro rata stock dividend or stock
split, (ii) upon the exercise or conversion of warrants or other rights,
including preemptive rights, or convertible securities acquired by an Interested
Person prior to or simultaneously with becoming an Interested Person or (iii)
upon conversion of publicly traded convertible securities of the Corporation) or
the acquisition by the Corporation or a Subsidiary of any securities, or of any
rights, warrants or options to acquire any securities, issued by an Interested
Person;
(e) any plan or proposal for, or which has the effect of, the partial or
complete liquidation, dissolution, spin off, split off or split up of the
Corporation or any Subsidiary proposed, directly or indirectly, by or on behalf
of an Interested Person;
(f) any of the following which has the effect, directly or indirectly,
of increasing the proportionate amount of Voting Stock or capital stock of any
Subsidiary thereof which is beneficially owned by an Interested Person: any
reclassification of securities (including, without limitation, any reverse stock
split) of the Corporation, any issuance of any Voting Stock or other securities
of the Corporation, any recapitalization of the Corporation or any merger,
consolidation or other transaction (whether or not with or into or otherwise
involving an Interested Person); and
(g) any agreement, contract, understanding or other arrangement
providing for any of the transactions described in this subsection (2) of this
Article XIII.
(3) The term "Continuing Director" shall mean (i) a director serving
continuously as a director of the Corporation from and including June 5, 1985;
(ii) a person who was a member of the Board of Directors of the Corporation
immediately prior to the time that any then existing Interested Person
became an Interested Person, (iii) a person not affiliated with any Interested
Person and designated (before or simultaneously with initially becoming a
director) as a Continuing Director by at least a majority of the then Continuing
Directors and (iv) a director deemed to be a Continuing Director in accordance
with the last sentence of this subsection (3) of this Article XIII. All
references to action by a specified percentage of the Continuing Directors shall
mean a vote of such specified percentage of the total number of Continuing
Directors of the Corporation at a meeting at which at least such specified
percentage of the total number of Continuing Directors shall have been in
attendance. Whenever a condition requires the act of a specified percentage of
Continuing Directors, such condition shall not be capable of fulfillment unless
there IS at least one Continuing Director. If all of the capital stock of the
Corporation is beneficially owned by one Person continuously for at least three
consecutive years during which period at least three annual meetings of
shareholders shall have taken place, at which meetings all of the Continuing
Directors as defined in clauses (i) -(iii) above shall not have been reelected,
all directors elected from and after such third consecutive year shall be deemed
Continuing Directors.
(4) The term "Independent Majority of Shareholders" shall mean the
majority of the votes held by holders of shares of the outstanding Voting Stock
that are not beneficially owned or controlled, directly or indirectly, by any
Interested Person.
(5) The term "Interested Person" shall mean (i) any Person, which,
together with its "Affiliates" and "Associates" (as defined in Rule 12b-2 of the
General Rules promulgated by the Commission under the Exchange Act, as in effect
on June 5, 1985) and any Person acting in concert therewith, is the beneficial
owner, directly or indirectly, of ten percent (10%) or more of the votes held by
the holders of shares of Voting Stock, (ii) any Affiliate or Associate of an
Interested Person, including, without limitation, a Person acting in concert
therewith, (iii) any Person that at any time within the two year period
immediately prior to the date in question was the beneficial owner, directly or
indirectly, of ten percent (10%) or more of the votes held by the holders of
shares of Voting Stock, or (iv) an assignee of, or successor to, any shares of
Voting Stock which were at any time within the two-year period prior to the date
in question beneficially owned by any Interested Person, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933, as amended. For purposes of determining the percentage
of votes held by a Person, any Voting Stock not outstanding which is subject to
any option, warrant, convertible security, preemptive or other right held by
such Person (whether or not such option, warrant, convertible security,
preemptive or other right is currently exercisable) shall be deemed to be
outstanding for the purpose of computing the percentage of votes held by such
Person.
Notwithstanding anything contained in the immediately preceding paragraph, the
term "Interested Person" shall not include (A) a Subsidiary of the Corporation
or (B) a Continuing Director who beneficially owned, on June 5, 1985, ten
percent (10%) or more of the votes held by the holders of shares of Voting Stock
and any Affiliate or Associate of one or more of such Continuing Directors. For
purposes of Articles III and XI of these By-Laws, the term "Interested Person"
shall not include any Person which shall have deposited all of its Voting Stock
in a voting trust (only and for so long as the voting trust shall be continuing
and all of such Person's Voting Stock shall remain deposited in the Voting
Trust) pursuant to an agreement with the Corporation providing the Corporation
with the power to appoint a majority of the voting trustees of the voting trust
who, in turn, shall have the power to vote all of the shares of Voting Stock in
the voting trust, in their discretion, for the election
of directors of the Corporation and the amendment of the Articles of
Incorporation and/or these By-Laws. The agreement by the Corporation with any
Person described in the immediately preceding sentence to use its best efforts
to elect one designee of such Person as a director and to cause the voting
trustees appointed by the Corporation to vote for such designee shall not cause
such Person to be deemed an Interested Person for purposes of Articles III and
XI of these By-Laws.
A Person who is an Interested Person as of (x) the time any definitive
agreement, or amendment thereto, relating to a Business Combination is entered
into, (y) the record date for the determination of shareholders entitled to
notice of and to vote on a Business Combination, or (z) immediately prior to the
consummation of a Business Combination shall be deemed an Interested Person for
purposes of this definition.
(6) The term "Person" shall mean any individual, corporation, partnership
or other person, group or entity (other than the Corporation, any Subsidiary or
a trustee holding stock for the benefit of employees of the Corporation or its
Subsidiaries, or anyone of them, pursuant to one or more employee benefit plans
or arrangements). When two or more Persons act as a partnership, limited
partnership, syndicate, association or other group for the purpose of acquiring,
holding or disposing of securities, such partnership, syndicate, association or
group will be deemed a "Person".
(7) The term "Subsidiary" shall mean any corporation or other entity fifty
percent (50%) or more of the equity of which is beneficially owned by the
Corporation; provided, however, that for purposes of the definition of
Interested Person set forth in subsection (5) of this Article XIII and the
definition of Person set forth in subsection (6) of this Article XIII, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is beneficially owned by the Corporation.
(8) The term "Substantial Part", as used in reference to the assets or
business of any Person means assets or business having a value of more than ten
percent (10%) of the total consolidated assets of the Corporation and its
Subsidiaries as of the end of the Corporation's most recent fiscal year ending
prior to the time the determination is made.
(9) For the purposes of determining the number of "votes held by holders"
of shares, including Voting Stock, of the Corporation, each share shall have the
number of votes granted to it pursuant to Article Fifth of the Articles of
Incorporation of the Corporation.
(10) The term "Voting Stock" shall mean stock or other securities of the
Corporation entitled to vote generally in the election of directors.
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