SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): February 16, 1996
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HASBRO, INC.
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(Name of Registrant)
RHODE ISLAND 1-6682 05-0155090
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(State of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
1027 NEWPORT AVE., PAWTUCKET, RHODE ISLAND 02861
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(Address of Principal Executive Offices) (Zip Code)
(401) 431-8697
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(Registrant's Telephone Number)
Item 7. Financial Statements and Exhibits
3 Amended and Restated By-Laws of Hasbro, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HASBRO, INC.
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(Registrant)
Date: February 16, 1996 By:\s\John T. O'Neill
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John T. O'Neill
Executive Vice President and
Chief Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
HASBRO, INC.
Current Report on Form 8-K
Dated February 16, 1996
Exhibit Index
Exhibit
No. Exhibits
- - ------- --------
3 Amended and Restated By-Laws of Hasbro, Inc.
Exhibit 3
AMENDED AND RESTATED
BY-LAWS of HASBRO, INC.
(as amended from time to time and restated by the Board of Directors as
of February 16, 1996)
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,
the 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 share holders 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 share holders 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. 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 books of the Corporation. All elections of
directors by shareholders shall be determined by a plurality vote 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 executed in writing
by the shareholder or by his duly authorized attorney. 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 representatives, 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 share-
holders 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 share holders, 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, one or more Vice Chairmen, a Chief Operating
Officer--Domestic Toy Operations, a Chief Operating Officer--Games and
International (each of said Chief Operating Officers being sometimes
referred to in these By-Laws as a "Chief Operating Officer" and both of
said officers being sometimes referred to as "Chief Operating
Officers"), a President, 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 com- pensation
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 Chairman,
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 shall, 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 Chairmen, the Chief Operating Officers, the Pres-
ident 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 share holders; 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 trans-
action 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 de-
fined in Article XIII of these By-Laws) unless all of the following
conditions are met:
(1) After becoming an Interested Person and prior to the
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 promi-
nent 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 share-
holders, 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 of Incorporation.
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 bene-
ficially 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 any one 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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