BY-LAWS
OF
ESSEX COUNTY GAS COMPANY
ARTICLE I.
NAME AND SEAL
The name of this Corporation shall be ESSEX COUNTY GAS
COMPANY.
The Board of Directors shall have power to adopt and alter
the form of the seal of the Corporation.
ARTICLE II.
PRINCIPAL OFFICE
The principal office shall be in the town of Amesbury,
County of Essex, Commonwealth of Massachusetts. The corporation
may also have offices at such other places as the Board of
Directors may, from time to time, appoint, or the business of the
corporation may require.
ARTICLE III.
STOCKHOLDERS
SECTION 1. Meetings. All meetings of the Stockholders
shall be held at the principal offices of the Corporation in
Amesbury, Massachusetts unless some other place in Massachusetts
is stated in the call.
SECTION 2. Annual Meeting. The annual meeting of the
stockholders of this Corporation shall be held at such time and
date as the Board of Directors, by Resolution, shall determine
and set forth in the notice of meeting. If the Board of
Directors fails so to determine the time, date, and place of
meeting, the annual meeting of stockholders shall be held on the
third Tuesday in January in each year, if not a legal holiday,
and if a legal holiday, then on the next succeeding Tuesday not a
legal holiday, for the election of directors, for the transaction
of such other business as properly may come before such meeting.
In the event that such annual meeting is omitted by oversight or
otherwise on the date earlier provided for, a subsequent meeting
may be held in its place, and any business transacted or
elections held at such meeting shall be valid as if transacted or
held at the annual meeting. Such subsequent meeting shall be
called in the same manner as provided for special meetings of the
stockholders.
SECTION 3. Special Meetings. Special meetings of the
stockholders of this corporation shall be held whenever called by
the president, a vice president, or a majority of the Board of
Directors, or the clerk if required by Section 3.05 of Article XX
hereof, or whenever one or more Stockholders who are entitled to
vote, and who hold at least one-third part in interest of the
capital stock entitled to vote on the subject matter in question
shall make written application to the clerk, stating the time,
place and purpose of the meeting.
SECTION 4. Notice of Meetings. Notice of all meetings
of the stockholders, stating the time and place of the meetings
and the nature of the business to be considered shall be given in
writing by the clerk of the corporation to each stockholder or
record, entitled to vote thereat, addressed to him at his address
as it appears on the books of the corporation, at least seven
days and not more than sixty (60) days before the time fixed for
the meeting. If any stockholder shall have failed to inform the
corporation of his post office address, no notice need be sent to
him. Notice of any regular or special meeting may be waived in
writing by any stockholder entitled to notice, and whenever all
such stockholders shall meet in person or by proxy filed with the
clerk of the meeting shall be valid for all purposes without call
or notice, and at that meeting any corporate action may be taken.
No holder of stock of any class shall be entitled to receive
notice of any meeting of holders of any class of stock unless he
is entitled to vote at that meeting.
SECTION 5. Quorum. Except as otherwise required by the
provisions of Section 3.05 of Article XX hereof, at any meeting
of the stockholders, whether of one or more than one class, a
majority in voting power of all the shares of capital stock
issued and outstanding, and entitled to vote at the meeting,
represented by stockholders of record in person or by proxy,
shall constitute a quorum, but whenever a quorum is not present,
a majority in interest of the stockholders present may adjourn
any meeting from time to time (provided no adjournment shall be
fore more than three months), and the meeting may be held as
adjourned without further notice. When a quorum is present and
at the meeting, a majority in voting power of the shares
represented and entitled to vote shall decide any questions
brought before such meeting, unless the question is one upon
which by express provision of law or the agreement of association
or of these by-laws a larger or different vote is required, in
which case such express provision shall govern the decision of
such question.
SECTION 6. Proxies and Voting. At each meeting of the
stockholders every stockholder having the right to vote thereat
shall be entitled, subject to the provisions of Section 3.05 of
Article XX hereof, for each share of stock outstanding in his or
her name on the books of the corporation, to one vote in person
or by proxy. All proxies shall be appointed by an instrument
subscribed by the stockholder entitled to vote and bearing a date
not more than six months prior to that meeting which shall be
filed with the clerk of the meeting before being voted. A
telegram or cablegram appearing to have been transmitted by the
proper person or a photographic, photostatic, telecopied, faxed
or equivalent reproduction of a writing appointing a proxy shall
be deemed a sufficient, signed proxy appointment form. No such
proxy shall be valid after the final adjournment of the meeting.
The vote for directors and, upon the demand of any stockholder,
a vote upon any question before the meeting, shall be by ballot.
Each proxy shall be deemed valid unless challenged during the
meeting.
SECTION 7. Record Date or Closing Transfer Books for
Stockholders' Meetings. For the purpose of determining the
stockholders having the right to notice of and to vote at any
meeting of stockholders or any adjournment thereof the board of
Directors may as hereinafter provided in Article XIX fix in
advance a record date, or, without fixing such a date, may close
the transfer books of the corporation.
SECTION 8. Notice of Stockholder Business at Meetings.
At any meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting
as hereinafter provided. In addition to any other requirements
imposed by law, the Amended and Restated Articles of
Incorporation or these By-Laws, to be properly brought before a
meeting each item of business must either (a) be specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors or the persons calling the
meeting as herein provided, (b) be otherwise properly brought
before the meeting or at the direction of the Board of Directors,
or (c) be otherwise properly brought before the meeting by a
stockholder as hereinafter provided. For business to be properly
brought before a meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice 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 meeting; provided, however,
that in the event that less than seventy (70) days' notice or
prior public disclosure of the date of the meeting of
stockholders is given or made to stockholders, to be timely,
notice by the stockholder or business to be conducted at a
meeting must be received by the Secretary not later than the
close of business on the tenth day following the day on which
notice of the date of the meeting of stockholders was mailed or
such public disclosure was made to the stockholders. A
stockholder's notice to the Secretary shall set forth as to each
matter he proposes to being before the meeting (a) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business before the
meeting and the reasons for conducting such business at the
meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder or stockholders proposing
such business, (c) the class or classes of stock and number of
shares of such class or classes of stock which are beneficially
owned by the proposing stockholder or stockholders, and (d) any
material interest of the proposal stockholder or stockholders in
such business.
Notwithstanding anything in these By-Laws to the contrary,
no business shall be conducted at a meeting except in accordance
with the procedures set forth in this section. The Chairman of a
meeting shall, if the facts warrant, determine and declare to the
persons attending the meeting that business was not properly
brought before the meeting in accordance with the provisions of
this section, and he shall further declare that any such business
not properly brought before such meeting shall not be transacted.
The Chairman of a meeting of stockholders shall have absolute
authority to decide questions of compliance with the foregoing
procedures and his ruling thereon shall be final and conclusive.
ARTICLE IV.
DIRECTORS
SECTION 1. Election and Number. The Board of
Directors shall consist of not less than (3) nor more than
fifteen (15) directors; provided, however, that the number may be
amended from time to time only by affirmative vote of the
majority of the Board of Directors. Except as otherwise provided
in Section 3.05 of Article XX hereof, the holder of Common Stock
shall elect the number of directors so fixed at the annual
meeting, or at the meeting held in lieu of the annual meeting.
Subject to death, resignation or removal, and subject to the
provisions of Section 3.05, each director shall hold office until
the next annual meeting or until his successor is elected and
qualified. Directors may, but need not be stockholders of the
corporation.
SECTION 2. Powers. The Board of Directors shall have
the entire management of the business and the corporation. In
the management and control of the property, business and affairs
of the corporation, the Board of Directors is hereby vested with
all the powers possessed by the corporation itself, so far as
this delegation of authority is not inconsistent with the laws of
the Commonwealth of Massachusetts, with the agreement of
association, or with these by-laws. No contract or other
transaction between this corporation and any other corporation or
association shall be affected by the fact that directors or
officers of this corporation are interested in, or are directors
or officers of, such other corporation or association.
SECTION 3. Meetings. Regular meetings of the Board of
Directors shall be held in such places and at such times, within
or without the Commonwealth of Massachusetts as the board may be
vote from time to time determine, and if so determined, no notice
of regular meetings need be given. Special meetings of the Board
of Directors may be held at any time or place whenever called by
the President, a vice president, the secretary (or clerk if there
is no secretary), or three or more directors, notice of at least
twenty-four hours being given by the secretary or an assistant
secretary (or if there is no secretary or assistant secretary,
then the clerk or the assistant clerk) or the officer calling the
meeting, to each director in person or by telephone, or
delivered, mailed, or telegraphed, to his usual address, or at
any time without formal notice, provided all the directors are
present, or those not present have waived notice in writing or by
telegraph. Such special meetings shall be held at such times and
places, within or without the Commonwealth, as the notice or
waiver shall specify. Unless otherwise specified in the notice,
any and all business may be transacted at any meeting of the
board.
SECTION 4. Quorum. A majority of the directors shall
constitute a quorum for the transaction of business, but whenever
a quorum is not present, a small number may adjourn any meeting
from time to time, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting,
a majority of the members present shall decide any question
brought before such meeting, except as otherwise provided by law,
by the agreement of association, or by these by-laws.
SECTION 5. Action by Consent. Any action that may be
taken by the board of directors at a meeting may be taken without
a meeting if consent in writing, setting forth the action to be
taken, shall be signed by all of the directors before such action
and filed with the records of the meeting of directors.
SECTION 6. Presumption of Assent. A director of the
corporation who is present at a meeting of the board of directors
at which action on any corporate action is taken shall be
presumed to have assented to the action taken unless he dissents
or abstains from voting on the action and such dissent and
abstention is entered in the minutes of the meeting, or unless he
files his written dissent to such action before the adjournment
of the meeting or by registered mail to the secretary of the
board immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor
of such action.
ARTICLE V.
EXECUTIVE AND OTHER COMMITTEES
The Board of Directors may elect from their own number an
executive committee to consist of not less than three nor more
than seven members. Except as prohibited by law, the executive
committee shall have the exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation when the Board of Directors is not in session. The
executive committee shall report all action taken by it to the
Board of Directors for approval. The executive committee may
make rules for the notice, holding, conduct and keeping of
records, of its meeting.
The Board of Directors may likewise elect from their own
number or from the stockholders, or both, other committees from
time to time, the number composing such committees and the powers
conferred upon them to be determined by vote of the Board of
Directors.
Committees composed of members of the Board of Directors
designated by a resolution adopted by a majority of the whole
Board of Directors, to the extent provided by such resolution,
shall have and may exercise the authority of the Board of
Directors, as so delegated in the resolution, in the management
of the Corporation. Each committee of the Board of Directors
shall keep regular minutes of its proceedings and report the same
to the Board of Directors when required. Vacancies in the
membership of each committee shall be filled by the Board of
Directors at any regular or special meeting of the Board of
Directors. At all meetings of a committee, a majority of the
committee members then in office shall constitute a quorum for
the purpose of transacting business, and the acts of a majority
of the committee members present at any meeting at which there is
a quorum shall be the acts of the committee. A director who may
be disqualified, by reason of personal interest, from voting on
any particular matter before a meeting of a committee may
nevertheless be counted for the purpose of constituting a quorum
of the committee.
ARTICLE VI.
COMPENSATION OF DIRECTORS AND OTHERS
Directors shall receive such compensation for their services
as directors as shall be determined from time to time by
resolution of the board. Directors shall not be prohibited from
serving this corporation in any other capacity and receiving
compensation from it. Members of special or standing committees
may be allowed compensation, determined by resolution or vote of
the Board of Directors. Any compensation so determined by the
Board of Directors shall be subject, as to any payments not
already made, to revision or amendment by the stockholders.
ARTICLE VII.
OFFICERS
SECTION 1. The officers of this corporation shall be a
president, a clerk, and a treasurer. The Board of Directors in
its discretion may elect a chairman of the board of directors,
who, when present, shall preside at all meetings of the Board of
Directors, and who shall have such other powers as the board
shall from time to time prescribe. The Board of Directors in its
discretion may also from time to time elect one or more vice
presidents. The clerk, the treasurer, and all other officers
shall be elected by the Board of Directors as soon as may be
after its election by the stockholders, and shall hold office
until their successors are duly elected and qualified, subject,
however, to the provisions of said Article XIII and a meeting of
the directors may be held without notice for this purpose
immediately after the annual meeting of the stockholders, and at
the same place. Any person may hold more than one office
provided the duties can be consistently performed by the same
person.
SECTION 2. Eligibility of Officers. The president and
the chairman of the Board of Directors may, but need not, be
stockholders. The vice presidents, clerk, secretary, treasurer,
and such other officers as may be elected, may be, but need not
be, stockholders of this corporation.
SECTION 3. Additional Officers, Agents and
Representatives. The Board of Directors in its discretion may
elect such additional officers, including a general manager, a
secretary, one or more assistant secretaries, one or more
assistant clerks, one or more assistant treasurers, and such
other officers, agents, and representatives of the corporation,
with such powers, and to perform such acts or duties on behalf of
the corporation, as the Board of Directors may see fit, to the
extent authorized or permitted by law, the agreement of
association and these by-laws. All such officers, agents and
representatives shall hold office during the pleasure of the
Board of Directors.
ARTICLE VIII.
PRESIDENT
When present, the President shall preside at all the
meetings of the stockholders. Unless a chairman of the Board of
Directors has been elected and is present, the president, when
present, shall preside at all meeting of the directors. The
president shall perform such duties and shall have such powers as
the Board of Directors shall from time to time designate.
ARTICLE IX.
VICE PRESIDENTS
A vice president, if elected, shall perform the duties and
have the powers of its president during the absence or disability
of the president and shall have the power to sign all
certificates for shares of its stock, bonds, deeds and contracts
of the corporation, and shall perform such other duties and have
such other powers as the Board of Directors shall from time to
time designate. If more than one vice president is elected, the
Board of Directors may specify the order in which they shall act
as substitutes for the president and may specify different powers
and duties for each.
ARTICLE X.
CLERK
The clerk may be, but need not be, a resident of the
Commonwealth of Massachusetts and shall be sworn. He shall
arrange for giving and serving of all notices, and shall attest
and keep the minutes, of all meetings of the stockholders. He
shall have custody of the corporate seal of the corporation. He
shall perform the duties of the secretary if there is no
secretary. The clerk may execute and deliver on behalf of the
corporation certified copies of the records of the corporation
and such other instruments, as may ordered by the Board of
Directors. He shall perform such other duties and have such
other powers as the Board of Directors may from time to time
designate. In the absence or disability of the clerk, an
assistant clerk, if any, or a clerk pro tempore, shall perform
all the duties of the clerk. Such assistant clerk or clerk pro
tempore may be, but need not be, a resident of the Commonwealth
of Massachusetts.
ARTICLE XI.
SECRETARY
The secretary, if any, shall be sworn and shall attend and
keep the minutes of all meetings of the Board of Directors. He
may execute and deliver on behalf of the corporation certified
copies of the records of the corporation and such instruments
under its corporate seal, and such other instruments, as may be
ordered by the Board of Directors. He shall perform such other
duties and have such other powers in addition to those specified
in these by-laws as the Board of Directors may from time to time
designate. If there is no secretary, the clerk shall perform the
duties of secretary.
ARTICLE XII.
TREASURER
The treasurer, subject to the control of the Board of
Directors, shall have the management and possession of all funds
and securities of the corporation (other than his own bond, if
one is required, which shall be in the custody of the president)
and shall have and exercise under the supervision of the Board of
Directors all of the powers and duties commonly incident to his
office. He shall, if required by the Board of Directors, give
bond for the faithful performance of his duties in such forms and
with such sureties as may be required by the Board of Directors.
He may, subject to the control of the board of directors, deposit
the funds and securities of the corporation in any one or more
banks or other depositories, and may disburse them by checks or
other instruments signed by him or, in the case of payroll
checks, by such person as he may designate. He may endorse for
deposit or collection all checks, notes and other instruments
payable to the corporation or its order and may accept drafts on
its behalf. Together with the president or a vice president he
may sign bonds and certificates of stock of the corporation. He
shall keep accurate books of account of the corporation's
transactions, which shall be the property of the corporation,
and, together with all its property in his possession, shall be
subject at all times to the inspection and control of the
directors. He shall perform such other duties and have such
other powers as the Board of Directors may from time to time
designate.
ARTICLE IX.
RESIGNATIONS AND REMOVAL
Any officer or director of the corporation may resign at any
time by giving written notice to the Board of Directors or to
the chairman of the board, the president, or to the clerk, and
any member of any committee may resign by giving written notice
as stated above or to the committee of which he is a member or to
its chairman. Any such resignation shall take effect at the time
specified in it, but if no time is specified, upon its receipt;
and unless otherwise specified in the resignation, its acceptance
shall not be necessary to make it effective.
Except as otherwise provided in Section 3.05 of Article XX,
(a) directors and officers elected by stockholders, including
persons elected by directors to fill vacancies in the board or in
such offices, may be removed from their respective offices with
or without cause by the vote of the holders of a majority of the
shares entitled to vote in the election of directors or such
officers, as the case may be, provided, that the directors of a
class elected by a particular class of stockholders and officers
elected by a particular class of stockholders may be removed only
by the vote of the holders of a majority of the shares of the
particular class of stockholders entitled to vote for the
election of such directors or officers, as the case may be; (b)
officers elected or appointed by the directors may be removed
from their respective offices with or without cause by vote of a
majority of the directors then in office; (c) any director, and
any officer elected by the stockholders, may be removed from his
office for cause by vote of a majority of the directors then in
office.
A director or officer may be removed for cause only after a
reasonable notice and opportunity to be heard before the body
proposing to remove him.
ARTICLE XIV.
VACANCIES
If the office of any director, officer, or agent, one or
more, becomes vacant by reason of death, resignation, removal,
disqualification or otherwise, the remaining directors, though
less than a quorum may, by a vote of a majority of such remaining
directors but subject to the provisions of Section 3.05 of
Article XX hereof, choose a successor or successors, who shall
hold office for the unexpired term.
ARTICLE XV.
VOTING UPON STOCK OF OTHER CORPORATIONS
Unless otherwise ordered by the Board of Directors, the
president or any vice president shall have full power and
authority on behalf of the corporation to attend and to act and
vote at any meeting of the stockholders of any company in which
this corporation may hold stock, and at any such meeting shall
possess and exercise any and all the rights and powers incident
to the ownership of stock, which, as the owner, this corporation
might possess and exercise if present. The Board of Directors
may confer like powers upon any other person or persons from time
to time, and may revoke any such power so granted at its
pleasure. The Board of Directors may authorize the president or
any other officer to sign on behalf of the corporation a proxy or
vote stock of any company owned by the corporation at any meeting
of the stockholders of such company.
ARTICLE XVI.
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined
to specific instances.
Loans. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in
its name unless authorized by a resolution of the board of
Directors. Such authority may be general or confined to specific
instances.
Checks, drafts, etc.. All checks, drafts, or other orders
for the payment of money, notes, or other evidence of
indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of
the corporation in such banks, trust companies, or other
depositories as the Board of Directors may designate.
ARTICLE XVII.
CAPITAL STOCK
SECTION 1. Certificates. Every stockholder of the
corporation shall be entitled to a certificate or certificates in
form prescribed by the directors, and as required by law, duly
numbered, under the seal of the corporation, setting forth the
number of shares represented by it. Such certificates shall be
signed by the president or a vice president and by the treasurer
or an assistant treasurer.
SECTION 2. Transfer Agent and Registrar. The Board of
Directors may appoint a transfer agent, or a registrar, or both,
for the stock of the corporation and may require all certificates
for shares of stock to bear the countersignature of such transfer
agent, or of such registrar, or of both.
Upon transfer, the old shares shall be surrendered to the
corporation by delivery thereafter to the person in charge of the
stock and transfer books and ledgers, or such other persons as
the board of directors may designate, by whom they shall be
canceled and new certificates shall be issued.
SECTION 3. Facsimile Signatures. If the board of directors
shall require all certificates for shares of a particular class
of stock to bear the signature of the transfer agent and of the
registrar, and the registrar is not the same person, partnership,
association, trust or corporation as the transfer agent, the
board of directors may provide that the signature of the
president or a vice president or of the treasurer or an
assistant treasurer of the corporation, or both such signatures
and such seal, upon such certificate, may be facsimile, and such
certificate shall be valid and effective for all purposes as if
signed by such officer or officers and sealed with its corporate
seal, as the case may be.
SECTION 4. Certificates Signed by Officers Ceasing to Hold
Office. In case any officer of the corporation authorized to
sign certificates for shares of stock of the corporation shall
die or cease to hold office, the board of directors may, by vote,
adopt and permit to be issued when duly countersigned,
certificates bearing the signature, either real or facsimile of
such officer.
SECTION 5. Lost or Destroyed Certificates. The holder of
any shares of stock of the corporation shall immediately notify
the corporation and its transfer agents and registrars, if any,
of any loss or destruction of the certificates representing the
same. The corporation may issue a new certificate in place of
any certificate theretofore issued by it which is alleged to have
been lost or destroyed and the board of directors may require the
owner of the lost or destroyed certificate or the owner's legal
representative to give the corporation a bond in a sum and in a
form approved by the board of directors, and with a surety or
sureties which the board of directors finds satisfactory, to
indemnify the corporation and its transfer agents and registrars,
if any, against any claim or liability that may be asserted
against or incurred by it or any transfer agent or registrar on
account of the alleged loss or destruction of any certificate or
the issuance of a new certificate. A new certificate may be
issued without requiring any bond when, in the judgment of the
board of directors, it is proper so to do. The board of
directors may delegate to any Officer or Officers of the
corporation any of the powers and authorities contained in this
section.
SECTION 6. Transfer of Shares. Shares of stock may be
transferred, subject to such restrictions as may be set forth in
the agreement of association and articles of organization, by
delivery of the certificates, accompanied either by an assignment
in writing on the back of the certificate or by a written power
of attorney, to sell, assign and transfer by the owner of the
certificate. No transfer of any share or shares shall be of any
effect as regard the corporation nor shall it be in any way bound
to recognize such transfer until it has been recorded on the
books of the corporation kept for that purpose. It shall be the
duty of every stockholder to notify the corporation of his post
office address.
SECTION 7. Scrip Certificates. No certificates for
fractional shares of any class of stock shall be issued. In lieu
thereof scrip certificates may be issued by the corporation
representing rights to such fractional shares and exchangeable,
when accompanied by other certificates in such amount as to
represent in the aggregate one or more full shares of stock, for
certificates for full shares of stock. The holders of scrip
certificates will not be entitled to any rights as stockholders
of the corporation until the scrip certificates are so exchanged.
Such scrip certificates may, at the election of the board of
directors of the corporation, be in bearer form, shall be non-
dividend bearing, nonvoting and shall have such expiration date
as the board of directors of the corporation shall determine at
the time of the authorization or issuance of such scrip
certificates.
ARTICLE XVIII.
UNCLAIMED DIVIDENDS
Dividends declared by the corporation which have not been
paid to claimed by the person entitled to them within six years
after they have been declared may at any time after such six-year
period be regarded and used as funds of the corporation, and any
claim upon the corporation for such dividends shall thereafter by
barred.
ARTICLE XX.
PREFERRED STOCK PROVISIONS
SECTION 1
Definitions
SECTION 1.01. The term "Preferred Stock" when referred to
collectively shall mean the classes of Preferred Stock now or
hereafter described in Section 2 hereof and additional classes of
stock created or permitted by Section 3 hereof with respect to
which all dividends and amounts payable upon any liquidation,
dissolution or winding up of the corporation shall be payable on
a parity with and in proportion to the amounts payable on
outstanding classes of Preferred Stock, notwithstanding that such
additional classes of Preferred Stock may have par values,
dividend rates, redemption prices and provisions, amounts payable
thereon upon liquidation, dissolution or winding up, sinking or
purchase funds, voting rights, conversion rights and other terms
and provisions varying from those of the outstanding Preferred
Stock, and each class of Preferred Stock when referring to
separately shall be designated by including in its title the
annual dividend rate or such other distinguishing term as may be
adopted at the time of original authorization of such class.
SECTION 1.02. The term "Gross Income available for payment
of interest charges on the corporation's indebtedness" shall mean
the gross revenues of the corporation and other revenue from all
sources less all proper deductions for operating expenses, taxes
(including income, excess profits, and other taxes based on or
measured by income or undistributed earnings or income) and other
appropriate items, including provisions for maintenance,
retirements, depreciation and obsolescence (but in respect of
retirements, depreciation, and obsolescence the amount thereof
shall not be less than the minimum provision therefor required by
the terms or any indenture or agreement securing any outstanding
indebtedness of the corporation), determined in accordance with
such system of accounting as may at the time by prescribed by
governmental authorities having jurisdiction in the premises or
in the absence thereof in accordance with sound accounting
practice; provided, however, that no deduction or adjustment
shall be made for or in respect of profits or losses from sales
of utility property or other capital assets, or from the
reacquisition of any securities of the corporation, or taxes or
in respect of any such profits.
SECTION 1.03. The term "Net Income available for dividends"
shall mean the "Gross Income available for payment of interest
charges on the corporation's indebtedness", as defined in Section
1.02 above, reduced by interest and amortization charges and
other income deductions; provided, however, no deduction or
adjustment shall be made for or in respect of (I) expenses in
connection with the issuance of capital stock or redemption or
retirement of any securities issued by the corporation (including
any amount paid in excess of the principal amount or par or
stated value of securities redeemed or retired) or (ii) items
stated in the proviso in Section 1.02 above.
SECTION 1.04. The term "Junior Stock" shall mean any
capital stock (including the outstanding capital stock which
shall hereafter be designated as Common Stock) ranking junior to
the Preferred Stock as to dividends or assets.
SECTION 1.05. The term "Junior Stock Equity" shall mean the
aggregate of the par value of, or stated capital represented by,
the outstanding shares of Junior Stock and all earned surplus,
capital or paid in surplus of the corporation and any premium on
all classes of Junior Stock of the corporation then carried on
the books of the corporation, less--
(1) The excess, if any, of the aggregate amount payable on
involuntary liquidation of the corporation upon all outstanding
shares of each class of Preferred Stock and of each class of
stock ranking prior to or equal to Preferred Stock in liquidation
over the sum of (I) the aggregate par or stated value of such
shares and (ii) any premium thereon; and
(2) Any intangible items included in an asset account on the
books of the corporation, in accordance with good accounting
practice; provided, however, that no deductions shall be required
to be made in respect of items referred to in paragraph (2)
hereof in cases in which such items are being amortized or are
provided for, or are being provided for, by reserves of the
corporation.
SECTION 1.06. The term "Capitalization" shall mean the
aggregate of (I) the Junior Stock Equity, (ii) the principal
amount of all indebtedness of the corporation outstanding
maturing more than twelve (12) months after the date of issue or
assumption thereof and (iii) the par value of, or stated capital
represented by, and premiums shown on the books of the
corporation in respect of, the outstanding shares of all classes
of stock of the corporation, other than Junior Stock.
SECTION 2
Classes of Preferred Stock
SECTION 2.01. The 5.50% Preferred Stock Series A. The
authorized amount of the initial class of Preferred Stock, hereby
designated as "5.50% Preferred Stock, Series A" (which shares are
hereinafter sometimes called "Preferred Stock" (1966 Class"),
shall consist of 7,000 shares of the par value of $100 a share.
(a) Dividends
Out of any funds of the corporation available for dividends,
the holders of the Preferred Stock (1966 Class) at the time
outstanding shall be entitled to receive, but only when and as
declared by the board of directors, dividends at the rate of
5.50% per annum, and no more, payable quarterly on January 1,
April 1, July 1, and October 1 in each year, beginning with
whichever of the four preceding dates immediately follows the
initial issue date. Dividends on the shares of Preferred Stock
(1966 Class) shall be cumulative from and after the issue date on
shares initially issued and on subsequently issued shares from
and after the first day of the quarterly period in which they are
issued.
(b) Liquidation Rights
In the event of any liquidation, dissolution or winding up
of the corporation the holders of the Preferred Stock (1966
Class) shall be entitled to receive the amounts prescribed in
Section 3.02.
(c) Redemption Provisions
The corporation may, at its option expressed by vote of its
board of directors, redeem the Preferred Stock (1966 Class) as a
whole at any time or in part from time to time at $100 per share,
plus a premium of
$4.50 per share if redeemed prior to July 1, 1971,
$4.50 per share if redeemed on July 1, 1971 or thereafter
prior to July 1, 1974,
$3.50 per share if redeemed on July 1, 1974 or thereafter
prior to July 1, 1977
$2.50 per share if redeemed on July 1, 1977 or thereafter
prior to July 1, 1980,
$1.50 per share if redeemed on July 1, 1980 or thereafter
prior to July 1, 1983, and
$ .80 per share if redeemed on or after July 1, 1983,
in each case together with accrued dividends to the date of such
redemption; provided, however, that if any such redemption shall
be made prior to July 1, 1976, directly or indirectly, out of the
proceeds of, or in anticipation of, the sale of bonds, debentures
or other long-term debt o r other preferred stock having an
effective cost of money or dividend rate of less than 5.50% per
annum, then the redemption price shall be $110 per share plus
accrued dividends to the date of redemption. On or after July 1,
1976 the Preferred Stock (1966 Class) may be redeemed at the
option of the corporation at the then applicable redemption price
as set forth in the above schedule without regard to the source
or cost of funds used in making such a redemption.
(d) Purchase Fund
The corporation (unless prevented from doing so by any
applicable restriction of law) will each year, beginning in 1969,
so long as any shares of the Preferred Stock (1966 Class) are
outstanding, make an offer (hereinafter called a "Purchase
Offer") to the holders of shares of the Preferred Stock (1966
Class) to purchase on August 1 in each such year up to but not in
excess of 140 shares of said Preferred Stock (1966 Class) at the
price of $100 per share plus accrued dividends. The obligation
of the corporation to make annually the above-mentioned Purchase
offer and to purchase the shares of the Preferred stock (1966
Class) of the corporation tendered for sale in accordance with
the terms thereof, is hereinafter referred to as the "Purchase
Fund Obligation."
Beginning on or prior to June 15, 1969 and on or prior to
June 15 in each year thereafter, the corporation shall furnish
the Transfer Agent for the Preferred Stock (1966 Class) with a
certificate signed by the President, or a Vice President, or the
Treasurer, or an Assistant Treasurer of the corporation stating
whether the corporation will make a Purchase Offer to the holders
of its outstanding Preferred Stock (1966 Class). The Transfer
Agent shall on or prior to July 1 of each year in which the
corporation indicates its intention to make a Purchase Officer as
aforesaid to the holders of the Preferred Stock (1966 Class) of
record at the close of business on the day preceding such
mailing, a notice, in the name of the corporation, that the
corporation will on August 1 of such year accept offers to sell
on a pro-rata basis 2% of the total number of shares of the
Preferred Stock (1966 Class) originally issued at the price of
$100 per share plus accrued dividends. The corporation may
require, and in such event said notice shall specify, that each
offer to sell shares of the Preferred Stock (1966 Class) shall be
accompanied by the certificate or certificates for the shares so
offered, together with evidence satisfactory to the Transfer
Agent of the right of the holder of such shares to so sell the
same to the corporation.
In any year in which a Purchase Offer is made, the Transfer
Agent shall on August 1 of such year, on behalf of the
corporation accept offers to sell shares of the Preferred Stock
(1966 Class) received by it in accordance with the terms of the
Purchase Offer.
On or prior to August 1 in each year in which a Purchase
Offer shall have been made, the corporation shall deposit with
said Transfer Agent cash sufficient to purchase shares of
Preferred Stock (1966 Class) accepted for purchase pursuant to
the Purchase Offer made in such year. The Transfer Agent shall,
on or before the next succeeding September 1, return to the
corporation any funds deposited with it and not used or required
to purchase shares of the Preferred Stock (1966 Class) pursuant
to the Purchase Offer for such year. The Purchase Fund
Obligation in any year shall be deemed to be fully satisfied if
the corporation shall have complied with the provisions of this
Section notwithstanding that the total number of shares purchased
by it shall be less than the total number of shares covered by
the corporation's Purchase Offer for that year because
insufficient offers to sell were received by it.
Purchase Fund Obligations shall be cumulative and if at any
time the cumulative Purchase Fund Obligation reaches 280 shares,
no dividend shall be declared, paid upon, or set apart for any
shares of Junior Stock or any sums applied to the purchase or
other acquisition, redemption or other retirement for a
consideration of any shares of Junior Stock until a special offer
has been made to purchase the number of shares of Preferred Stock
(1966 Class) necessary to satisfy the deficiency. Any such
deficiency may be satisfied at any time by making and carrying
out of a special offer (hereinafter called a "Special Purchase
Offer") to purchase at a price of $100 per share, plus accrued
dividends, if any, to the date of purchase, the number of shares
of Preferred Stock (1966 Class) as to which such deficiency
exists and, to that end, the corporation shall file with the
Transfer Agent a certificate signed by the President, or a Vice
President, or the Treasurer, or an Assistant Treasurer of the
corporation, specifying a date not less than 45 days after the
date of filing of such certificates, on which offers to sell
shares of the Preferred Stock (1966 Class) will be accepted.
Special Purchase Offers shall otherwise be made and carried out
on not less than 30 days' notice and in the same manner as
hereinabove provided for Purchase Orders to be carried out on
August 1.
Shares of the Preferred Stock (1966 Class) purchased
pursuant to any Purchase Offer, or Special Purchase Offer, or
surrendered in whole or partial satisfaction of a Purchase Fund
Obligation in any year, shall be canceled and shall not be
reissued.
(e) Voting and Other Rights
The holders of Preferred Stock (1966 Class) shall have such
voting and other rights and be subject to such restrictions and
qualifications as are set forth in Sections 3 and 5 hereof.
(f) Dividend Restrictions
So long as any of the Preferred Stock (1966 Class) is
outstanding, the corporation will not declare or pay any
dividends (other than dividends payable in Junior Stock) or make
any other distribution on any shares of Junior Stock or make any
expenditures for the purchase or other acquisition, redemption of
other retirement for a consideration of any shares of capital
stock of the corporation (other than in exchange for, or from the
cash proceeds of, other and new shares of capital stock of the
corporation and other than any shares of any class of stock
required to be purchased, redeemed or otherwise retired for any
aggregate amount of all such dividends distribution and
expenditures made since December 31, 1965, would exceed the
aggregate of (1) the "Net Income available for dividends",
reduced by an amount equal to all dividends accrued (whether or
not paid) on any outstanding stock of the corporation having
preference over the Junior Stock as to dividends, assets or
otherwise, accumulated after December 31, 1965, plus (2) the sum
of $300,000.
SECTION 3.
Dividend Rights, Liquidation Rights, Redemption Provisions,
Restrictions on Corporate Action, Vote Rights and Preemptive
Rights Applicable to All Classes of Preferred Stock.
Section 3.01. Dividend Rights. Dividends in full shall
not be declared, paid or set apart for payment on any class of
Preferred Stock for any dividend period unless dividends in full
have been or are contemporaneously declared, paid or set apart
for payment on all outstanding shares of all classes of Preferred
Stock for such dividend period and for all prior dividend
periods. when the specified dividends are not paid in full on
any class of Preferred Stock, the shares of each class of
Preferred Stock shall share ratably in the payment of dividends,
including accumulations, if any, in accordance with the sums
which would be payable on such shares if all dividends, including
accumulations, were paid in full. No dividends shall be paid
upon or set apart for the shares of any class of Junior Stock,
unless full dividends on all the outstanding shares of Preferred
Stock for all past quarterly dividend periods shall have been
paid or declared and a sum sufficient for the payment thereof set
apart and the full dividend for the ten current quarterly
dividend period shall have been or concurrently shall be paid or
declared and a sum sufficient for the payment thereof set apart,
and then only on compliance with the provisions of Section
2.01(f) and 4.01. Any accumulation of dividends on the Preferred
Stock shall not bear interest.
SECTION 3.02. Liquidation Rights. In the event of any
liquidation, dissolution or winding up of the corporation,
whether voluntary or involuntary, the holders of each class of
Preferred Stock shall be entitled to receive, for each share
thereof, the par value together with accrued dividends, plus, in
case such liquidation, dissolution or winding up shall have been
voluntary, an amount per share equal to the redemption premium
that would then be payable to the holders of the particular class
that would then be payable to the holders of the particular class
of Preferred Stock as set forth in Section 2 hereof if such
Preferred Stock were to be redeemed as set forth below under the
capital "Redemption Provisions", before any distribution of the
assets shall be made to the holders of Junior Stock; but the
holders of the Preferred Stock shall be entitled to no further
participation in such distribution. The term "accrued
dividends", means in respect of each share of the Preferred Stock
that amount which shall be equal to simple interest upon the par
value thereof at an annual rate equal to the dividend rate
thereon and no more from the date upon which dividends on such
share become cumulative to the date fixed for payment of any
amount to be distributed as aforesaid or upon redemption as
hereafter provided less the aggregate amount (without interest
thereon) of all dividends theretofore paid or declared and set
apart for payment thereon. A consolidation or merger of the
corporation or sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the corporation
shall not be deemed a liquidation, dissolution or winding up of
the corporation within the meaning of this Section 3.02.
SECTION 3.03. Redemption Provisions. Any redemption of
any class of Preferred Stock under Section 2 hereof shall be in
such amount, at such place and by such method, whether by lot or
pro rata, as shall from time to time be determined by vote of the
board of directors, subject in any case to the provisions
established in Section 2 for any class of Preferred Stock.
Notice of any proposed redemption of any class of Preferred Stock
shall be given by the corporation by mailing a copy of such
notice at least thirty (30) days but not more than ninety (90)
days prior to the date fixed for such redemption to the holders
of record of the particular shares of Preferred Stock to be
redeemed at their respective addresses then appearing on the
books of the corporation. On or after the date specified in such
notice, each holder or shares of any class or classes of
Preferred Stock called for redemption as aforesaid upon
presentation and surrender at the place designated in such notice
of the certificates for such shares of Preferred Stock held by
him shall be entitled to receive therefor the redemption price
thereof. From and after the date fixed for redemption, unless
default is made by the corporation in providing moneys for
payment of the redemption price, all dividends on the shares
called for redemption shall cease to accrue, and from and after
such redemption date, unless default be made as aforesaid, or, at
the election of the corporation, from and after the earlier
deposit by the corporation with a bank or trust company doing
business in the City of Boston, Massachusetts, and having a
capital and surplus of at least $1,000,000 in trust for the
benefit of the holders of the shares so called for redemption, of
all funds necessary for such redemptions aforesaid (provided in
the latter case that there shall have been mailed as aforesaid to
holders of record of shares to be redeemed a notice of the
redemption thereof stating that such deposit has been or is to be
made, or that the corporation shall have executed and delivered
to the Transfer Agent for the particular class or classes of
Preferred Stock or to the bank or trust company with which such
deposit is made an instrument, purporting to be irrevocable,
authorizing it to mail such notice) all rights of the holders of
the shares called for redemption as stockholders of the
corporation, except only the right to receive the redemption
price, shall cease and determine and Preferred Stock so redeemed
shall not be reissued. Any funds so deposited which shall remain
unclaimed by the holders of such Preferred Stock at the end of
six (6) years after the redemption date, together with any
interest thereon which shall have been allowed by the bank or
trust company with which such deposit shall have been made, shall
be paid by it to the corporation and thereafter such holders
shall be entitled to look only to the corporation for the payment
of the redemption price. The corporation may also from time to
time purchase shares of its Preferred Stock at not exceeding the
redemption price plus customary brokerage commissions. Shares of
Preferred Stock so purchased may, in the discretion of the board
of directors, be reissued or otherwise disposed of from time to
time to the extent permitted by law. So long as there are
dividends in arrears on any shares of Preferred Stock, (1) the
corporation shall not redeem or purchase any shares of Preferred
Stock otherwise than pursuant to Section 2.01(d) hereof unless,
(I) in the case of redemption, all of the outstanding Preferred
Stock is redeemed, or (ii) in the case of purchases, an offer to
purchase is made to the holders of all the outstanding Preferred
Stock, and (b) the corporation shall not redeem or purchase any
shares of any Junior Stock.
SECTION 3.04. Restrictions on Corporate Action.
(A) So long as any class of Preferred Stock is outstanding,
the corporation shall not, without the consent (given in writing
or by a vote in person or by proxy at a meeting called for the
purpose) of the holders of at least two-thirds in voting power of
the total number of shares of the Preferred Stock outstanding,
voting as one class --
(I) Create or authorize (a) any shares of any class of
stock ranking as to dividends or assets prior to the Preferred
Stock or (b) any obligation or security convertible into stock
ranking as to dividends or assets prior to the Preferred Stock;
or issue any shares of any such prior class of stock (except upon
conversion pursuant to (b) above) more than twelve months after
the corporation as empowered to create or authorize such stock;
(ii) Amend, change, alter or repeal any of the express
rights, preferences or powers of the Preferred Stock outstanding
in any manner so as to affect adversely any such rights,
preferences or powers of the holders thereof, except that, if
such amendment, change, alteration or repeal affects adversely
the rights, preferences or powers of the holders of one or more,
but not all, of the classes of the Preferred Stock at the time
outstanding only the consent of the holders of two-thirds in
voting power of the total number of shares of all classes so
affected shall be required; provided, however, than an amendment
to increase or decrease the authorized but unissued amount of
Preferred Stock, or stock of any class ranking equal to the
Preferred Stock as to dividends or assets, shall not be deemed to
affect adversely the rights, preferences or powers of the holders
of any class of Preferred Stock, or
(iii) Issue shares of Preferred Stock, in addition to
the 7,000 shares authorized in Section 2.01, or any shares of any
other class of stock ranking equal to the Preferred Stock as to
dividends or assets, for any purposes other than to refinance
with stock having an equal or lower dividend rate than that of
the stock being refinanced an equal par amount or stated value of
Preferred Stock or stock ranking prior to or equal to the
Preferred Stock as to dividends or assets at the time
outstanding, or reissue any reacquired shares of Preferred Stock
or stock of any class ranking equal to the Preferred Stock as
aforesaid, unless
(a) The "Net Income available for dividends" for any
period of
twelve (12) consecutive calendar months within the
fifteen (15) calendar months immediately preceding the
month within which such additional shares are to be
issued, shall have been at least two and one-half (2-
1/2) times the annual dividend requirements upon all
shares of Preferred Stock and on all shares of any
other class of stock ranking as to dividends or assets
equal to or prior to the Preferred Stock to be
outstanding immediately after the issue of any such
additional shares, and
(b) The "Gross Income available for payment of
interest charges on the corporation's indebtedness" for
any period of twelve (12) consecutive calendar months
within the fifteen (15) calendar months immediately
preceding the month within which such additional shares
are to be issued, shall have been at least one and one-
half (1-1/2) times the sum of (1) the aggregate annual
interest charges on indebtedness of the corporation and
(2) the annual dividend requirements upon all shares of
Preferred Stock and on all shares of any other class of
stock ranking as to dividends or assets equal to or
prior to the Preferred Stock to be outstanding
immediately after the issue of any such additional
shares, and
(c) the Junior Stock Equity shall not be less
than the sum of the aggregate amounts payable upon
involuntary liquidation, dissolution or winding up of
the corporation to the holders of Preferred Stock and
to the holders of any other class of stock, if any,
ranking as to dividends or assets equal to or prior to
the Preferred Stock, to be outstanding after giving
effect to such issue, excluding all shares thereof to
be retired in connection with such proposed issue;
provided, however, that if it shall have been necessary to take
into consideration any earned surplus of the corporation in such
computation, the corporation shall not thereafter pay any
dividends on, or make any distribution in respect of, or purchase
dividends on, or make any distribution in respect of, or purchase
or otherwise acquire for value, Junior Stock, which would result
in reducing the Junior Stock Equity to an amount less than the
amount payable on involuntary liquidation, dissolution or winding
up of the corporation with respect to all shares of Preferred
Stock and all shares of any class of stock at the time
outstanding ranking equal to or prior to the Preferred Stock as
to dividends or assets. There shall be excluded from the
foregoing computations interest charges on al indebtedness and
dividend requirements on all classes of stock which are to be
retired in connection with the issue of such additional shares.
(B) So long as any shares of the Preferred Stock are
outstanding, the corporation shall not, without the consent
(given in writing or by vote in person or by proxy at a meeting
called for that purpose) of the holders of a majority in voting
power or the total number of shares of a Preferred Stock
outstanding, voting as one class:
(I) Issue or assume any unsecured notes, debentures, or
other securities representing unsecured indebtedness
(exclusive of indebtedness maturing by its terms in one year
or less) other than for the purpose of (a) refunding such
outstanding unsecured securities with securities having
equal or longer maturities or (b) the redemption or other
retirement of all outstanding shares of the Preferred Stock,
if, immediately after such issue or assumption, (1) the
total outstanding principal amount of all unsecured notes,
debentures or other securities representing unsecured
indebtedness issued or assumed by the corporation of
maturities of more than one year would exceed twenty percent
(20%) of the aggregate of (x) the total principal amount of
all bonds or other securities representing secured
indebtedness issued or assumed by the corporation, and then
to be outstanding and (y) the capital (including premiums on
capital stock) and surplus of the corporation as then to be
stated on the books of account of the corporation.
(ii) Merge or consolidate with or into any other
corporation or corporations or sell or otherwise dispose of
all or substantially all of its assets unless such merger,
consolidation, sale or other disposition or the issuance and
assumption of all securities to be issued or assumed in
connection with any such merger or consolidation, shall have
been ordered by a regulatory authority having jurisdiction.
(C) The voting rights of the Preferred Stock hereinafter
set forth shall not be effective as to a particular class or
classes thereof if in connection with any of the matters
specified in paragraphs (A) and (B), provision shall have been
made for the redemption of all of the outstanding shares of such
class or classes of Preferred Stock, or provision shall have been
made that the proposed action shall not be effective unless
provision be made for the purchase, redemption or retirement of
all shares of such class or classes of Preferred Stock at the
time outstanding.
SECTION 3.05. Voting Rights.
(A) The holders of the Preferred Stock shall not be
entitled to vote except: (a) as provided in Section 3.04; (b) as
may from time to time be required by the laws of Massachusetts;
or (c) for the election of the smallest number of directors
necessary to constitute a majority of the full board of directors
whenever and as often as dividends payable on any class of the
Preferred Stock shall be in arrears in an amount equivalent to or
exceeding four quarterly dividends, which right may be exercised
as hereinafter provided until such time as all dividends in
arrears on any class of Preferred Stock shall have been paid or
declared and set apart for payment, at which time such right
shall terminate. So long as holders of the Preferred Stock shall
have the right to elect directors under the terms of this
paragraph (A), (1) the Preferred Stock shall vote as one class
and the holders of the Common Stock voting separately as a class
shall be entitled to elect the remaining directors, and (2) the
number of directors deemed to constitute a full board upon the
election thereof shall be the number of directors then in office
if such number is odd, otherwise such number plus one.
(B) Whenever the right of the holders of the Preferred
Stock to elect directors shall accrue the clerk shall fix the
date of a meeting of stockholders for the election of a full
board of directors to serve until the next annual meeting and
until their respective successors are elected and qualified; such
date to be not less than 45 nor more than 90 days after the
accrual of such right. Thereupon the clerk shall, in accordance
with the by-laws, give notice of the meeting to all stockholders
entitled to vote thereat. The notice given to the holders of
Preferred Stock shall also state (a) the number of directors that
the holders of Preferred Stock are entitled to elect, (b) that
any holder of Preferred Stock has the right to the extent
afforded by the statutes of Massachusetts at any reasonable time
to inspect and make copies of the list or lists of holders of the
Preferred Stock maintained at a specific office in Massachusetts,
and (c) the text of paragraph (C) below. If the clerk shall not
give notice of such meeting within 30 days after the accrual of
the aforesaid right of the holders of the Preferred Stock to
elect directors, then the holders of record of not less than 10%
of the shares of the Preferred Stock then outstanding may
designate in writing one of their number to call such meeting,
and such meeting may be called by such person upon notice as
above provided, to be held at the principal office of the
corporation. Any holder of the Preferred Stock so designated
shall have immediate access to the Preferred Stock record books
of the corporation for the purpose of causing such meeting to be
called at the expense of the corporation pursuant to these
provisions.
(C) At the first meeting of stockholders held for the
purpose of electing directors during such time as the holders of
the Preferred Stock shall have the right to elect directors, the
presence in person or by proxy of the holders of a majority of
the outstanding Common Stock shall be required to constitute a
quorum of such class for the election of directors, and the
presence in person of by proxy of the holders of a majority in
voting power of the outstanding Preferred Stock shall be required
to constitute a quorum of such class for the election of
directors; provided, however, that in the absence of a quorum of
the holders of the Preferred Stock, no election of directors
shall be held, but a majority in voting power of the holders of
the Preferred Stock who are present in person or by proxy shall
have power to adjourn the election of the directors to a date not
less than 25 nor more than 60 days from the date of adjournment
of such meeting; and provided, further, that at such adjourned
meeting, the presence in person or by proxy of the holders of 35%
in voting power of the outstanding Preferred Stock shall be
required to constitute a quorum of such class for the election of
directors. In the event such first meeting of stockholders shall
be so adjourned, it shall be the duty of the clerk of the
corporation, within 10 days from the date on which such first
meeting shall have been adjourned, to cause notice of such
adjourned meeting to be given to the stockholders entitled to
vote thereat. Such second notice shall be given in the form and
manner provided for in paragraph (8) with respect to the notice
required to be given of such first meeting of stockholders, and
shall further set forth that a quorum was not present at such
first meeting and that the holders of 35% in voting power of the
outstanding Preferred Stock shall be required to constitute a
quorum of such class for the election of directors at such
adjourned meeting. If the requisite quorum of holders of the
Preferred Stock shall not be present at said adjourned meeting,
then the directors of the corporation then in office shall remain
in office until the next annual meeting of the stockholders, or
special meeting in lieu thereof and until their successors shall
have been elected and shall qualify. The absence of a quorum of
the holders of Common Stock shall not affect the right of a
quorum of the holders of Preferred Stock to proceed with the
election of directors. If directors shall have been elected at a
meeting at which the requisite quorum of holders of Preferred
Stock was present, the directors elected by the holders of
Preferred Stock shall be deemed to constitute the full board of
directors but only until directors shall have been elected as
permitted by paragraph (A) by the holders of Common Stock at a
meeting at which a quorum was present, whether or not a quorum of
holders of Preferred Stock was also present. When a quorum is
present for purposes of election to office or offices the
candidate or candidates receiving the higher number or numbers of
votes cast in respect of such election shall be elected. Neither
such first meeting nor such adjourned meeting shall be held on a
date within 60 days of the date fixed for the next annual meeting
of the stockholders or special meeting in lieu thereof.
(D) At each annual meeting of the stockholders, or special
meeting in lieu thereof, held during such time as the holders of
the Preferred Stock shall have the right to elect a majority of
the board of directors, the provisions of paragraph (B) and (C)
shall govern each annual meeting, or special meeting in lieu
thereof, as if said annual meeting or special meeting were the
first meeting of stockholders held for the purpose of electing
directors after such right of the holders of the Preferred Stock
to elect a majority of the board of directors had accrued, with
the exception, that if, at any adjourned annual meeting, or
adjourned special meeting in lieu thereof, 35% in voting power of
the outstanding Preferred Stock is not present in person or by
proxy, all the directors shall be elected by a vote of the proxy,
all the directors shall be elected by a vote of the holders of
Common Stock present or represented at such adjourned meeting,
providing that a quorum of the holders of the Common Stock is
present or represented at the meeting.
(E) Whenever, under the provisions of paragraph (A) the
right of holders of the Preferred Stock to elect directors shall
terminate, the clerk of the corporation shall in accordance with
the by-laws of the corporation call a special meeting of the
holders of the class or classes of stock of the corporation
entitled to vote for the election of directors to be held not
less than 45 days and not more than 90 days after termination of
the aforesaid right, for the purpose of electing a board of
directors to serve until the next annual meeting and until their
respective successors shall be elected and shall qualify.
(F) If at any meeting called as provided in paragraphs (8)
or (E) or at any annual meeting of stockholders after accrual or
termination of the right of holders of the Preferred Stock to
elect directors as provided in paragraph (A) any director shall
not be reelected, his term of office shall end upon the election
and qualification of his successor, notwithstanding that the term
for which such director was originally elected shall not at the
time have expired.
(G) If, during any interval between annual meetings of
stockholders for the election of directors while holders of the
Preferred Stock shall be entitled to elect any director pursuant
to the provisions in paragraph (A), the number of directors in
office who have been elected by the holders of the Preferred
Stock or Common Stock, as the case may be, shall become less than
the total number of directors subject to election by holders of
shares of such class, whether by reason of the resignation, death
or removal of any director, or directors, or an increase in the
total number of directors, (1) the vacancy or vacancies shall be
filled by a majority vote of the remaining directors who either
were elected by the votes of shares of such class or succeeded to
a vacancy originally filled by the votes of shares of such class,
but (2) if such remaining directors then in office do not
constitute a majority of the number of directors subject to
election by the holders of such class or if they fail to fill
such vacancy within sixty days after such a vacancy occurs, they,
or the clerk of the corporation, shall call a special meeting of
holders of shares of such class upon not less than seven (7)
days' notice and the vacancy or vacancies shall be filled at such
special meeting.
(H) Any director may be removed from office for cause by
vote of the holders of a majority in voting power of the shares
of the class of stock which voted for his election (or his
predecessor in case such directors was elected by directors). A
special meeting of holders of shares of the appropriate class may
be called by a majority vote of the board of directors for the
purpose of removing a director in accordance with the provisions
of the preceding sentence, and shall be called by the clerk
within forty (40) days after there shall have been delivered to
the corporation at its principal office a request to such effect
signed by holders of at least five percent (5%) of the
outstanding shares of the classes entitled to vote with respect
to the removal of any such director.
(I) Whenever, under the provisions hereof, the right to
holders of the Preferred Stock to elect directors shall accrue
and be exercised, the amount of all dividends on the Preferred
Stock which shall be in default shall be paid, or shall be
deposited in trust, out of any assets of the corporation
available therefor as soon as shall be reasonably practicable.
(J) Each holder of Preferred Stock, as to all matters in
respect of which such stock has voting power, is entitled to one
vote for each share of stock outstanding in his name, provided
that if there shall be several classes of Preferred Stock
outstanding which have a different par value per share, for the
purposes of all votes or consents contemplated in this Section 3,
the class having the lowest par value per share shall be entitled
to a number of votes per share proportionate to the par value per
share thereof, and provided further that if at any meeting of
stockholders the holders of one or more classes of Preferred
Stock and the holders of any other class of stock (including
Common Stock) shall be entitled to vote together and not as
classes, the holders of Preferred Stock shall be entitled only to
one vote per share without regard to the par value of any share.
SECTION 3.06. Subscription Rights. Holders of Preferred
Stock shall be entitled to subscribe for or acquire (a) new or
additional shares of any class of Preferred Stock or (b)
securities convertible into new or additional shares of any class
of Preferred Stock, unless the stockholders upon authorizing such
increase in new or additional shares of any class of Preferred
Stock or such convertible securities shall provide that such new
or additional shares or convertible securities shall be disposed
of without being offered to the stockholders. Except as above
provided, the holders of the Preferred Stock shall have no right
to subscribe for or acquire any new or additional shares of stock
of the corporation. No holder of Preferred Stock need by given
notice of any increase of stock of the corporation to which he is
not entitled to subscribe.
SECTION 4
Common Stock
SECTION 4.01. Dividends. Out of any funds of the
corporation available for dividends remaining after full
cumulative dividends upon the Preferred Stock then outstanding
shall have been paid, or declared and a sum sufficient for the
payment thereof set apart, for all past quarterly dividend
periods, and after, or concurrently with, making payment of or
provision for full dividends for the current quarterly dividend
period on the Preferred Stock or any other stock, if any, then
outstanding ranking as to dividends ahead of the Common Stock,
and provided that the corporation is not in default in any
purchase or sinking fund obligations provided for any Preferred
Stock, then, and not otherwise, dividends may be paid upon the
Common Stock to the exclusion of the Preferred Stock subject to
the limitations provided for in Section 2.01(f).
SECTION 4.02. Distribution of Assets. In the event of any
liquidation, dissolution or winding up of the corporation, after
there shall have been paid to or set aside for the holders of
Preferred Stock or any other stock, if any, ranking as to assets
ahead of the Common Stock, the full preferential amounts to which
they are respectively entitled, the holders of the Common Stock
shall be entitled to receive, pro rata, all of the remaining
assets of the corporation available for distribution to its
stockholders. The board of directors by vote of a majority of
the members thereof, may distribute in kind to the holders of the
Common Stock such remaining assets of the corporation or may
sell, transfer, or otherwise dispose of all or any of the
remaining property and assets of the corporation to any other
corporation and receive payment therefor wholly or partly in cash
and/or in stock and/or in obligations of such corporation and may
sell all or any part of the consideration received therefor or
distribute the same and/or the balance thereof in kind to the
holders of the Common Stock.
SECTION 4.03. Voting Rights. Subject to the voting rights
expressly conferred upon the Preferred Stock by Section 3 and the
voting rights of any other class of Junior Stock, the holders of
the Common Stock shall exclusively possess full voting power for
the election of directors and for all other purposes.
SECTION 5
Miscellaneous
From time to time and without limitation of other rights and
powers of the corporation as provided by law, the corporation may
create or authorize one or more classes or kinds of stock ranking
prior to or on a parity with or junior to the Preferred Stock or
may increase the authorized amount of any class of stock,
authorize the disposition thereof permitted by law or make other
amendments to the agreement of association or the by-laws of the
corporation permitted by law, including, in particular, the
provisions setting out the preferences, restrictions or
qualifications of any class of stock at the time outstanding,
upon the vote, given at a meeting called for such purpose, of the
holders of a majority of the shares of stock then entitled to
vote thereon, or upon such other vote as may then be provided by
law; provided that the consent of the holders of shares of any
class of Preferred Stock required by Section 3.04, if any such
consent be so required, shall have been obtained, and provided
further that the rights, privileges, terms and conditions of
shares of the Common Stock shall not be subject to amendment,
alteration, change or repeal without the consent by vote at a
meeting called for that purpose of the holders of a majority of
the total number of shares of the Common Stock then outstanding.
Notwithstanding the foregoing, the board of directors of the
corporation, to the extent permitted by law, voting rights, may
fix the par values, dividend rates, redemption prices, amounts
payable thereon upon liquidation, dissolution or winding up and
sinking or purchase funds and other permitted provisions for
additional classes of Preferred Stock within the aggregate par
value thereof authorized by the agreement of association, votes
of the stockholders or by-laws.
ARTICLE XXI.
FISCAL YEAR
The fiscal year shall begin on the first day of September in
each year and shall end on the thirty-first day of August in each
year.
ARTICLE XXII.
INDEMNIFICATION AND RELATED MATTERS
A. Actions Involving Directors and Officers.
1. The Corporation shall indemnify each person (other
than a party plaintiff suing on his own behalf or in the right of
the Corporation) who at any time is serving or has served as a
director or officer of the Corporation against any claim,
liability, or expense incurred as a result of this service, or as
a result of any other service on behalf of the Corporation, or
service at the request of the Corporation as a director, officer,
employee, member, or agent of another Corporation, partnership,
joint venture, trust, trade or industry association or other
enterprise (whether incorporated or unincorporated, for-profit or
not-for-profit), to the maximum extent permitted by law. Without
limited the generality of the foregoing, the Corporation shall
indemnify any such person who was or is a party (other than a
party plaintiff suing on his own behalf or in the right of the
Corporation), or is threatened to be made a party, to any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative
(including, without limitation, attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or
proceeding.
2. To the extent that an employee or agent of the
Corporation has been successful on the merits or otherwise in
defense of any action suit, or proceeding referred to in Section
B(1) of this Article, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection with the action, suit, or proceeding.
3. The Corporation shall not be liable to indemnify a
director or officer for any amounts paid in settlement of any
action or claim effected without the Corporation's written
consent. The Corporation shall not settle any action or claim in
any manner which would impose any penalty or limitation on the
director or officer without the director's or officer's written
consent. Neither the Corporation nor the director or officer
will unreasonably withhold his or its consent to any proposed
settlement.
C. Determination of Right to Indemnification in Certain
Circumstances. Any indemnification required under Section A of
this Article or authorized by the Corporation in a specific case
pursuant to Section B of this Article (unless ordered by a court)
shall be made by the Corporation unless a determination is made
reasonably and promptly that indemnification of the director,
officer, employee, or agent is not proper under the circumstances
because he has not met the applicable standard of conduct set
forth in or established pursuant to this Article. Such
determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding, or (2) if such a
quorum is not obtainable, or even if attainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion or (3) by majority vote of the shareholders;
provided that no such determination shall preclude an action
brought in an appropriate court to challenge such determination.
D. Advance Payment of Expenses. Expenses incurred by a
person who is or was a director or officer of the Corporation in
defending a civil or criminal action, suit, or proceeding shall
be paid by the Corporation in advance of the final disposition of
an action, suit, or proceeding, and expenses incurred by a person
who is or was an employee or agent of the Corporation in
defending a civil or criminal action, suit, or proceeding may be
paid by the Corporation in advance of the final disposition of
such action, suit, or proceeding as authorized by or at the
director of the board of directors, in either case upon receipt
of an undertaking by or on behalf of the director, officer,
employee, or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation as authorized in or pursuant to this Article which
undertaking may be accepted without reference to the financial
ability of such person to make repayment.
E. Not Exclusive Right. The indemnification provided
by this Article shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled, whether
under the By-Laws of the Corporation or any statute, agreement,
vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in
another capacity while holding such office.
F. Indemnification Agreements Authorized. Without
limiting the other provisions of this Article, the Corporation is
authorized from time to time, without further action by the
shareholders of the Corporation, to enter into agreements with
any director, officer, employee, or agent of the Corporation
providing such rights of indemnification as the Corporation may
deem appropriate, up to the maximum extent permitted by law. Any
agreement entered into by the Corporation with a director may be
authorized by other directors, and such authorization shall not
be invalid on the basis that different or similar agreements may
have been or may thereafter be entered into with other directors.
G. Standard of Conduct. Except as may otherwise be
permitted by law, no person shall be indemnified pursuant to this
Article from or on account of such person's conduct who is
adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interest of
the Corporation or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee
benefit plan. The Corporation may (but need not) adopt a more
restrictive standard of conduct with respect to the
indemnification of any employee or agent of the Corporation.
H. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the Corporation, or who
is or was otherwise serving on behalf or at the request of the
Corporation against any claim, liability, or expense asserted
against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the
provisions of this Article. If the Corporation maintains such
insurance, such insurance shall be primary, to the extent to
coverage provided thereby, and the Corporation's obligation to
provide the indemnification set forth herein shall be effective
only to the extent that the director, officer, employee, or agent
is not reimbursed pursuant to the coverage maintained under such
insurance.
I. Certain Definitions. For the purposes of this
Article:
1. Any director or officer of the Corporation who
shall serve as a director, officer, or employee of any other
corporation, partnership, joint venture, trust, or other
enterprise of which the Corporation, directly or indirectly, is
or was the owner of 20% or more of either the outstanding equity
interests or the outstanding voting stock (or comparable
interests) shall be deemed to be so serving at the request of the
Corporation, unless the Board of Directors of the Corporation
shall determine otherwise. In all other instances where any
person shall serve as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise of which the Corporation is or was a stockholder or
creditor, or in which it is or was otherwise interested, if it is
not otherwise established that such person is or was serving as a
director, officer, employee, or agent at the request of the
Corporation, the Board of Directors of the Corporation may
determine whether such service is or was at the request of the
Corporation, and it shall not be necessary to show any actual or
prior request for such service.
2. References to a corporation include all
constituent corporations absorbed in a consolidated or merger as
well as the resulting or surviving corporation so that any person
who is or was a director, officer, employee, or agent of a
constituent corporation or is or was serving at the request of a
constituent corporation as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust,
or other enterprise shall stand in the same position under the
provisions of this Article with respect to the resulting or
surviving corporation as he would if he had served the resulting
or surviving corporation in the same capacity.
3. The term "other enterprise" shall include, without
limitation, employee benefit plans and voting or taking action
with respect to stock or other assets therein; the term "serving
at the request of the Corporation" shall include, without
limitation, any service as a director, officer, employee, or
agent of the Corporation which imposes duties on, or involves
services by, a director, officer, employee, or agent with respect
to any employee benefit plan, its participants, or beneficiaries;
and a person who has acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
satisfied any standard of care required by or pursuant to this
Article in connection with such plan; the term "fines" shall
include, without limitation, any excise taxes assessed on a
person with respect to an employee benefit plan and shall also
include any damages (including treble damages) and any other
civil penalties; the masculine pronoun shall be replaced by the
feminine when context requires it.
J. Survival. Any indemnification rights provided pursuant
to this Article shall continue as to a person who has ceased to
be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a
person. Notwithstanding any other provision in the Articles of
Organization or By-Laws, any indemnification rights arising under
or granted pursuant to this Article shall survive amendment or
repeal of this Article with respect to any acts or omissions
occurring prior to the effective time of such amendment or repeal
and persons to whom such indemnification rights are given shall
be entitled to rely upon such indemnification rights with respect
to such acts or omissions as a binding contract with the
Corporation.
K. Liability of the Directors. It is the intention of
the Corporation to limit the liability of the Directors of the
Corporation, its shareholders, or otherwise, to the fullest
extent permitted by law. Consequently, should Massachusetts
Business Corporation Law or any other applicable law be amended
or adopted hereafter so as to permit the elimination or
limitation of such liability, the liability of the Directors of
the Corporation shall be so eliminated or limited without the
need for amendment of the Articles or By-Laws or further action
on the part of the shareholders of the Corporation.
ARTICLE XXIII.
AMENDMENTS
Subject to the provisions of Section 3.04 of Article XX and
paragraph (f) of Article XXIV hereof these by-laws may be
amended, added to, altered, or repealed in whole or in part, by
vote of the holders of a majority of all the shares of Common
Stock outstanding and entitled to vote at any meeting of the
stockholders if such action has been announced in the notice of
such meeting or which such notice has been waived.
ARTICLE XXIV.
SPECIAL PROVISIONS RELATING TO BUSINESS COMBINATIONS
(a) Notwithstanding any other provision of the
Corporation's Articles of Organization or By-Laws, the
affirmative vote of the holders of not less than two-thirds of
the outstanding shares of capital stock of the Corporation
entitled to vote, excluding, for purposes of such vote, any
shares held by a "Related Person" (as hereinafter defined) shall
be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) involving a Related Person;
provided, however, that such two-third voting requirement shall
not be applicable if:
(1) The "Continuing Directors" (as hereinafter defined) of
the Corporation by a two-thirds vote have expressly approved such
Business Combination either in advance of or subsequent to such
Related Person's having become a Related Person; or
(2) All of the following conditions are satisfied:
(A) The aggregate amount of the cash and the "Fair Market
Value" (as hereinafter defined) of the property, securities or
"Other Combination" (as hereinafter defined) to be received per
share by holders of Common Stock in the Business Combination,
other than the Related Person involved in the Business
Combination, shall be at least equal to the highest amount
determined under sub-clause (I) and (ii) below:
(I) The Highest Per Share Price (including brokerage
commissions, transfer taxes and soliciting dealers' fees)
paid by the Related Persons for any share of Common Stock
acquired by it (1) within the two-year period immediately
prior to the first public announcement of the proposal of
the Business Combination (the "Announcement Date") or (2) in
the transaction in which it became a Related Person,
whichever is higher; and
(ii) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Related Person
became a Related Person (such latter date is referred to in
Article XXIV as the "Determination Date"), whichever is
higher.
(B) The aggregate amount of the cash and the Fair Market
Value of the property, securities or Other Consideration to be
received per share by holders of Preferred Stock in the Business
Combination, other than the Related Person involved in the
Business Combination, shall be at least equal to the highest
amount determined under sub-clauses (I), (ii), and (iii) below:
(I) the Highest Per Share Price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees)
paid by the Related Persons for any shares of such class of
Preferred Stock acquired by it (1) within the two-year
period immediately prior to the Announcement Date or (2) in
the transaction in which it became a Related Person,
whichever is higher.
(ii) the highest preferential amount per share to which the
holders of shares of such class of Preferred Stock would be
entitled in the event of any voluntary or involuntary
liquidation; dissolution or winding up of the affairs of the
Corporation, regardless of whether the Business Combination
to be consummated constitutes such an event; and
(iii) the Fair Market Value per share of such class of
Preferred Stock on the Announcement Date or on the
Determination Date, whichever is higher.
The provisions of this sub-paragraph (a) (2) (B) shall be
required to be met with respect to every class of outstanding
Preferred Stock, whether or not the Related Person has previously
acquired any shares of a particular class of Preferred Stock.
(C) The consideration to be received by holders of a
particular class of outstanding capital stock of the Corporation
shall be in cash or in the same form as the Related Person has
previously paid for shares of such class of capital stock of the
Corporation. If the Related Person has paid for shares of any
class of capital stock of the Corporation with varying forms of
consideration, the form of consideration for such class of
capital stock of the Corporation shall be either cash or the form
used to acquire the largest number of shares of such class of
capital stock of the Corporation previously acquired by it.
Such two-thirds vote shall be required notwithstanding the
fact that no vote may be required or that a lesser percentage may
be specified by law or in any agreement with any national
securities exchange or otherwise.
(b) For purposes of this Article XXIV:
(1) The term "Business Combination" shall mean (A) any
merger, consolidation or share exchange of the Corporation or a
subsidiary of the Corporation with or into a Related Person, in
each case without regard to which entity is the surviving entity;
(B) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security
device, of all or any "Substantial Part" (as hereinafter defined)
of the assets of the Corporation (including without limitation
any voting securities of a subsidiary of the Corporation) or a
subsidiary of the Corporation to a Related Person (in one
transaction or a series of transactions); (C) any sale, lease,
exchange, transfer or other disposition, including without
limitation a mortgage or any other security device, of all or any
Substantial Part of the assets of a Related Person to the
Corporation or a subsidiary of the Corporation; (D) the issuance
or transfer of any securities of the Corporation or a subsidiary
of the Corporation by the Corporation or any of its subsidiaries
to a Related Person (other than an issuance or transfer of
securities which is effected on a pro rata basis to all
shareholders of the Corporation); (E) any recapitalization that
would have the effect of increasing the voting power of a Related
Person; (F) the issuance or transfer by a Related Person of any
securities of such Related Person to the Corporation or a
subsidiary of the Corporation (other than an issuance or transfer
of securities which is effected on a pro rata basis to all
shareholders of the Related Person): (G) the adoption of any
plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of a Related Person; or (H)
any agreement, contract or other arrangement providing for any of
the transactions described in this definition of Business
Combination.
(2) The term "Related Person" shall mean and include any
individual, Corporation, partnership or other person or entity
which, as of the record date for the determination of
shareholders entitled to notice of and to vote on any Business
Combination, or immediately prior to the consummation of such
transaction, together with its "Affiliates" and "Associates" (as
defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as in effect at the date of
the adoption of this Article by the shareholders of the
Corporation (collectively, and as so in effect, the "Exchange
Act"), are "Beneficial Owners" (as defined in Rule 13d-3 of the
Exchange Act) in the aggregate of 15% or more of the outstanding
shares of any class of capital stock of the Corporation, and any
Affiliate or Associate of any such individual, Corporation,
partnership, or other person or Corporation, and any Affiliate or
Associate of any such individual, Corporation, partnership or
other person or entity. Notwithstanding any provision of Rule
13d-3 to the contrary, an entity shall be deemed to be the
Beneficial Owner of any share of capital stock of the Corporation
that such entity has the right to acquire at any time pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise.
(3) The term "Substantial Part" shall mean more than 20% of
the fair market value, as determined by two-thirds of the
Continuing Directors, of the total consolidated assets of the
Corporation and its subsidiaries taken as a whole as to the end
of its most recent fiscal year ended prior to the time the
determination is being made.
(4) The term "Other Consideration" shall include, without
limitation, Common Stock or other capital stock of the
Corporation retained by shareholders of the Corporation other
than Related Persons or parties to such Business Combination in
the event of a Business Combination in which the Corporation is
the surviving Corporation.
(5) The term "Continuing Director" shall mean a Director
who is unaffiliated with any Related Person and either (A) was a
member of the Board of Directors of the Corporation immediately
prior to the time that the Related Person involved in a Business
Combination became a Related Person, or (B) was designated
(before his or her initial election or appointment as director)
as a Continuing Director by a majority of the then Continuing
Directors.
(6) The term "Fair Market Value" shall mean (A) in the case
of stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange - Listed
Stocks, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or
if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in
question of a share of such stock as determined by a two-thirds
vote of the Continuing Directors in good faith; and (B) in the
case of property other than cash or stock, the fair market value
of such property on the date in question as determined by a two-
thirds vote of the Continuing Directors in good faith.
(7) The term "Highest Per Share Price" shall in each case
with respect to any class of stock reflect an appropriate
adjustment for any dividend or distribution in shares of such
stock or any stock split or reclassification of outstanding
shares of such stock into a greater number of shares of such
stock or any combination or reclassification of outstanding
shares of such stock into a smaller number of shares of such
stock.
(8) The term "Common Stock" shall mean the Common Stock
which may from time to time be authorized in or by the Articles
of Organization of the Corporation.
(9) The term "Preferred Stock" shall mean the Preferred
Stock and any other class of preferred stock which may from time
to time be authorized in or by the Articles of Organization of
the Corporation.
(c) The determinations of the Continuing Directors as to
Fair Market Value and the existence of a Related Person or a
Business Combination shall be conclusive and binding.
(d) Nothing contained in this Article XXIV shall be
construed to relieve any Related Person from any fiduciary
obligation imposed by law.
(e) The fact that any Business Combination complies with
the provisions of paragraph (a)(2) of this Article XXIV shall not
be construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner
the board of directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to
such Business Combination.
(f) The provisions of this Article XXIV may not be amended,
added to, altered or repealed in whole or in part, except by vote
of not less than two-thirds of all shares of Common Stock
outstanding and entitled to vote (excluding for purposes of such
vote any shares held by a Related Person) at any meeting of the
Stockholders where such action has been announced in the notice
of such meeting or where such notice has been waived.