[ARTICLE]
1 Previously filed an exhibit to the Company's form 10-Q for the
period ended February 28, 1995 and is incorporated herein by this
reference.
17
BY-LAWS
OF
ESSEX COUNTY GAS COMPANY
As Amended Through January 17, 1995
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 office 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 as 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 applied for.
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 of 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 any 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 or shall have waived notice in writing,
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 a majority in interest of the stockholders present
may adjourn any meeting from time to time (provided no
adjournment shall be for more than three months), and the
meeting may be held as adjourned without further notice. When
a quorum is present at any 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 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 by 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 of 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 bring before the meeting (a) a
brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at
the meeting, (b) the 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 proposing
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 holders 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 of 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 by 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 meetings
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 matter 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 and 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 for 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 Vll.
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 the president during the absence
or disability of the president and shall have the power to
sign all certificates for shares of 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
attend and keep the minutes, of all meetings of the
stockholders. He shall have custody of the corporate seal of
the corporation. He shall per- form 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
be 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 XIII.
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 meetings 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 to 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 cancelled and new certificates shall be issued.
Except as otherwise expressly provided by
Massachusetts law, the corporation shall be entitled to treat
the holder of record of any share or shares of stock as the
absolute owner thereof for all purposes and, shall not be
bound to recognize any legal, equitable or other claim to, or
interest in, such share or shares on the part of any other
person whether or not it was given express notice or other
notice thereof.
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 or the seal of the
corporation, or either 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 regards 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 XIX.
FIXING OF RECORD DATE OR CLOSING
TRANSFER BOOKS
The board of directors may fix in advance a time
which shall be not more than sixty days before the date of any
meeting of the stockholders or the date for the payment of any
dividend or the making of any distribution to stockholders or
the last day on which the consent or dissent of stockholders
may be effectively expressed for any purpose, as the record
date for determining the stockholders having the right to
notice of and to vote at such meeting or any adjournment
thereof or the right to receive such dividend or distribution
or the right to give such consent or dissent, and in such case
only stockholders of record on such record date shall have
such right, notwithstanding any transfer of stock on the books
of the corporation after the record date; or without fixing
such record date, the board of directors may for any of such
purposes close the transfer books for al or any part of such
period.
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 say 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 referred 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
of any indenture or agreement securing any outstanding
indebtedness of the corporation), determined in accordance
with such system of accounting as may at the time be
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 on 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 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
$5.50 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
$ .50 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 or 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 redemption.
(d) Purchase Fund
The corporation (unless prevented from so doing 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 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 Offer as aforesaid mail 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 certificate, 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 Offers 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 cancelled 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 or 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 purchase or sinking fund
for such class of stock) if the 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, Voting 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 then 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 of Preferred Stock as set forth in Section 2
hereof if such Preferred Stock were to be redeemed as set
forth below under the caption "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, (a) 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,
that 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 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
all 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 or 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 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 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 director 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 of 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 one vote per share
and each other class 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. 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.
B. Actions Involving Employees or Agents.
1. The Corporation may, if it deems
appropriate and as may be permitted by this Article, indemnify
any person (other than a party plaintiff suing on his own
behalf or in right of the Corporation), who at any time is
serving or has served as an employee or agent of the
Corporation against any claim, liability, or expense incurred
as a result of such 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 or
to such lesser extent as the Corporation, in its discretion,
may deem appropriate. Without limiting the generality of the
foregoing, the Corporation may indemnify any such person who
was or is a party, to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including, but not limited
to, an action by or in the right of the Corporation) by reason
of such service against expenses (including, without
limitation, attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him and
in connection with the 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 an employee or agent 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 employee or agent without the
employee's or agent's written consent. Neither the
Corporation nor the employee or agent 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 obtainable 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 direction 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 of 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, 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 consolidation 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, in their capacity as such,
whether to 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 where 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 Consideration" (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-clauses (i) and (ii)
below:
(i) The Highest Per Share Price (including any
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 a "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.