EXHIBIT 99.2
BYLAWS
OF
SIS BANCORP, INC.
ARTICLE 1
Organization
The name of this Company is SIS Bancorp, Inc. The Company shall have and fully
exercise all powers and authority, both express and implied, available to it
under applicable law.
ARTICLE 2
Offices
Section 2.1 Principal Office. The principal office of the Company shall be
located at 1441 Main Street, Springfield, Massachusetts and may be changed from
time to time by the Board of Directors of the Company, subject to applicable
law.
Section 2.2 Additional Offices. The Company may have such additional offices,
either within or without the Commonwealth of Massachusetts, as the Board of
Directors may from time to time designate or the business of the Company may
require, subject to applicable law.
ARTICLE 3
Stockholders
Section 3.1 Annual Meeting. The annual meeting of the stockholders of the
Company shall be held on the last Wednesday in April of each year, if not a
legal holiday, and if a legal holiday then on the next succeeding business day,
at 10:00 a.m., local time, at the principal executive offices of the Company, or
at such other date, place and/or time as may be fixed by resolution of the Board
of Directors.
Section 3.2 Special Meeting. Subject to the rights of the holders of any
series of preferred stock, par value $0.01 per share (the "Preferred Stock"), or
any other series or class of stock as set forth in the Articles of Organization
(as defined in Section 10.3 of these Bylaws) to elect additional directors under
specified circumstances, special meetings of the stockholders may be called only
by the President or by the Board of Directors pursuant to a resolution adopted
by a majority of the total number of directors that the Company would have if
there were no vacancies (the "Whole Board"); provided, however, that if at the
time of such call there is an Interested Stockholder, any such call shall also
require the affirmative vote of a majority of the Continuing Directors then in
office. As used in these Bylaws, the terms "Interested Stockholder" and
"Continuing Director" shall have the same respective meanings assigned to them
in the Articles of Organization. Any determination of beneficial ownership of
securities under these Bylaws shall be made in the manner specified in the
Articles of Organization.
Section 3.3 Place of Meeting. The Board of Directors may designate the place
of meeting for any meeting of the stockholders. If no designation is made by the
Board of Directors, the place of meeting shall be the principal executive
offices of the Company.
Section 3.4 Notice of Meeting. A written notice of all annual and special
meetings of stockholders stating the hour, date, place and purposes of such
meetings shall be given by the Clerk or an Assistant Clerk (or other person
authorized by these Bylaws or by law) not less than seven days nor more than
fifty days before the
meeting to each stockholder entitled to vote thereat or to each stockholder who,
under the Articles of Organization or under these Bylaws, is entitled to such
notice by mailing it addressed to such stockholder at the address of such
stockholder as it appears on the stock transfer books of the Company. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail with postage thereon prepaid. In the case of a special meeting the notice
shall also state the purpose or purposes thereof. Any previously scheduled
meeting of the stockholders may be postponed by resolution of the Board of
Directors upon public notice given prior to the time previously scheduled for
such meeting of stockholders.
Section 3.5 Waiver of Notice. Notice of any stockholders' meeting may be
waived in writing by any stockholder either before or after the time stated
therein for convening of the meeting, and, if any person present in person or by
proxy at a stockholders' meeting does not protest, prior to or at the
commencement of the meeting, the lack of proper notice, such person shall be
deemed to have waived notice of such meeting.
Section 3.6 Quorum and Adjournment. Except as otherwise provided by law or by
the Articles of Organization, the holders of a majority of the voting power of
the then outstanding shares of the Company entitled to vote generally in the
election of directors (the "Voting Stock"), represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum for the transaction of such business. The chairman of the meeting or a
majority of the voting power of the shares of Voting Stock so represented may
adjourn the meeting from time to time, whether or not there is such a quorum (or
in the case of specified business to be voted on as a class or series, the
chairman or a majority of the shares of such class or series so represented may
adjourn the meeting with respect to such specified business). No notice of the
time and place of adjourned meetings need be given except as required by law.
The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 3.7 Proxies. Stockholders may vote either in person or by written
proxy dated not more than six months before the meeting named therein. Proxies
shall be filed with the Clerk of the meeting, or of any adjournment thereof,
before being voted. Except as otherwise limited therein, proxies shall entitle
the persons authorized thereby to vote at any adjournment of such meeting, but
they shall not be valid after final adjournment of such meeting. A proxy with
respect to stock held in the name of two or more persons shall be valid if
executed by or on behalf of any one of them unless at or prior to the exercise
of the proxy the Company receives a specific written notice to the contrary from
any one of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to its exercise,
and the burden of proving invalidity shall rest on the challenger.
Section 3.8 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the
Company and the proposal of business to be considered by the stockholders may be
made at an annual meeting of the stockholders (a) pursuant to the Company's
notice of meeting delivered pursuant to Section 3.4 of these Bylaws, (b) by or
at the direction of the President or the Board of Directors pursuant to a
resolution adopted by a majority of the Whole Board (unless there is an
Interested Stockholder, in which case the affirmative vote of a majority of the
Continuing Directors then in office shall also be required) or (c) by any
stockholder of the Company who is entitled to vote at the meeting, who complied
with the notice procedures set forth in clauses (2) and (3) of paragraph (A) of
this Section 3.8 and who was a stockholder of record at the time such notice is
delivered to the Clerk of the Company.
(2) For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this
Section 3.8, the stockholder must have given timely notice thereof in writing to
the Clerk of the Company. To be timely, a stockholder's notice shall be
delivered to the Clerk at the principal executive offices of the Company not
less than seventy days nor more
than ninety days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than twenty days, or delayed by more than seventy
days, from such anniversary date, notice by the stockholder to be timely must be
so delivered not earlier than the ninetieth day prior to such annual meeting and
not later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
regulations promulgated by the Securities and Exchange Commission (the "SEC"),
or any successor agency thereto, pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including such person's written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Company's books, and of such beneficial owner and (ii) the
class and number of shares of the Company which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this Section 3.8 to the contrary, in the event that the number of directors to
be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Company at least eighty days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by these Bylaws shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Clerk at the principal executive offices of the Company not
later than the close of business on the tenth day following the day on which
such public announcement is first made by the Company.
(B) Special Meeting of Stockholders. Only such business shall be conducted at
a special meeting of stockholders as shall have been brought before the meeting
pursuant to the Company's notice of meeting pursuant to Section 3.4 of these
Bylaws.
(C) General.
(1) Only persons who are nominated in accordance with the procedures set forth
in these Bylaws shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in these Bylaws.
(2) Except as otherwise provided by law, the Articles of Organization or these
Bylaws, the Chief Executive Officer of the Company as chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with the
procedures set forth in these Bylaws and, if any proposed nomination or business
is not in compliance with these Bylaws, to declare that such defective proposal
or nomination shall be disregarded.
(3) For purposes of these Bylaws, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Company
with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of these Bylaws, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in these
Bylaws. Nothing in these Bylaws shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Company's proxy statement
pursuant to rules promulgated under the Exchange Act or (ii) of the holders of
any series of Preferred Stock to elect directors under specified circumstances.
Section 3.9 Procedure for Election of Directors; Required Vote. Election of
directors at all meetings of the stockholders at which directors are to be
elected shall be by written ballot, and except as otherwise set forth in the
Articles of Organization with respect to the right of the holders of any series
of Preferred Stock or any other series or class of stock to elect additional
directors under specified circumstances, a plurality of the votes cast thereat
shall elect the directors. Except as otherwise provided by law, the Articles of
Organization or these Bylaws, all matters submitted to the stockholders at any
meeting shall be decided by the affirmative vote of a majority of the shares
present in person or represented by proxy at the meeting and entitled to vote on
the matter and shall be the act of the stockholders.
Section 3.10 No Stockholder Action by Written Consent. Subject to the rights
of the holders of any series of Preferred Stock or any other series or class of
stock as set forth in the Articles of Organization to elect additional directors
under specific circumstances or to consent to specific actions taken by the
Company, any action required or permitted to be taken by the stockholders of the
Company must be effected at an annual or special meeting of stockholders of the
Company and may not be effected by any consent in writing by such stockholders.
ARTICLE 4
Board of Directors
Section 4.1 General Powers. The business and affairs of the Company shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these Bylaws expressly conferred upon them, the Board
of Directors may exercise all such powers of the Company and do all such lawful
acts and things as are not by law or by the Articles of Organization or by these
Bylaws required to be exercised or done by the stockholders.
Section 4.2 Composition and Term. The Board of Directors shall be composed of:
(a) those persons elected by the incorporator(s) of the Company to serve as the
initial directors of the Company in accordance with Section 12 of Chapter 156B
of the Massachusetts General Laws, such persons to serve as directors until the
respective expiration dates of their terms as established by said
incorporator(s) and until their successors are elected and qualified and (b)
such other persons who are elected as directors from time to time as provided
herein. Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in the Articles of Organization
to elect directors under specified circumstances, the number of directors shall
be fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board (provided that if at the time of such action there
is an Interested Stockholder, a majority vote of the Continuing Directors then
in office shall also be required), but shall consist of not less than three
directors. The directors, other than those who may be elected by the holders of
any series of Preferred Stock or any other series or class of stock as set forth
in the Articles of Organization, shall be divided into three classes as nearly
equal in number as possible, and designated as Class I, Class II and Class III.
Members of each Class shall hold office until their successors shall have been
duly elected and qualified. At each succeeding annual meeting of stockholders of
the Company, (i) the successors of the Class of directors whose term expires at
that meeting shall be elected by a plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election, and until their
successors are elected and qualified and (ii) if authorized by a resolution of
the Board of Directors, directors may be elected to fill any vacancy on the
Board of Directors, regardless of how such vacancy shall have been created.
Section 4.3 Qualification. Each director shall have such qualifications as are
required by applicable law. Any director who becomes in any manner disqualified,
shall vacate his office forthwith. To the extent required by law, each director,
when appointed or elected, shall take an oath that he will faithfully perform
the duties of his office. The oath, to the extent so required, shall be taken
before a notary public or justice of the peace, who is not an officer of the
Company, and a record of the oath shall be made a part of the records of the
Company.
To the extent required by law, members of the Board of Directors shall be
citizens and residents of the Commonwealth of Massachusetts.
Section 4.4 Regular Meetings. A regular meeting of the Board of Directors
shall be held without notice other than these Bylaws immediately after, and at
the same place as, each annual meeting of stockholders. The Board of Directors
may, by resolution, provide the time and place for the holding of additional
regular meetings without notice other than such resolution.
Section 4.5 Special Meetings. Special meetings of the Board of Directors shall
be called at the request of the Chairman of the Board, if one is elected, the
President, or a majority of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings.
Section 4.6 Notice. Notice of any special meeting shall be given to each
director at his or her business or residence in writing by hand delivery,
first-class or overnight mail or courier service, telegram or facsimile
transmission or orally by telephone communication. If mailed, such notice shall
be deemed adequately delivered when deposited in the United States mails so
addressed, with postage thereon prepaid, at least five days before such meeting.
If by telegram, overnight mail, or courier service such notice shall be deemed
adequately delivered when the telegram is delivered to the telegraph company or
its notice is delivered to the overnight mail or courier service company at
least twenty-four hours before such meeting. If by facsimile transmission, such
notice shall be deemed adequately delivered when the notice is transmitted at
least twenty-four hours before such meeting. If by telephone or by hand
delivery, the notice shall be given at least twelve hours prior to the time set
for the meeting. Neither business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these Bylaws as provided under
Article 8 of these Bylaws. A meeting may be held at any time without notice if
all the directors are present or if those not present waive notice of the
meeting as provided in Section 4.7 of these Bylaws.
Section 4.7 Waiver of Notice. Notice of any directors' meeting may be waived
in writing by all the directors and, if any director present at a directors'
meeting does not protest prior to or at the commencement of the meeting the lack
of proper notice, he shall be deemed to have waived notice of such meeting.
Section 4.8 Quorum. A majority of the Whole Board shall constitute a quorum
for the transaction of business, but if at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of the directors present
may adjourn the meeting from time to time without further notice. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 4.9 Vacancies. Subject to the rights of the holders of any series of
Preferred Stock or any other series or class of stock as set forth in the
Articles of Organization to elect additional directors under specified
circumstances, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, unless there is
an Interested Stockholder, in which case such vacancy may only be filled by vote
of a majority of the Continuing Directors then in office. A director so chosen
shall hold office for the remainder of the full term of the Class of directors
in which the vacancy occurred or the new directorship was created and until such
director's successor has been elected and qualified. No decrease in the number
of authorized directors shall shorten the term of any incumbent director.
Section 4.10 Presumption of Assent. A director of the Company who is present
at a meeting of the Board of Directors at which action on any Company matter is
taken shall be presumed to have assented to the action taken unless his dissent
or abstention shall be entered in the minutes of the meeting or unless he shall
file a written dissent to such action with the person acting as the Clerk of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Clerk of the Company within five days after the date a
copy of the minutes of the meeting is received. Such right to dissent shall not
apply to a director who voted in favor of such action.
Section 4.11 Manner of Participation. Members of the Board of Directors or of
committees elected by the Board pursuant to Section 4.15 may participate in
meetings of the Board or such committee by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other. Such participation shall constitute presence in
person but shall not constitute attendance for the purpose of compensation
pursuant to Section 4.12, unless the Board of Directors by resolution so
provides.
Section 4.12 Compensation of Directors. The Board of Directors shall have
authority to fix fees of directors, including a reasonable allowance for
expenses actually incurred in connection with their duties.
Section 4.13 Resignation. Any director may resign at any time by sending a
written notice of such resignation to the principal executive office of the
Company addressed to the Chairman of the Board, the President or the Clerk.
Unless the resigning director otherwise specifies in the notice of resignation,
such resignation shall take effect upon receipt by the Chairman of the Board,
the President or the Clerk.
Section 4.14 Limitation on Service by Directors. A director upon attaining the
age of seventy (70) shall retire from service as a director of the Company. In
special circumstances, a person may be nominated as a Director who has attained
the age of seventy (70) because of the special contribution such person may make
to the business and management of the Company.
Section 4.15 Committees. The Board of Directors may, by resolution adopted by
a majority of the Whole Board, designate one or more committees, including
without limitation an executive committee, each committee to consist of three
(3) or more directors elected by the Board of Directors. The Board of Directors
may elect one or more directors as alternate members of any such committee, who
may take the place of any absent member or members at a meeting of such
committee.
If a member of any such committee shall be absent from any meeting, or
disqualified from voting thereat, the remaining member or members present and
not disqualified from voting, whether or not such member or members constitute a
quorum, may, by unanimous vote, appoint another member of the Board of Directors
to act at the meeting in place of an absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
and except as otherwise provided by law, the Articles of Organization or these
Bylaws, shall have and may exercise, when the Board of Directors is not in
session, all the powers and authority of the Board of Directors in the direction
of the Company.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Unless otherwise specified in the resolution of the Board of Directors
designating the committee, the majority of the total number of members of the
committee shall constitute a quorum for the transaction of business, and the
vote of the majority of the members of the committee present at any meeting of
which there is a quorum shall be the act of the committee. Each such committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors, when required.
Section 4.16 Removal. Subject to the rights of the holders of any series of
Preferred Stock or any other series or class of stock as set forth in the
Articles of Organization to elect additional directors under specified
circumstances, any director may be removed from office at any time, but only for
cause and then only by the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of the then outstanding Voting Stock, voting
together as a single class.
ARTICLE 5
Officers
Section 5.1 Enumeration. The officers of the Company shall consist of a
President, a Treasurer, a Clerk and such other officers, including, without
limitation, a Chairman of the Board, a Clerk and one or more Vice Presidents as
the Board of Directors may determine to be necessary for the management of the
Company.
Section 5.2 Election. The President, Treasurer and the Clerk (and, if any, the
Secretary) shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Other officers shall be
elected by the Board of Directors at such first meeting of the Board of
Directors or at any other meeting.
Section 5.3 Qualification. Any two or more offices may be held by any person.
The President shall be a Director. Any officer may be required by the Board of
Directors to give bond for the faithful performance of his duties in such amount
and with such sureties as the Board of Directors may determine.
Section 5.4 Tenure. Except as otherwise provided by law, by the Articles of
Organization, or by these Bylaws, the President, Treasurer and Clerk (and, if
any, the Secretary) shall hold office until the first meeting of the Board of
Directors following the next annual meeting of the stockholders and until their
respective successors are chosen and qualified and all other officers shall hold
office until the first meeting of the Board of Directors following the next
annual meeting of stockholders, or for such shorter term as the Board of
Directors may fix at the time such officers are chosen. The Chief Executive
Officer may resign at any time by written notice to the Board of Directors or
the Clerk. Any other officer may resign at any time by written notice to the
Chief Executive Officer. Such resignation shall be effective upon receipt unless
the resignation otherwise provides. Election or appointment of an officer,
employee or agent shall not of itself create contract rights. The Board of
Directors may, however, authorize the Company to enter into an employment
contract with any officer in accordance with law, but no such contract right
shall impair the right of the Board of Directors to remove any officer at any
time in accordance with Section 5.5 hereof.
Section 5.5 Removal. Except as otherwise provided by law or the Articles of
Organization, the Board of Directors may remove any officer with or without
cause by the affirmative vote of a majority of the Whole Board; provided,
however, that if at the time of such removal there is an Interested Stockholder,
the affirmative vote of a majority of the Continuing Directors then in office
shall also be required. Any such removal, other than for cause, shall be without
prejudice to the contract rights, if any, of the persons involved. Any officer
may be removed for cause only after ten days' written notice and opportunity to
be heard by the Board of Directors.
Section 5.6 Absence or Disability. In the event of the absence or disability
of any officer, the Board of Directors may designate another officer to act
temporarily in place of such absent or disabled officer.
Section 5.7 Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
Section 5.8 Chief Executive Officer. The President shall be the Chief
Executive Officer, unless the Board of Directors shall elect a Chairman of the
Board and designate such Chairman to be the Chief Executive Officer. The Chief
Executive Officer shall, subject to the direction of the Board of Directors,
have general supervision and control of the Company's business and shall
preside, when present, at all meetings of the stockholders.
Section 5.9 Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the Board of Directors. If a Chairman of the Board is not
elected or is absent, the President shall preside at all meetings of the Board
of Directors. The Chairman of the Board shall have such other powers and shall
perform such other duties as the Board of Directors may from time to time
designate. If the Chairman of the Board is not the Chief Executive Officer, he
shall also have such powers and perform such duties as the Chief Executive
Officer may from time to time designate.
Section 5.10 The President. The President, if he is the Chief Executive
Officer, shall preside at all meetings of the stockholders. If a Chairman of the
Board is not elected or is absent, the President shall preside at all meetings
of the Board of Directors. If the President is not the Chief Executive Officer,
he shall have such powers and perform such duties as the Chief Executive Officer
may from time to time designate.
Section 5.11 Vice Presidents, Treasurer and Other Officers. Any Vice
President, the Treasurer and any other officers whose powers and duties are not
otherwise specifically provided for herein shall have such powers and shall
perform such duties as the Chief Executive Officer may from time to time
designate.
Section 5.12 Clerk and Assistant Clerks. The Clerk shall keep a record of the
meetings of stockholders. If a Secretary is not elected or is absent, the Clerk
shall keep a record of the meetings of the Board of Directors. In the absence of
the Clerk, an Assistant Clerk, if one is elected, shall perform the Clerk's
duties. Otherwise a Temporary Clerk designated by the person presiding at the
meeting shall perform the Clerk's duties.
Section 5.13 Secretary and Assistant Secretaries. The Secretary, if one is
elected, shall keep a record of the meetings of the Board of Directors. In the
absence of the Secretary, any Assistant Secretary, the Clerk, any Assistant
Clerk or a Temporary Secretary designated by the person presiding at such
meeting shall perform the Secretary's duties.
ARTICLE 6
Stock Certificates and Transfers
Section 6.1 Certificates of Stock. Unless otherwise provided by the Board of
Directors, each stockholder shall be entitled to a certificate of the capital
stock of the Company in such form as may from time to time be prescribed by the
Board of Directors. Such certificate shall be signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer. Such signatures may be
facsimile if the certificate is signed by a transfer agent or by a registrar,
other than a Director, officer or employee of the Company. In case any officer
who has signed or whose facsimile signature has been placed on such certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the Company with the same effect as if he were such officer at the
time of its issue. Every certificate for shares of stock which are subject to
any restriction on transfer and every certificate issued when the Company is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
Section 6.2 Transfers. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of stock may be transferred
on the books of the Company by the surrender to the Company or its transfer
agent of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with transfer stamps (if
necessary) affixed, and with such proof of the authenticity of signature as the
Company or its transfer agent may reasonably require.
Section 6.3 Record Holders. Except as otherwise required by law, by the
Articles of Organization or by these Bylaws, the Company shall be entitled to
treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to
vote, regardless of any transfer, pledge or other disposition of such stock,
until the shares have been transferred on the books of the Company in accordance
with the requirements of these Bylaws.
It shall be the duty of each stockholder to notify the Company of his address
and any changes thereto.
Section 6.4 Record Date. The Board of Directors may fix in advance a time of
not more than sixty days before the date of any meeting of the stockholders, 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, and any
adjournment thereof, or the right to receive such dividend or distribution or
the right to give such consent or dissent. 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 Company after the record date.
If no record date is fixed and the transfer books are not closed, (a) the
record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be the close of business
on the day next preceding the day on which notice is given, and (b) the record
date for determining stockholders for any other purpose shall be the close of
business on the date on which the Board of Directors acts with respect thereto.
Section 6.5 Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
Section 6.6 Issuance of Capital Stock. Except as provided by law, the Board of
Directors shall have the authority to issue or reserve for issue from time to
time the whole or any part of the capital stock of the Company which may be
authorized from time to time, to such persons or organizations, for such
consideration, whether cash, property, services or expenses and on such terms as
the Board of Directors may determine, including, without limitation, the
granting of options, warrants or conversion or other rights to subscribe to said
capital stock.
Section 6.7 Dividends. Subject to applicable law, the Articles of Organization
and these Bylaws, the Board of Directors may from time to time declare, and the
Company may pay, dividends on outstanding shares of its capital stock.
ARTICLE 7
Indemnification
Section 7.1 Indemnification and Insurance.
(A) Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved (including, without limitation, as a witness) in any
action, suit or proceeding, whether civil, derivative, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he or
she or a person of whom he or she is the legal representative is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, partner, trustee, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to any employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action or inaction in an official capacity as a director, officer, partner,
trustee, employee or agent or in any other capacity while serving as a director,
officer, partner, trustee, employee or agent, shall be indemnified and held
harmless by the Company against all expense, liability and loss (including,
without limitation, attorneys' fees and disbursements, judgments, fines, excise
taxes or penalties under the Employee Retirement Income Security Act of 1974, as
amended, and amounts paid or to be paid in settlement) reasonably incurred by
such indemnitee in connection with such proceeding, provided that such
indemnitee shall have acted in good faith in the reasonable belief that such
action was in, or not opposed to, the best interests of the Company or such
corporation, partnership, joint venture, trust or other enterprise, as the case
may be, or with respect to any employee benefit plan, the best interests of the
participants or beneficiaries of such employee benefit plan; provided, however,
that except as provided in paragraph (C) of this Section 7.1 with respect to
proceedings seeking to enforce rights to indemnification, the Company shall
indemnify any such indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors.
(B) The right to indemnification conferred in paragraph (A) of this Section
7.1 shall include the right to be paid by the Company the expenses (including
attorneys' fees and disbursements) incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, to the extent required by applicable law, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Company of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay
all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this paragraph (B) or otherwise.
(C) If a claim under paragraphs (A) or (B) of this Section 7.1 is not paid in
full by the Company within thirty days after a written claim has been received
by the Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right of an advancement of expenses) it shall be a defense that, and
(ii) in any suit brought by the Company to recover an advancement of expenses
pursuant to the terms of an undertaking, the Company shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth under applicable law.
Neither the failure of the Company (including its Board of Directors,
independent legal counsel or stockholders) to have made a determination prior to
the commencement of such action that indemnification of the indemnitee is proper
in the circumstances because the indemnitee has met the applicable standard of
conduct set forth under applicable law, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel or
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Company to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden or proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under these
Bylaws or otherwise shall be on the Company.
(D) The right to indemnification and the advancement of expenses conferred in
this Section 7.1 shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Articles of
Organization, provision of these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(E) The Company may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under applicable law.
(F) The Company may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification, and rights to the advancement of
expenses, to any employee or agent of the Company to the fullest extent of the
provisions of these Bylaws with respect to the indemnification and advancement
of expenses of directors and officers of the Company.
(G) The rights to indemnification and to the advancement of expenses conferred
in paragraphs (A) and (B) of this Section 7.1 shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the indemnitee's
heirs, executors and administrators.
Section 7.2 Merger or Consolidation. If the Company is merged into or
consolidated with another corporation and the Company is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Company under this Article 7 with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring at or prior to the date of such merger or consolidation.
Section 7.3 Savings Clause. If this Article 7 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and advance expenses to
each indemnitee as to any expenses (including reasonable attorneys' fees),
judgments, fines, liabilities, losses, and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Company, to the fullest extent permitted by any applicable portion of this
Article 7 that shall not have been invalidated and to the fullest extent
permitted by applicable law.
Section 7.4 Subsequent Legislation. If the Massachusetts General Laws are
amended after adoption of this Article 7 to expand further the indemnification
permitted to an indemnitee, then the Company shall indemnify all such persons to
the fullest extent permitted by the Massachusetts General Laws, as so amended.
ARTICLE 8
Amendments
Section 8.1 Amendments. These Bylaws may be altered, amended, changed or
repealed by the Board of Directors or the stockholders of the Company, provided
notice of the proposed change was given in the notice of the meeting and, in the
case of the Board of Directors, in a notice given no less than twenty-four hours
prior to the meeting. Such action by the Board of Directors shall require the
affirmative vote of at least a majority of the Directors then in office at a
duly constituted meeting of the Board of Directors, unless at the time of such
action there shall be an Interested Stockholder, in which case such action shall
also require the affirmative vote of at least a majority of the Continuing
Directors then in office, at such a meeting. Such action by the stockholders
shall require (i) approval by the affirmative vote of a majority of Directors
then in office, unless at the time of such action there shall be an Interested
Stockholder, in which case such action shall also require the affirmative vote
of at least a majority of the Continuing Directors then in office, at such
meeting, (ii) unless waived by the affirmative vote of a majority of the
Directors then in office (and, if applicable, the affirmative vote of a majority
of the Continuing Directors then in office) specified in the preceding sentence,
the submission by the stockholders of written proposals for adopting, altering,
amending, changing or repealing the Bylaws that comply in all respects with the
provisions of these Bylaws governing such submissions and (iii) the affirmative
vote of at least eighty percent (80%) of the voting power of the then
outstanding Voting Stock voting together as single class at a duly constituted
meeting of stockholders called expressly for such purpose.
ARTICLE 9
Special Corporate Acts
Section 9.1 Execution of Negotiable Instruments. All checks, drafts, notes,
bonds, bills of exchange, and orders for the payment of money shall be signed by
such officer or officers of the Company as the Board of Directors shall
determine from time to time. The Board of Directors may authorize the use of
facsimile signatures of any officer or employee in lieu of manual signatures.
Section 9.2 Execution of Deeds, Contracts, Etc. Subject always to the specific
directions of the Board of Directors or the Executive Committee, all deeds,
mortgages, assignments, extensions, releases, partial releases, and discharges
of mortgages made by the Company and all other written contracts, agreements and
undertakings to which the Company shall be a party shall be executed in its name
by the Chairman of the Board of Directors, the President, any Executive Vice
President, any Senior Vice President, any Vice President, or such other officer
as may be designated by the Chairman of the Board of Directors or the President,
and, when requested, the Clerk or an Assistant Clerk shall attest to such
signatures and affix the corporate seal to the instruments.
Section 9.3 Endorsement of Stock Certificates. Subject always to the specific
directions of the Board of Directors or the Executive Committee, any share or
shares of stock issued by any corporation and owned by the Company (including
reacquired shares of stock of the Company) may, for sale or transfer, be
endorsed in the name of the Company by the Chairman of the Board of Directors,
the President or such other officer as may be
designated by the Chairman of the Board of Directors or the President, and his
signature shall be attested to by the Clerk or an Assistant Clerk who shall
affix the corporate seal.
Section 9.4 Voting of Shares Owned by Company. Subject always to the specific
directions of the Board of Directors or the Executive Committee, any share or
shares of stock issued by any other corporation and owned or controlled by the
Company may be voted at any stockholders' meeting of the other corporation by
the President or Chief Executive Officer of the Company, or in the absence by
such other officer as may be designated by the President or Chief Executive
Officer. Whenever, in the judgment of the President or the Chief Executive
Officer, or in their absence, of any such other officer as may be designated by
the President or Chief Executive Officer, it is desirable for the Company to
execute a proxy or give a stockholders' consent in respect to any share or
shares of stock issued by any other corporation and owned or controlled by the
Company, the proxy or consent shall be executed in the name of the Company by
the President of Chief Executive Officer without necessity of any authorization
by the Board of Directors. Any person or persons designated in the manner above
stated as the proxy or proxies of the Company shall have full right, power and
authority to vote the share or shares of stock issued by the other corporation.
ARTICLE 10
Miscellaneous Provisions
Section 10.1 Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Company shall be the twelve months ending
December 31 or on such other date as may be required by law.
Section 10.2 Seal. The Board of Directors shall have power to adopt and alter
the seal of the Company.
Section 10.3 Articles of Organization. All references in these Bylaws to the
Articles of Organization shall be deemed to refer to the Articles of
Organization of the Company, as amended and in effect from time to time.