APPENDIX B
DECLARATION OF TRUST
OF
BERKSHIRE ENERGY RESOURCES
Dated February 17, 1998
TABLE OF CONTENTS
1. NAME; PURPOSE 1
2. DEFINITIONS 1
3. LIMITATIONS ON LIABILITY 2
4. NONASSESSABILITY OF SHAREHOLDERS 2
5. RELIANCE OF THIRD PERSONS 3
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6. PLACE OF BUSINESS 3
7. TRUST ESTATE; CONVERSION INTO PERSONAL ESTATE 3
8. POWERS OF TRUSTEES 3
9. NUMBER AND ELECTION 8
10. RESIGNATION; VACANCIES; REMOVALS 9
11. VESTING IN NEW TRUSTEES 10
12. COMPENSATION 10
13. UNISSUED SHARES 10
14. DETERMINATION OF CAPITAL AND INCOME 10
15. DIVIDENDS 10
16. FISCAL YEAR; ACCOUNTS 11
17. ACTION BY BOARD; QUORUM 11
18. BY-LAWS 11
19. CERTIFICATE EVIDENCING VOTES 11
20. TRUSTEES AND OFFICERS 12
21. LIABILITY 12
22. BOOKS AND REPORTS 12
23. ADVANCE OF EXPENSES 12
24. RIGHTS NOT EXCLUSIVE; DEFINITIONS 13
25. SHAREHOLDERS 13
26. SHAREHOLDERS, TRUSTEES, OFFICERS AND AGENTS 13
27. AUTHORIZATION OR RATIFICATION BY SHAREHOLDERS 13
28. NUMBER; NONASSESSABLE 14
29. SHARES PERSONAL PROPERTY; TRUST ONLY 14
30. RIGHTS OF SHAREHOLDERS; LIMITATION ON RIGHTS OF ACTION 15
31. ADDITIONAL SHARES 15
32. PREFERRED SHARES 15
33. ALL OTHER CHANGES IN SHARES 15
34. CONSIDERATION FOR ISSUE 15
35. NO PREEMPTIVE OR PREFERENTIAL RIGHTS OF SUBSCRIPTION 15
36. TREASURY SHARES 16
37. TRANSFER BOOKS 16
38. TRANSFER AGENT 16
39. SHARE CERTIFICATES 16
40. LOST, STOLEN OR DESTROYED SHARE CERTIFICATES 16
41. TRANSFER OF SHARES 16
42. TRANSFERS BY OPERATION OF LAW 17
43. JOINT OWNERS 17
44. NO DUTY TO EXAMINE INTO TRUSTS, PLEDGES, ETC., TO WHICH
SHARES ARE SUBJECT 17
45. ANNUAL MEETING 17
46. SPECIAL MEETINGS 18
47. PRESIDING OFFICER 18
48. BUSINESS TO BE TRANSACTED 18
49. NOTICES 18
50. VOTING; QUORUM 18
51. ADJOURNMENT OF MEETING 19
52. REQUISITE VOTE TO ACT 19
53. RECORD DATE FOR VOTING, DIVIDENDS AND OFFERINGS 19
54. DURATION OF TRUST 20
55. DEATH OF SHAREHOLDER OR TRUSTEE NOT TO TERMINATE TRUST 20
56. TERMINATION; COMBINATION; AFFILIATION 20
57. CERTAIN TRANSACTIONS 20
58. AMENDMENTS 23
59. CERTIFICATE OF TERMINATION OR AMENDMENT 24
60. DISPOSITION OF TRUST ESTATE ON TERMINATION 24
61. FILING 25
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62. PROTECTION OF COMPANY, STOCK OF WHICH HELD BY TRUST 25
63. AUTHORITY OF THE TRUSTEES TO CONSTRUE TERMS HEREOF 25
64. EFFECT OF CAPTIONS AND TABLE OF CONTENTS 25
65. COUNTERPARTS 25
66. GOVERNING LAW 25
67. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS 25
DECLARATION OF TRUST
OF
BERKSHIRE ENERGY RESOURCES
THIS DECLARATION OF TRUST made this 17th day of February, 1998 at
Pittsfield, in Berkshire County, The Commonwealth of Massachusetts, by and
between Scott S. Robinson of 741 East Street, Lenox, MA 01240, Michael J.
Marrone of Colonial Acres, Rural Route #3, Pittsfield, MA 01201, and Cheryl
M. Clark of 1645 Dublin Road, Richmond, MA 01254, and those who shall hold
certificates of shares to be issued hereunder.
WHEREAS it is desired to create under and in accordance with the
provisions of this instrument a voluntary business association with
transferable shares for the acquisition of property and the conduct of
business as hereinafter set forth;
NOW, THEREFORE, this DECLARATION OF TRUST WITNESSETH that said Scott
S. Robinson, Michael J. Marrone and Cheryl M. Clark, for themselves, their
heirs, executors, administrators, successors and assigns, do hereby declare
that they and their successors from time to time, as Trustees hereunder,
will hold, manage and dispose of the trust estate, as hereinafter defined in
trust in the manner and with and subject to the powers and provisions
hereinafter contained concerning the same, for the benefit of the
Shareholders (as hereinafter defined) according to the number and kind of
shares held by them respectively.
NAME; PURPOSE
1. NAME; PURPOSE. The Trustees as trustees hereunder, though not in
their individual capacities, shall be designated Berkshire Energy Resources
and are hereinafter referred to as the "Company." So far as may be
practicable, all things relating to the trust hereby created shall be done
under such name. The purpose of the Company shall be to engage, either
directly or through direct or indirect subsidiaries, joint ventures,
partnerships, limited liability companies or other combinations or
associations, in any manufacturing, mercantile, selling, management, service
or other business, operation or activity related to energy generation,
transmission or distribution, utilization, conservation or transportation,
construction, telecommunications, or any other manufacturing, mercantile,
selling, management, service or other business, operation or activity,
whether or not related to the forgoing enumerated areas, that a corporation
organized under the Business Corporation Law of The Commonwealth of
Massachusetts could carry on.
DEFINITIONS
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2. DEFINITIONS. Except where the context otherwise requires, the
following terms when used herein shall mean the following:
(a) "Trustee" or "Trustees" means the person which is the
trustee hereunder for the time being, if there is only one, or if
more than one, the persons who are the trustees hereunder for the
time being, whether, in each case, original, additional or
successor;
(b) "Trust estate" means the property at any time
received by the Trustees or otherwise acquired and held on behalf
of the Company as hereinafter provided;
(c) "Shareholder" or "Shareholders" mean the person or
persons, natural or corporate, at the time registered as the
holder or holders of the shares of the Company and, except to the
extent limited by any subscription or by any subscription
certificate or part-paid shares accepted or issued, include the
person or persons, natural or corporate, at the time registered as
the holder or holders of such subscription certificates and part-
paid shares; and
(d) "Share" or "shares" mean the transferable share or
shares of beneficial interest provided for in Article 29 and
include any subscription certificate or part-paid share issued
except to the extent limited in such subscription certificate or
part-paid share.
RIGHTS OF THIRD PERSONS
3. LIMITATIONS ON LIABILITY. The Trust estate shall be directly
liable for the payment and satisfaction of all obligations and liabilities
incurred in the carrying on of the business of the Company. No Trustee
shall be held to any liability whatever for the payment of any sum of money,
or for damages or otherwise under any contract, obligation or undertaking
made, entered into or issued by the Company or by any Trustee, officer,
agent or representative thereof, or in tort or otherwise, and no such
contract, obligation or undertaking shall be enforceable against the
Trustees, the Shareholders, or the officers, agents or other representatives
of the Company or any of them in their, his or her individual capacities or
capacity and all such contracts, obligations and undertakings shall be
enforceable only against the Company; and every person, firm, association,
trust and corporation shall look only to the Trust estate for the payment or
satisfaction of any liability, damages, claim or demand. In every agreement
and obligation entered into and in every writing by or on behalf of the
Company, reference shall be made to this declaration of trust, and the
substance of such parts of the preceding sentence of this Article 3 as are
applicable shall be set forth; and neither the Trustees nor any officer,
agent or representative of the Company shall have any power or authority to
enter into any agreement or obligation on behalf of the Company except in
accordance with the provisions of this Article 3. Failure to comply with
the provisions of this Article shall, however, in no event render any
Trustee, Shareholder, officer, or agent personally liable to the Company or
its Shareholders.
4. NONASSESSABILITY OF SHAREHOLDERS. No Trustee, officer, agent or
representative of the Company shall be entitled to look to the Shareholders
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personally for indemnity against any liability incurred by them in the
execution of this trust or to call upon the Shareholders for the payment of
any sum of money or any assessment whatever, except when and to the extent
that shares in the Company are by their express terms issued part-paid and
assessable.
5. RELIANCE OF THIRD PERSONS. The receipts of the Company for moneys
or things paid or delivered to it shall be effective discharges to the
person, firm, association, trust or corporation paying or delivering the
same and from all liability to see to the application thereof. No purchaser
or person, firm, association, trust or corporation dealing with the Company
or with the Trustees, officers, agents or representatives of the Company
shall be bound to ascertain or inquire whether any consent, resolution or
other authorization of the Trustees or Shareholders, as is herein required
or provided for, has been obtained or passed or as to the existence or
occurrence of any event or purpose in or for which a sale, lease, mortgage,
pledge or charge is herein authorized or directed, or otherwise as to the
purpose or regularity of any of the acts of the Trustees or the officers,
agents or representatives of the Company purporting to be done in pursuance
of the trust or powers herein contained, or as to the regularity of the
removal, resignation or appointment of any Trustee or any officer, agent or
representative; and a transfer of the Trust estate, or any part thereof,
executed by the Trustees in whom the same shall be vested at the time of any
such removal, resignation or appointment (including any retiring Trustee who
shall be willing to act and shall act in executing such transfer but not
otherwise including any such retiring Trustee) for the purpose of vesting
the same in a successor Trustee or providing evidence of such vesting
independently of such removal, resignation or appointment, shall, as to the
property comprised in such transfer, be conclusive evidence in favor of any
such purchaser or other person, firm, association, trust or corporation
dealing with the Company of the validity of such transfer and of the matters
therein recited relating to such removal, resignation or appointment or the
occasion thereof or the occasion of such transfer.
PLACE OF BUSINESS; TRUST ESTATE
6. PLACE OF BUSINESS. The principal place of business of the Company
shall be 115 Cheshire Road, Pittsfield, MA 01201, or at such other place in
Massachusetts as the Trustees shall from time to time determine.
7. TRUST ESTATE; CONVERSION INTO PERSONAL ESTATE. All property at
any time and from time to time subject to this trust shall, subject to the
provisions of Articles 8(c) and 8(g), be transferred to and vested in the
Trustees. Notwithstanding any other provisions hereof, all real estate at
any time forming part of the Trust estate shall be held upon trust for sale
and conversion into personal estate at such time or times and in such manner
and upon such terms as the Trustee shall approve, but the Trustees shall
have power, until the termination of this trust, to postpone such conversion
so long as they in their uncontrolled discretion shall think fit, and for
the purpose of determining the nature of the interest of the Shareholders
therein, all such real estate shall at all times be considered as personal
estate; and the real estate and personal property comprised in the Trust
estate shall constitute a single fund. For the purpose of such sale and
conversion of real estate the Trustees shall have full power to sell or
exchange the same and to execute and deliver proper deeds and instruments of
conveyance thereof.
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THE TRUSTEES
8. POWERS OF TRUSTEES. Subject to the provisions and conditions
contained herein, the Trustees shall have power from time to time, in
addition to the specific powers and authorities herein expressly granted, to
take any action which they deem to be necessary or convenient to carry out
the business of the Company, including without limitation of the generality
of the foregoing, the powers hereinafter specified:
(a) HOLD INVESTMENTS. To purchase, subscribe for or
otherwise acquire stocks, shares, bonds or other securities,
property or obligations of any corporation, wherever incorporated,
or of any trust, association or other entity, or of any nation,
state, municipality or other governmental or public agency,
division or body or certificates or other evidences of interest in
any real or personal property, and to be a member of any company,
syndicate or joint undertaking, or the beneficiary of any trust,
and all whether or not any such company be domestic or foreign,
and whether or not the purposes of or character of business
carried on or assets held by any such company, syndicate or joint
undertaking, or comprised of any such real or personal property,
be similar to the purposes of or business carried on or assets
held by the Company, and whether or not any such securities,
membership or beneficial interest might be considered speculative,
hazardous, nonproductive or wasting or would ordinarily be
considered a proper or prudent investment or activity for a
trustee and, whether or not any contingent or other liability may
arise or exist in respect thereof and irrespective of the
proportion of the Trust estate invested in one or more of said
securities, properties or companies, and to exercise all the
rights and privileges of an owner thereof and, without limiting
the generality of the foregoing, to acquire, by exchange, purchase
or otherwise, the shares and dividend and profit rights in, and
the bonds and other securities and obligations of, the Company;
(b) ASSUME OBLIGATIONS. To assume any obligations or
liabilities of any corporation, wherever incorporated, or of any
trust, association or other entity, and to discharge or liquidate
such obligations or liabilities;
(c) BORROW. To borrow money for the purposes of the
Company, and to issue, whether for borrowed money or for other
consideration, bonds or other securities or obligations therefor
if desired, which may mature at any time or times, and may be
convertible or after the issuance thereof may be made convertible,
with or without additional consideration for such conversion
right, into other securities of the Company or into other
securities, all for such periods and upon such terms as the
Trustees may determine, and to secure the payment thereof if
desired by mortgage, pledge, assignment, transfer or conveyance of
or charge on the whole or any part of the Trust estate then owned
or thereafter acquired, which bonds or other securities or
obligations may be signed on behalf of the Company by the
chairman, the president or a vice president and by the treasurer
or an assistant treasurer, or by facsimiles of such signatures if
the bonds or other securities or obligations are authenticated or
certified by a trustee or by a registrar other than a trustee,
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officer or employee of the Company, and may have affixed thereto
the common seal of the Company or a facsimile thereof and may
carry interest coupons authenticated by the facsimile signature of
the treasurer; provided that even though any officer who has
signed or whose facsimile signature has been placed on any bond or
other security or obligation shall have ceased to be such officer
before such bond, security or obligation is issued, such bond,
security or obligation may nonetheless be issued by the Company;
(d) LEND AND AID. To advance or lend money to, and
otherwise aid by endorsement, guarantee or otherwise, and with or
without security, and to make capital contributions to, any
corporation, trust, association or other entity, any of the
stocks, shares, bonds or other securities or obligations of which
shall have been acquired or subscribed for by or on behalf of the
Company or in which the Company has any business interest
(including, without limitation of the generality of the foregoing,
the power to guarantee the performance of any undertaking or
obligation or the payment of dividends on stock), and to discharge
and cancel without payment any indebtedness thus arising or to
convert the same into stocks, shares, bonds, or other obligations
of such corporation, trust association or other entity, or any
other with or into which it may be consolidated or merged, or to
which its property may be transferred or leased, and in like
manner to advance or lend money to and otherwise aid any person or
company (whether or not a Shareholder), whenever the Trustees
shall deem such action to be necessary or convenient in the
business or conducive to the advantage of the Company;
(e) EXERCISE POWERS OF HOLDER OF INVESTMENTS. To exercise
any and all powers and rights belonging to the holder of any
stocks, shares, bonds, securities, property or obligations forming
part of the Trust estate, whether by voting or by giving any
consent, request or notice, or otherwise, either in person or by
proxy or attorney, and to give proxies or powers of attorney
therefor, with or without power of substitution, which proxies and
powers of attorney may be for meetings or action generally or for
any particular meeting, meetings or action, and may include the
exercise of any discretionary powers; and, without limiting the
generality of the foregoing, to vote in favor of or to consent to
the creation of any mortgage, lien or other encumbrance upon all
or part of the franchises and property, real and personal, then
owned or thereafter acquired, of any or all of the corporations,
trusts, associations and other entities, any of the stocks,
shares, bonds, securities or obligations of which may at the time
be subject to this trust, or to vote in favor of or to consent to
the merger or consolidation of any such corporation, trust
association or other entity with any other corporation, trust
association or other entity, or the sale, lease, surrender or
abandonment of all or part of the franchises and property, real
and personal, of any such corporation, trust association or other
entity;
(f) SELL. To sell at public auction or by private contract
or otherwise use and deal in and with the whole or any part of the
Trust estate, free and discharged of this trust, and to convert,
exchange or refund the whole or any part of the Trust estate for
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or into any shares, bonds or other securities or obligations,
property or effects in which the Company might, under the
provisions hereof, invest any moneys; provided, however, that
except as provided in Article 8(o), Article 57 or Article 60, no
sale or other disposition of the Trust estate as a whole or
substantially as a whole shall be made without authorization or
approval by vote, at a meeting duly called and held, of the
holders of two-thirds of the shares outstanding and entitled to
vote thereon, but this proviso shall not apply to any disposition
pursuant to any mortgage, pledge, or charge;
(g) TRANSFER SECURITIES INTO NAMES OF OTHERS. To cause any
real or personal property, including without limitation of the
generality of the foregoing, securities forming all or part of the
Trust estate, to be transferred into the name of the Company or
transferred into the name of or vested in the Trustees, or to
cause or allow any real or personal property to remain in the name
of, or to be transferred into the name of, any other person, firm,
association, or other entity, trust, corporation or other entity
and in any such case in such manner as not to give notice that the
same are affected by any trust;
(h) DELEGATE POWERS. To employ and act through and to
delegate any or all of the powers and discretions of the Company
to, and to permit any or all of such powers and discretions to be
exercised by, any of the officers, agents or representatives of
the Company or of the Trustees, including without limitation the
officers, employees, agents and representatives referred to in the
last paragraph of this Article 8;
(i) COLLECT FUNDS. To collect, sue for, receive and
receipt for all sums of money coming due to the Company, to
consent to the extension of the time for payment, or to the
renewal, of any bonds or other securities, property or obligations
subject to this trust, and to prosecute, defend, compound,
compromise, abandon or adjust, by arbitration or otherwise, any
actions, suits, proceedings, disputes, claims, demands and things
relating to the Trust estate, and to extend time, with or without
security, for the payment or delivery of any debts or property and
to execute and enter into releases, agreements and other
instruments and to pay or satisfy any debts or claims upon any
evidence that the Trustees shall think sufficient;
(j) DEPOSIT FUNDS. To deposit any moneys included in the
Trust estate in any bank or trust company including any bank or
trust company that may at the time be the Trustee, and to entrust
to any such bank or trust company for safekeeping any of the stock
or share certificates, bonds or other securities, property or
obligations and any documents and papers comprised in or relating
to the Trust estate;
(k) PAY TAXES. To pay any and all taxes or liens of
whatever nature or kind imposed upon or against the Company or the
Trustees in connection with the Trust estate, or upon or against
the Trust estate or any part thereof;
(l) ESTABLISH SURPLUS FUNDS. To set apart, from time to
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time, as surplus funds, such sums as the Trustees may deem proper
out of any sources which according to generally accepted
accounting principles may be considered surplus, which surplus
funds shall be applicable to any purposes to which money forming
part of the capital or income of the Trust estate may be applied,
including the payment of dividends;
(m) ADOPT SEAL. To adopt and use a common seal;
(n) PURCHASE INSURANCE. To take out and maintain insurance
or establish self-insurance programs in such amounts and of such
kinds and in such companies and through such brokers and agents as
may be necessary, convenient or desirable, including insurance
policies insuring the Trustees, officers, employees and agents of
the Company against claims and liabilities of every nature arising
by reason of holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or
omitted by any such person as a Trustee, officer, employee or
agent, including any action taken or omitted that may be
determined to constitute negligence, whether or not the Company
would have the power to indemnify such person against such
liability;
(o) TRANSFER TO NEW TRUST OR CORPORATION. When authorized
by a majority vote of Shareholders at a meeting, to sell and
convey as an entirety and going concern all the property and
assets of the Company to a corporation or a new association or
trust organized for the purpose of acquiring the same and
organized with the same authorized classes of shares as the
Company shall then have with the same or substantially the same
preferences, voting powers, restrictions and qualifications
thereof as attach to the shares of the Company, the consideration
for such sale and conveyance to be the assumption by such new
corporation, association or trust of all liabilities and
obligations of the Company then outstanding and the issuance and
delivery by such new corporation or association or trust to the
Company, or upon its order, for distribution as hereinafter
provided for, of such shares as will enable the Company to
exchange its shares, share for share and class for class, for the
shares of such new corporation or association or trust and
thereupon such exchange shall be made, and this trust shall be
terminated, and each Shareholder of the Company by becoming a
Shareholder shall agree to receive and accept in such case the
shares of such new corporation or association or trust in exchange
on the basis aforesaid as a full and final distributive share of
the proceeds in liquidation of such sale and conveyance, and
further agrees that in such case his or her shares in the Company
shall thereafter have no rights and privileges whatsoever except
the right and privilege of being exchanged for shares of such new
corporation or association or trust on the basis aforesaid;
(p) INVEST CAPITAL. To invest and re-invest the capital or
other funds of this trust in real or personal property of any
kind, or in any interest therein;
(q) ESTABLISH PENSION AND OTHER COMPENSATION PLANS. To
establish and carry out pension, profit-sharing, share bonus,
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share purchase, share option, savings, thrift and other
retirement, incentive, health, welfare and benefit plans, trusts
and provisions for any or all of the Trustees, officers, employees
and retired employees of the Company or of any of its
subsidiaries;
(r) PARTNERSHIPS AND OTHER VENTURES. To enter into or
become partners or members in joint ventures, general or limited
partnerships, limited liability companies and any other
combinations or associations;
(s) ACQUIRE AND DISPOSE OF PROPERTY AND RIGHTS. To
purchase, acquire, hold, utilize, lease, carry on, sell, exchange
and dispose of any other business or property, rights, or
privileges which may be deemed to be suitable, convenient or
profitable for or in connection with any of the purposes of the
Company;
(t) GRANT RIGHTS OR OPTIONS. To grant rights or options
good for any period of time, including an unlimited period of time
(but not exceeding the duration of the Company) to purchase from
the Company any securities of the Company which have been
authorized but remain unissued or are held in the treasury, at
such prices and on such terms and conditions as may be fixed from
time to time by the Trustees; and to create and issue warrants or
other instruments representing such rights or options in such form
as the Trustees may determine;
(u) PERFORM OTHER NECESSARY THINGS. To do each and every
thing necessary, suitable, desirable, convenient or proper for the
accomplishment of any of the purposes or the attainment of any one
or more of the objects hereinbefore enumerated or incidental to
the powers herein named and, without limiting the generality of
the foregoing, to deal with the Trust estate and manage and
conduct the business of the trust hereunder as fully as if the
Company were the absolute owner of the Trust estate and in so
doing to execute all contracts, agreements, deeds, covenants and
instruments, and do all such things as the Trustees may deem
proper for the purposes of the Company, whether or not involving
action of a kind or extent legal or customary for a trustee or for
the management of trust funds.
The powers and authority, whether discretionary or otherwise,
conferred upon the Trustees by this Article 8 and elsewhere in this
declaration of trust may be delegated to committees, officers, employees,
agents and representatives of the Company, and shall not be deemed to be
mandatory but shall, together with any and all implied powers and
discretions, be exercised by the Trustees from time to time to the extent
deemed to be advantageous to the Company, and may be exercised either alone
or in association with others and to the same extent and as fully as
individuals might or could do as principals, agents, contractors or
otherwise and either alone or in conjunction with or in partnership with
others, and both within and without The Commonwealth of Massachusetts. The
acts of any committee, officers and agents, within the scope of their
respective authorities, shall be as agents and delegates of the Trustees,
and shall be deemed to be the acts of the Trustees and not of the
Shareholders. When authorized by the Trustees, mortgages, conveyances and
65
other instruments of transfer of real or other property may be executed by
any officer of the Company on behalf of the Trustees.
THE TRUSTEES
9. NUMBER AND ELECTION. The persons signing this Declaration of
Trust shall be the original Trustees. At such time as the outstanding
shares of the Company are not wholly owned by The Berkshire Gas Company (the
"Transition Date"), the following provisions shall apply. The number of
Trustees shall be determined from time to time by the Trustees, but shall
not be less than three nor more than nine, divided into classes and elected
for terms as set forth below, shall be elected at the annual meeting of the
Shareholders by such Shareholders as have the right to vote at such
election. The number of Trustees may be increased at any time or from time
to time to any number not more than nine either by the Shareholders or by
the Trustees by vote of a majority of the Trustees then in office. The
number of Trustees may be decreased to any number not less than three at any
time or from time to time either by the Shareholders or by the Trustees by a
vote of a majority of the Trustees then in office, but only to eliminate
vacancies existing by reason of the death, resignation or removal of one or
more Trustees. No decrease in the number of Trustees should shorten the
term of any Trustee.
The Trustees shall be elected as follows. The Trustees shall be
divided as nearly equally as possible into three classes, with each class to
consist of approximately one-third of the number of Trustees. The first
Trustees of the Company shall consist of the directors of The Berkshire Gas
Company divided into the same three classes. The term of office of the
Trustees of the first class shall continue until the first annual meeting of
the Shareholders following the Transition Date, the term of office of the
Trustees of the second class shall continue until the second annual meeting
of the Shareholders following the Transition Date, and the term of office of
the Trustees of the third class shall continue until the third annual
meeting of the Shareholders following the Transition Date, and, in each
case, until their respective successors are chosen and qualified (unless
otherwise required by law) or until the Trustee sooner dies, resigns or is
removed.
At each annual meeting beginning with the first annual meeting of the
Shareholders following the Transition Date, the Trustees elected to succeed
those whose terms expire shall be of one class and shall be elected for a
term which shall continue until the third succeeding annual meeting, and
until a successor shall be elected (unless otherwise required by law) or
until the Trustee sooner dies, resigns or is removed. Any Trustee elected
to fill a vacancy caused by death, resignation or removal shall be elected
for a term which shall coincide with the term of the class of the vacant
trusteeship. Any Trustee elected to fill an additional trusteeship
resulting from an increase in the number of Trustees shall be of the class
whose term continues and shall be elected to serve until the annual meeting
of the Shareholders closest to three years from the date of the increase,
and until a successor shall be elected and qualified (unless otherwise
required by law) or until the Trustee sooner dies, resigns or is removed.
The number of Trustees shall not be increased or decreased at a time when,
or to the extent that, it would result in the Trustees not being divided as
nearly equally as possible into three classes each consisting of
approximately one-third of the number of Trustees. The total number of
Trustees need not be an exact multiple of three. A Trustee may succeed
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himself or herself. Whenever the holders of any one or more classes or
series of shares of the Company other than common shares shall have the
right, voting separately by class or series, to elect Trustees at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such trusteeship shall be governed by the
terms of such class or series of shares, and such Trustees shall not be
divided into classes pursuant to this Article 9 unless expressly provided by
such terms. References in this Article 9 to an annual meeting of
Shareholders shall be deemed to include a special meeting held in place of
an annual meeting. This Article 9 may be amended only by vote of the
holders of 75% of the shares issued and outstanding and entitled to vote
generally in the election of Trustees; provided, however, that such 75% vote
shall not be required for any alteration, amendment or repeal that has been
recommended by two-thirds vote of the Trustees then in office.
10. RESIGNATION; VACANCIES; REMOVALS. A Trustee may resign by
presenting his or her resignation in writing at a meeting of the Trustees or
delivering the same at the principal office of the Company, addressed to the
chairman, president or secretary of the Company, and its acceptance by the
Trustees shall not be required unless so stated in the resignation. Any
vacancy in the number of Trustees not required to be filled by the
Shareholders may be filled by the Trustees by vote of a majority of the
remaining Trustees then in office. Any Trustees so chosen shall continue in
office for the remainder of the full term of the class of Trustees in which
the new trusteeship was created or the vacancy occurred and until his or her
successor, if there be one, is chosen and qualified. The remaining Trustees
may act notwithstanding any vacancy in their numbers. Except as otherwise
provided in this declaration of trust, a Trustee (including persons elected
by the Trustees to fill any vacancies) may be removed from office: (i) for
cause by the vote of the holders of a majority of the shares issued and
outstanding and entitled to vote generally in the election of Trustees; (ii)
without cause by the vote of 75% of the shares issued and outstanding and
entitled to vote generally in the election of Trustees; or (iii) for cause
by vote of a majority of the Trustees then in office. A Trustee may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him or her. Except where a right to
receive compensation shall be expressly provided in a duly authorized
written agreement with the Company, no Trustee resigning or removed shall
have any right to any compensation as such Trustee for any period following
his or her resignation or removal, or any right to damages on account of
such removal, whether his or her compensation be by the month or by the year
or otherwise, unless the body acting on the removal, shall in their or its
discretion provide for compensation.
11. VESTING IN NEW TRUSTEES. Upon the resignation or removal of a
Trustee hereunder and upon the election or appointment of a new Trustee
hereunder, such instruments shall be executed, acknowledged and delivered as
the remaining Trustees or the new Trustees shall deem necessary or
convenient for confirming or providing evidence of the vesting of the Trust
estate in the Trustees for the time being or providing evidence of such
vesting independently of such election or appointment. Notwithstanding the
failure to execute any conveyance, the Trust estate shall always (not
restricting the same to the above enumerated cases) vest in the Trustees for
the time being acting hereunder.
12. COMPENSATION. Each Trustee shall receive such reasonable
compensation as the Trustees may determine, and shall not be limited by any
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provision of law with regard to the compensation of trustees of an express
trust.
13. UNISSUED SHARES. In particular, and without limiting the
generality of the foregoing, the Trustees may, subject to any requirement of
law, at any time issue all or from time to time any part of the unissued
shares of the Company from time to time authorized and may determine,
subject to any requirements of law, the consideration for which such shares
are to be issued and the manner of allocating such consideration between
capital and surplus. Unless the Trustees otherwise specify, the excess of
the consideration for any share with par value issued by it over such par
value shall be paid-in surplus. The Trustees may allocate to capital stock
less than all of the consideration for any share without par value issued by
it, in which case the balance of such consideration shall be paid-in
surplus. All surplus shall be available for any corporate purpose,
including the payment of dividends.
14. DETERMINATION OF CAPITAL AND INCOME. The Trustees shall have
power to determine what constitutes capital or income, what constitutes the
income of the Trust estate for any year or other period, in what manner any
expenses or disbursements are to be allocated between capital and income,
and the amount of the net earnings and of the earned surplus; and every such
determination, whether express or implied in the acts or proceedings of the
Trustees, shall be conclusive and binding upon all persons interested.
15. DIVIDENDS. The Trustees may from time to time in their
discretion declare dividends out of the net earnings of the Trust estate or
out of the earned surplus or capital surplus, payable out of the Trust
estate, at any date fixed by the Trustees, in cash or property, including
without limitation bonds or other obligations of and the shares in the
Company, and for that purpose may capitalize all or any part of the earned
surplus; but no Shareholder shall have any right to any dividends except
when and as the same are declared by the Trustees, and no Trustee or
Shareholder, officer, agent or representative of the Company shall be liable
therefor, and any Shareholder entitled thereto shall look only to the Trust
estate for the payment of any such dividends. The Company shall pay and
distribute the said dividends so declared to the Shareholders according to
the number of shares held by them respectively.
16. FISCAL YEAR; ACCOUNTS. The Trustees may determine the fiscal
year for the Company, and the form in which the accounts of the Company
shall be kept, and may from time to time change the fiscal year or form of
accounts.
17. ACTION BY BOARD; QUORUM. The action of the Trustees in respect
of any matter shall be by vote passed by the Trustees at a meeting or by a
written vote without a meeting signed by all of the Trustees. At any
meeting of the Trustees, a majority of the Trustees then in office shall
constitute a quorum. Any meeting may be adjourned from time to time by a
majority of the votes cast on the question, and the meeting may be held as
adjourned without further notice. Except as herein otherwise provided, when
a quorum is present at any meeting a majority of the Trustees in attendance
thereat shall decide any questions before such meeting. Nothing in this
Article 17 shall be construed as limiting the delegation of any power to a
committee of the Trustees.
18. BY-LAWS. The Trustees may by vote of a majority of the Trustees
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then in office, make and from time to time amend, add to or rescind by-laws
for the Company (the "By-laws"). The By-laws may, subject to the provisions
of this declaration of trust: (a) fix the fiscal year; (b) regulate the
affairs of the Trustees, including provisions for the nomination thereof;
(c) provide for such committees as the Trustees shall deem appropriate,
including an executive committee which shall be vested with all of the
powers and authorities of the Trustees in the intervals between meetings of
the Trustees; (d) provide for the appointment of a chairman of the
Trustees, a president, one or more vice presidents, a treasurer, a secretary
and such other officers as the Trustees may deem appropriate, and the manner
of their appointment and removal, and their respective powers and duties;
(e) provide for the manner in which documents shall be executed, including
share certificates; (f) provide for the appointment of transfer agents or
officers and registrars, and (g) contain such further provisions relating to
the above matters or otherwise, incidental or in addition to but not
inconsistent with the provisions of this declaration of trust, as the
Trustees shall deem appropriate.
19. CERTIFICATE EVIDENCING VOTES. A certificate signed by the
chairman, the president, the treasurer, the secretary or any assistant or
temporary secretary, or one or more of the Trustees, shall be conclusive
evidence, in favor of every person, firm, association, trust and corporation
acting in good faith in reliance thereon, as to the contents of any vote of
the Trustees, or any committee thereof, or of the Shareholders, and as to
all matters in such certificate contained relating to the meeting, if any,
at which any vote is therein certified to have been passed, including the
regularity of the said meeting and the passage of any vote thereat, and as
to all other matters and things stated in such certificate, and no person,
firm, association, trust or corporation shall be obligated to make any
inquiry as to any of the said matters, or as to the election or appointment
of any person acting as a Trustee at such meeting, or as to the holding of
any shares by any person, firm, association, trust or corporation acting as
a Shareholder at such meeting, or be affected by actual or implied notice of
any irregularity whatsoever therein.
INDEMNIFICATION AND LIMITATION OF LIABILITY
20. TRUSTEES AND OFFICERS. To the extent legally permissible, each of
the Company's Trustees and officers, as defined in Article 24, shall be
indemnified by the Trust estate against any loss, liability or expense,
including amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees, imposed upon or reasonably incurred
by such person in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, in which such person
may be involved or with which such person may be threatened, while in office
or thereafter, by reason of such person's being or having been such a
Trustee or officer, except with respect to any matter as to which such
person shall have been adjudicated in such action, suit or proceeding not to
have acted in good faith in the reasonable belief that his or her action was
in the best interests of the Company.
21. LIABILITY. No Trustee, officer or agent of the Company shall be
liable except for acts or failures to act which at the time would impose
liability on him or her if this trust were a Massachusetts business
corporation and he or she were a director, officer or agent thereof
respectively. In determining what he or she reasonably believes to be in
the best interests of the Company, a Trustee may consider the interests of
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the Company's employees, suppliers, creditors and customers, the economy of
the state, region and nation, community and societal considerations, and the
long-term and short-term interests of the Company, its subsidiaries and its
Shareholders, including the possibility that these interests may best be
served by the continued independence of the Company. Notwithstanding any
provision of law or this Article 21 or any other provision in this
declaration of trust contained, a Trustee shall not be liable to the Company
or any Shareholder for monetary damages for breach of fiduciary duty as a
Trustee. No amendment to or repeal of this Article shall apply to or have
any effect on the liability or alleged liability of any Trustee for or with
respect to any acts or omissions of such Trustee occurring prior to such
amendment or repeal.
22. BOOKS AND REPORTS. In discharging his or her duties a Trustee or
officer of the Company, when acting in good faith, shall be fully protected
in relying upon the books of account of the Company or of another
organization in which he or she serves as contemplated by Article 24,
reports made to the Company or to such other organization by any of its
officers or employees or by counsel, accountants, appraisers or other
experts or consultants selected with reasonable care by the Trustees or
similar governing body of such other organization, or upon other records of
the Company or of such other organization.
23. ADVANCE OF EXPENSES. Expenses, including counsel fees, reasonably
incurred by any Trustee or officer with respect to the defense or
disposition of any action, suit or proceeding referred to in Article 20 may
be advanced by the Company prior to the final disposition of such action,
suit or proceeding, upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless it is ultimately determined that he or
she is entitled to indemnification.
24. RIGHTS NOT EXCLUSIVE; DEFINITIONS. The rights of indemnification
provided in Article 20 shall not be exclusive of or affect any other rights
to which any Trustee or officer may be entitled and such rights shall inure
to the benefit of his or her successors, heirs, executors, administrators
and other legal representatives. Such other rights shall include all
powers, immunities and rights of reimbursement which would be allowed under
the laws of The Commonwealth of Massachusetts were the Company a business
corporation organized under such laws. As used in Articles 20, 21, 22 and
23 and this Article 24, the terms "Trustee" and "officer" include persons
who serve at the request of the Company as directors, officers, or trustees
of another organization in which the Company has any direct or indirect
interest as a shareholder, creditor or otherwise. An "interested" Trustee
or officer is one against whom in such capacity the proceeding in question
or another proceeding on the same or similar grounds is then pending.
Nothing contained in Articles 20, 21, 22 and 23 and this Article 24 shall
affect any rights to indemnification to which Company personnel other than
Trustees and officers may be entitled by contract or otherwise under law.
No Trustee shall be obligated to give any bond or other security for the
performance of any of his or her duties.
25. SHAREHOLDERS. In case any Shareholder shall at any time for any
reason be held to or be under any personal liability solely by reason of his
or her being or having been a Shareholder and not by reason of his or her
acts or omissions as a Shareholder, then such Shareholder (or his or her
heirs, executors, administrators, or other legal representatives) shall be
entitled out of the Trust estate to be held harmless from, and indemnified
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against, all loss, liability or expense by reason of such liability.
INTERESTED TRUSTEE, SHAREHOLDERS, AND OFFICERS;
RATIFICATION BY SHAREHOLDERS
26. SHAREHOLDERS, TRUSTEES, OFFICERS AND AGENTS. No agreement,
dealing, relationship or arrangement of any kind with the Company, or with
any company which may be controlled by the Company or in which the Company
may have any interest, in which any Shareholder, Trustee, officer, agent or
other representative of the Company shall have a personal interest shall be
void or voidable or otherwise affected by such interest nor shall such
Shareholder, Trustee, officer, agent or other representative so interested
be liable to account in respect thereof, except such effect or liability, if
any, as would have resulted under the same circumstances had the Company
been a business corporation organized under the laws of The Commonwealth of
Massachusetts. No Trustee, officer, agent or other representative of the
Company shall be precluded, by his or her office, from acquiring shares or
stock in or bonds or other obligations of or from holding any office or
place of profit in the Company or any company in which the Company shall be
interested as stockholder or otherwise. No Shareholder, by reason of his or
her holding such shares, however great in amount, shall be precluded from
holding any office or place of profit hereunder or under any company in
which the Company or the Trustees shall be interested as stockholder or
otherwise.
27. AUTHORIZATION OR RATIFICATION BY SHAREHOLDERS. Regardless of
whether the foregoing provisions have or have not been complied with, any
agreement, dealing, relationship or arrangement entered into by or on behalf
of the Company or by the Trustees, officers, agents or other representatives
of the Company, or by or on behalf of any company in which the Company or
the Trustees shall be interested as stockholder, or otherwise, shall not be
voided by reason of the interest therein of any Shareholder, Trustee,
officer, agent or other representative nor shall any Shareholder, Trustee,
officer, agent or other representative being so interested be liable to
account to the Company or to the Trustees, officers or Shareholders, or
otherwise, for any profit or benefit realized through any such agreement,
dealing, relationship or arrangement by reason of such Shareholder, Trustee,
officer, agent or other representative holding that position or of the
fiduciary relation thereby established, if such agreement, dealing,
relationship or arrangement shall have been authorized or ratified by the
Shareholders or by the stockholders of any such company, as the case may be,
after notice of the fact of the interest therein (including a general
statement of the nature and extent of such interest) of such Shareholder,
Trustee, officer, agent or other representative, except that if such
agreement, dealing, relationship or arrangement was with a Shareholder or
Shareholders the authorization or ratification shall be by a majority vote
of disinterested Shareholders at a meeting.
SHARES OF BENEFICIAL INTEREST
28. NUMBER; NONASSESSABLE. The entire beneficial interest in the
Trust estate and in all business conducted by the Company and all profits
earned by it shall be, and during the continuance of this trust shall
remain, in the owners from time to time of transferable shares of beneficial
interest. The shares of beneficial interest shall consist of (i) 10,000,000
common shares all of the same class, without par value, and (ii) 1,000,000
preferred shares, each with a par value of one hundred dollars ($100.00) and
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may be issued from time to time by the Trustees without the necessity of
obtaining the consent of the Shareholders. Subject to the limitations
prescribed by law and the provisions of this declaration of trust, the
Trustees are authorized to issue the preferred shares from time to time in
one or more series, each of such series to have such voting powers, full or
limited, or no voting powers, participating, optional or other special
rights, and such qualifications, limitations or restrictions thereof, as
shall be determined by the Trustees in a resolution or resolutions providing
for the issue of such preferred shares. Subject to the powers, preferences
and rights of any preferred shares, including any series thereof, having any
preference or priority over, or rights superior to, the common shares and
except as otherwise provided by law, the holders of the common shares shall
have and possess all powers and voting and other rights pertaining to the
shares of this Company and each common share shall be entitled to one vote.
All shares issued and to be issued shall be fully paid and nonassessable
except to the extent otherwise specifically provided in the certificates
representing such shares. In any issue of common shares, fractional shares
may be issued if authorized by the Trustees; and in lieu thereof the
Trustees may issue transferable or nontransferable instruments representing
or relating to fractional interests (on such terms and in such form as the
Trustees shall determine) and may appoint an exchange agent or exchange
agents to assist Shareholders in buying or selling such fractional
interests.
29. SHARES PERSONAL PROPERTY; TRUST ONLY. Shares shall be personal
property entitling the holders only to the rights and interest in the Trust
estate set forth in these presents, and it is expressly declared and agreed
by and between the Shareholders, Trustees and officers of the Company that a
trust and not a partnership is deemed to be created by this instrument and
that irrespective of whether any different status may be held to exist as
far as others are concerned, nevertheless as between the said Shareholders,
Trustees and officers the Shareholders shall be deemed to hold only the
relationship of CESTUIS QUE TRUSTENT to the Trustees, with only such rights
as are conferred upon them as such CESTUIS QUE TRUSTENT hereunder.
30. RIGHTS OF SHAREHOLDERS; LIMITATION ON RIGHTS OF ACTION. No
Shareholder shall have or acquire at any time any interest in any specific
property, real or personal, at any time forming part of the Trust estate, or
any right to any division or partition thereof or any other rights with
reference thereto, except to have said property dealt with as herein
provided, to receive dividends therefrom, as herein provided, and to share
in the distribution of the cash proceeds thereof, or distributions in kind,
or both, upon the termination of the trust, as herein provided. No action
may be brought by a Shareholder on behalf of the Company unless a prior
demand regarding such matter has been made on the Trustees and the
Shareholders of the Company.
31. ADDITIONAL SHARES. Additional common shares may be authorized
from time to time by a majority vote of the Shareholders at a meeting. Such
additional common shares shall rank equally and be in all respects identical
with the common shares originally authorized and may be issued from time to
time by the Trustees without the necessity of obtaining the consent of the
Shareholders.
32. PREFERRED SHARES. Additional preferred shares may be authorized
from time to time by vote, at a meeting duly called and held, of the holders
of two-thirds of the shares outstanding and entitled to vote thereon, and
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such additional shares may be issued in one or more classes and in one or
more series within a class and shall have such voting powers, full or
limited, or no voting powers, participating, optional or other special
rights, and such qualifications, limitations or restrictions thereof, as
shall be determined in the vote authorizing them or by the Trustees pursuant
to authority granted to them by such vote or as provided in Article 28.
33. ALL OTHER CHANGES IN SHARES. Any authorized shares, whether
issued or unissued, may, by vote, at a meeting duly called and held, of the
holders of a majority of the shares outstanding and entitled to vote
thereon, be changed by increasing or decreasing their par value, be reduced
in number, be changed into the same or a different number of shares of any
class or classes with or without par value, or be classified or
reclassified. In connection with any of the foregoing, the Trustees may
increase, decrease or adjust the capital accounts of the Company.
34. CONSIDERATION FOR ISSUE. Unless otherwise prescribed by vote of
the Shareholders, all shares may be issued for money, services or property
(including other shares of the Company at the time outstanding), or as a
distribution to Shareholders, and upon such terms as to valuation of shares,
services or property and otherwise, as the Trustees may in their absolute
discretion determine.
35. NO PREEMPTIVE OR PREFERENTIAL RIGHTS OF SUBSCRIPTION. No holder
of shares of any class and no holder of other securities of the Company,
convertible or otherwise, shall have any preemptive or preferential right of
subscription to, or purchase of, any securities of the Company.
36. TREASURY SHARES. Shares in the Company acquired by the Company
may be canceled and the number of shares issued may thereby be reduced, or
such shares may be held in the treasury and be disposed of by the Company,
when authorized by the Trustees, as the trustees may from time to time
determine; but such shares while so held in the treasury shall not be
entitled to any voting rights or to any dividends and shall not be deemed
outstanding in computing proportions or percentages of shares hereunder or
for any other purpose hereof. Shares canceled pursuant to this Article 36
shall have the status of authorized but unissued shares.
37. TRANSFER BOOKS. A register or registers shall be kept under the
direction of the Trustees, which shall contain the names and addresses of
the Shareholders and the number and kind of shares held by them respectively
and a record of all transfers thereof. No Shareholder shall be entitled to
receive payment of any dividend declared, nor to have any notice given to
him or her as herein provided, until he or she has given his or her address
to the transfer agent, or such other officer or agent of the Company as
shall keep the said register, for entry thereon.
38. TRANSFER AGENT. The Company, when authorized by the Trustees,
may employ in the City of Boston or in any other cities the Trustees may
designate a transfer agent or transfer agents and a registrar or registrars.
The transfer agent or transfer agents shall keep the said registers and
record therein the transfers of any of the said shares and countersign
certificates of shares issued to the persons entitled to the same. The
transfer agents and registrars shall perform the duties usually performed by
transfer agents and registrars of certificates of stock in a corporation,
except as modified by the Trustees.
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39. SHARE CERTIFICATES. No certificates certifying the ownership of
shares need be issued unless the Trustees otherwise determine from time to
time. The Trustees may make such rules as they consider appropriate for the
issuance of share certificates, the form thereof, and similar matters.
40. LOST, STOLEN OR DESTROYED SHARE CERTIFICATES. In the event the
Trustees authorize the issuance of share certificates, a new certificate may
be issued to replace any certificate previously issued, on satisfactory
evidence that the said certificate previously issued has been worn out,
mutilated, lost or destroyed and on such terms, if any, as to indemnity and
otherwise, as the Trustees shall deem proper.
41. TRANSFER OF SHARES. Every transfer of any certificated shares
(otherwise than by operation of law) shall be signed by the transferor or by
his or her agent thereunto duly authorized in writing, and upon delivery
thereof to the Company or a transfer agent of the Company, accompanied by
the existing certificate for such shares and such evidence of the
genuineness of such transfer, authorization and other matters as may
reasonably be required, shall be recorded in the register, and a new
certificate therefor shall be issued to the transferee, and in case of a
transfer of only a part of the shares represented by any certificate a new
certificate for the residue thereof shall be issued to the transferor. A
Shareholder of record shall be deemed to be the holder of the share or
shares represented thereby for all purposes hereof, and neither the Trustees
nor any transfer agent or registrar nor any officer or agent of the Company
shall be affected by any notice of a transfer until due presentment of the
certificate for such shares or shares for registration of transfer. The
Trustees may determine from time to time procedures for the transfer of
uncertificated shares.
42. TRANSFERS BY OPERATION OF LAW. Any person becoming entitled to
any shares in consequence of the death, bankruptcy or insolvency of any
Shareholder, or otherwise by operation of law, shall be recorded in the
register as the holder of the said shares, and receive a new certificate for
the same, upon production of the proper evidence thereof and delivery of the
existing certificate to the Company or a transfer agent of the Company.
Until such production of evidence and delivery of the existing certificate,
the Shareholder of record shall be deemed to be the holder of such shares
for all purposes hereof, and neither the Trustees nor any transfer agent or
registrar nor any officer or agent of the Company shall be affected by any
notice of such death, bankruptcy, insolvency or other event. The Trustees
may determine from time to time procedures for the transfer by operation of
law of uncertificated shares.
43. JOINT OWNERS. Any two or more persons in whose names any share
is registered shall be treated as joint owners of the entire interest
therein, and no entry shall be made in the register or in any certificate
that any person is entitled to any future, limited or contingent interest in
any share. However, any person registered as a holder of any share may,
subject to the provisions hereinafter contained, be described in the
register or in any certificate as a trustee or fiduciary of any kind, and
appropriate words may be added to the description to identify such trust.
44. NO DUTY TO EXAMINE INTO TRUSTS, PLEDGES, ETC., TO WHICH SHARES
ARE SUBJECT. The Company shall not, nor shall the Trustees or the
Shareholders or any officer of the Company or any transfer agent or other
agents of the Company, or the Trustees, be bound to take notice or be
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affected by notice of any trust, whether express, implied or constructive,
or of any charge, pledge or equity to which any of the said shares or the
interest of any of the Shareholders in this trust may be subject, or to
ascertain or inquire whether any sale or transfer of any such shares or
interest by any such Shareholder or his or her personal representatives is
authorized by such trust, charge, pledge or equity, or to recognize any
person as having any interest therein, except the persons registered as such
Shareholders. The receipt of the person in whose name any share is
registered, or, if such share is registered in the names of more than one
person, the receipt of any one of such persons, or the receipt of the duly
authorized agent of any such person, shall be a sufficient discharge for all
dividends and other money and for all shares, bonds, obligations and other
property payable, issuable or deliverable in respect of such share and from
all liability to see to the application thereof.
MEETINGS OF SHAREHOLDERS
45. ANNUAL MEETING. An annual meeting of the Shareholders shall be
held on such date as shall be established in the By-laws of the Company or
as the Trustees or the chairman or the president may from time to time fix,
at the principal office of the Company or at such other place in
Massachusetts as may be designated by the Trustees, the chairman or the
president, for the purpose of electing Trustees and for such other purposes
as may be prescribed by law and hereby or as may be specified in the notice
by the Trustees or by the chairman or by the president of the Company. If
such annual meeting is omitted as herein provided for, a special meeting may
be held in lieu thereof, and any business transacted or election held at
such special meeting shall have the same effect as if transacted or held at
such annual meeting.
46. SPECIAL MEETINGS. The Trustees, chairman or president of the
Company may, whenever any of them think fit, call or direct any officer of
the Company to call a special meeting of the Shareholders to be held at the
principal office of the Company or, in their discretion, at any other place
in Massachusetts, and such special meeting shall be so called by the
secretary, or in the case of the death, incapacity or refusal of the
secretary, by another officer, upon written application of one or more
Shareholders who hold at least forty percent in interest of the shares
entitled to vote at such special meeting.
47. PRESIDING OFFICER. The chairman or, if there is no chairman or
the chairman is absent, the president shall preside at every meeting of the
Shareholders, but if neither the chairman nor the president is present at
the commencement of the meeting, a vice president or the treasurer shall
preside at the meeting of the Shareholders.
48. BUSINESS TO BE TRANSACTED. At any annual or special meeting of
Shareholders, no business shall be transacted other than such as is referred
to in the notice of the meeting.
49. NOTICES. A written or printed notice of each meeting of the
Shareholders, whether annual or special, specifying the time, place and
purposes thereof, shall be given as hereinafter provided by the secretary or
any assistant secretary or by an officer designated by the Trustees to each
of the Shareholders entitled to vote thereat at least seven (7) days
(including Sundays and holidays) before such meeting. Every notice to any
Shareholder required or provided for herein may be given to him or her
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personally or by mailing it to him or her, postage prepaid, at his or her
address specified in the records of the Company. Notice shall be deemed to
have been given at the time when it is so mailed. In respect of any share
held jointly by several persons, notice so given to any one of them shall be
sufficient notice to all of them. Any notice so sent to the address of any
Shareholder shall be deemed to have been duly sent in respect of any such
share whether held by him or her solely or jointly with others,
notwithstanding he or she be then deceased or be bankrupt or insolvent or
legally incompetent, and whether the Trustees or any person sending such
notice have knowledge or not of his or her death, bankruptcy or insolvency
or legal incompetence, until some other person or persons shall be
registered as holders. The certificate of the person or persons giving such
notice shall be sufficient evidence thereof, and shall protect all persons
acting in good faith in reliance on such certificate. Whenever notice of
meeting is required to be given to a Shareholder under any provision of
Massachusetts law applicable to the Company or of this declaration of trust,
a written waiver thereof, executed before or after the meeting by such
Shareholder or Shareholder's attorney thereunto authorized and filed with
the records of the meeting, shall be deemed equivalent to such notice.
50. VOTING; QUORUM. At all meetings every Shareholder shall, subject
to the provisions of Article 53, have one vote for each share held by him or
her and may vote at any meeting or any adjournment or adjournments thereof
in person or by proxy in writing dated not more than six months before the
meeting named therein, which proxies shall be filed with the secretary or
other person responsible to record the proceedings of the meeting before
being voted; and, except as otherwise provided herein, the holders of a
majority of all the shares issued and outstanding and entitled to vote shall
constitute a quorum for the transaction of business. The placing of a
shareholder's name on a proxy pursuant to telephonic or electronically
transmitted instructions obtained pursuant to procedures reasonably designed
to verify that such instructions have been authorized by such shareholders
shall constitute execution of such proxy by or on behalf of such
shareholder. Shares owned directly or indirectly by the Company, if any,
shall not be deemed outstanding for this purpose, and the Company shall not,
directly or indirectly, vote any share of its own shares. When any share is
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such share, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such
vote shall not be received in respect of such share. If the holder of any
share is a minor or a person of unsound mind, or subject to guardianship or
to the legal control of any other person as regards the charge or management
of such share, he or she may vote by his or her guardian or such other
person appointed or having such control, and such vote may be given in
person or by proxy. No ballot shall be required for any election unless
requested by a Shareholder present or represented at the meeting and
entitled to vote in the election.
51. ADJOURNMENT OF MEETING. Any meeting (or portion thereof) may be
adjourned from time to time by a majority of the votes properly cast upon
the question, whether or not a quorum is present, and the meeting (or
portion thereof) may be held as adjourned without further notice.
52. REQUISITE VOTE TO ACT. Except as otherwise herein provided, when
a quorum is present at any meeting, a plurality of votes properly cast for
election to any office shall elect to such office, and a majority of the
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shares represented at the meeting and entitled to vote upon any question
properly brought before the meeting shall decide such question. Provisions
hereunder for a majority vote of Shareholders at a meeting mean a vote of
the holders of a majority of those shares entitled to vote thereon which are
represented in person or by proxy at such meeting.
53. RECORD DATE FOR VOTING, DIVIDENDS AND OFFERINGS. For the purpose
of determining the Shareholders who are entitled to vote or act at any
meeting or any adjournment thereof, or who are entitled to receive payment
of any dividend or of any other distribution or offering, the trustees may
from time to time fix in advance a time, which shall be not more than sixty
(60) days before the date of any meeting of Shareholders or the date for the
payment of any dividend or of any other distribution or the date of the
offering, as the record date for determining the Shareholders 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 such offering, and
in such case only Shareholders of record on such record date shall have such
right, notwithstanding any transfer of shares on the books of the Company
after the record date; or without fixing such record date the Trustees may
for any of such purposes close the register or transfer books for all or any
part of such period. If no record date is fixed and the transfer books are
not closed, (i) the record date for determining Shareholders having the
right to notice of or to vote at a meeting of Shareholders shall be at the
close of business on the date next preceding the day on which notice is
given, and (ii) the record date for determining Shareholders for any other
purpose shall be at the close of business on the day on which the Trustees
acts with respect thereto.
DURATION AND TERMINATION OF TRUST;
COMBINATION; AMENDMENTS
54. DURATION OF TRUST. Unless terminated as provided in Article 8(o)
or Article 56, this trust shall continue without limitation of time.
55. DEATH OF SHAREHOLDER OR TRUSTEE NOT TO TERMINATE TRUST. The
death of a Trustee hereunder or of a Shareholder or the dissolution of a
Shareholder hereunder during the continuance of this trust shall not operate
to terminate this trust, nor shall it entitle the legal representatives of
any such Trustee or Shareholder to an accounting or to take any action in
the courts or otherwise.
56. TERMINATION; COMBINATION; AFFILIATION. Except as provided in
Article 57 below, the Trustees may terminate this trust at any time, or may
cause the Company to be merged, combined, consolidated or otherwise
affiliated with another trust, association, company, corporation or other
entity, if such termination, merger, combination, consolidation, or
affiliation has been authorized by vote, at a meeting duly called and held,
of the holders of two-thirds of the shares outstanding and entitled to vote
thereon or has been authorized pursuant to Article 8(o). Such termination,
merger, combination, consolidation or affiliation shall become effective
only upon presentation to the Trustees, as required by Article 59, of the
counterpart of the certificate referred to in said Article 59, or at such
later time as may be specified in the vote effecting such action.
57. CERTAIN TRANSACTIONS.
A. HIGHER VOTE FOR CERTAIN BUSINESS TRANSACTIONS. In
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addition to any affirmative vote required by law or otherwise in
this declaration of trust, and except as otherwise expressly
provided in this Article 57:
(1) any merger or consolidation of the Company or any
Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other company
(whether or not itself an Interested Shareholder) which is or
after such merger or consolidation would be an Affiliate (as
hereinafter defined) or Associate (as hereinafter defined) of an
Interested Shareholder; or
(2) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder involving
any assets or securities of the Company, any Subsidiary or any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder having an aggregate Fair Market Value (as
hereinafter defined) in excess of 5% of the total consolidated
book value of the total assets of the Company and its
Subsidiaries as of the end of the Company's most recent fiscal
year prior to the time the determination is made; or
(3) the adoption of any plan or proposal for the
termination, liquidation or dissolution of the Company proposed
by or on behalf of an Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder; or
(4) any reclassification of securities (including any
reverse stock split) or recapitalization of the Company or any
merger or consolidation of the Company with any of its
Subsidiaries or any other transaction (whether or not with or
otherwise involving an Interested Shareholder) that has the
effect, directly or indirectly, of increasing the proportionate
share of any class or series of Capital Stock (as hereinafter
defined), or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is beneficially
owned by any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder; or
(5) any tender offer or exchange offer made by the
Company for shares of Capital Stock which may have the effect of
increasing an Interested Shareholder's percentage beneficial
ownership (as hereinafter defined) so that following the
completion of the tender offer or exchange offer the Interested
Shareholder's percentage beneficial ownership of the outstanding
Capital Stock may exceed 110% of the Interested Shareholder's
percentage beneficial ownership immediately prior to the
commencement of such tender offer or exchange offer; or
(6) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (1) to (5);
shall require the affirmative vote of seventy-five percent
(75%) of the then outstanding Voting Shares, provided that the
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75% voting requirement shall not be applicable to the approval
by the Company's shareholders of a Business Transaction (as
hereinafter defined) authorized by a two-thirds vote of the
Trustees. The provisions of this Section A of this Article 57
shall also not be applicable to any direct or indirect purchase
or other acquisition by the Company or any Subsidiary of any
shares of Capital Stock from an Interested Shareholder. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be
specified, by law or any agreement with any national securities
exchange or otherwise.
B. DEFINITION OF "BUSINESS TRANSACTION." For the
purposes of this Article 57 the term "Business Transaction"
shall mean any transaction that is referred to in any one or
more of clauses (1) through (6) of Section A of this Article 57.
C. CERTAIN DEFINITIONS. For purposes of this Article 57:
(1) The term "Capital Stock" shall mean all the shares
of beneficial interest of the Company authorized to be issued
from time to time under Article 28 of this declaration of trust.
(2) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group
comprised of any person and any other person with whom such
person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(3) The term "Interested Shareholder" shall mean any
person (other than the Company or any Subsidiary and other than
any profit-sharing, employee stock ownership or other employee
benefit plan of the Company or any Subsidiary or any trustee of
or fiduciary with respect to any such plan when acting in such
capacity) who or which (a) is the beneficial owner of Voting
Shares representing 5% or more of the votes entitled to be cast
by the holders of all then outstanding Voting Shares; or (b) is
an Affiliate of the Company and at any time within the two-year
period immediately prior to the date in question was the
beneficial owner of Voting Shares representing 5% or more of the
votes entitled to be cast by the holders of all the outstanding
Voting Shares.
(4) A person shall be a "beneficial owner" of any
Capital Stock (a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; (b) which
such person or any of its Affiliates or Associates has, directly
or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (iii) which is
beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates
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has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any shares of
Capital Stock. For the purposes of determining whether a person
is an Interested Shareholder pursuant to paragraph 3 above, the
number of shares of Capital Stock deemed to be outstanding shall
include shares deemed beneficially owned by such person through
application of this paragraph 4, but shall not include any other
shares of Capital Stock that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) An "Affiliate" of a specified person is a person
that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
the person specified.
(6) The term "Associate" used to indicate a
relationship with any person means (a) any company (other than
the Company or any Subsidiary) of which such person is an
officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities, (b) any
trust or other estate in which such person has a substantial
beneficial interest or as to which such person serves as trustee
or in a similar fiduciary capacity, and (c) any relative or
spouse of such person, or any relative of such spouse, who has
the same home as such person or who is a Trustee or officer of
the Company or any of its parents or subsidiaries.
(7) The term "Subsidiary" means any company of which a
majority of any class of equity security is beneficially owned
by the Company, PROVIDED, HOWEVER, that for the purposes of the
definition of Interested Shareholder set forth in paragraph 3
above and the definition of Associate set forth in paragraph 6
above, the term "Subsidiary" shall mean only a company of which
a majority of each class of equity security is beneficially
owned by the Company.
(8) The term "Voting Shares" means all Capital Stock
which by its terms may be voted generally in the election of
Trustees of the Company.
(9) The term "Disinterested Trustee" means any Trustee
who is not an Affiliate or Associate or representative of the
Interested Shareholder and was a Trustee prior to the time that
the Interested Shareholder became an Interested Shareholder, and
any Trustee who is a successor of a Disinterested Trustee, is
not an Affiliate or Associate or representative of the
Interested Shareholder and is recommenced or elected to succeed
the Disinterested Trustee by a majority of the Disinterested
Trustees.
D. POWERS OF THE DISINTERESTED TRUSTEES. A majority of
the Disinterested Trustees shall have the power and duty to
determine for purposes of this Article 57, on the basis of
information known to them after reasonable inquiry, (1) whether
a person is an Interested Shareholder, (2) the number of shares
of Capital Stock or other securities beneficially owned by any
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person, and (3) whether a person is an Affiliate or Associate of
another.
E. NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
SHAREHOLDERS. Nothing contained in this Article 57 shall be
construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
F. ALTERATION, AMENDMENT, REPEAL. Notwithstanding any
other provisions of this declaration of trust (and
notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law or in this declaration of
trust), the affirmative vote of the holders of 75% of the then
outstanding Voting Shares shall be required to alter, amend or
repeal this Article 57; PROVIDED, HOWEVER, that this Section F
shall not apply to, and such 75% vote shall not be required for,
any alteration, amendment or repeal recommended by a two-thirds
vote of the Trustees.
58. AMENDMENTS. The declaration of trust may be altered, amended,
added to or rescinded by an instrument in writing signed by a majority of
the Trustees, if the same has been authorized by majority vote of the
Shareholders at a meeting, and such other vote, if any, as may be required
by the rights or preferences relating to any class or series of shares;
provided that if such alteration, amendment, addition or rescission shall in
the judgment of the Trustees be of a fundamental character it shall require
authorization by vote, at such a meeting, of the holders of a majority of
the shares outstanding and entitled to vote thereon; and provided further
that any alteration, amendment, addition or rescission of any provision
requiring a vote of the holders of a specified percentage of the shares
shall be only by vote of the holders of such percentage; and provided
further that the provisions of Articles 3 and 4 exempting from personal
liability the Shareholders, Trustees, officers, agents and other
representatives of the Company may be amended only by unanimous vote of the
holders of all shares entitled to vote at the time such vote is taken and
such amendment shall take effect only prospectively. Such alteration,
amendment, addition or rescission shall become effective at such time as may
be specified in the vote effecting such action. Notwithstanding anything
preceding in this Article to the contrary but subject to the provisions of
Article 57, the vote of the holders of 75% of the shares issued and
outstanding and entitled to vote generally in the election of Trustees shall
be required for any alteration, amendment or repeal of Articles 9 and 10;
provided, however, that such 75% vote shall not be required for any
alteration, amendment or repeal adopted or recommended by 75% of the
Trustees then in office. Amendments for the purpose of changing the name of
the Company or of supplying any omission, curing any ambiguity or curing,
correcting or supplementing any defective or inconsistent provision
contained in this declaration of trust shall not require authorization by
vote of the Shareholders.
59. CERTIFICATE OF TERMINATION OR AMENDMENT. In case this trust
shall be terminated or any merger, combination, consolidation or affiliation
shall be effected, or any of the terms, powers and provisions herein
contained shall be altered, amended, added to or rescinded, pursuant to the
provisions of Article 8(o), Article 56 or Article 58 or other authority, a
certificate in any number of counterparts deemed desirable, setting forth
such termination, alteration, amendment, addition or rescission or the terms
81
of such merger, combination, consolidation or affiliation and either that
the Shareholders have authorized the same in accordance with the provisions
of said Article 8(o), Article 56 or Article 58, or the other authority
pursuant to which the same has been made, shall be signed by the chairman or
president and by the secretary or any assistant secretary and shall be
acknowledged by either the chairman or president signing the same and shall
be recorded or filed in the various public offices, if any, in which this
declaration of trust is then recorded or filed and at the principal office
of the Company and in such places as may be required by law, but failure to
record or file any such vote or resolution shall not affect the validity
thereof.
60. DISPOSITION OF TRUST ESTATE ON TERMINATION. Upon the termination
of this trust the Trustees shall, upon such terms as shall be determined by
the Trustees, sell and convert into money or into shares, bonds or other
securities or obligations, whether of the purchaser or otherwise, the whole
or any part of the Trust estate and shall apportion the proceeds thereof and
any property forming part of the Trust estate excepted from such sale among
all the Shareholders in accordance with their respective rights ratably
according to the number and kind of shares held by them respectively. In
making any sale under this provision the Trustees shall have power to sell
by public auction or private contract and to buy in or rescind or vary any
contract of sale and to resell, without being answerable for loss, and for
the said purposes to execute or cause to be executed all proper deeds and
instruments and to do all proper things. The Trustees may, after the
distribution of the full amounts of money, if any, due upon liquidation or
termination on any preferred shares of any class or series which may be
outstanding, divide the whole or any part of the remaining Trust estate in
its actual state of investment among the Shareholders in accordance with
their respective rights ratably according to the number and kind of shares
held by them respectively, and for such purposes the Trustees shall have
power to determine the values of the property comprising said remaining
Trust estate.
MISCELLANEOUS
61. FILING. This instrument and any amendment hereto shall be filed
with the Secretary of The Commonwealth of Massachusetts and in such other
places as may be required under the laws of The Commonwealth of
Massachusetts and may also be filed or recorded in such other places as the
Trustees deem appropriate. Unless any such amendment sets forth some later
time for the effectiveness of such amendment, such amendment shall be
effective upon its filing with the Secretary of The Commonwealth of
Massachusetts. A restated declaration of trust, integrating into a single
instrument all of the provisions of this instrument which are then in effect
and operative, may be executed from time to time by the Trustees and shall,
upon filing with the Secretary of The Commonwealth of Massachusetts, be
conclusive evidence of all amendments contained therein and may hereafter be
referred to in lieu of this instrument and the various amendments thereto.
62. PROTECTION OF COMPANY, STOCK OF WHICH HELD BY TRUST. No
corporation, trust, association or body politic shall be affected by notice
that any of its shares or bonds or other securities or obligations are
subject to this trust or be bound to see to the execution of this trust or
to ascertain or inquire whether any transfer of any such shares, bonds or
securities or obligations by the Company is authorized, notwithstanding such
authority may be disputed by some other person, firm, association, trust or
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corporation.
63. AUTHORITY OF THE TRUSTEES TO CONSTRUE TERMS HEREOF. The Trustees
shall have the authority to construe any of the terms, powers and provisions
herein contained and to act on any such construction, and its construction
of the same and any action taken pursuant thereto by the Trustees, or any
committee, officer or agent in good faith shall be final and conclusive.
64. EFFECT OF CAPTIONS AND TABLE OF CONTENTS. The captions and Table
of Contents are inserted for convenience of reference, and are not to be
taken as any part of this instrument or to control or affect the meaning,
construction or effect of the same.
65. COUNTERPARTS. This instrument may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and
such counterparts, together, shall constitute one and the same instrument,
which shall be sufficiently evidenced by any such original counterpart.
66. GOVERNING LAW. This instrument is executed by the original
Trustees and delivered in The Commonwealth of Massachusetts, and with
reference to the statutes and law thereof, and the rights of all parties and
the construction and effect of every provision hereof shall be subject to
and construed according to the statutes and law of said Commonwealth.
67. PROVISIONS IN CONFLICT WITH LAW OR REGULATIONS. The provisions
of this instrument are severable, and if the Trustees shall determine, with
the advice of counsel, that any of such provisions would be inconsistent
with any of the conditions necessary for qualification of the Company as an
exempted holding company within the meaning of the Public Utility Holding
Company Act of 1935, as amended, and the rules and regulations thereunder or
is inconsistent with other applicable laws and regulations, such provision
shall be deemed never to have constituted a part of this instrument,
provided that such determination shall not affect any of the remaining
provisions of this instrument or render invalid or improper any action taken
or omitted prior to such determination. If any provision of this instrument
shall be held invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall attach only to such provision in such jurisdiction
and shall not in any manner affect such provision in any other jurisdiction
or any other provision of this instrument in any jurisdiction.
***
IN WITNESS WHEREOF we have hereunto set our hands and seals at
Pittsfield in The Commonwealth of Massachusetts on the date first above
mentioned.
/s/ Scott S. Robinson
------------------------------------
Scott S. Robinson
/s/ Michael J. Marrone
------------------------------------
Michael J. Marrone
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/s/ Cheryl M. Clark
------------------------------------
Cheryl M. Clark
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF BERKSHIRE, SS. February 17, 1998
Then personally appeared before me the above-named Scott S. Robinson,
Michael J. Marrone and Cheryl M. Clark, and severally acknowledged the
foregoing instrument to be their free act and deed.
WITNESS MY HAND and official seal at Pittsfield, Massachusetts.
NOTARIAL SEAL /s/ James M. Avery
------------------------------------
James M. Avery, Notary Public
My commission expires: March 8, 2002
Notary Public in and for The Commonwealth of Massachusetts