EXHIBIT 3.1.2
APPENDIX C
BY-LAWS
OF
BERKSHIRE ENERGY RESOURCES
Section 1. DECLARATION OF TRUST
1.1 DECLARATION OF TRUST. References herein to the Declaration of Trust
shall apply to the Declaration of Trust establishing Berkshire Energy
Resources dated February __, 1998, as the same shall be amended from time to
time. These By-laws and all matters concerning the conduct and regulation
of the business and affairs of the Company shall be subject to such
provisions in regard thereto, if any, as are set forth in the Declaration of
Trust as from time to time in effect.
Section 2. TRUSTEES
2.1. NOMINATIONS. Nominations for the election of Trustees at an annual
meeting may be made by the Trustees or a committee appointed by the Trustees
or by any Shareholder entitled to vote generally in the election of
Trustees; however, any Shareholder entitled to vote generally in the
election of Trustees may nominate one or more persons for election as
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Trustees at an annual meeting only if written notice of such Shareholder's
intent to make such nomination or nominations has been given, postage
prepaid, to the secretary not less than 14 days nor more than 50 days prior
to any meeting of the Shareholders called for the election of Trustees.
Each such notice shall set forth: (a) the name and address of the
Shareholder who intends to make the nomination and of the person or persons
to be nominated; (b) a representation that the Shareholder is a holder of
record of the Company entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the Shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination
or nominations are to be made by the Shareholder; (d) such other
information regarding each nominee proposed by such Shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission; and (e) the consent of each
nominee to serve as a Trustee if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
2.2. INSPECTORS. The annual election of Trustees, and of such other
officers as may be required to be elected by the Shareholders, shall be
conducted by two inspectors appointed by the presiding officer of the
meeting, which inspectors shall be duly sworn, and shall in writing certify
to the returns. No person who is a candidate for any of the offices to be
filled by such election shall act as inspector, judge or clerk of such an
election.
2.3. ACTION BY TRUSTEES. 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.
2.4. REGULAR MEETINGS. Regular meetings of the Trustees may be held at such
places and at such times as the Trustees may by vote from time to time
determine, and if so determined no notice thereof need be given, provided,
however, that notice of the first regular meeting following any such
determination shall be given to absent Trustees. A regular meeting of the
Trustees may be held without notice immediately after and at the same place
as the annual meeting of the Shareholders or a special meeting of the
Shareholders held in lieu of such annual meeting.
2.5. SPECIAL MEETINGS. A special meeting of the Trustees may be held at
any time and at any place when called by the chairman, president, secretary
or three or more Trustees, by giving to each of the Trustees reasonable
notice thereof.
2.6. ADJOURNMENTS OF MEETINGS. If the holders of the amount of shares
necessary to constitute a quorum shall fail to attend in person or by proxy
at the place, day and hour set by notice for any meetings of the
Shareholders, a majority in interest of the Shareholders present in person
or by proxy may adjourn from time to time, without notice other than by
announcement at the meeting, until holders of the amount of shares requisite
to constitute a quorum shall attend in person or by proxy.
2.7. NOTICE. Without implied limitation, a notice thereof, mailed prepaid,
addressed to any Trustee, at his or her usual address, and posted in the
Commonwealth of Massachusetts, or where the principal office of the Company
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is situated, at least forty-eight (48) hours before such meeting, or a
notice given by telephone or telefax at least twenty-four (24) hours before
such meeting, shall be deemed sufficient notice to such Trustee, whether the
same be received by him or her or not. It shall not be necessary to give
notice of any such meeting to any Trustee who is present at the meeting, or
who executes, before or after the meeting, a written waiver of such notice;
and if under the foregoing provisions there is no Trustee to whom notice of
a meeting need be given, such meeting may be held without call at any time
and at any place.
2.8. VOTING. All elections for Trustees shall be by written ballot, and
the polls at every such election shall remain open as long as may be
reasonably necessary to permit all Shareholders present in person or by
proxy to cast their votes. On other matters, upon which Shareholders shall
be entitled to vote, voting may be oral.
2.9. PROXY. The person entitled to vote any share of the Company may
delegate his power to vote that share by a proxy, signed by the person, or
by the holder of his or her duly authorized and executed power of attorney.
Such proxy shall be valid for not more than three years from its date. The
proxy must be delivered to the secretary of the Company before the time when
it is to be used.
2.10. MINUTES OF MEETINGS. The Trustees shall cause to be kept minutes of
all meetings of the Trustees and minutes of all meetings of the
Shareholders, and all such minutes, if signed or certified by the secretary
or any assistant or temporary secretary, shall be conclusive evidence of the
matters therein stated.
2.11. PRESENCE THROUGH COMMUNICATIONS EQUIPMENT. Unless otherwise
prohibited by law, members of the Trustees may participate in a meeting by
means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other at the
same time and participation by such means shall constitute presence in
person at a meeting.
2.12. COMMITTEES. The Trustees shall, by a vote of the majority of the
Trustees then in office, elect from their number an Executive Committee as
described in Section 2.13. The Trustees may also from time to time appoint
such other committees as it may determine and such committees shall have
such powers as shall be specified by vote of the Trustees. Except as the
Trustees may otherwise determine, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the Trustees or
such rules, its business shall be conducted as nearly as may be in the same
manner as is provided by the declaration of trust for the conduct of
business by the Trustees.
2.13. EXECUTIVE COMMITTEE. The Executive Committee shall consist of three
of the members of the Trustees, which three members shall include the
Chairman of the Trustees, which shall fix its own rules of proceedings and
shall meet where and as provided by such rules of proceeding or by
resolution of the Trustees, and at every meeting the presence of a majority
shall be necessary to constitute a quorum. All action by the Executive
Committee shall be reported to the Trustees at its meeting next succeeding
such action. The Chairman of the Trustees shall be Chairman of the
Executive Committee and preside at its meetings. During the intervals
between the meetings of the Trustees, the Executive Committee shall possess
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and may exercise all the powers of the Trustees in the management and
direction of the business and conduct the affairs of the Company, in such
manner as the Executive Committee shall deem best for the interest of the
Company, except the election of Trustees and members of the Executive
Committee and the declaration of dividends.
Section 3. OFFICERS AND AGENTS
3.1. ENUMERATION; QUALIFICATION. The officers of the Company shall be a
president, a treasurer and a secretary and any other officers, including a
chairman of the Trustees, as the Trustees may from time to time in their
discretion elect or appoint. The Trustees may likewise from time to time
appoint or employ or authorize the appointment or employment of agents,
employees or representatives of the Company, may fix their compensation,
term of employment, duties and powers, or authorize the same to be fixed,
and may remove them or terminate their employment or authorize the same to
be done. The secretary shall be a resident of Massachusetts unless the
Company has a resident agent appointed for the purpose of service of
process. Any action taken and any obligations entered into by such officers
or agents on behalf of the Company pursuant to authority granted to them
shall be binding upon the Trust estate. The Trustees may fix the
compensation and duties and powers of the officers or authorize the same to
be fixed. Any officer may be but need not be a Shareholder or Trustee and
any two or more offices may be held by the same person. Any officer may be
required by the Trustees to give bond for the faithful performance of his or
her duties to the Company in such amounts and with such sureties as the
Trustees may determine.
3.2. RESIGNATION AND REMOVALS. Any officer may resign at any time by
delivering his or her resignation in writing to the chairman of the
Trustees, if any, the president, the treasurer or the secretary or to a
meeting of the Trustees. Such resignation shall be effective upon its
receipt unless specified to be effective at some other time. The Trustees
may remove any officer elected or appointed by them with or without cause by
the vote of a majority of the Trustees then in office. An officer may be
removed for cause only after reasonable notice and opportunity to be heard
before the Trustees. Except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the Company,
no officer resigning or removed shall have any right to any compensation as
such officer 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
Trustees shall in their discretion provide for compensation.
3.3. POWERS. Subject to law, to the Declaration of Trust, and the other
provisions of these By-laws, unless and until the Trustees otherwise
determine, the several officers shall have the authority and perform the
duties usually incident to their respective offices in the case of
corporations and such other duties and powers as the Trustees may from time
to time designate.
3.4. ELECTION. The chairman of the Trustees, if any, and the president,
treasurer and secretary shall be elected annually by the Trustees at their
first meeting following the annual meeting of the stockholders. Other
officers, if any, may be elected or appointed by the Trustees at said
meeting or at any other time. If the office of the president or the
treasurer or secretary becomes vacant, the Trustees may elect a successor by
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vote of a majority of the Trustees then in office. If the office of any
other officer becomes vacant, the Trustees may elect a successor by vote of
a majority of the Trustees present. Each such successor shall hold office
until his or her successor is chosen and qualified, or until such officer
sooner dies, resigns, is removed or becomes disqualified.
3.5. TENURE. The chairman of the trustees, the president, the treasurer
and the secretary shall continue in office until the first meeting of the
Trustees following the next succeeding annual meeting of the Shareholders or
the special meeting of the Shareholders held in lieu of such annual meeting,
and until his or her successor, if any, is chosen and qualified, and other
officers shall hold office until any such officer sooner dies, resigns, is
removed or becomes disqualified. Each agent shall retain his or her
authority at the pleasure of the Trustees.
3.6. CHIEF EXECUTIVE OFFICER, CHAIRMAN OF THE TRUSTEES, PRESIDENT AND VICE
PRESIDENTS. The Trustees shall designate either the chairman of the
Trustees or the president as the chief executive officer of the Company who
shall have general charge and supervision of the business of the Company,
subject to the control of the Trustees.
The president, if not designated as the chief executive officer, and
any vice presidents shall have the duties and powers as shall be designated
by the Trustees from time to time or the chief executive officer of the
Company.
3.7. TREASURER AND ASSISTANT TREASURERS. The treasurer shall be in charge
of the Company's funds and valuable papers, books of account and accounting
records and shall have such other duties and powers as may be designated
from time to time by the Trustees or by the chief executive officer of the
Company.
Any assistant treasurer shall have such duties and powers as shall be
designated from time to time by the Trustees or the chief executive officer
of the Company.
3.8. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall record all
proceedings of the Shareholders in a book or series of books to be kept
therefor, which book or books shall be kept in the principal office of the
Company or at the office of its transfer agent or of its secretary and shall
be open at all reasonable times to the inspection of any shareholder. In
the absence of the secretary from any meeting of Shareholders, an assistant
secretary, or if there be none or the assistant secretary be absent, a
temporary secretary chosen at the meeting, shall record the proceedings
thereof in the aforesaid book. Unless a transfer agent has been appointed,
the secretary shall keep or cause to be kept the stock and transfer records
of the Company, which shall contain the names and record addresses of all
the Shareholders and the amount of shares held by each. The secretary shall
keep a true record of the proceedings of all meetings of the Trustees and in
the secretary's absence from any such meeting an assistant secretary, or if
there be none or the assistant secretary is absent, a temporary secretary
chosen at the meeting, shall record the proceedings thereof.
Any assistant secretary shall have such duties and powers as shall be
designated from time to time by the Trustees or the chief executive officer
of the Company.
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Section 4. CAPITAL STOCK
4.1. STOCK CERTIFICATES. Every Shareholder shall be entitled to receive a
certificate or certificates specifying the number and kind of shares held by
such Shareholder, with such description, if any, as may be necessary to
distinguish them from other shares to which different rights are attached.
Such certificates shall be signed by the chairman, the president or a vice
president and by the treasurer or an assistant treasurer of the Company and
countersigned by the transfer agent, if any, and registered by or on behalf
of the Trustees or by a registrar, if any, and a notation of such
registration shall be endorsed thereon. Such signatures may be facsimiles
if the certificate is signed by a transfer agent or by a registrar other
than a Trustee, officer or employee of the Company. Even though 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, such certificate may nevertheless be issued by the Company.
In lieu of issuing share certificates, the Trustees or the transfer
agent may either issue receipts therefor or keep accounts upon the books of
the Company for the record holders of such shares, who shall in either case
be deemed, for all purposes hereunder, to be the holders of certificates for
such shares as if they had accepted such certificates and shall be held to
have expressly assented and agreed to the terms hereof.
4.2. LOST, STOLEN OR DESTROYED SHARE CERTIFICATES. In the event the
Trustees authorized the issuance of share certificates, subject to Section
4.1, 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.
Section 5. COMMON SEAL
The seal of the Company shall bear the inscription: BERKSHIRE ENERGY
RESOURCES -- 1998 -- Massachusetts. It may, at any time, be changed by
resolution of the Trustees.
Section 6. EXECUTION OF PAPERS
Except as the Trustees may generally or in particular cases authorize
the execution thereof in some other manner, all deeds, leases, transfers,
contracts, bonds, notes, checks, drafts, and other obligations made,
accepted or endorsed on behalf of the Company shall be signed by the
chairman of the Trustees, if any, or by the president or by one or more of
the vice presidents or the treasurer.
Section 7. FISCAL YEAR
Until the Trustees shall change the same, the fiscal year shall begin
on the first day of July in each year.
Section 8. CONTROL SHARE ACQUISITIONS
The provisions of Massachusetts General Laws Chapter 110D as in effect
from time to time shall not apply to control share acquisitions of the
Company.
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Section 9. AMENDMENTS
These By-laws may be altered, amended or repealed by vote of the
majority of the Trustees then in office, except with respect to any
provision which by law or by a provision of this trust requires action by
the Shareholders.