BY-LAWS
OF
BOSTON PRIVATE FINANCIAL HOLDINGS, INC.
AS AMENDED MAY 19, 1994
ARTICLE FIRST
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The Annual meeting of stockholders shall be held
each year at the hour, date and place determined by the Board of Directors or an
officer designated by the Board of Directors, which hour, date and place may be
subsequently changed at any time by the Board of Directors. The purposes for
which the annual meeting is to be held, in addition to those prescribed by law,
by the Articles of Organization or by these By-laws, may be specified by the
Directors or the President. If no annual meeting is held in accordance with the
foregoing provisions, a special meeting may be held in lieu thereof, and any
action taken at such meeting shall have the same effect as if taken at the
annual meeting.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETING. At any annual
meeting of stockholders, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before such
annual meeting. To be considered as properly brought before an annual meeting of
stockholders, business must be: (a) specified in the notice of meeting (or any
supplement thereto), (b) otherwise properly brought before the meeting by, or at
the direction of, the Board of Directors, or (c) otherwise properly brought
before the meeting by any holder of record (both as of the time notice of such
proposal is given by the stockholder as set forth below and as of the record
date for the annual meeting in question) of any shares of capital stock of the
Corporation entitled to vote at such annual meeting who complies with the
requirements set forth in this Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, the stockholder of
record of any shares of capital stock entitled to vote at such annual meeting
(other than a stockholder proposal included in the Corporation's proxy statement
pursuant to Rule 14a-8 of the Securities Exchange Act of 1934, as amended, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Clerk of the Corporation, and (ii) be present at such meeting, either in person
or by a representative. To be timely, a stockholder's notice must be delivered
to, or mailed and received by the Corporation at its principal executive office
not less than 60 days nor more than 120 days prior to the anniversary date of
the immediately preceding annual meeting of stockholders (the "Anniversary
Date:); provided, that in the event that the annual meeting is scheduled to be
held on a date more than 30 days before the Anniversary Date or more than 60
days after the Anniversary Date, timely notice by the stockholder must be
delivered not earlier than the close of business on the 120th day prior to the
scheduled date of such annual meeting and not later than the close of business
on the later of (A) the 60th day prior to the scheduled date of such annual
meeting or (B) the 10th day following the first date on which the date of such
annual meeting is publicly disclosed.
Public disclosure of the scheduled date of the annual meeting of
stockholders made by means of: (i) a press release, (ii) a report or other
document filed publicly with the Securities and Exchange Commission or (iii) a
letter or report sent to stockholders of record of the Corporation at the time
of the mailing of such letter or report shall be deemed sufficient as public
disclosure of the date of such meeting for purposes of these By-laws.
A stockholder's notice to the Clerk shall set forth as to each matter
proposed to be brought before an annual meeting of stockholders: (i) a brief
description of the business the stockholder desires to bring before such annual
meeting and the reasons for conducting such business at such annual meeting,
(ii) the name and address, as they appear on the Corporation's stock transfer
books, of the stockholder proposing such business, (iii) the class and number of
shares of the Corporation beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
stock registered in such stockholder's name on such books, and the class and
number of shares of the Corporation beneficially owned by such beneficial
owners, (v) the names and
addresses of other stockholders known by the stockholder proposing such business
to support such proposal, and the class and number of shares of the Corporation
beneficially owned by such other stockholders, and (vi) any material interest of
the stockholder proposing to bring such business before such meeting (or any
other stockholders known to be supporting such proposal) in such proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2 in any material respect, such proposal shall not be presented for
action at the annual meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the annual
meeting shall determine and declare at the annual meeting whether the
stockholder proposal was made in accordance with the terms of this Section 2. If
the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this Section 2, he shall so declare at the
annual meeting and ballots shall be provided for use at the meeting with respect
to such proposal. If the presiding officer determines that a stockholder
proposal was not made in accordance with the requirements of this Section 2, he
shall so declare at the annual meeting and such proposal shall not be acted upon
at such meeting.
SECTION 3. SPECIAL MEETINGS. Special Meetings of the stockholders may be
called by the President or by a majority of the members of the Board of
Directors. Special meetings shall be called by the Clerk, in the case of the
death, absence, incapacity or refusal of the Clerk or, by any other officer,
upon written application of one or more stockholders who hold at least: (i) 66
2/3% in interest of the capital stock of the Corporation entitled to vote at
such meeting or (ii) such lesser percentage, if any (but in no event less than
40%) as shall be determined to be the maximum percentage which the Corporation
is permitted by applicable law to establish as the minimum percentage in
interest eligible to apply to the Clerk to call such a meeting.
Application to a court pursuant to Section 34(b) of Chapter 156B of the
General Laws of Massachusetts (or any successor statute governing domestic
corporations organized under the laws of Massachusetts) may be made only by
stockholders holding at lease: (i) 66 2/3% in interest of the capital stock of
the Corporation entitled to vote at such meeting or (ii) such lesser percentage,
if any (but in no event less than 40%) as shall be determined to be the maximum
percentage which the Corporation is permitted by applicable law to establish as
the minimum percentage in interest eligible to apply to the Clerk to call such a
meeting.
The hour, date and place of any special meeting and the record date for
determining the stockholders having the right to notice of and to vote at such
meeting shall be determined by the President, if such meeting is called by the
President, or by the Board of Directors if such meeting is called by the Board
of Directors or is to be called by the Clerk upon the written application of one
or more stockholders as provided in this Section 3. At any special meeting of
stockholders only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been stated in the written notice of the
special meeting given by the Clerk or the person calling such meeting and
otherwise properly brought before such special meeting. In order for a proposal
by a stockholder to be properly brought before a special meeting of
stockholders, the application to the Clerk for the call of such meeting must
contain the information required by the fourth paragraph of Article First,
Section 2 of these By-laws with respect to proposals by stockholders to be
considered at annual meetings of stockholders.
SECTION 4. [Intentionally omitted]
SECTION 5. NOTICES OF MEETINGS AND ADJOURNED MEETINGS. A written notice of
each annual or special meeting of the stockholders, stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given by, or at the direction of, the Clerk (or the person or persons
calling the meeting) at least seven days before the date of such meeting to each
stockholder entitled to vote thereat, by leaving such notice with him or at his
residence or usual place of business, or by depositing it, postage prepaid, in
the United States mail, directed to each stockholder at his address as it
appears on the records of the Corporation. An affidavit of the Clerk, Assistant
Clerk, or transfer agent of the Corporation that the notice has been given
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein. No notice need be given to any person with whom communication is
unlawful or to any person who has waived such notice (a) in writing (which
writing need not specify the business to be transacted at, or the purpose of,
the meeting) signed by such person before or after the time of the meeting or
(b) by attending the meeting except for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken
except that, if the adjournment is for more than thirty days or if, after the
adjournment, a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given in the manner provided in this Section 5 of
Article First.
SECTION 6. QUORUM. Unless the Articles of Organization or these By-laws
otherwise provide, at any meeting of stockholders a quorum for the transaction
of business shall consist of one or more individuals appearing in person and/or
as proxies and owning and/or representing a majority of the shares of the
Corporation then outstanding and entitled to vote, provided that less than such
quorum shall have power to adjourn the meeting from time to time.
SECTION 7. VOTING. Unless otherwise provided in the Articles of
Organization and subject to the provisions of Section 11 of this Article First,
each stockholder shall have one vote for each share of stock entitled to vote
held by him of record according to the records of the Corporation. Persons
holding stock in a fiduciary capacity shall be entitled to vote the shares so
held. Persons whose stock is pledged shall be entitled to vote unless in the
transfer by the pledger on the books of the Corporation he has expressly
empowered the pledgee to vote the pledged shares, in which case only the pledgee
or his proxy shall be entitled to vote. If shares stand of record in the names
of two or more persons or if two or more persons have the same fiduciary
relationship respecting the shares, then, unless the Clerk is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided to the
contrary: (a) if only one votes, his act binds all; (b) if more than one votes,
the act of the majority so voting binds all; and (c) if more than one votes and
the vote is evenly split, the effect shall be as provided by law. Neither
treasury shares nor shares held by another corporation, if a majority of the
shares entitled to vote for the election of Directors of the other corporation
is held by the Corporation, shall be voted at any meeting or counted in
determining the total number of outstanding shares at any given time.
SECTION 8. PROXIES. Stockholders may vote either in person or by written
proxy dated not more than six months before the meeting named therein. Proxies
shall be filed with the Clerk before being voted at any meeting or any
adjournment thereof. Except as otherwise limited therein, proxies shall entitle
the persons named therein to vote at the meeting specified therein and at any
adjourned session of such meeting but shall not be valid after final adjournment
of the meeting. A proxy with respect to stock held in the name of two or more
persons shall be valid if executed by one of them unless at, or prior to, the
exercise of the proxy, the Corporation receives a specific written notice to the
contrary from any of them. A proxy purporting to be executed by or on behalf of
a stockholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving the invalidity shall rest on the challenger.
SECTION 9. ACTION AT MEETING. When a quorum is present at any meeting,
action of the stockholders on any matter properly brought before such meeting
shall require, and may be effected by, the affirmative vote of the holders of a
majority in interest of the stock present or represented and entitled to vote
and voting on such matter, except where a larger vote is required by law, by the
Articles of Organization or by these By-laws.
SECTION 10. STOCKHOLDER LISTS. The officer or agent who has charge of the
stock transfer books of the Corporation shall prepare and make a complete list
of stockholders entitled to vote at each meeting of stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any stockholder during the whole time thereof. The stock
transfer books shall be the only evidence as to who are the stockholders
entitled to examine the list required by this Section or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 11. RECORD DATE. The Directors may fix in advance a time which
shall be not more than sixty days prior to (a) the date of any meeting of
stockholders or (b) the date for the payment of any dividend or the making of
any distribution to stockholders as the record date for determining the
stockholders having the right to notice of and to vote at such meeting and any
adjournment thereof or the right to receive such dividend or distribution. In
such case only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date. Without fixing such record date the Directors may for any of such
purposes close the transfer books for all or any part of such period.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at
the opening of business on the day on which notice is given,
or, if notice is waived, at the opening of business on the day
on which the meeting is held.
(2) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
SECTION 12. CONTROL SHARE ACQUISITION. The provisions of Chapter 110D of
the General Laws of The Commonwealth of Massachusetts ("Chapter 110D"), as it
may be amended from time to time, shall not apply to "control share
acquisitions" of the Corporation within the meaning of Chapter 110D.
ARTICLE SECOND
DIRECTORS
SECTION 1. POWERS. The Board of Directors, subject to any action at any
time taken by such stockholders as then have the right to vote, shall have the
entire charge, control and management of the Corporation, its property and
business and may exercise all or any of its powers. In the event of a vacancy in
the Board of Directors, the remaining Directors, except as provided by law or
the Articles of Organization, may execute powers of the full Board until the
vacancy is filled.
SECTION 2. COMPOSITION AND TERM. The Board of Directors shall consist of
not less than the minimum number, nor more than the maximum number of
individuals permitted by law. Subject to the foregoing requirements and
applicable law, the Board of Directors may from time to time fix the number of
Directors, provided that no such action may operate to remove a Director elected
by the stockholders other than in the manner specified in the Articles of
Organization. The Corporation shall have a Board of Directors of not less than
three Directors. The Board of Directors shall be divided into three classes
(Class I, Class II and Class III), as nearly equally in number as possible, with
one class to be elected annually. At each annual meeting of the stockholders,
the successors to the Directors of the class whose term shall expire in that
year shall be elected to hold office for a term expiring at the annual meeting
of stockholders held in the third year following the year of their election and
until their respective successors are elected and qualified, provided, however,
the initial Directors to be elected as Class I Directors,, Class II Directors
and Class III Directors shall be elected for those terms set forth in the
Articles of Organization.
SECTION 3. DIRECTOR NOMINATIONS. Nominations of candidates for election as
Directors of the Corporation at any annual meeting of stockholders may be made
(a) by, or at the direction of, a majority of the board of Directors or (b) by
any holder of record (both as of the time notice of such nomination is given by
the stockholder as set forth below and as of the record date for the annual
meeting in question) of any shares of capital stock of the Corporation entitled
to vote at such annual meeting who complies with the requirements set forth in
this Section 3. Any stockholder who seeks to make such a nomination or his
representative must be present in person at the annual meeting. Only persons
nominated in accordance with the procedures set forth in this Section 3 shall be
eligible for election as Directors at an annual meeting of stockholders.
Nominations, other than those made by, or at the direction of, the Board of
Directors, shall be made pursuant to timely notice in writing to the Clerk of
the Corporation as set forth in this Section 3. To be timely, a stockholder's
notice must be delivered to, or mailed and received by the Corporation at its
principal executive office not less than 60 days nor more than 120 days prior to
the Anniversary Date; provided, that in the event that the annual meeting is
scheduled to be held on a date more than 30 days before the Anniversary Date or
more than 60 days after the Anniversary Date, timely notice by the stockholder
must be delivered not earlier than the close of business on the 120th day prior
to the scheduled date of such annual meeting and not later than the close of
business on the later of (A) the 60th day prior to the scheduled date of such
annual meeting or (B) the 10th day following the first date on which the date of
such annual meeting is publicly disclosed. Public disclosure of the scheduled
date of the annual meeting of stockholders shall be determined in accordance
with Article First, Section 2 of these By-laws.
A stockholder's notice to the Clerk shall set forth as to each person whom
the stockholder proposes to nominate for election or re-election as a Director
(i) the name, age, business address and residential address of such person, (ii)
the principal occupation or employment of such person, (iii) the class and
number of shares of the Corporation's capital stock beneficially owned by such
person on the date of such stockholder's notice and (iv) the consent of each
nominee to serve as a Director if elected. A stockholder's notice to the Clerk
shall further set forth as to the stockholder giving such notice: (i) the name
and address, as they appear on the Corporation's stock transfer books, of such
stockholder and of the beneficial owners (if any) of the stock registered in
such stockholder's name and the name and address of other stockholders known by
such stockholder to be supporting such nominees; (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominees on the record date for
the annual meeting in question (if such date shall then have been made publicly
available) and on the date of such stockholder notice and (iii) a description of
all arrangements or understandings between such stockholder 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 such stockholder. At the request
of the Board of Directors, any person nominated by, or at the direction of, the
Board of Directors for election as a Director at an annual meeting shall furnish
to the Clerk of the Corporation the information as to such nominee required to
be set forth in a stockholder's notice of nomination of a candidate for
Director.
If the Board of Directors or a designated committee thereof determines that
any stockholder nomination was not made in a timely fashion in accordance with
the provisions of this Section 3 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 3 in any material respect, such nomination shall not be considered at
the annual meeting in question. If neither the Board of Directors nor such
committee makes a determination as to whether a nomination was made in
accordance with the provisions of this Section 3, the presiding officer of the
annual meeting shall determine and declare at the annual meeting whether a
nomination was made in accordance with such provisions. If the presiding officer
determines that a nomination was made in accordance with the requirements of
this Section 3, he shall so declare at the annual meeting and ballots shall be
provided for use at the meeting with respect to such nominee. If the presiding
officer determines that a nomination was not made in accordance with the
requirements of this Section 3, he shall so declare at the annual meeting and
such nomination shall not be considered at such meeting.
No person shall be eligible to be nominated for election or re-election to
a Director position on the Board of Directors if such person's age exceeds the
age of 70 and, except for those persons elected at the first annual meeting of
the stockholders of the Corporation who shall have the right to serve out their
initial terms after such meeting, each incumbent Director must resign as
Director at or prior to the next annual meeting of Directors, occurring
immediately following the annual meeting of stockholders after such Director has
reached the age of 70. The Board of Directors may require that any person
nominated produce a copy of their birth certificate, or if such is determined
not available to the reasonable satisfaction of the Board, any other adequate
and reasonable proof of age.
SECTION 4. VACANCIES. Any vacancy at any time existing in the Board,
whether resulting from an increase in the size of the Board, from the death,
resignation, disqualification or removal of a Director or otherwise, shall be
filled solely by the affirmative vote of a majority of the remaining Directors
then in office. If the Directors remaining in office constitute fewer than a
quorum of the Board of Directors, such Directors may fill the vacancy by the
affirmative vote of a majority of the Directors remaining in office.
SECTION 5. ENLARGEMENT OF THE BOARD. Except as provided in the Articles of
Organization, the number of the Board of Directors may be increased and one or
more additional Directors elected at any special meeting of the stockholders,
called at least in part for the purpose, or by the Directors by vote of a
majority of the Directors then in office.
SECTION 6. TENURE. Except as otherwise provided by law, by the Articles of
Organization or by these By-laws, Directors shall hold office until the next
annual meeting of stockholders and thereafter until their successors are chosen
and qualified.
SECTION 7. RESIGNATION. Any Director may resign by delivering his written
resignation to the Corporation at its principal office or to the President or
Clerk. Such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some other event.
SECTION 8. REMOVAL. Any Director may be removed from office only as
provided in the Articles of Organization.
SECTION 9. ANNUAL MEETING. Immediately after each annual meeting of
stockholders, or the special meeting held in lieu thereof, and at the place
thereof, if a quorum of the Directors is present, there shall be a meeting of
the Directors without notice; but if such a quorum of the Directors is not
present, or if present do not proceed immediately thereafter to hold a meeting
of the Directors, the annual meeting of the Directors shall be called in the
manner hereinafter provided with respect to the call of special meetings of
Directors.
SECTION 10. REGULAR MEETINGS. Regular meetings of the Directors may be held
at such times and places as shall from time to time be fixed by resolution of
the Board or the By-laws and no notice need be given of regular meetings held at
times and places so fixed, PROVIDED, HOWEVER, that any resolution relating to
the holding of regular meetings shall remain in force only until the next annual
meeting of stockholders, or the special meeting held in lieu thereof, and that
if at any meeting of Directors at which a resolution is adopted fixing the times
or places for any regular meetings any Director is absent, no meeting shall be
held pursuant to such resolution without notice or waiver by such absent
Director pursuant to Section 12 of this Article Second.
SECTION 11. SPECIAL MEETINGS. Special meetings of the Directors may be
called by the Chairman of the Board, if one is elected, or by the President, the
Clerk or at the request of three Directors and shall be held at the place
designated in the call thereof.
SECTION 12. NOTICES. Notice of the time, date and place of all special
meetings of the Board of Directors shall be given to each Director in person or
by telephone or sent to his business or home address by telegram at least
twenty-four (24) hours in advance of such meeting, or by written notice mailed
to his business or home address at least forty-eight (48) hours in advance of
such meeting. Such notice shall be deemed to be delivered when deposited in the
mail so addressed, with postage prepaid, or when delivered to the telegraph
company if sent by telegram. Any Director may waive notice of any meeting by a
writing executed by him either before or after the meeting and filed with the
records of the meeting. The attendance of a Director at a meeting, except where
a Director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. When any Board of Directors' meeting, either regular or
special, is adjourned for thirty (30) days or more, notice of the adjourned
meeting shall be given as in the case of a original meeting. It shall not be
necessary to give any notice of the time and place of any meeting adjourned for
less than thirty (30) days or of the business to be transacted thereat, other
than an announcement at the meeting at which such adjournment is taken.
SECTION 13. QUORUM. Unless the Article of Organization otherwise provide,
at any meeting of the Directors a majority of the number of Directors then in
office shall constitute a quorum for the transaction of business; provided
always that any number of Directors (whether one or more and whether or not
constituting a quorum) present at any meeting or at any adjourned meeting may
make any reasonable adjournment thereof provided that all absent directors
receive or waive notice pursuant to Section 12 of this Article Second of any
such adjournment provided that all absent directors receive or waive notice
pursuant to Section 12 of this Article Second of any such adjournment that
exceeds four business days.
SECTION 14. ACTION AT MEETING. At any meeting of the Directors at which a
quorum is present, the action of the Directors on any matter brought before the
meeting shall be decided by a vote of a majority of those present, unless a
different vote is required by law, the Articles of Organization, or these
By-laws.
SECTION 15. ACTION BY WRITTEN CONSENT. Any action by the Directors may be
taken without a meeting if a written consent thereto is signed by all the
Directors and filed with the records of the Directors' meetings.
Such consent shall be treated as a vote of the Directors for all purposes.
SECTION 16. COMMITTEES. The Directors may, by vote of a majority of the
number of Directors required to constitute a full Board as fixed in or
determined pursuant to these By-laws as then in effect, elect from their number
an executive committee and/or other committees and may be like vote delegate
thereto some or all of their powers, except those which by law, the Articles of
Organization or these By-laws they are prohibited from delegating. Except as the
Directors may otherwise determine, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the Directors or in
such rules, its business shall be conducted as
nearly as may be in the same manner as is provided by these By-laws for the
Directors.
SECTION 17. TELEPHONE CONFERENCE MEETINGS. Members of the Board of
Directors, or members of any committee thereof, may participate in a meeting of
the Directors of such committee 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.
SECTION 18. COMPENSATION OF DIRECTORS. The Board of Directors shall
have authority to fix the compensation of Directors from time to time.
ARTICLE THIRD
OFFICERS
SECTION 1. ENUMERATION. The officers of the Corporation shall be a
President, a Treasurer, a Clerk, and such Vice Presidents, Assistant Treasurers,
Assistant Clerks, Secretary, Assistant Secretaries and other officers as may
from time to time define the powers and duties of these offices notwithstanding
any other provisions of these By-laws.
SECTION 2. ELECTION AND VACANCIES. The President, Treasurer and Clerk shall
be elected annually by the Directors at their first meeting following the annual
meeting of stockholders, or the special meeting held in lieu thereof. Other
officers may be chosen by the Directors at such meeting or at any other meeting.
Except as otherwise provided by the Articles of Organization, any vacancy at any
time existing in any office may be filled by the Directors at any meeting, and
such successor in office shall hold office for the unexpired term of his
predecessor and until his successor is chosen and qualified, or until he sooner
dies, resigns or is removed.
SECTION 3. QUALIFICATION. The President may, but need not be, a Director.
No officer need be a stockholder. Any two or more offices may be held by the
same person, provided that the President and Clerk shall not be the same person.
The Clerk shall be a resident of Massachusetts unless the Corporation has a
resident agent appointed for the purpose of service of process. Any officer may
be required by the Directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the Directors
may determine.
SECTION 4. TENURE. Except as otherwise provided by law, by the Articles of
Organization, or by these By-laws, the President, Treasurer and Clerk shall hold
office until the first meeting of the Directors following the next annual
meeting of stockholders, or the special meeting held in lieu thereof, and
thereafter until his successor is chosen and qualified. Other officers shall
hold office until the first meeting of the Directors following the next annual
meeting of stockholders, or the special meeting held in lieu thereof, unless a
shorter term is specified in the vote choosing or appointing them. Officers
elected by the Board of Directors shall hold their respective offices at the
pleasure of the Board of Directors. Election or appointment of an officer,
employee or agent shall not in and of itself create contract rights. The Board
of Directors may, however, authorize the Corporation to enter into an employment
contract with any officer in accordance with applicable law, but no contract
right shall impair the right of the Board of Directors to remove any officer at
any time in accordance with this Section 4 of Article Third.
SECTION 5. RESIGNATION. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Clerk, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 6. REMOVAL. The Directors may remove any officer with or without
cause by a vote of a majority of the entire number of Directors then in office,
provided, however, that such removal, other than for cause shall be without
prejudice to the contract rights, if any, of the persons involved, and provided
further that an officer may be removed for cause only after reasonable notice
and opportunity to be heard by the Board of Directors prior to action thereon.
SECTION 7. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there shall
be one, shall preside at all meetings of the Board of Directors. The Chairman of
the Board shall perform such duties and have such powers and perform such duties
as the Board of Directors may from time to time designate.
SECTION 8. PRESIDENT. The President when present shall preside at all
meetings of the stockholders and of the Directors. He shall be the chief
executive officer of the Corporation except as the Board of Directors may
otherwise provide. It shall be his duty and he shall have the power to see that
all orders and resolutions of the Directors are carried into effect. He shall
from time to time report to the Directors all matters within his knowledge which
the interests of the corporation may require to be brought to its notice. The
President shall perform such duties had have such powers additional to the
foregoing as the Directors shall designate.
SECTION 9. VICE PRESIDENTS. In the absence or disability of the President,
his powers and duties shall be performed by the Vice President, if only one, or
if more than one, by the one designated for the purpose by the Directors. Each
Vice President shall have such other powers and perform such other duties as the
Directors shall from time to time designate.
SECTION 10. TREASURER. The Treasurer shall, subject to the direction of the
Directors, have general charge of the financial affairs of the Corporation and
shall cause to be kept accurate books of accounts. He shall have custody of all
funds, securities, and valuable documents of the corporation, except as the
Directors may otherwise provide. He shall promptly render to the President and
to the Directors such statements of his transactions and accounts as the
President and Directors respectively may from time to time require. The
Treasurer shall perform such duties and have such powers additional to the
foregoing as the Directors may designate.
SECTION 11. ASSISTANT TREASURERS. In the absence or disability of the
Treasurer, his powers and duties shall be performed by the Assistant Treasurer,
if only one, or, if more than one, by the one designated for the purpose by the
Directors. Each assistant Treasurer shall have such other powers and perform
such other duties as the Directors shall from time to time designate.
SECTION 12. CLERK. The Clerk shall record in books kept for the purpose all
votes and proceedings of the stockholders and, if there be no Secretary or
Assistant Secretary, of the Directors at their meetings. Unless the Directors
shall appoint a transfer agent and/or registrar or other officer or officers for
the purpose, the Clerk shall be charged with the duty of keeping, or causing to
be kept, accurate records of all stack outstanding, stock certificates issued
and stock transfers; and, subject to such other or different rules as shall be
adopted from time to time by the Directors, such records may be kept solely in
the stock certificate books. The Clerk shall perform such duties and have such
powers additional to the foregoing as the Directors shall designate.
SECTION 13. ASSISTANT CLERKS. In the absence of the Clerk from any meeting
of the stockholders or, if there be no Secretary or Assistant Secretary, from
any meeting of the Directors, the Assistant Clerk, if one be elected, or, if
there be more than one designated for the purpose by the Directors, otherwise a
Temporary Clerk designated by the person presiding at the meeting, shall perform
the duties of the Clerk. Each Assistant Clerk shall have such other powers and
perform such other duties as the Directors may from time to time designate.
SECTION 14. SECRETARY AND ASSISTANT SECRETARIES. If a Secretary is elected,
he shall keep a record of the meetings of the Directors and in his absence, an
Assistant Secretary, if one be elected, or, if there be more than one, the one
designated for the purpose of by the Directors, otherwise a Temporary Secretary
designated by the person presiding at the meeting, shall perform the duties of
the Secretary. Each Assistant Secretary shall have such other powers and perform
such other duties as the Directors may from time to time designate.
SECTION 15. SALARIES. The salaries and other compensation of officers,
agents and employees of the Corporation shall be fixed from to time by or under
authority from the Board of Directors. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
Director of the Corporation.
ARTICLE FOURTH
PROVISIONS RELATING TO CAPITAL STOCK
SECTION 1. ISSUANCE AND CONSIDERATION. Unless the Articles of Organization
provide otherwise, any unissued capital stock from time to time authorized under
the Articles of Organization may be issued by vote of the stockholders or by
vote of the Directors. No stock shall be issued unless the cash, so far as due,
or the property, services or debts or notes for which it was authorized to be
issued, has been actually received or incurred by, or conveyed, transferred, or
rendered to, the Corporation, or is in its possession as surplus.
SECTION 2. CERTIFICATES OF STOCK. Each stockholder shall be entitled to a
certificate or certificates representing in the aggregate the shares owned by
him certifying the number and class thereof, which shall be in such form as the
Directors shall adopt. Each certificate of stock shall be signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer,
but when a certificate is countersigned by a transfer agent or a registrar,
other than a Director, officer or employee of the Corporation, such signatures
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the time of its issue. Every
certificate for shares of stock which are subject to any restriction on transfer
pursuant to the Articles of Organization, the By-laws or any agreement to which
the Corporation is a party, shall have the restriction noted conspicuously on
the certificate and shall also set forth on the face or back either the full
text of the restriction or a statement of the existence of such restriction and
a statement that the Corporation will furnish a copy to the holder of such
certificate upon written request and without charge. Every certificate issued
when the Corporation is authorized to be issued or a statement of the existence
of such preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificates upon
written request and without charge.
SECTION 3. TRANSFER OF STOCK. The stock of the Corporation shall be
transferable, so as to affect the rights of the Corporation, only by transfer
recorded on the books of the Corporation or its transfer agent, in person or by
duly authorized attorney, and upon the surrender of the certificate or
certificates properly endorsed or assigned.
SECTION 4. EQUITABLE INTERESTS NOT RECOGNIZED. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person except as may be otherwise expressly provided by law, by these By-laws or
by the Articles of Organization.
SECTION 5. LOST OR DESTROYED CERTIFICATES. The Directors of the Corporation
may, subject to Massachusetts General Laws, Chapter 156B, Section 29, as amended
from time to time, determine the conditions upon which a new certificate of
stock may be issued in place of any certificate alleged to have been lost,
destroyed, or mutilated.
SECTION 6. DIVIDENDS. Subject to applicable law, the Articles of
Organization and these By-laws, the Board of Directors may from time to time
declare, and the Corporation may pay, dividends on outstanding shares of its
capital stock.
ARTICLE FIFTH
STOCK IN OTHER CORPORATIONS
Except as the Directors may otherwise designate, the President or Treasurer
may waive notice of, and appoint any person or persons to act as proxy or
attorney in fact for this Corporation (with or without power of substitution) at
any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this Corporation.
ARTICLE SIXTH
INSPECTION OF RECORDS
Books, accounts, documents and records of the Corporation shall be open to
inspection by any Director at all times during the usual hours of business. The
original, or attested copies, of the Articles of Organization, By-laws and
records of all meetings of the incorporators and stockholders, and the stock and
transfer records, which shall contain the names of all stockholders and the
record address and the amount of stock held by each, shall be kept in
Massachusetts at the principal office of the Corporation, or at an office of its
transfer agent or of the Clerk. Said copies and records need not all be kept in
the same office. They shall be available at all reasonable times to the
inspection of any stockholder for any proper purpose but not to secure a list of
stockholders for the purpose of selling said list or copies thereof or of using
the same for a purpose other than in the interest of the applicant, as a
stockholder, relative to the affairs of the Corporation.
ARTICLE SEVENTH
CHECKS, NOTES, DRAFTS AND OTHER INSTRUMENTS
Checks, notes, drafts and other instruments for the payment of money drawn
or endorsed in the name of the Corporation may be signed by any officers or
persons authorized by the Directors to sign the same. No officer or person shall
sign any such instrument as aforesaid unless authorized by the Directors to do
so.
ARTICLE EIGHTH
SEAL
The seal of the Corporation shall be circular in form, bearing its name,
the word "Massachusetts", and the year of its incorporation. The Treasurer shall
have custody of the seal and may affix it (as may any other officer if
authorized by the Directors) to any instrument requiring the corporate seal.
ARTICLE NINTH
FISCAL YEAR
The fiscal year of the Corporation shall be the year ending with December
31 in each year.
ARTICLE TENTH
AMENDMENTS
The By-laws may be amended at any time by a majority of the full Board of
Directors subject to repeal or change by vote of the holders of a majority of
the shares of capital stock issued and outstanding.
ARTICLE ELEVENTH
SEPARABILITY
In any term or provision of the By-laws, or the application thereof to any
person or circumstance or period of time, shall to any extent be invalid or
unenforceable, the remainder of the By-laws shall be valid and enforced to the
fullest extent permitted by law.