EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
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of
EMC CORPORATION
SECTION 1. ARTICLES OF ORGANIZATION
The name and purposes of the corporation shall be as set forth in the
articles of organization. These bylaws, the powers of the corporation and of its
directors and stockholders, or of any class of stockholders if there shall be
more than one class of stock, and all matters concerning the conduct and
regulation of the business and affairs of the corporation shall be subject to
such provisions in regard thereto, if any, as are set forth in the articles of
organization as from time to time in effect.
SECTION 2. STOCKHOLDERS
2.1. ANNUAL MEETING. The annual meeting of stockholders of the corporation
for the election of directors and the transaction of such other business as may
properly come before the meeting shall be held on such date and at such time as
shall be determined by the board of directors each year, which date and time may
subsequently be changed at any time, including the year any such determination
occurs.
2.2. SPECIAL MEETINGS. Except as provided in the articles of organization
with respect to the ability of holders of preferred stock to call a special
meeting in certain circumstances, special meetings of the stockholders may be
called by the president at the direction of the chairman of the board or by a
majority of the directors, and shall be called by the clerk, or in case of the
death, absence, incapacity or refusal of the clerk, by any other officer, upon
the written application of stockholders who hold eighty-five percent (85%) in
interest of the capital stock of the corporation entitled to be voted at the
proposed meeting. Such request shall state the purpose or purposes of the
proposed meeting and may designate the place, date and hour of such meeting;
provided, however, that no such request shall designate a date not a full
business day or an hour not within normal business hours as the date or hour of
such meeting.
As used in these bylaws, the expression "business day" means a day other than a
day which, at a particular place, is a public holiday or a day other than a day
on which banking institutions at such place are allowed or required, by law or
otherwise, to remain closed.
2.3. PLACE OF MEETING; ADJOURNMENT. Meetings of the stockholders may be
held at the principal office of the corporation in the Commonwealth of
Massachusetts, or at such places within or without the Commonwealth of
Massachusetts as may be
specified in the notices of such meetings; provided, that, when any meeting is
convened, the chairman of the board or other presiding officer may adjourn the
meeting for a period of time not to exceed 30 days if (a) no quorum is present
for the transaction of business or (b) the chairman of the board or other
presiding officer determines that adjournment is necessary or appropriate to
enable the stockholders (i) to consider fully information which such officer
determines has not been made sufficiently or timely available to stockholders or
(ii) otherwise to exercise effectively their voting rights. The chairman of the
board or other presiding officer in such event shall announce the adjournment
and date, time and place of reconvening and shall cause notice thereof to be
posted at the place of meeting designated in the notice which was sent to the
stockholders, and if such date is more than 10 days after the original date of
the meeting, the clerk shall give notice thereof in the manner provided in
Section 2.4.
2.4. NOTICE OF MEETINGS. A written or electronic notice of each meeting of
stockholders, stating the place, date and hour and the purposes of the meeting,
shall be given at least seven days before the meeting to each stockholder
entitled to vote thereat and to each stockholder who, by law, by the articles of
organization or by these bylaws, is entitled to notice, by leaving such notice
with such stockholder or at such stockholder's residence or usual place of
business, by mailing it, postage prepaid, addressed to such stockholder at such
stockholder's address as it appears in the records of the corporation or by
sending such notice electronically to such stockholder's e-mail address as it
appears in the records of the corporation. Such notice shall be given by the
clerk or an assistant clerk or by an officer designated by the directors.
Whenever notice of a meeting is required to be given to a stockholder under any
provision of the Business Corporation Law of the Commonwealth of Massachusetts
or of the articles of organization or these bylaws, a written waiver thereof,
executed before or after the meeting by such stockholder or such stockholder's
attorney thereunto authorized and filed with the records of the meeting, shall
be deemed equivalent to such notice.
No business may be transacted at a meeting of stockholders except that (a)
specified in the notice thereof, or in a supplemental notice given also in
compliance with the provisions hereof, (b) brought before the meeting by or at
the direction of the board of directors or the presiding officer, or (c)
properly brought before the meeting by or on behalf of any stockholder who shall
have been a stockholder of record at the time of giving of notice provided for
in this Section 2.4 and who shall continue to be entitled to vote thereat and
who complies with the notice procedures set forth in this Section 2.4 or, with
respect to the election of directors, Section 3.2 of these bylaws. In addition
to any other applicable requirements, for business to be properly brought before
a meeting by a stockholder (other than a stockholder proposal included in the
corporation's proxy statement pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), the stockholder must
have given timely notice thereof in writing to the clerk of the corporation. In
order to be timely given, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the corporation (a) not less
than 95 nor more than 125 days prior to the anniversary date of the immediately
preceding annual meeting of
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stockholders of the corporation or (b) in the case of a special meeting or if
the annual meeting is called for a date (including any change in a date
determined by the board pursuant to Section 2.1) not within 30 days before or
after such anniversary date, not later than the close of business on the 10th
day following the day on which notice of the date of such meeting was mailed or
public disclosure of the date of such meeting was made, whichever first occurs.
Such stockholder's notice to the clerk shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, (b) the name and record address of the stockholder
proposing such business, (c) the class and number of shares of capital stock of
the corporation held of record, owned beneficially and represented by proxy by
such stockholder as of the record date for the meeting (if such date shall then
have been made publicly available) and as of the date of such notice by the
stockholder, and (d) all other information which would be required to be
included in a proxy statement or other filings required to be filed with the
Securities and Exchange Commission if, with respect to any such item of
business, such stockholder were a participant in a solicitation subject to
Regulation 14A under the Exchange Act (the "Proxy Rules").
Notwithstanding anything in these bylaws to the contrary, no business shall
be conducted at any meeting of stockholders except in accordance with the
procedures set forth in this Section 2.4; PROVIDED, HOWEVER, that nothing in
this Section 2.4 shall be deemed to preclude discussion by any stockholder of
any business properly brought before such meeting.
The chairman of the board or other presiding officer of the meeting may, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the foregoing procedures,
and if such officer should so determine, such officer shall so declare to the
meeting and that business shall be disregarded.
2.5. QUORUM OF STOCKHOLDERS. At any meeting of stockholders, a quorum shall
consist of a majority in interest of all stock issued and outstanding and
entitled to vote at the meeting, except when a larger quorum is required by law,
by the articles of organization or by these bylaws. Stock owned directly or
indirectly by the corporation, if any, shall not be deemed outstanding for this
purpose. Any meeting 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 may be held as adjourned without further notice.
2.6. ACTION BY VOTE. When a quorum is present at any meeting of
stockholders, a plurality of the votes properly cast for election to any office
shall elect to such office, and a majority of the votes properly cast upon any
question other than an election to an office shall decide the question, except
when a larger vote is required by law, by the articles of organization or by
these bylaws. No ballot shall be required for
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any election unless requested by a stockholder present or represented at the
meeting and entitled to vote in the election.
2.7. VOTING. Stockholders entitled to vote shall have one vote for each
share of stock entitled to vote held by them of record according to the records
of the corporation, unless otherwise provided by the articles of organization.
The corporation shall not, directly or indirectly, vote any share of its own
stock.
2.8. ACTION BY WRITING. Any action required or permitted to be taken at any
meeting of stockholders may be taken without a meeting if all stockholders
entitled to vote on the matter consent to the action in writing and the written
consents are filed with the records of the meetings of stockholders. Such
consents shall be treated for all purposes as a vote at a meeting.
2.9. PROXIES. To the extent permitted by law, stockholders entitled to vote
may vote either in person or by proxy (which proxy may be authorized in writing,
by telephone or by electronic means). No proxy dated more than six months before
the meeting named therein shall be valid. Unless otherwise specifically limited
by their terms, such proxies shall entitle the holders thereof to vote at any
adjournment of such meeting but shall not be valid after the final adjournment
of such meeting.
SECTION 3. BOARD OF DIRECTORS
3.1. NUMBER. The number of directors shall be fixed at any time or from
time to time only by the affirmative vote of a majority of the directors then in
office, but shall be not less than three, except that whenever there shall be
only two stockholders the number of directors shall be not less than two and
whenever there shall be only one stockholder there shall be at least one
director; no decrease in the number of directors shall shorten the term of any
incumbent director. No director need be a stockholder of the corporation.
3.2. NOMINATIONS FOR DIRECTOR. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors,
except as provided in the articles of organization with respect to nominations
by holders of preferred stock in certain circumstances. Nominations of persons
for election to the board of directors at the annual meeting of stockholders may
be made at such annual meeting (a) by or at the direction of the board of
directors by any nominating committee or person appointed by the board or (b) by
any stockholder of record at the time of giving of notice provided for in this
Section 3.2 and who shall continue to be entitled to vote thereat and who
complies with the notice procedures set forth in this Section 3.2. Nominations
by stockholders shall be made only after giving timely notice in writing to the
clerk of the corporation. In order to be timely given, a stockholder's notice
shall be delivered to or mailed and received at the principal executive offices
of the corporation (a) not less than 95 nor more than 125 days prior to the
anniversary
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date of the immediately preceding annual meeting of stockholders of the
corporation or (b) if the annual meeting is called for a date (including any
change in a date determined by the board pursuant to Section 2.1) not within 30
days before or after such anniversary date, not later than the close of business
on the 10th day following the day on which notice of the date of the meeting was
mailed or public disclosure of the date of the meeting was made, whichever first
occurs. Such stockholder's notice to the clerk shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the corporation, if any, which
are beneficially owned by the person, (iv) any other information regarding the
nominee as would be required to be included in a proxy statement or other
filings required to be filed pursuant to the Proxy Rules, and (v) the consent of
each nominee to serve as a director of the corporation if so elected; and (b) as
to the stockholder giving the notice, (i) the name and record address of the
stockholder, (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the stockholder as of the record
date for the meeting (if such date shall then have been made publicly available)
and as of the date of such notice, (iii) a representation that the stockholder
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice, (iv) a representation that the stockholder (and
any party on whose behalf such stockholder is acting) is qualified at the time
of giving such notice to have such individual serve as the nominee of such
stockholder (and any party on whose behalf such stockholder is acting) if such
individual is elected, accompanied by copies of any notifications or filings
with, or orders or other actions by, and governmental authority which are
required in order for such stockholder (and any party on whose behalf such
stockholder is acting) to be so qualified, (v) 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, and (vi) such other information
regarding such stockholder as would be required to be included in a proxy
statement or other filings required to be filed pursuant to the Proxy Rules. The
corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the corporation to determine the eligibility of
such proposed nominee to serve as director. No person shall be eligible for
election as a director unless nominated in accordance with the provisions set
forth herein.
The chairman of the board or other presiding officer of the meeting may, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the foregoing procedures, and if such officer should
so determine, such officer shall so declare to the meeting and the defective
nomination shall be disregarded.
3.3. POWERS. Except as reserved to the stockholders by law, by the articles
of organization or by these bylaws, the business of the corporation shall be
managed by the
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directors who shall have and may exercise all the powers of the corporation. In
particular, and without limiting the generality of the foregoing, the directors
may at any time issue all or from time to time any part of the unissued capital
stock of the corporation from time to time authorized under the articles of
organization and may determine, subject to any requirements of law, the
consideration for which stock is to be issued and the manner of allocating such
consideration between capital and surplus.
3.4 RESIGNATION AND REMOVAL. Any director may resign at any time by
delivering a resignation in writing to the president, the treasurer or the clerk
or to a meeting of the directors. Such resignation shall be effective upon
receipt unless specified to be effective at some other time. Any director or
directors or the entire board of directors may be removed from office (a) only
for Cause (as defined in Section 50A of the Business Corporation Law of the
Commonwealth of Massachusetts) by the affirmative vote of a majority of the
shares entitled to vote at an election of directors and (b) only after
reasonable notice and an opportunity to be heard by the stockholders. No
director resigning, and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the corporation)
no director removed, shall have the right to any compensation as such director
for any period following such director's removal, or any right to damages on
account of such removal, whether such director's compensation be by the month or
by the year or otherwise, unless in the case of a resignation, the directors, or
in case of a removal, the stockholders, shall in their discretion provide for
compensation.
3.5 VACANCIES. Vacancies and newly created directorships, whether resulting
from an increase in the size of the board of directors, 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,
even though less than a quorum of the board of directors. Any director elected
in accordance with this Section 3.5 shall hold office for the remainder of the
full term of the class of directors in which the vacancy occurred or the new
directorship was created and until such director's successor shall have been
elected and qualified.
3.6. COMMITTEES. The directors may, by vote of a majority of the directors
then in office, elect from their number an executive committee and other
committees and delegate to any such committee or committees some or all of the
power of the directors except those which by law, by the articles of
organization or by these bylaws 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 such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these bylaws for the conduct of business by the directors.
3.7. REGULAR MEETINGS. Regular meetings of the directors may be held
without call or notice at such places and at such times as the directors may
from time to time determine, provided that reasonable notice of the first
regular meeting following any such determination shall be given to absent
directors. A regular meeting of the directors may
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be held without call or notice immediately after and at the same place as the
annual meeting of the stockholders.
3.8. SPECIAL MEETINGS. Special meetings of the directors may be held at any
time and at any place designated in the call of the meeting, when called by the
president or the treasurer or by two or more directors, reasonable notice
thereof being given to each director by the secretary or an assistant secretary,
or, if there be none, by the clerk or an assistant clerk, or by the officer or
one of the directors calling the meeting.
3.9. NOTICE. It shall be sufficient notice to a director to send notice by
mail or express overnight courier at least forty-eight hours or by facsimile at
least twenty-four hours before the meeting addressed to a director at such
director's usual or last known business or residence address or to give notice
to a director in person or by telephone at least twenty-four hours before the
meeting. Notice of a meeting need not be given to any director if a written
waiver of notice, executed by such director before or after the meeting, is
filed with the records of the meeting, or to any director who attends the
meeting without protesting prior thereto or at its commencement the lack of
notice to such director. Neither notice of a meeting nor a waiver of a notice
need specify the purposes of the meeting.
3.10. QUORUM. At any meeting of the directors a majority of the directors
then in office shall constitute a quorum. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question, whether or not a
quorum is present, and the meeting may be held as adjourned without further
notice.
3.11. ACTION BY VOTE. When a quorum is present at any meeting, a majority
of the directors present may take any action, except when a larger vote is
required by law, by the articles of organization or by these bylaws.
3.12. ACTION BY WRITING. Unless the articles of organization otherwise
provide, any action required or permitted to be taken at any meeting of the
directors may be taken without a meeting if all the directors consent to the
action in writing and the written consents are filed with the records of the
meetings of the directors. Such consents shall be treated for all purposes as a
vote taken at a meeting.
3.13. PRESENCE THROUGH COMMUNICATIONS EQUIPMENT. Unless otherwise provided
by law or by the articles of organization, members of the board of directors may
participate in a meeting of such board 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.
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SECTION 4. OFFICERS AND AGENTS
4.1. ENUMERATION; QUALIFICATION. The officers to the corporation shall be a
president, a treasurer, a clerk, and such other officers, if any, as the
incorporators at their initial meeting, or the directors from time to time, may
in their discretion elect or appoint. The corporation may also have such agents,
if any, as the incorporators at their initial meeting, or the directors from
time to time, may in their discretion appoint. Any officer may be but none need
be a director or stockholder of the corporation. The clerk shall be a resident
of the Commonwealth of Massachusetts unless the corporation has a resident agent
appointed for the purpose of service of process. Any two or more offices may be
held by the same person. Any officer may be required by the directors to give
bond for the faithful performance of such officer's duties to the corporation in
such amount and with such sureties as the directors may determine.
4.2. POWERS. Subject to law, to the articles of organization and to these
bylaws, each officer shall have, in addition to the duties and powers herein set
forth, such duties and powers as are commonly incident to such individual's
office and such duties and powers as the directors may from time to time
designate.
4.3. ELECTION. The president, the treasurer and the clerk shall be elected
annually by the directors at their first meeting following the annual meeting of
the stockholders. Other officers, if any, may be elected or appointed by the
board of directors at said meeting or at any other time.
4.4. TENURE. Except as otherwise provided by law, by the articles of
organization or by these bylaws, the president, the treasurer and the clerk
shall hold office until the first meeting of the board of directors following
the next annual meeting of the stockholders and until their respective
successors are chosen and qualified or until such officer dies, resigns, is
removed (whether or not such individual remains in a different capacity within
the corporation (either as an officer or employee)) or becomes disqualified, and
each other officer shall hold office until such officer dies, resigns, is
removed or becomes disqualified unless a shorter period shall have been
specified by the terms of such officer's election or appointment. Each agent
shall retain authority as an agent at the pleasure of the directors.
4.5 RESIGNATION AND REMOVAL. Any officer may resign at any time by
delivering a resignation in writing to the president, the treasurer or the clerk
or to a meeting of the directors. Such resignation shall be effective upon
receipt unless specified to be effective at some other time. The directors may
remove (whether or not such individual remains in a different capacity within
the corporation (either as an officer or employee)) any officer elected by them
with or without cause by the vote of the majority of the directors then in
office. An officer may be removed for cause only after reasonable notice and an
opportunity to be heard before the directors. No officer resigning, and (except
where a right to receive compensation shall be expressly provided in a duly
authorized written agreement with the corporation) no officer removed, shall
have the right to any compensation as such officer for any period following such
removal, or any
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right to damages on account of such removal, whether such officer's compensation
be by the month or by the year or otherwise, unless the directors in their
discretion provide for compensation.
4.6. VACANCIES. If the office of any officer becomes vacant, the directors
may elect or appoint a successor by vote of a majority of the directors present.
Each such successor shall hold office for the unexpired term, and in the case of
the president, the treasurer and the clerk, until such individual's successor is
chosen and qualified, or in each case until the successor sooner dies, resigns,
is removed (whether or not such individual remains in a different capacity
within the corporation (either as an officer or an employee)) or becomes
disqualified.
4.7. CHIEF EXECUTIVE OFFICER. The chief executive officer of the
corporation shall be the president or such other officer as is designated by the
directors and shall, subject to the control of the directors, have general
charge and supervision of the business of the corporation and, except as the
directors shall otherwise determine, preside at all meetings of the stockholders
and of the directors. If no such designation is made, the president shall be the
chief executive officer.
4.8. PRESIDENT AND VICE PRESIDENT. The president shall have the duties and
powers specified in these bylaws and shall have such other duties and powers as
may be determined by the directors.
Any vice presidents shall have such duties and powers as shall be
designated from time to time by the directors.
4.9. TREASURER AND ASSISTANT TREASURERS. Except as the directors shall
otherwise determine, the treasurer shall be the chief financial and accounting
officer of the corporation and shall be in charge of its 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 directors.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the directors.
4.10. CLERK AND ASSISTANT CLERKS. The clerk shall record all proceedings of
the stockholders in a book or series of books to be kept therefor, which book or
books shall be kept at the principal office of the corporation or at the office
of its transfer agent or of its clerk and shall be open at all reasonable times
to the inspection of any stockholder. In the absence of the clerk from any
meeting of stockholders, an assistant clerk, or if there be none or such
assistant clerk is absent, a temporary clerk or temporary secretary chosen at
the meeting, shall record the proceedings thereof in the aforesaid book. Unless
a transfer agent has been appointed, the clerk shall keep or cause to be kept
the stock and transfer records of the corporation, which shall contain the names
and record addresses of all stockholders and the amount of stock held by each.
The clerk shall keep a true record of the proceedings of all meetings of the
directors and in the clerk's absence from any
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such meeting an assistant clerk, or if there be none or such assistant clerk is
absent, a temporary clerk or temporary secretary chosen at the meeting, shall
record the proceedings thereof.
Any assistant clerks shall have such other duties and powers as shall be
designated from time to time by the directors.
4.11. SECRETARY AND ASSISTANT SECRETARIES. If a secretary or assistant
secretary is elected, such individual shall have the authority to keep a true
record of the proceedings of the directors and stockholders, and shall have such
other duties and powers as shall be designated from time to time by the
directors.
SECTION 5. CAPITAL STOCK
5.1. NUMBER AND PAR VALUE. The total number of shares and the par value, if
any, of each class of stock which the corporation is authorized to issue shall
be as stated in the articles of organization.
5.2. STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by such stockholder, in such form as shall, in
conformity to law, be prescribed from time to time by the directors. Such
certificate shall be signed by the president or a vice president and by the
treasurer or an assistant treasurer. Such signatures may be facsimiles if the
certificate is signed by a transfer agent, or by a registrar, other than a
director, officer or employee of the corporation. 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 such individual were such
officer at the time of its issue.
5.3. LOSS OF CERTIFICATES. In the case of the alleged loss or destruction
or the mutilation of a certificate of stock, a duplicate certificate may be
issued in place thereof, upon such conditions as the directors may prescribe.
SECTION 6. TRANSFER OF SHARES OF STOCK
6.1. TRANSFER ON BOOKS. Subject to the restrictions, if any, stated or
noted on the stock certificates, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
directors or the transfer agent of the corporation may reasonably require.
Except as may otherwise be required by law, by the articles of organization or
by these bylaws, the corporation shall be entitled to treat the record holder of
stock as
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shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to receive notice and to vote with respect
thereto, regardless of any transfer, pledge or other disposition of such stock
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these bylaws. It shall be the duty of each
stockholder to notify the corporation of such stockholder's address.
6.2. RECORD DATE AND CLOSING TRANSFER BOOKS. The directors may fix in
advance a time, which shall not be more than sixty days before the date of any
meeting of stockholders or the date for the payment of any dividend or making of
any distribution to stockholders or the last day on which the consent or dissent
of stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting and any adjournment thereof or the right to receive such dividend
or distribution or the right to give such consent or dissent, and in such case
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the corporation after the
record date; or without fixing such record date the directors may for any of
such purposes close the transfer books for all or any part of such period. If no
record date is fixed and the transfer books are not closed:
(1) The record date for determining stockholders having the right to notice
of and to vote at a meeting of stockholders shall be at the close of business on
the date next preceding the date on which notice is given; and
(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
acts with respect thereto.
SECTION 7. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the extent legally permissible, indemnify each of
its directors and officers (including persons who act at its request as
directors, officers or trustees of another organization or in any capacity with
respect to any employee benefit plan) against all liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and counsel fees, reasonably incurred by such director or officer
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which such director or officer may be
involved or with which such director or officer may be threatened, while in
office or thereafter, by reason of such individual being or having been such a
director or officer, except with respect to any matter as to which such director
or officer shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that such individual's action was in the
best interests of the corporation (any person serving another organization in
one or more of the indicated capacities at the request of the corporation who
shall have acted in good faith in the reasonable belief that such individual's
action was in the best interests of such other organization to be deemed as
having acted in such manner with respect to the corporation) or, to the extent
that such
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matter relates to service with respect to any employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan;
provided, however, that as to any matter disposed of by a compromise payment by
such director or officer, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless such compromise shall be approved as in the best interests of
the corporation, after notice that it involves such indemnification: (a) by a
disinterested majority of the directors then in office; or (b) by a majority of
the disinterested directors then in office, provided that there has been
obtained an opinion in writing of independent legal counsel to the effect that
such director or officer appears to have acted in good faith in the reasonable
belief that such individual's action was in the best interests of the
corporation; or (c) by the holders of a majority of the outstanding stock at the
time entitled to vote for directors, voting as a single class, exclusive of any
stock owned by any interested director or officer. Expenses, including counsel
fees, reasonably incurred by any director or officer in connection with the
defense or disposition of any such action, suit or other proceeding may be paid
from time to time by the corporation in advance of the final disposition thereof
upon receipt of an undertaking by such director or officer to repay to the
corporation the amounts so paid by the corporation if it is ultimately
determined that indemnification for such expenses is not authorized under this
Section 7. The right of indemnification hereby provided shall not be exclusive
of or affect any other rights to which any director or officer may be entitled.
As used in this Section, the terms, "director" and "officer" include their
respective heirs, executors and administrators, and an "interested" director or
officer is one against whom in such capacity the proceedings in question or
another proceeding on the same or similar grounds is then pending. Nothing
contained in this Section shall affect any rights to indemnification to which
corporate personnel other than directors or officers may be entitled by contract
or otherwise under law.
SECTION 8. CORPORATE SEAL
The seal of the corporation shall, subject to alteration by the directors,
consist of a flat-faced circular die with the word "Massachusetts", together
with the name of the corporation and the year of its organization, cut or
engraved thereon.
SECTION 9. EXECUTION OF PAPERS
Except as the directors 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 by
the corporation shall be signed by the president or by one of the vice
presidents or by the treasurer.
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SECTION 10. FISCAL YEAR
The fiscal year of the corporation shall end on December 31.
SECTION 11. AMENDMENTS
These bylaws may be altered, amended or repealed at any annual or special
meeting of the stockholders called for the purpose, of which the notice shall
specify the subject matter of the proposed alteration, amendment or repeal or
the sections to be affected thereby, by vote of the stockholders. These bylaws
may also be altered, amended or repealed by vote of a majority of the directors
then in office, except that the directors shall not take any action which
provides for indemnification of directors nor any action to amend this Section
11, and except that the directors shall not take any action unless permitted by
law.
Any bylaw so altered, amended or repealed by the directors may be further
altered or amended or reinstated by the stockholders in the above manner.
SECTION 12. MASSACHUSETTS CONTROL SHARE ACQUISITIONS ACT
The provisions of Chapter 110D shall not apply to control share
acquisitions of the corporation.
If the provisions of Chapter 110D shall become applicable to control share
acquisitions of the corporation through amendment of these bylaws or otherwise,
the following provisions shall apply:
(a) The corporation is authorized to redeem shares acquired in a control
share acquisition to the extent and in accordance with the procedures
specified in Section 6 of Chapter 110D and in this Section.
(b) The additional procedures for redemption specified in this Section are
as follows:
(i) Fair value shall be determined by the board of directors or a
committee of the board of directors of the corporation, and the
amount so determined shall be included in the notice of
redemption given by the corporation pursuant to Section 6 of
Chapter 110D.
(ii) The person whose shares are being redeemed (the "Holder") may
within ten days after the date of the notice of redemption advise
the corporation in writing that the Holder believes that the
value so determined is not fair, and in such event the
corporation shall,
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within the 30-day period following its receipt of the Holder's
notice, permit the Holder to submit such written and oral
evidence of value as the Holder may wish and the board of
directors or committee considers appropriate. The board of
directors or committee shall affirm or revise its determination
of fair value within fifteen days after the completion of the
30-day period, and shall promptly advise the Holder in writing of
its decision.
(iii) The notice of redemption shall specify a redemption date, which
shall be 30 days after the date of the notice (or the first
business day after the 30-day period), and a redemption office,
which shall be the principal office of the corporation or an
office of a commercial bank specified by the corporation in the
notice. The redemption date so fixed shall not be deferred by a
request of the Holder for a redetermination of fair value. The
Holder shall cause the certificate or certificates representing
the shares being redeemed to be delivered to the redemption
office not later than the redemption date, duly endorsed or
assigned for transfer, with signature guaranteed, if such an
endorsement or assignment is required in the notice of
redemption.
(iv) The certificate or certificates representing the shares being
redeemed having been deposited in accordance with item (iii)
above, the redemption price shall be paid by the corporation on
the redemption date specified in its notice of redemption or such
later date as the redemption price may be determined if the
Holder has duly requested a redetermination of fair value.
(v) Notice of redemption having been given, from and after the
redemption date the shares being redeemed shall no longer be
deemed to be outstanding, and all rights of the holder or holders
thereof as a stockholder or stockholders of the corporation shall
cease, except the right to receive the redemption price. If the
corporation shall default in payment of the redemption price,
interest shall accrue thereon from the date of default at the
base or prime rate of the corporation's principal lending bank or
if none, the base or prime rate of Fleet Bank or its successor,
as in effect from time to time during the period of default.
(vi) Notice given by the corporation by first class mail or delivered
in person on the basis of a good faith determination by the
corporation of the identity and address of the person who had
made a control share acquisition shall be deemed to have been
duly given.
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(vii) Any person who makes a control share acquisition of the
corporation shall be deemed to have consented to and shall be
bound by the provisions of this Section and shall indemnify and
hold the corporation harmless from and against any damage, loss
or expense which the corporation may suffer as a result of any
non-compliance with the provisions of this Section.
References in this Section to Chapter 110D mean Chapter 110D of the
Massachusetts General Laws as in effect from time to time.
SECTION 13. MASSACHUSETTS BUSINESS COMBINATION ACT
The provisions of Chapter 110F of the Massachusetts General Laws shall not
apply to "business combinations" (as defined therein) involving the corporation.
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