Exhibit 99.2
BY-LAWS
OF
EMERALD ISLE BANCORP, INC.
ARTICLE I
ARTICLES OF ORGANIZATION
The name of this Corporation is Emerald Isle Bancorp, Inc. The purposes of
the Corporation shall be as set forth in the Articles of Organization. These
by-laws, the powers of the Corporation and its Directors and stockholders, and
all matters concerning the conduct and regulation of the business of the
Corporation, shall be subject to such provisions in regard thereto, if any, as
are set forth in the Articles of Organization
ARTICLE II
DEFINITIONS
"Interested Stockholder" shall mean any person (other than the Corporation
or any officer or Director thereof, any employee benefit plan of the
Corporation, or any Subsidiary of the Corporation) who or which is the
beneficial owner, directly or indirectly, of ten percent or more of the voting
power of the then outstanding shares of voting stock, is an affiliate of the
Corporation and at any time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or indirectly, of ten
percent or more of the then outstanding shares of voting stock, or is an
assignee of or has otherwise succeeded to the beneficial ownership of any shares
of voting stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested Stockholder,
if such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering within the
meaning of the Securities Act of 1933 and such assignment or succession was not
approved by a two-thirds vote of the Continuing Directors.
For the purposes of determining whether a person is an Interested
Stockholder, the number of shares deemed to be outstanding shall include shares
beneficially owned but shall not include any other shares of voting stock which
may be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options or otherwise.
A person shall be a "beneficial owner" of any shares of voting stock which
such person or any of its Affiliates or Associates, directly or indirectly, has
or shares with
respect to voting stock (a) the right to acquire or direct acquisition of
(whether such right is exercisable immediately or only after the passage of time
or in the satisfaction of any conditions or both), pursuant to any agreement,
arrangement or understanding or upon the exercise of any conversion rights,
warrants, or options or otherwise; (b) the right to vote, or direct the voting
of, pursuant to any agreement, arrangement or understanding or otherwise; or (c)
the right to dispose of or transfer or direct the disposition or transfer of
pursuant to any agreement, arrangement, understanding or otherwise; or which are
beneficially owned, directly or indirectly, by any other person with which such
person or any of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
shares of voting stock.
A "person" shall mean an individual, a group acting in concert, a
corporation, a partnership, and association, a joint stock company, a trust, a
business trust, a government or political subdivision, any unincorporated
organization and any similar association or entity.
"Group Acting in Concert" shall mean persons (other than the Corporation or
any officer or Director thereof, any employee benefit plan of the Corporation,
or any Subsidiary of the Corporation) seeking to combine or pool their voting or
other interests in the securities of the Corporation for a common purpose,
pursuant to any contract, understanding, relationship, agreement or any other
arrangement, whether written, oral or otherwise, or any "group of persons" as
defined under Section 13(d) of the Securities Exchange Act of 1934. When
persons act together for any such purpose, their group is deemed to have
acquired their stock.
"Affiliate" or "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
"Continuing Director" means any member of the Board of Directors of
the Corporation who is not an Affiliate or Associate of the Interested
Stockholder and was a member of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder, and any successor
of a Continuing Director who is not an Affiliate or Associate of the Interested
Stockholder and is approved to succeed a Continuing Director by a two-thirds
vote of the Continuing Directors then on the Board of Directors.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS.
The annual meeting of stockholders shall be held on the third Monday in
April in each year (or if that be a legal holiday in the place where the meeting
is to be held, on the
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next succeeding full business day) at 10:00 a.m. at the main office of the
Corporation in Massachusetts, unless a different hour, date or place within
Massachusetts (or, if permitted by law, elsewhere in the United States) is fixed
by the Chairman of the Board, if one is elected, the Vice Chairman, if one is
elected, or the Board of Directors acting by vote or by written instrument or
instruments signed by them. The purposes for which the annual meeting is to be
held, in addition to those prescribed by law, by the Articles of Organization or
these by-laws, may be specified by the Board of Directors, the Chairman of the
Board, if one is elected, or the Vice Chairman, if one is elected. If no annual
meeting has been held on the date fixed above, a special meeting in lieu thereof
may be held and such special meeting shall have for the purposes of these
by-laws or otherwise all the force and effect of an annual meeting. Any
adjourned session of any meeting of the stockholders shall be held at such place
within Massachusetts (or, if permitted by law, elsewhere within the United
States) as is designated in the vote of adjournment.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETING.
At an annual meeting of stockholders, only such new business shall be
conducted, and only such proposals shall be acted upon as shall have been
brought before the annual meeting (a) by, or at the direction of, the Board of
Directors (unless there is an Interested Stockholder, in which case the
affirmative vote of two-thirds of the Continuing Directors then in office shall
also be required) or (b) by any stockholder of the Corporation who complies with
the notice procedures set forth in this Section 2. For a proposal to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Clerk of the Corporation. To
be timely, a stockholder's notice must be delivered to, or mailed and received
at, the principal executive offices of the Corporation not less than one hundred
twenty days nor more than one hundred and fifty days prior to the scheduled
annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date. A stockholder's notice to the Clerk shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting the following: (a) a brief description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by the stockholder on the date of such stockholder notice and
by any other stockholders known by such stockholder to be supporting such
proposal on the date of such stockholder notice, and (d) any financial interest
of the stockholder in such proposal.
The Board of Directors may reject any stockholder proposal not timely made
in accordance with the terms of this Section 2. If the Board of Directors, or a
designated committee thereof, determines that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
Section 2 in any material respect, then the Board of Directors may reject such
stockholder's proposal. If neither the Board of Directors nor such committee
makes a determination as to the validity of any
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stockholder proposal, 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 terms 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 any such proposal. If the
presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Section 2, he shall so declare at the annual
meeting and any such proposal shall not be acted upon at the annual meeting. If
there is an Interested Stockholder, any determinations to be made by the Board
of Directors or a designated committee thereof pursuant to the provisions of
this paragraph shall also require the concurrence of two-thirds of the
Continuing Directors then in office.
SECTION 3. SPECIAL MEETINGS.
Special meetings of the stockholders may be called by the Chairman of the
Board, if one is elected, the Vice Chairman, if one is elected, or by the Board
of Directors, unless there is an Interested Stockholder, in which case any such
call shall also require the affirmative vote of two-thirds of the Continuing
Directors then in office, and unless otherwise provided in the Articles of
Organization or by-laws, shall be called by the Clerk, or in case of the death,
absence, incapacity or refusal of the Clerk, by any other officer, upon written
application of one or more stockholders who hold at least forty percent in
interest of the capital stock entitled to vote thereat. Only matters set forth
in the call may be considered or acted upon at the meeting.
SECTION 4. NOTICE OF MEETINGS; ADJOURNMENTS.
A written notice of the place, date and hour of all meetings of
stockholders stating 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 is otherwise entitled by law or by the Articles of Organization
to such notice, by leaving such notice with him or at his residence or usual
place of business, or by mailing it, postage prepaid, and addressed to such
stockholder at his address as it appears in the stock transfer records of the
Corporation. Such notice shall be deemed to be delivered when deposited in the
mail so addressed, with postage prepaid. When any stockholders' meeting is
adjourned for thirty days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. It shall not be necessary to give
any notice of the hour, date, or place of any meeting adjourned for less than
thirty days or of the business to be transacted thereat, other than an
announcement at the meeting at which such adjournment is taken of the hour, date
and place to which the meeting is adjourned. Such notice shall be given by the
Clerk or Assistant Clerk, or, in case of the death, absence, incapacity or
refusal of the Clerk or Assistant Clerk, by any other officer or by a person
designated either by the Clerk or Assistant Clerk, by the person or persons
calling the meeting or by the Board of Directors. Whenever notice of a meeting
is required to be given a stockholder under any provision of law, the Articles
of Organization, or of these by-laws, a written waiver thereof, executed before
or after the meeting by such stockholder or his attorney
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thereunto authorized, and filed with the stock transfer records of the meeting,
shall be deemed equivalent to such notice.
SECTION 5. PRESIDING OFFICER
The Chairman of the Board, or in his absence, the Vice Chairman, shall
preside at all stockholder meetings and shall have the power, among other
things, to adjourn such meeting at any time and from time to time subject to
Section 5 of this Article III. If a Chairman of the Board and Vice Chairman are
not elected, the President shall preside at all meetings of stockholders.
SECTION 6. QUORUM.
At any meeting of the stockholders, a quorum shall consist of a majority in
interest of all stock issued and outstanding and entitled to vote at the
meeting, represented in person or by proxy; except that if two or more classes
or series of stock are entitled to vote on any matter as separate classes or
series, then in the case of each such class or series a quorum for that matter
shall consist of a majority in interest of all stock of that class or series
issued and outstanding, represented in person or by proxy; and except when a
larger quorum is required by law, by the Articles of Organization or by these
by-laws. Stock owned directly or indirectly by the Corporation, if any, shall
not be deemed outstanding for this purpose. The Presiding Officer may adjourn
the meeting from time to time, and the meeting may be held as adjourned without
further notice, except as provided in Section 4 of this Article III. At such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally noticed. The
Presiding Officer may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 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 books of the
Corporation and a proportionate vote for a fractional share, unless otherwise
provided by law or the Articles of Organization. The Corporation shall not,
directly or indirectly, vote any share of its own stock.
SECTION 8. PROXIES.
Stockholders entitled to vote may vote either in person or by proxy in
writing dated not more than six months before the meeting named therein, which
proxies shall be filed with the Clerk or other person responsible to record the
proceedings of the meeting, or any adjournment thereof, before being voted.
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. A proxy
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with respect to stock held in the name of two or more persons shall be valid if
executed by or on behalf of any one of them unless at or prior to exercise of
the proxy the Corporation receives a specific written notice to the contrary
from any one of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to its exercise,
and the burden of proving invalidity shall rest on the challenger.
SECTION 9. ACTION AT MEETING.
When a quorum is present at any meeting, any matter before the meeting
shall be decided by vote of the holders of a majority of the shares of stock
voting on such matter, except where a larger vote is required by law, by the
Articles of Organization or by these by-laws. Any election to office shall be
determined by a plurality of the votes cast, except where a larger vote is
required by law, by the Articles of Organization or by these by-laws. No vote
shall be required by a stockholder present or represented at the meeting and
entitled to vote in the election.
SECTION 10. ACTION BY CONSENT.
Any action required or permitted to be taken at any meeting of the
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.
ARTICLE IV
DIRECTORS
SECTION 1. POWERS.
The business of the Corporation shall be managed by a Board of Directors
who shall have and may exercise all the powers of the Corporation except as
otherwise reserved to the stockholders by law, by the Articles of Organization
or by these by-laws. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board until the vacancy is filled.
SECTION 2. COMPOSITION AND TERM.
Pursuant to M.G.L. c. 156B, Section 50A(b)(i), the Corporation hereby
elects not to be governed by the provisions of M.G.L. c. 156B, Section 50A.
The Board of Directors shall be composed of: (a) those persons designated
in the Articles of Organization of the Corporation, such persons to serve as
Directors until the respective expiration dates of their terms as set forth
therein and until their successors are
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elected and qualified and (b) as such terms expire, those persons who are
elected as Directors from time to time as provided herein. The Board of
Directors shall consist of not less than three Directors and shall be divided
into three classes, which classes of Directors shall be elected annually by the
stockholders. Subject to the foregoing requirements and applicable law, the
Board of Directors may from time to time fix the number of Directors and their
respective classifications; provided, however, that if at the time of such
action there is an Interested Stockholder, such action shall in addition require
a vote of two-thirds of the Continuing Directors then in office. Except as
otherwise provided in accordance with these by-laws, the members of each class
shall be elected for a term of three years and until their successors are
elected and qualified.
SECTION 3. DIRECTOR NOMINATIONS.
Nominations of candidates for election as Directors at any annual meeting
of stockholders may be made (a) by, or at the direction of, a majority of the
Board of Directors (unless there is an Interested Stockholder, in which case the
affirmative vote of two-thirds of the Continuing Directors shall also be
required) or (b) by any stockholder entitled to vote at such 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.
Nominations, other than those made by, or at the direction of, the Board of
Directors (or by the Continuing Directors, if required), 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 shall be delivered to, or
mailed and received, at the principal executive offices of the Corporation not
less than one hundred twenty days nor more than one hundred and fifty days prior
to the date of the scheduled annual meeting, regardless of postponements,
deferrals or adjournments of that meeting to a later date. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a Director and as to the stockholder
giving the notice (i) the name, age, business address and residence address of
such person, (ii) the principal occupation or employment of such person, and
(iii) the class and number of shares of the Corporation's capital stock which
are beneficially owned by such person on the date of such stockholder notice.
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 that information required
to be set forth in the stockholders' notice of nomination which pertains to the
nominee. Any person nominated for election as a Director at an annual meeting
shall furnish to the Clerk of the Corporation a disclosure statement which the
Board of Directors shall prescribe. All nominees for Director in any particular
year shall complete the same disclosure statement.
No person shall be elected as a Director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 3.
Ballots bearing the names of all the persons who have been nominated for
election as Directors at an annual meeting in
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accordance with the procedures set forth in this Section 3 shall be provided for
use at the annual meeting.
The Board of Directors may reject any nomination by a stockholder not
timely made in accordance with the requirements of this Section 3. If the Board
of Directors, or a designated committee thereof, determines that the information
provided in a stockholders' notice does not satisfy the informational
requirements of this Section 3 in any material respect, then the Board of
Directors may reject such stockholder's nomination. The Clerk of the
Corporation shall notify a stockholder in writing whether his nomination has
been made in accordance with the time and informational requirements of this
Section 3. Notwithstanding the procedure set forth in this paragraph, if
neither the Board of Directors nor such committee makes a determination as to
the validity of any nominations by a stockholder, the presiding officer of the
annual meeting shall determine and declare at the annual meeting whether a
nomination was made in accordance with the terms of this Section 3. If the
presiding officer determines that a nomination was made in accordance with the
terms 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 terms of this Section 3, he shall so declare at the annual meeting and such
nomination shall be disregarded. If there is an Interested Stockholder, any
determinations to be made by the Board of Directors or a designated committee
thereof pursuant to the provisions of this paragraph shall also require the
concurrence of two-thirds of the Continuing Directors then in office.
SECTION 4. QUALIFICATION.
Each Director shall have such qualifications as are required by applicable
law. In addition, subsequent to the date on which the Corporation enters into a
Plan of Reorganization and Acquisition with The Hibernia Savings Bank, in order
to qualify as a Director under this Section 4, each Director shall own, in his
own right and free of any lien or encumbrance, common stock having a par value,
or a fair market value on the date the person became a Director, of not less
than $5,000. Any Director who ceases to be the owner of the required number of
shares of stock, or who becomes in any other manner disqualified, shall vacate
his office forthwith. Unless waived by a vote of the Board of Directors, a
Director shall not serve as a Director after reaching the age of seventy years.
SECTION 5. RESIGNATION.
Any Director may resign at any time by written notice to the Chief
Executive Officer. A resignation shall be effective upon receipt, unless the
resignation provides otherwise.
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SECTION 6. REMOVAL.
Any Director may be removed from office as provided in the Articles of
Organization.
SECTION 7. VACANCIES.
Any vacancy occurring on the Board of Directors as a result of resignation,
removal or death may be filled by vote of a majority of the remaining Directors,
unless at the time of the action there is an Interested Stockholder, in which
case such vacancy may only be filled by a vote of two-thirds of the Continuing
Directors then in office. A Director elected to fill such a vacancy shall be
elected to serve for a term of office continuing until the next election of
Directors by the stockholders. Any directorship to be filled by reason of an
increase in the authorized number of Directors may be filled by a majority of
the Board of Directors for a term of office continuing until the next election
of Directors by the stockholders. If at the time of such action, there is an
Interested Stockholder, a vote of two-thirds of the Continuing Directors is
required instead.
SECTION 8. COMPENSATION
The members of the Board of Directors and the members of standing or
special committees shall receive such compensation as the Board of Directors may
determine.
SECTION 9. REGULAR MEETINGS.
Regular meetings of the Board of Directors may be held at such times and
places within or without the Commonwealth of Massachusetts as the Board of
Directors may fix from time to time and, when so fixed, no notice thereof need
be given, provided that any Director who is absent when such times and places
are fixed shall be given notice of the fixing of such times and places. The
first meeting of the Board of Directors following the annual meeting of the
stockholders may be held without notice immediately after and at the same place
as the annual meeting of the stockholders or the special meeting held in lieu
thereof. If in any year a meeting of the Board of Directors is not held at such
time and place, any action may be taken at any later meeting of the Board of
Directors with the same force and effect as if held or transacted at such
meeting.
SECTION 10. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by or at the
request of two-thirds of the Directors or the Chairman of the Board, if one is
elected. The person or persons authorized to call special meetings of the Board
of Directors may fix the hour, date, and place for holding a special meeting.
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SECTION 11. PRESIDING OFFICER
The Chairman of the Board, or in his absence, the Vice Chairman, shall
preside at all meetings of the Board of Directors. If a Chairman and Vice
Chairman are not elected, the President shall preside at all meetings of the
Board of Directors.
SECTION 12. NOTICE OF MEETINGS.
It shall be reasonable and sufficient notice to a Director to send notice
by mail at least forty-eight hours or by telegram at least twenty-four hours
before the meeting addressed to him at his usual or last known business or
residence address or to give notice to him in person or by telephone at least
twenty-four hours before the meeting. Such notice shall be deemed to be
delivered when hand delivered to such address; read to such Director by
telephone; deposited in mail so addressed, with postage thereon prepaid, if
mailed; or when delivered to the telegraph company if sent by telegram. When
any Board of Directors' meeting, either regular or special, is adjourned for
thirty days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. It shall not be necessary to give any notice of
the hour, date, or place of any meeting adjourned for less than thirty days, or
of the business to be transacted thereat, other than an announcement at the
meeting at which such adjournment is taken of the hour, date, and place to which
the meeting is adjourned. Notice of a meeting need not be given to any Director
if a written waiver of notice, executed by him 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 him. Neither notice of a meeting nor a waiver of a notice need
specify the purposes of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such 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.
SECTION 13. QUORUM.
A majority of the number of Directors then in office shall constitute a
quorum for the transaction of business at any meeting of the Board of
Directors. The Presiding Officer may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice except as provided
in Section 11 of this Article IV. Any business which might have been transacted
at the meeting as originally noticed may be transacted at such adjourned meeting
at which a quorum is present.
SECTION 14. ACTION AT A MEETING
The act of the majority of the Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors, unless otherwise
prescribed by law, the Articles of Organization or by these by-laws.
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SECTION 15. ACTION BY CONSENT.
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if the number of Directors required to
take a particular action consent to the action in writing and the written
consents are filed with the records of the meetings of the Directors. Such
consent shall be treated for all purposes as a vote of the Directors at a
meeting.
SECTION 16. PRESUMPTION OF ASSENT
A Director of the Corporation who is present at a meeting of the Board of
Directors at which action on any matter regarding the Corporation is taken shall
be presumed to have assented to the action taken unless his dissent or
abstention shall be entered in the minutes of the meeting or unless he shall
file a written dissent to such action with the person acting as the Clerk of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Clerk of the Corporation within five days after the date
a copy of the minutes of the meeting is received. Such right to dissent shall
not apply to a Director who voted in favor of such action.
SECTION 17. COMMITTEES.
The Board of Directors, by vote of a majority of the Directors then in
office, may elect from its number an Executive Committee or other committees and
may delegate thereto some or all of its powers except those which by law, by the
Articles of Organization, or by these by-laws may not be delegated. Except as
the Board of Directors may otherwise determine, any such committee may make
rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these by-laws for the Board of
Directors. All members of such committees shall hold such offices at the
pleasure of the Board of Directors. The Board of Directors may abolish any such
committee at any time subject to applicable law. Any committee to which the
Board of Directors delegates any of its powers or duties shall keep records of
its meetings and shall upon request report its action to the Board of Directors.
The Board of Directors shall have power to rescind any action of any committee,
but no rescission shall have retroactive effect. With the approval of the Board
of Directors, the Chief Executive Officer shall select and nominate Committee
members. Any recommendations of such committees appointed by the Chief
Executive Officer shall be submitted to the Board of Directors.
SECTION 18. MANNER OF PARTICIPATION
Members of the Board of Directors or of the committees elected by the Board
pursuant to Section 16 of this Article III may participate in meetings of the
Board by means of conference telephone or similar communications equipment by
which all
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persons participating in the meeting can hear each other. Such participation
shall constitute presence in person but shall not constitute attendance for the
purpose of compensation pursuant to Section 8 of this Article III, unless the
Board of Directors by resolution so provides.
ARTICLE V
OFFICERS AND AGENTS
SECTION 1. ENUMERATION.
The officers of the Corporation shall consist of a President, a Treasurer,
a Clerk and such other officers, including, without limitation, a Chairman of
the Board, a Vice Chairman, a Secretary and one or more Vice Presidents or
Assistant Vice Presidents and Assistant Treasurers as the Board of Directors may
determine may be necessary for the management of the Corporation.
SECTION 2. ELECTION.
All officers of the Corporation shall be elected at the beginning of the
fiscal year of the Corporation by the Board of Directors at a meeting duly
called for such purpose.
SECTION 3. QUALIFICATION.
Any two or more offices may be held by the same person. The Chief
Executive Officer shall be a Director. Any officer may be required by the Board
of 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, all officers shall hold office until
the first meeting of Directors at the beginning of the fiscal year and until
their respective successors are chosen and qualified, or for such shorter term
as the Board of Directors may fix at the time such officers are chosen. The
Chief Executive Officer may resign at any time by written notice to the Board of
Directors or the Clerk. Any other officer may resign at any time by written
notice to the Chief Executive Officer. Such resignation shall become effective
upon receipt unless the resignation provides otherwise. Election or appointment
of an officer, employee or agent shall not 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 the law, but no such
contract right shall impair the right of the Board of Directors to remove any
officer at any time in accordance with Section 5 of the Article IV.
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SECTION 5. REMOVAL.
Except as otherwise provided by law, the Board of Directors may remove the
Chief Executive Officer with cause by the affirmative vote of two-thirds of the
entire number of Directors then in office, and without cause by a vote of
three-fourths of the entire number of Directors; provided, however, that if at
the time of such removal there is an Interested Stockholder, an affirmative
vote of two-thirds of the Continuing Directors then in office shall also be
required to remove the Chief Executive Officer with cause, and an affirmative
vote of three-fourths of the Continuing Directors then in office shall also
be required to remove the Chief Executive Officer without cause. Any such
removal, other than for cause, shall be without prejudice to the contract
rights, if any, of the persons involved. The Chief Executive Officer may
be removed only after reasonable notice and opportunity to be heard by the
Board of Directors. Except as otherwise provided by law, the Chief
Executive Officer may remove any other officer, with or without cause.
SECTION 6. ABSENCE OR DISABILITY.
In the event of the absence or disability of any officer, the Chief
Executive Officer, or, in his absence, a majority of the Board of Directors may
designate another officer to act temporarily in place of an absent or disabled
officer.
SECTION 7. VACANCIES.
Any vacancy in any office may be filled for the unexpired portion of the
term by a majority of the Board of Directors.
SECTION 8. CHIEF EXECUTIVE OFFICER
The President shall be the Chief Executive Officer, unless the Board of
Directors shall elect a Chairman of the Board and designate such Chairman to be
the Chief Executive Officer. The Chief Executive Officer shall, subject to the
direction of the Board of Directors, have general supervision and control of the
Corporation's business.
SECTION 9. CHAIRMAN OF THE BOARD
The Chairman of the Board shall preside at all meetings of stockholders and
at all meetings of the Board of Directors. The Chairman of the Board shall also
have such other powers and shall perform such other duties as the Board of
Directors may from time to time designate. If the Chairman of the Board is not
the Chief Executive Officer, he shall also have such powers and perform such
duties as the Chief Executive Officer may from time to time designate.
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SECTION 10. VICE CHAIRMAN
The Vice Chairman shall preside over all meetings at which the Chairman is
absent. The Vice Chairman shall also have such powers and perform such duties
as the Chief Executive Officer may from time to time designate.
SECTION 10. PRESIDENT
The President, if he is the Chief Executive Officer, shall preside at all
meetings of the stockholders. If a Chairman of the Board or Vice Chairman are
not elected, the President shall preside at all meetings of the Board of
Directors. If the President is not the Chief Executive Officer, he shall have
such powers and perform such duties as the Chief Executive Officer may from time
to time designate.
SECTION 11. VICE PRESIDENT AND ASSISTANT VICE PRESIDENTS.
Any Vice President or Assistant Vice President shall have such powers and
shall perform such duties as the Chief Executive Officer may from time to time
designate.
SECTION 12. TREASURER AND ASSISTANT TREASURERS.
Any Treasurer or Assistant Treasurer shall have such powers and perform
such duties as the Chief Executive Officer may from time to time designate.
SECTION 13. CLERK AND ASSISTANT CLERKS.
The Clerk shall keep a record of the meetings of stockholders. In the
event there is no Secretary or he is absent, the Clerk shall keep a record of
the meetings of the Board of Directors. In the absence of the Clerk from any
meeting of stockholders, an Assistant Clerk if one is elected, shall perform the
Clerk's duties. Otherwise a Temporary Clerk designated by the person presiding
at the meeting shall perform the duties of the Clerk.
SECTION 14. SECRETARY AND ASSISTANT SECRETARIES.
The Secretary, if one be elected or appointed, shall keep a record of the
meetings of the Board of Directors. In the absence of the Secretary, any
Assistant Secretary, the Clerk and any Assistant Clerk, a Temporary Secretary
shall be designated by the person presiding at such meeting to perform the
duties of the Secretary.
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ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK.
Each stockholder shall be entitled to a certificate of the capital stock in
form selected by the Board of Directors stating the number and the class and the
designation of the series, if any, of the shares held by him or her. Such
certificate shall be signed by the Chairman of the Board of Directors, the
President or a Vice President and 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
the certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer at the time of its issuance.
Every certificate for shares of stock subject to any restriction on
transfer pursuant to the Articles of Organization, these 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 issue more
than one class or series of stock shall set forth on its face or back either the
full text of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series 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 certificate upon written request and without charge.
SECTION 2. TRANSFERS.
Subject to any restrictions on transfer and unless otherwise provided by
the Board of Directors, shares of stock may be transferred on the books of the
Corporation only by surrender to the Corporation or its transfer agent of the
certificate representing such shares properly endorsed or accompanied by a
written assignment of such shares or by a written power of attorney to sell,
assign, or transfer such shares, properly executed, with necessary transfer
stamps affixed, and with such proof that the endorsement, assignment or power of
attorney is genuine and effective as the Corporation or its transfer agent may
reasonably require.
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SECTION 3. RECORD HOLDERS
Except as may be otherwise required by law, the Articles of Organization,
or these by-laws, the Corporation shall be entitled to treat the record holder
of stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote, regardless of any
transfer, pledge or other disposition of such stock, until the shares have been
transferred on the books of the Corporation in accordance with the requirements
of these by-laws. It shall be the duty of each stockholder to notify the
Corporation of his address and any changes thereto.
SECTION 4. SETTING RECORD DATE AND CLOSING TRANSFER RECORDS.
The Board of Directors may fix in advance a time not more than sixty days
before the date of any meeting of the stockholders, the date for the payment of
any dividend or the making of any distribution to stockholders or the last day
on which the consent or dissent of stockholders may be effectively expressed for
any purpose, as the record date for determining the stockholders having the
right to notice 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. If a record date is set, only stockholders of record on the
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
Board of Directors may close the transfer books of the Corporation for all or
any part of such sixty-day period.
If no record date is fixed and the transfer books are not closed, then the
record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, and 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 5. REPLACEMENT OF LOST, MUTILATED, OR DESTROYED CERTIFICATES.
Except as otherwise provided by law, the Board of Directors may determine
the conditions upon which a new certificate of stock may be issued in place of
any certificate alleged to have been lost, mutilated or destroyed. It may, in
its discretion, require the owner of a lost, mutilated or destroyed certificate,
or his legal representative, to give a bond, sufficient in its opinion, with or
without surety, to indemnify the Corporation against any loss or claim which may
arise by reason of the issue of a certificate in place of such lost, mutilated
or destroyed stock certificate.
SECTION 6. ISSUE OF AUTHORIZED UNISSUED CAPITAL STOCK.
Except as provided by law, the Board of Directors shall have the authority
to issue or reserve for issue from time to time the whole or any part of the
capital stock of the
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Corporation which may be authorized from time to time, to such persons or
organizations, for such consideration, whether cash, property, services or
expenses and on such terms as the Board of Directors may determine, including,
without limitation, the granting of options, warrants or conversions or other
rights to subscribe to said capital stock. No such stock shall be issued unless
the cash, so far as due, or the property, services or expenses for which it was
authorized to be issued, has been actually received or incurred by, or conveyed
or rendered to, the Corporation, or is in its possession as surplus.
SECTION 7. 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 VII
INDEMNIFICATION
SECTION 1. DEFINITIONS.
For purposes of this Article: (a) "Officer" means any person who serves or
has served as Director of the Corporation or in any other office filled by
election or appointment by the stockholders, or the Board of Directors and any
heirs or personal representatives of such person; (b) "Non-Officer Employee"
means any person who serves or has served as an employee of the Corporation, but
who is not or was not an Officer, and any heirs or personal representatives of
such person; (c) "Proceeding" means any action, suit, or proceeding, civil or
criminal, brought or threatened in or before any court, tribunal administrative
or legislative body or agency and any claim which could be the subject of a
Proceeding; and (d) "Expenses" means any liability fixed by a judgment, order,
decree, or award in a Proceeding, any amount reasonably paid in settlement of a
Proceeding, and any professional fees or other disbursements reasonably incurred
in a Proceeding.
SECTION 2. OFFICERS.
Except as provided in Sections 4 of this Article VII, each Officer of the
Corporation shall be indemnified by the Corporation against all Expenses
incurred by such Officer in connection with any Proceedings in which such
Officer is involved as a result of serving or having served (a) as an Officer or
employee of the Corporation; (b) as a Director, officer, or employee of any
wholly-owned subsidiary of the Corporation; or (c) in any capacity with any
other corporation, organization, partnership, joint venture, trust or other
entity at the request or direction of the Corporation.
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SECTION 3. NON-OFFICER EMPLOYEES.
Except as provided in Sections 4 of this Article VIII, each Non-Officer
Employee of the Corporation may, in the discretion of the Board of Directors, be
indemnified against any or all Expenses incurred by such Non-Officer Employee in
connection with any Proceeding in which such Non-Officer Employee is involved as
a result of serving or having served (a) as a Non-Officer Employee of the
Corporation; (b) as a Director, officer or employee of any wholly-owned
subsidiary of the Corporation; or (c) in any capacity with any other
organization, partnership, joint venture, trust, or other entity at the request
or direction of the Corporation.
SECTION 4. GOOD FAITH.
No indemnification shall be provided to an Officer or to a Non-Officer
Employee with respect to a matter as to which such person shall have been
adjudicated in any Proceeding not to have acted in good faith in the reasonable
belief that the action of such person was in the best interests of the
Corporation. In the event that a proceeding is compromised or settled so as to
impose any liability or obligation upon an Officer or Non-Officer Employee, no
indemnification shall be provided to said Officer or Non-Officer Employee with
respect to a matter if there be a determination that with respect to such matter
such person did not act in good faith in the reasonable belief that the action
of such person was in the best interests of the Corporation. The determination
shall be made by a majority vote of those Directors who are not involved in such
Proceeding. However, if more than half of the Directors are involved in such
Proceeding, the determination shall be made by a majority vote of a committee of
three disinterested Directors chosen by the disinterested Directors at a regular
or special meeting. If there are fewer than three disinterested Directors, the
determination shall be based upon the opinion of the Corporation's regular
outside counsel.
SECTION 5. PRIOR TO FINAL DISPOSITION.
Unless otherwise provided by the Board of Directors or by the committee
pursuant to the procedure specified in Section 5 of this Article VII, any
indemnification provided for under this Article VII shall include payment by the
Corporation of Expenses incurred in defending a Proceeding in advance of the
final disposition of such Proceeding upon receipt of an undertaking by the
Officer or Non-Officer Employee seeking indemnification to repay such payment if
such Officer or Non-Officer Employee shall be adjudicated or determined to be
not entitled to indemnification under this Article VII.
SECTION 6. INSURANCE.
The Corporation may purchase and maintain insurance to protect itself and
any Officer or Non-Officer Employer against any liability of any character
asserted against or incurred by the Corporation or any such Officer or
Non-Officer Employee, or arising out
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of any such status, whether or not the Corporation would have the power to
indemnify such person against such liability by law or under the provisions of
this Article VII.
SECTION 7. OTHER INDEMNIFICATION RIGHTS.
Nothing in this Article VII shall limit any lawful rights to
indemnification existing independently of this Article VII.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. AMENDMENT OF BY-LAWS.
These by-laws may be adopted, altered, amended, changed or repealed as
provided in the Articles of Organization.
SECTION 2. FISCAL YEAR
Except as from time to time otherwise determined by the Directors, the
fiscal year of the Corporation shall in each year end on the last day of
October, or on such other date as may be required by law.
SECTION 3. CORPORATE SEAL.
The Board of Directors shall have power to adopt and alter the seal of the
Corporation.
SECTION 4. EXECUTION OF PAPERS.
All deeds, leases, transfers, contracts, bonds, notes, releases, checks,
drafts and other obligations authorized to be executed on behalf of the
Corporation in the ordinary course of its business without Board of Directors'
action may be executed by the Chairman of the Board, if one is elected, the
President, the Treasurer or such other officer as the Directors or the Executive
Committee may authorize.
SECTION 5. VOTING OF SECURITIES.
Except as the Directors may generally or in particular cases otherwise
specify, the Chairman of the Board, if one is elected, the President or the
Treasurer may waive notice of and act on behalf of the Corporation, or appoint
another person or persons to act as proxy or attorney-in-fact for the
Corporation, with or without power of substitution, at any meeting of
stockholders or shareholders of any other organization, any of whose securities
are held by the Corporation.
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SECTION 6. ARTICLES OF ORGANIZATION.
All references in these by-laws to the Articles of Organization shall be
deemed to refer to the Articles of Organization of the Corporation, as amended
and in effect from time to time.
SECTION 7. CORPORATE RECORDS.
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 its Clerk or of its Resident Agent. 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.
SECTION 8. EVIDENCE OF AUTHORITY.
A certificate by the Clerk or Secretary or an Assistant or Temporary Clerk
or Secretary as to any matter relative to the Articles of Organization, by-laws,
records of the proceedings of the incorporators, stockholders, Board of
Directors, or any committee of the Board of Directors, or stock and transfer
records or as to any action taken by any person or persons as an officer or
agent of the Corporation, shall as to all persons who rely thereon in good faith
be conclusive evidence of the matters so certified.
SECTION 9. EFFECTIVE DATE.
These by-laws shall become effective on the date of receipt of the last
approval required to permit the Corporation to act in holding company form.
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