Exhibit 3.2
AMENDED BY-Laws (as of July 29, 1999)
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of
CCBT FINANCIAL COMPANIES, INC. (the "Company")
ARTICLE I
Principal Office
The Company shall have its principal office in the County of
Barnstable, Massachusetts, and may have branch offices at such place or places
as are permitted by law and authorized by the Board of Directors.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders shall
be held on the fourth Thursday of April of each year at such time and place in
the County of Barnstable, Massachusetts, as shall be determined by the Board of
Directors and specified in the notice of the meeting, for the election of a
Clerk and a Board of Directors and the transaction of such other business as may
properly come before the meeting.
If, for any cause, the annual meeting shall not be called and held as
hereinabove prescribed, a special meeting shall be called in the manner
hereinbelow provided in lieu of the annual meeting and for the purposes thereof
and for such additional purposes as shall be specified in the notice of said
special meeting.
Section 2. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors. Special meetings 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 (i) 51% in interest of the capital stock entitled to vote at such meeting
or (ii) such lesser percentage, if any, (but not less than 40%) as shall be
determined to be the maximum percentage which the Corporation is permitted by
applicable law to establish for the call of such a meeting. Application to a
court pursuant to Section 34(b) of Chapter 156B of the General Laws of the
Commonwealth of Massachusetts requesting the call of a special meeting of
stockholders because none of the officers is able and willing to call such a
meeting may be made only by stockholders who hold at least (i) 51% in interest
of the capital stock entitled to vote at such meeting or (ii) such lesser
percentage, if any, (but not less than 40%) as shall be determined to be the
maximum percentage which the Corporation is permitted by applicable law to
establish for the call of such a meeting. The hour, date and place of any
special meeting and the record date for determining the stockholders having the
right to notice of and to
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vote at such meeting shall be determined by the Board of Directors or the
President. At a special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
stated in the written notice of the special meeting and otherwise properly
brought before the special meeting. In order for a proposal by a stockholder to
be properly brought before a special meeting of the stockholders, the
application to the Clerk for the call of such meeting must contain the
information required by the second paragraph of Section 3(A) of this Article II
with respect to proposals by stockholders to be considered at an Annual Meeting.
Section 3. Notice of Stockholder Business and Nominations.
A. Annual Meetings of Stockholders.
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(1) Nominations of persons for election to the Board
of Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's notice of meeting, (b)
by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this By-law, who is entitled
to vote at the meeting and who complied with the notice procedures set
forth in this By-law.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause
(c) of paragraph 1 of this Section 3.A, the stockholder must have given
timely notice thereof in writing to the Clerk of the Corporation and
such other business must be a proper matter for stockholder action. To
be timely, a stockholder's notice shall be delivered to the Clerk at
the principal executive offices of the Corporation not later than the
close of business on the 90th day nor earlier than the close of
business on the 120th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 days before or more
than 60 days after such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the close of business
on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the
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reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books,
and of such beneficial owner, and (ii) the class and number of shares
of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph 2 of this By-law to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased
Board of Directors made by the Corporation at least 100 days prior to
the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-law shall also be considered
timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Clerk at the
principal executive offices of the Corporation not later than the close
of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
B. Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this By-law, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this By-law. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder's notice required by paragraph 2 of this
By-law shall be delivered to the Clerk at the principal executive offices of the
Corporation not earlier than the close of business on the 120th day prior to
such special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
C. General.
(1) Only such persons who are nominated in accordance
with the procedures set forth in this By-law shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-law. If the Board
of Directors or a designated committee thereof determines that any
stockholder
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proposal or nomination was not made in a timely fashion in accordance
with the provisions of this By-law or that the information provided in
a stockholder's notice does not satisfy the information requirements of
this By-law in any material respect, such proposal or nomination shall
not be presented for action at the Annual Meeting in question. If
neither the Board of Directors nor such committee makes a determination
as to the validity of any stockholder proposal or nomination in the
manner set forth above, the presiding officer of the Annual Meeting
shall determine whether the stockholder proposal or nomination was made
in accordance with the terms of this By-law. If the presiding officer
determines that any stockholder proposal or nomination was not made in
a timely fashion in accordance with the provisions of this By-law or
that the information provided in a stockholder's notice does not
satisfy the information requirements of this By-law in any material
respect, such proposal or nomination shall not be presented for action
at the Annual Meeting in question. If the Board of Directors, a
designated committee thereof or the presiding officer determines that a
stockholder proposal or nomination was made in accordance with the
requirements of this By-law, the presiding officer shall so declare at
the Annual Meeting and ballots shall be provided for use at the meeting
with respect to such proposal or nomination.
(2) For purposes of this By-law, "public
announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission (including, without limitation, a
Form 8- K) pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-law, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-law.
Nothing in this By-law shall be deemed to affect any rights of (i)
stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii)
the holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 4. Notice. The Clerk shall give notice of every meeting of the
stockholders by mailing, postage prepaid, a written notice thereof at least
seven days before the time fixed for the meeting to each stockholder of record
entitled to vote thereat addressed to him at his address as appearing upon the
books of the Company. The notice of each meeting shall set forth the time,
place, and purposes thereof.
In the event of the absence, incapacity or refusal of the Clerk to call
or give notice of any annual meeting or any special meeting, such meeting may be
called by the President or by any other person designated for the purpose by the
Board of Directors, in the manner hereinabove prescribed.
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Section 5. Method of Voting. Each holder of record of stock outstanding
and entitled to vote at a meeting, if present in person or represented by valid
proxy thereat, shall have one vote at such meeting for each share of stock
outstanding and entitled to vote thereat held of record by such holder. A proxy
may be appointed by an instrument in writing signed by the stockholder or his
duly authorized attorney or legal representative but no proxy instrument which
is dated more than six months before the meeting named therein shall be accepted
and no such proxy instrument shall be valid after the final adjournment of such
meeting. All proxy instruments shall be filed with and verified by the Clerk of
the meeting before being voted.
Election of Directors and Clerk shall be by ballot, and upon request of
any stockholder at any meeting, the vote upon any question properly brought
before the meeting shall be by ballot.
Section 6. Quorum. At any stockholders' meeting a majority in interest
of the shares of stock of the Company outstanding and entitled to vote,
represented at the meeting by stockholders of record in person or by proxy,
shall constitute a quorum for the transaction of business at any meeting. When a
quorum is present at any meeting, a majority of the stock represented thereat
and entitled to vote shall decide any question brought up at such meeting,
except where a larger vote is required by express provision of law or by these
By-laws or the Articles of Organization.
Section 7. Adjournments. By vote of the holders of record of a majority
of the stock outstanding and entitled to vote at a meeting and present in person
or by proxy thereat, whether or not a quorum is present, such meeting may be
adjourned finally or to reconvene to the same place or at such other place in
Barnstable County and at such other time as shall be specified in such vote. No
notice of any such adjournment shall be required other than announcement of such
adjournment at the meeting or at any adjournment thereof at which such
adjournment is voted, whether the adjournment is by vote of a quorum or of less
than a quorum.
At any such reconvened meeting, whether the adjournment has been by
vote of a quorum or of less than a quorum, at which a quorum shall be present in
person or by proxy, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 8. Addresses of Stockholders. Every stockholder, if and when
requested by the Clerk, shall file with the Clerk an address at or to which all
notices may be served upon or mailed to such stockholder and, if no such address
is furnished, notices may be addressed to such stockholder at any other address
of the stockholder appearing upon the books of the Company as determined by the
Secretary.
ARTICLE III
Directors, Officers and Committees
Section 1. Directors. The Board of Directors of the Company shall
consist of not less than six nor more than sixteen Directors as fixed by
resolution adopted by the Board of Directors pursuant to these By-laws.
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At least three-fourths of the Directors shall be citizens of the
Commonwealth and resident therein. Directors shall be nominated in accordance
with Section 3 of Article II.
Section 2. Officers. The officers of the Company shall be a President,
a Treasurer, one or more Vice Presidents, one or more Assistant Treasurers, a
Clerk, and a Secretary of the Board of Directors, and if the Board of Directors
so determines, a Chairman of the Board of Directors, and such other officers as
shall be elected by the Board of Directors. The Chairman of the Board, if one is
elected, shall be a non-employee director.
The Clerk shall be a resident of the Commonwealth. One person may be
elected to and serve in more than one office except that the President may not
be either the Treasurer or the Clerk.
Section 3. Committees. There shall be an Executive Committee, as
hereinafter provided for, and such additional committees as the Board of
Directors shall from time to time appoint.
Section 4. Oath of Office. The Directors and officers shall be sworn to
the faithful performance of their duties as prescribed by law and the Directors
shall take such additional oaths as shall be required by law.
ARTICLE IV
Elections
Section 1. Directors. Except as hereinbelow provided, approximately
one-third of the Directors shall be chosen by ballot at each annual meeting of
the stockholders or special meeting of the stockholders called in lieu of and
for purposes of the annual meeting. They shall serve for a term of three years
and until their successors are elected and have qualified, providing, however,
that a term of one or two years shall be substituted when necessary to insure
that no person serve as a Director after the annual meeting following such
person's 72nd birthday.
There shall be three classes of directors. The initial Class I
Directors shall serve for a term expiring at the annual meeting of stockholders
to be held in 1999, the initial Class II Directors shall serve for a term
expiring at the annual meeting of stockholders to be held in 2000, and the
initial Class III Directors shall serve for a term expiring at the annual
meeting of stockholders to be held in 2001. Those standing for re-election shall
be elected for a term of three years.
Section 2. Officers. The President, who shall be a member of the Board
of Directors, the Treasurer, the Secretary of the Board of Directors, and at
least one Vice President and one Assistant Treasurer shall be elected by the
Board of Directors at its organizational meeting held after each annual meeting
of the stockholders or special meeting of the stockholders called in lieu of and
for the purposes of the annual meeting. The Board of Directors shall also have
power to elect such additional Vice Presidents, Assistant Treasurers and other
officers and agents (other than the Clerk except in the event of a vacancy) and
a Chairman of the Board as the Board of Directors shall from time to time
determine and to confer upon any such other officers and agents
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such titles as the Board of Directors sees fit. All officers and agents elected
and appointed by the Board of Directors shall hold their respective offices
during the pleasure of the Board of Directors.
The Clerk shall be elected by ballot at each annual meeting of the
stockholders or special meeting of the stockholders called in lieu of and for
the purposes of the annual meeting. He shall serve until the next annual meeting
of the stockholders and until his successor is elected and has qualified.
Section 3. Resignations and Vacancies. Any Director or officer may
resign by giving written notice to the President, the Clerk or the Board of
Directors, and such resignation shall take effect as specified in the notice or
sooner at the pleasure of the Board of Directors.
Vacancies in the Board of Directors or in any office shall be filled by
the Board of Directors and in the event of a vacancy in the Board of Directors,
such vacancy shall be filled by the remaining members of the Board then in
office. The person chosen to fill any vacancy in the Board of Directors or in
the office of Clerk shall hold office for the unexpired portion of the term for
which his predecessor was chosen and the person chosen to fill any other office
shall hold office during the pleasure of the Board of Directors.
Section 4. Removal of Directors.
(A) Removal by Directors. A Director may be removed, with or
without cause, by vote of a majority of the Directors then in office.
(B) Removal by Stockholders. Stockholders may remove a
Director only with cause and only by the affirmative vote of at least two-thirds
of the total votes which would be eligible to be cast by stockholders in the
election of such Director.
For purposes of this Section 4, "cause," with respect to the removal of
any Director shall mean only (i) conviction of a felony, (ii) declaration of
unsound mind by order of court, (iii) gross dereliction of duty, (iv) commission
of any action involving moral turpitude, or (v) commission of an action which
constitutes intentional misconduct or a knowing violation of law if such action
in either event results both in an improper substantial personal benefit and a
material injury to the Corporation. A Director may be removed for cause only
after reasonable notice and opportunity to be heard before the body proposing
removal.
ARTICLE V
Powers and Duties of Board of Directors
Section 1. Regular Meetings. The Board of Directors shall hold regular
meetings at least once in each fiscal quarter, and at such other times as the
Board shall from time to time determine, upon such day, at such time, and at
such place as the Board shall from time to time determine. No notice of any
regular meeting shall be necessary.
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Section 2. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the Clerk, or other officer designated for the
purpose by the Board, at the request of the Chairman of the Board, the President
or a majority of the Board of Directors, and at such time and place and for such
purposes as shall be stated in such request consistently with these and
applicable provisions of law. An organizational meeting of the Board of
Directors may be held immediately after the annual meeting of stockholders.
Notice of the time and place of any special meeting shall be given by
the Clerk or other officer calling the meeting orally or in writing at least 24
hours before the time fixed for the meeting. Except as otherwise provided below
in this Section 2, notice mailed to a Director at his usual place of business or
residence at least 24 hours before the time fixed for the meeting shall be
sufficient. Any notice received by a Director in time to enable him to attend
the meeting concerning which notice is given shall be likewise sufficient as to
that meeting. Any meeting shall be legal without notice if each Director waives
such notice by a writing filed with the records of the meeting either before or
after the holding thereof. Except as may be otherwise prescribed by law, any
business whatsoever may be transacted at a meeting of the Board although it may
not have been specified in the notice of the meeting.
Section 3. Quorum. A majority of the Directors at the time in office
shall constitute a quorum for the transaction of business at any meeting. The
vote of a majority of the Directors present at any meeting when a quorum is
present shall be sufficient for action at such meeting.
A majority of the Directors present at any meeting, although less than
a quorum, may adjourn the meeting finally or from time to time. No notice of
such adjournment other than announcement at the meeting or at an adjournment at
which such adjournment is voted shall be necessary.
Section 4. Powers. The Board of Directors shall have the general
management and direction of the property, business and affairs of the Company
and all its trusts and undertakings and may exercise all powers of the Company
except such as are expressly reserved to the stockholders by applicable
provisions of law, the Articles of Organization, or these By-laws.
Without limiting the generality of the foregoing, the Board of
Directors shall have full power to make or authorize all investments or
reinvestments, to authorize the sale, mortgage, pledge, or transfer of any real
estate or personal property belonging to the Company in any capacity, to
prescribe the duties of the officers, employees and agents of the Company
consistently with applicable provisions of law, the Articles of Organization, as
amended, and these By-laws, to fix the compensation of all officers, employees,
and agents, including their own fees for services as Directors or members of
committees, and subject to approval by the Board of Directors, in such instances
as the Board of Directors determines, to authorize any committee or any officer
to fix the compensation of such officers, employees and agents, or
classifications thereof, as the Board of Directors designates, to declare all
dividends, to determine upon the form of certificate of stock, and upon
transfers thereof, and upon a corporate seal, to fix the amount of the bond or
bonds for officers, employees, and agents, including the amount and terms and
conditions of blanket or schedule bonds, to issue from time to time any part of
the previously authorized capital of the Company, subject to applicable
regulatory approval, and generally to
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take or cause to be taken any action and do any and all things not repugnant to
the Articles of Organization, these By-laws and applicable provisions of law,
which the Board of Directors shall deem fit and proper to take, cause to be
taken, or to use and carry into effect the powers of the Company.
Section 5. Presumption of Assent. A Director who is present at a
meeting of the Board of Directors at which action on any matter is taken shall
be presumed to have consented to the action taken unless his or her 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 within five (5) 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 6. Classification of Directors. The provisions of Section 50A
of Chapter 156B of the General Laws of the Commonwealth of Massachusetts
("Section 50A"), as it may be amended from time to time, shall not apply to the
classification of directors of the Company within the meaning of Section 50A.
ARTICLE VI
Powers and Duties of Officers
Section 1. General. All officers shall perform such duties and have
such powers as shall be prescribed by law, by these By-laws, the Articles of
Organization, or the Board of Directors, or consistently with the foregoing
provision of this Section 1, as shall be designated by the President in the case
of any of said officers other than the Chairman of the Board, the Clerk, and
Secretary of the Board. Without limiting the generality of the foregoing and
subject, or in addition, to specific provisions of other Articles, certain
officers shall have specific duties and/or powers as stated in the following
sections of this Article.
Section 2. Chairman of the Board. The Chairman of the Board, if one
shall be elected by the Board of Directors, shall preside at all meetings of the
Board of Directors at which he shall be present.
Section 3. President. The President shall be the chief executive
officer of the Company. He shall preside at all meetings of the stockholders
and, unless there shall be a Chairman of the Board and such Chairman shall be
present and preside, at all meetings of the Board of Directors. He shall be ex
officio a member of all standing committees except any Auditing Committee and he
shall have the general management and direction of the Company's business in all
departments and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 4. Vice President. The Board of Directors may, in its
discretion, designate any one or more Vice Presidents as Executive Vice
President and any one or more of the Vice Presidents as Senior Vice President,
with such duties, powers and authorities, consistent with
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these By-laws, the Articles of Organization, and applicable provisions of law,
as the Board of Directors shall from time to time determine.
A Director or Executive Vice President chosen by the Board of
Directors, shall have the duty of presiding at meetings of the stockholders when
the President is absent and at meetings of the Board of Directors when neither
the President nor the Chairman of the Board (if there shall be one) is present.
The Director or Executive Vice President chosen by the Board of Directors shall
perform the duties and have the powers and authorities of the President during
his absence or disability, except any duties, powers, and authorities which by
law only the President is permitted to perform or have.
Section 5. Treasurer. The Treasurer shall have custody of the corporate
seal. Subject to the general supervision of the Board of Directors and of the
President, the Treasurer shall be charged with and be responsible for the
keeping of adequate and accurate books of account in all departments of the
Company's business and with the preparation of reports therefrom as may be
required from time to time by the Board of Directors or by law.
Section 6. Assistant Treasurers. The Assistant Treasurers in such order
as the Board of Directors shall from time to time determine shall perform the
duties and have the powers and authorities of the Treasurer during his absence
or disability, except any duties, powers, and authorities which by law only the
Treasurer is permitted to perform or have.
Section 7. Clerk. The Clerk shall have custody of the books of record
of the meetings of the stockholders. He shall give due notice of and attend all
meetings of the stockholders and shall record the votes of the stockholders in
books kept for the purpose. In the absence of the President and a Vice President
at any meeting of stockholders, he shall call the meeting to order until a
temporary Chairman is chosen. In the absence of the Clerk at any meeting of the
stockholders, a temporary Clerk for such meeting shall be chosen who shall be
sworn to the faithful performance of his duties.
Section 9. Secretary of the Board. The Secretary of the Board shall
attend all meetings of the Board and shall keep the records thereof under the
supervision of the Board, except as the Board shall otherwise order. In the
absence of the Secretary of the Board at any meeting of the Board, a temporary
Secretary of the Board for such meeting shall be chosen who shall be sworn to
the faithful performance of his duties.
ARTICLE VII
Executive Committee
Section 1. Composition and Election. The Executive Committee shall
consist of the President, ex officio, and not less than 4 nor more than 6 other
members, who shall be elected by and from the Board of Directors and shall hold
office during the pleasure of the Board. The Board of Directors shall elect
members of the Executive Committee at or after the first meeting of the Board of
Directors held after each annual meeting of the stockholders or special meeting
of the stockholders called in lieu of and for the purposes of the annual
meeting. The Board of
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Directors may elect additional members of the Executive Committee within the
foregoing limits or fill vacancies in the Executive Committee at any regular or
special meeting of the Board of Directors.
The President shall be, ex officio, Chairman of the Executive
Committee.
Section 2. Powers. The Executive Committee shall supervise the business
affairs of the Company and shall have authority, except as otherwise prescribed
by the Board of Directors, when the Board of Directors is not in session, to
transact such business for and on behalf of the Company as the Board of
Directors might transact including the power to give such directions to the
officers regarding the Company and its affairs as the Committee determines and
the power to authorize any of the officers in the name and behalf of the Company
to sign, affix the corporate seal to, and deliver contracts, deeds, releases,
assignments or other instruments in writing.
Section 3. Meetings. Meetings of the Executive Committee shall be held
at such times and places as the Committee from time to time determines. Special
meetings of the Committee may be called at any time by the President, or in his
absence or disability, by any Vice President. No notice shall be necessary to
the validity of such meetings.
The Committee shall keep minutes of each of its meetings and the
minutes of each meeting, not previously submitted to the Board of Directors,
shall be submitted to the regular meeting of the Board of Directors next
following such meeting except as otherwise ordered by the Board.
Section 4. Quorum. A majority of the Executive Committee at the time in
office shall constitute a quorum for the transaction of business and when a
quorum is present at any meeting the vote of a majority of those present shall
be sufficient for action at such meetings.
ARTICLE VIII
Certificates of Stock and Transfers Thereof
Section 1. Form - Execution. The Board of Directors may provide by
resolution that some or all of any or all classes and series of shares shall be
uncertificated shares. Unless such a resolution has been adopted, each
stockholder shall be entitled to a certificate of the capital stock of the
Company in such form as may from time to time be prescribed by the Board of
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 facsimile
if the certificate is signed by a transfer agent, or by a registrar, other than
a Director, officer or employee of the Company. 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 Company with the same effect as if he were such officer at the
time of its issue. Every certificate for shares of stock which are subject to
any restriction on transfer and every certificate issued when the Company is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
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Section 2. Transfer. Shares of the stock of the Company shall be
transferable only on the books of the Company by assignment in writing by the
holder of record thereof, or his legal representative, in person or by duly
authorized attorney, upon surrender of the certificate thereof.
The Company shall not be bound to take notice of or recognize any
trust, express, implied or constructive, or any charge or equity affecting any
shares of the capital stock or to ascertain or inquire whether any sale or
transfer of any such shares by any holder of record thereof, his attorney
legally constituted, or his legal representative, is authorized by such trust,
charge or equity or to recognize any person as having any interest therein,
except the holder of record thereof for the time being.
Section 3. Loss, Destruction, Mutilation. In case of the loss,
destruction or mutilation of a certificate of stock, a new certificate, to
replace the certificate so lost, destroyed, or mutilated, may be issued by order
of the Board of Directors upon reasonable evidence of such loss, destruction or
mutilation and the filing by the holder of record, or his legal representative,
of a bond of indemnity in such form, in such amount and with such surety or
sureties as the Board of Directors may approve.
Section 4. Record Date. The Board of Directors may fix in advance a
time not more than sixty (60) days before the date of any meeting of the
stockholders or 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 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. In lieu of fixing such date, the Board of Directors may for any of
such purposes close the stock transfer books of the Company for all or any
portion of said sixty (60) day period.
Section 5. Issuance of Capital Stock. 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 Company 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
conversion or other rights to subscribe to said capital stock. The Board of
Directors may delegate some or all of its authority under this Section 5 to one
or more committees of Directors.
12
ARTICLE IX
Execution of Instruments
Checks, conveyances, deeds, assignments, discharges of mortgages and
other instruments, whether connected with the exercise by the Company of its
powers in any fiduciary capacity, or otherwise, shall be executed in the name
and behalf of the Company by such officer or officers or other individual or
individuals and in such manner as shall be prescribed or authorized from time to
time by the Board of Directors or the Executive Committee. Any such instrument
so executed by prescription or authority of the Executive Committee shall have
the same validity as if expressly authorized by vote of the Board of Directors.
ARTICLE X
Contributions
The Board of Directors shall have power and authority to make
contributions, in such amounts as the Board of Directors may determine to be
reasonable, to corporations, trusts, funds or foundations, organized and
operated exclusively for charitable, scientific or educational purposes, no part
of the net earnings of which enures to the benefit of any private shareholder or
individual; provided that such contributions in any fiscal year shall not in the
aggregate exceed one-half of one percent of the capital and surplus of the
Company as of the end of the preceding fiscal year, unless contributions in
excess of one-half of one percent of such capital and surplus shall be
authorized by the stockholders at a regular or special meeting. Nothing in this
Article shall be construed as directly or indirectly restricting or otherwise
affecting, except as herein provided, the rights and powers of the Company with
reference to payments of the nature above specified.
ARTICLE XI
Corporate Seal
The corporate seal shall be in such form as the Board of Directors
shall from time to time determine. Unless and until otherwise determined by the
Board of Directors, the corporate seal shall be circular and shall have thereon
the name of the Company and the year and state of its incorporation.
ARTICLE XII
Indemnification
Section 1. Actions, Suits and Proceedings. The Company shall, to the
maximum extent permitted from time to time under the law of The Commonwealth of
Massachusetts, indemnify each person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit, proceeding
or investigation, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was, or has agreed to become, a Director or
Executive Officer (defined as any of the Chief Executive Officer, Chief
Financial Officer, President, Vice President, Treasurer or Clerk) of the
Company, or is or was
13
serving, or has agreed to serve, at the request of the Company, in any capacity
with respect to any employee benefit plan of the Company (all such persons being
referred to hereafter as an "Indemnitee"), or by reason of any action alleged to
have been taken or omitted to be taken in such capacity, against all expenses
(including reasonable attorneys' fees), judgments and fines incurred by him or
on his behalf in connection with such action, suit, proceeding or investigation,
and any appeal therefrom, unless the Indemnitee shall be finally adjudicated in
such action, suit, proceeding or investigation, not to have acted in good faith
in the reasonable belief that his action was in the best interests of the
Company or, to the extent such matter relates to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan. Notwithstanding anything to the
contrary in this Article XII, except as set forth in Section 7 of this Article
XII, the Company shall not indemnify an Indemnitee seeking indemnification in
connection with an action, suit, proceeding or investigation (or part thereof)
initiated by the Indemnitee unless the initiation thereof was approved by the
Board of Directors of the Company.
Section 2. Employees and Agents. The Company may, at the discretion of
the Board of Directors, indemnify employees and agents of the Company and
directors and officers of any subsidiary of the Company as if they were included
in Section 1 of this Article XII.
Section 3. Settlements. The right to indemnification conferred in this
Article XII shall include the right to be paid by the Company for amounts paid
in settlement of any such action, suit, proceeding or investigation and any
appeal therefrom, and all expenses (including reasonable attorneys' fees)
incurred in connection with such settlement, pursuant to a consent decree or
otherwise, unless and to the extent it is determined pursuant to Section 6 of
this Article XII that the Indemnitee did not act in good faith in the reasonable
belief that his or her action was in the best interests of the Company or, to
the extent such matter relates to service with respect to an employee benefit
plan, in the best interests of the participants or beneficiaries of such
employee benefit plan.
Section 4. Notification and Defense of Claim. As a condition precedent
to his or her right to be indemnified, the Indemnitee must notify the Company in
writing as soon as practicable of any action, suit, proceeding or investigation
involving such Indemnitee or with respect to which indemnity will or could be
sought. With respect to any action, suit, proceeding or investigation of which
the Company is so notified, the Company will be entitled to participate therein
at its own expense and/or to assume the defense thereof at its own expense, with
legal counsel reasonably acceptable to the Indemnitee. After notice from the
Company to the Indemnitee of its election so to assume such defense, the Company
shall not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such claim, other
than as provided below in this Section 4 of this Article XII. The Indemnitee
shall have the right to employ his of her own counsel in connection with such
claim, but the fees and expenses of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee has been
authorized by the Company, (ii) counsel to the Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position on any
significant issue between the Company and the Indemnitee in the conduct of the
defense of such action or (iii) the Company shall not in fact have employed
counsel to assume
14
the defense of such action, in each of which cases the fees and expenses of
counsel for the Indemnitee shall be at the expense of the Company, except as
otherwise expressly provided by this Article XII. The Company shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Company or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above.
Section 5. Advance of Expenses. Subject to the provisions of Section 6
of this Article XII, in the event that the Company does not assume the defense,
or unless and until the Company assumes the defense, pursuant to Section 4 of
this Article XII of any action, suit, proceeding or investigation of which the
Company receives notice under this Article XII, any expenses (including
reasonable attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Company in advance of the final disposition of such matter,
provided, however, that the payment of such expenses incurred by an Indemnitee
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Company as authorized in
this Article XII. Such undertaking may be accepted without reference to the
financial ability of the Indemnitee to make such repayment.
Section 6. Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Sections 1, 3 or 5 of
this Article XII, the Indemnitee shall submit to the Company a written request,
including in such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether and
to what extent the Indemnitee is entitled to indemnification or advancement of
expenses. Any such indemnification pursuant to Section 1 of this Article XII
shall be made promptly, and in any event within 60 days after receipt by the
Company of the written request of the Indemnitee, unless a court of competent
jurisdiction finally adjudicates that the Indemnitee did not meet the applicable
standard of conduct set forth in Section 1 of this Article XII. Any such
indemnification pursuant to Section 3 of this Article XII or advancement of
expenses pursuant to Section 5 of this Article XII shall be made promptly, and
in any event within 60 days after receipt by the Company of the written request
of the Indemnitee, unless the Company determines, by clear and convincing
evidence, within such 60-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in Sections 1 or 3 of this Article XII,
as the case may be. Such determination by the Company shall be made in each
instance by (a) a majority vote of a quorum of the Directors of the Company, (b)
a majority vote of a quorum of the outstanding shares of stock of all classes
entitled to vote for Directors, voting as a single class, which quorum shall
consist of stockholders who are not at that time parties to the action, suit,
proceeding or investigation in question, or (c) independent legal counsel (who
may be regular legal counsel to the Company).
Section 7. Remedies. The right to indemnification or advances as
granted by this Article XII shall be enforceable by the Indemnitee in any court
of competent jurisdiction if the Company denies such request, in whole or in
part, or if no disposition thereof is made within the 60-day period referred to
above in Section 6 of this Article XII. Unless otherwise provided by
15
law, the Company shall have the burden of proving that the Indemnitee is not
entitled to indemnification or advancement of expenses under this Article XII.
Neither the failure of the Company to have made a determination prior to the
commencement of any such action by the Indemnitee that indemnification is proper
in the circumstances because the Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company pursuant to Section 6 of
this Article XII that the Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. The Indemnitee's
expenses (including attorneys' fees) incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Company.
Section 8. Subsequent Amendment. No amendment, termination or repeal of
this Article XII or of the relevant provisions of Chapter 156B of the
Massachusetts General Laws or any other applicable laws shall affect or diminish
in any way the rights of any Indemnitee to indemnification under the provisions
hereof with respect to any action, suit, proceeding or investigation arising out
of or relating to any actions, transactions or facts occurring prior to the
final adoption of such amendment, termination or repeal.
Section 9. Other Rights. The indemnification and advancement of
expenses provided by this Article XII shall not be deemed exclusive of any other
rights to which an Indemnitee seeking indemnification or advancement of expenses
may be entitled under any law (common or statutory), agreement or vote of
stockholders or Directors or otherwise, both as to action in his or her official
capacity and as to action in any other capacity while holding office for the
Company, and shall continue as to an Indemnitee who has ceased to be a Director
or officer, and shall inure to the benefit of the estate, heirs, executors,
personal representatives and administrators of the Indemnitee. Nothing contained
in this Article XII shall be deemed to prohibit, and the Company is specifically
authorized to enter into, agreements with officers and Directors providing
indemnification rights and procedures different from those set forth in this
Article XII. In addition, the Company may, to the extent authorized from time to
time by its Board of Directors pursuant to Section 2 of this Article XII or
otherwise, grant indemnification rights to other employees or agents of the
Company or other persons serving the Company and such rights may be equivalent
to, or greater or less than, those set forth in this Article XII.
Section 10. Partial Indemnification. If an Indemnitee is entitled under
any provision of this Article XII to indemnification by the Company for some or
a portion of the expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by such Indemnitee
or on such Indemnitee's behalf in connection with any action, suit, proceeding
or investigation and any appeal therefrom but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Indemnitee for the portion
of such expenses (including reasonable attorneys' fees), judgments, fines or
amounts paid in settlement to which such Indemnitee is entitled.
Section 11. Insurance. The Company may purchase and maintain insurance,
at its expense, to protect itself and any Director, officer, employee or agent
of the Company, any subsidiary, another organization or employee benefit plan
against any expense, liability or loss incurred by him of her in any such
capacity, or arising out of his of her status as such, whether or
16
not the Company would have the power to indemnify such person against such
expense, liability or loss under Chapter 156B of the Massachusetts General Laws.
Section 12. Merger or Consolidation. If the Company is merged into or
consolidated with another corporation and the Company is not the surviving
corporation, the surviving Company shall assume the obligations of the Company
under this Article XII with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring at or prior to the date of such merger or consolidation.
Section 13. Savings Clause. If this Article XII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify each Indemnitee as to any expenses
(including reasonable attorneys' fees), judgments, fines and amounts paid in
settlement in connection with any action, suit, proceeding or investigation,
whether civil, criminal or administrative, including an action by or in the
right of the Company, to the fullest extent permitted by any applicable portion
of this Article XII that shall not have been invalidated and to the fullest
extent permitted by applicable law.
Section 14. Subsequent Legislation. If the Massachusetts General Laws
are amended after adoption of this Article XII to expand further the
indemnification permitted to Indemnitees, then the Company shall indemnify such
persons to the fullest extent permitted by the Massachusetts General Laws, as so
amended.
ARTICLE XIII
Fair Price Provision
The stockholder vote required to approve Business Combinations
(hereinafter defined) shall be as set forth in this Article XIII.
Section 1. Higher Vote for Business Combinations. In addition to any
affirmative vote required by applicable provisions of law, the Articles of
Organization or these By-laws, and except as otherwise expressly provided in
Section 3 of this Article XIII:
(a) Any merger or consolidation of the Company or any
Subsidiary with (i) any Interested Stockholder or
(ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such
merger or consolidation would be, an Affiliate or
Associate of an Interested Stockholder; or
(b) Any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series
of transactions) to or with any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder of any assets of the Company
or any Subsidiary thereof having an aggregate Fair
Market Value of $5,000,000 or more; or
17
(c) The issuance, exchange or transfer by the Company or
any Subsidiary (in one transaction or a series of
transactions) of any securities of the Company or any
Subsidiary to any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder
in exchange for cash, securities or other
consideration (or a combination thereof) having an
aggregate Fair Market Value of $5,000,000 or more; or
(d) The adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by
or on behalf of an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder;
or
(e) Any reclassification of securities (including any
reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the
Company with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Company or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder;
or
(f) Any agreement, contract or other arrangement with an
Interested Stockholder (or in which the Interested
Stockholder has an interest other than
proportionately as a stockholder) providing for any
one or more of the actions specified in subsections
(a) to (e) of this Section 1, shall require the
affirmative vote of the holders of at least eighty
percent (80%) of the votes which all stockholders
would be entitled to cast at any annual election of
Directors or class of Directors (the "Voting Stock").
Such affirmative vote shall be required
notwithstanding the fact that no vote may be required
or that a lesser percentage may be specified by
applicable provisions of law or in any agreement with
any national securities exchange or otherwise.
Section 2. Definition of "Business Combination." The term "Business
Combination" as used in this Article XIII shall mean any transaction which is
referred to in any one or more of subsections (a) through (f) of Section 1.
Section 3. When Higher Vote Is Not Required. The provisions of Section
1 of this Article XIII shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote, if any, as is required by applicable provisions of law, the Articles of
Organization, as amended, or these By-laws, if the condition specified in either
of the following subsections (a) or (b) are met:
(a) Approval by Disinterested Directors. The Business
Combination shall have been approved by two-thirds of
the Disinterested Directors.
18
(b) Price and Procedure Requirements. All of the
following seven conditions shall have been met:
(c) The transaction constituting the Business Combination
shall provide that the holders of Common Stock
receive, in exchange for their stock, per share
consideration (consisting of the cash and the Fair
Market Value, as of the date of the consummation of
the Business Combination, of consideration other than
cash) at least equal to the highest of the following:
A. If applicable, the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the Interested Stockholder for any share of Common
Stock in connection with the acquisition by the
Interested Stockholder of shares of Common Stock
which were acquired (1) within the two- year period
immediately prior to the initial day in which public
trading of the Common Stock occurs following the
first public announcement of the proposed Interested
Stockholder (the "Announcement Date") or (2) in the
transaction in which it became an Interested
Stockholder, whichever is higher;
B. The Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the
Interested Stockholder became an Interested
Stockholder (the "Determination Date", whichever is
higher; and
C. If applicable, the price per share equal to the
Fair Market Value per share of Common Stock
determined pursuant to subsection 3(b)(i)(B)
immediately preceding, multiplied by the ratio of (1)
the per share price determined pursuant to subsection
3(b)(i)(A) above to (2) the Fair Market Value per
share of Common Stock on the first date in the
two-year period immediately prior to the Announcement
Date on which the Interested Stockholder beneficially
owned any shares of Common Stock.
All per share prices shall be adjusted to reflect fairly any
intervening stock split, stock dividend, reverse stock split,
recapitalization, reorganization or similar event affecting
the number of shares of Common Stock outstanding and the
market price per share of outstanding shares of Common Stock.
(i) If the transaction constituting the Business
Combination shall also provide that the holders of
any class of outstanding Voting Stock, other than
Common Stock, if any, are to
19
receive consideration in exchange for their stock,
the per share consideration (consisting of the cash
and the Fair Market Value, as of the date of the
consummation of the Business Combination, of
consideration other than cash) shall be at least
equal to the highest of the following (it being
intended that the requirements of this subsection
3(b)(ii) shall be required to be met with respect to
every class of outstanding Voting Stock, whether or
not the Interested Stockholder beneficially owns any
shares of a particular class of Voting Stock):
A. If applicable, the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the Interested Stockholder for any share of such
class of Voting Stock in connection with the
acquisition by the Interested Stockholder of
beneficial ownership of such share which was acquired
(1) within the two-year period immediately prior to
the Announcement Date or (2) in the transaction in
which it became an Interested Stockholder, whichever
is higher;
B. If applicable, the highest preferential amount per
share to which the holders of shares of such class of
Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Company, regardless of whether the
Business Combination to be consummated constitutes
such an event;
C. The Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher; and
D. If applicable, the price per share equal to the
Fair Market Value per share of such class of Voting
Stock determined pursuant to subsection 3(b)(ii)(c)
immediately preceding, multiplied by the ratio of (1)
the per share price determined pursuant to subsection
3(b)(ii)(A) above to (2) the Fair Market Value per
share of such class of Voting Stock on the first day
in the two-year period immediately prior to the
Announcement Date on which the Interested Stockholder
beneficially owned any shares of such class of Voting
Stock.
All per share prices shall be adjusted to reflect fairly any intervening stock
split, stock dividend, reverse stock split, recapitalization, reorganization or
similar event
20
affecting the number of shares of such Voting Stock outstanding and the market
price per share of outstanding shares of such Voting Stock.
(ii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as was previously paid by
or on behalf of the Interested Stockholder in connection with
its direct or indirect acquisition of beneficial ownership of
shares of such class of Voting Stock. If the Interested
Stockholder beneficially owns shares of any class of Voting
Stock which were acquired with varying forms of consideration,
the form of consideration to be received by holders of such
class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of voting
Stock beneficially owned by it.
(iii) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (A) except as approved by two-thirds of the
Disinterested Directors, there shall have been no failure to
declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any
outstanding preferred stock; (B) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock) except as approved by two-thirds of the
Disinterested Directors, and (2) an increase in such annual
rate of dividends (as necessary to prevent any such reduction)
in the event of any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure so
to increase such annual rate is approved by two-thirds of the
Disinterested Directors; and (c) such Interested Stockholder
shall not have become the beneficial owner of any shares of
Voting Stock except as part of the transaction in which it
became an Interested Stockholder and except in a transaction
which after giving effect thereto, would not result in any
increase in the Interested Stockholder's percentage beneficial
ownership of any class of Voting Securities.
(iv) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have
received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Company,
whether in anticipation of or in connection with such Business
Combination or otherwise.
21
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of
the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations) shall be mailed by the
Interested Stockholder to all stockholders of the Company at
least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or
subsequent provisions).
(vi) Such Interested Stockholder shall not have made any major
change in the Company's business or equity capital structure
without the approval of two-thirds of the Disinterested
Directors.
Section 4. Certain Definitions. For the purposes of this Article XIII:
(a) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group
comprised of any person and any other person with whom such
person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or
disposing of Voting Stock of the Company.
(b) The term "Interested Stockholder" shall mean any
person (other than the Company or any Subsidiary and other
than any profit sharing, employee stock ownership or other
employee benefit plan of the Company or any Subsidiary or any
trustee of or fiduciary with respect to any such plan when
acting in such capacity) who or which:
(i) Is at such time the beneficial owner, directly or
indirectly, of shares of the Company having more than
ten percent (10%) of the voting power of the then
outstanding Voting Stock (unless all such shares were
received by such beneficial owner in exchange for
shares of common stock of the Company (acquired by
such beneficial owner on or before April 1, 1987 (the
"Predecessor Shares")); or
(ii) At any time within the two-year period
immediately prior to such time was the beneficial
owner, directly or indirectly, of shares of the
Company having more than ten percent (10%) of the
voting power of the then outstanding Voting Stock
(unless all such shares are Predecessor Shares), or
(iii) Is at any time an assignee of or has otherwise
succeeded to the beneficial ownership of any shares
of Voting Stock which were at
22
any time within the two-year period immediately prior
to such time 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.
(c) A person shall be a "beneficial owner" of any shares of
Voting Stock:
(i) Which are beneficially owned, directly or
indirectly, by such person or any of its Affiliates
or Associates;
(ii) Which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether or
not such right is exercisable immediately) pursuant
to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise or (b) the
right to vote pursuant to any agreement, arrangement
or understanding; or
(iii) 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.
(d) For the purposes of determining whether a person is an
Interested Stockholder pursuant to subsection 4(b), the number
of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by an Interested Stockholder
through application of subsection 4(c) but shall not include
any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange rights,
warrants or options or otherwise.
(e) "Affiliate" and "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 in effect on January 1, 1999 (the term registrant in
said Rule 12b-2 meaning, in this case, the Company).
(f) "Beneficially owned" shall have the meaning ascribed to
such term in Rule 13d3 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on
January 1, 1999.
(g) "Disinterested Director" means any member of the Board of
Directors of the Company who is not an Interested Stockholder,
who is unaffiliated with, and not a representative of, the
Interested Stockholder and was a member of the Board of
Directors the date of incorporation of the Company, or prior
to the time that the Interested Stockholder became an
23
Interested Stockholder, and any successor of a Disinterested
Director who is not an Interested Stockholder, who is
unaffiliated with, and not a representative of, the Interested
Stockholder and is recommended or elected to succeed a
Disinterested Director by a majority of the Disinterested
Directors then on the Board of Directors.
(h) "Fair Market Value" means: (i) in the case of stock, the
highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange Listed
Stocks or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange or, if such stock is not listed
on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934
on which such stock is listed or, if such stock is not listed
on any such exchange, the highest closing sale price or the
highest closing bid quotation, respectively, with respect to a
share of such stock during the 30-day period preceding the
date in question on the National Market System or on the
National Association of Securities Dealers, Inc. Automated
Quotations System, as the case may be, or any system then in
use or, if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in
good faith; and (ii) in the case of property other than cash
or stock, the fair market value of such property on the date
in question as determined by the Board of Directors in good
faith.
(i) In the event of any Business Combination in which the
Company survives, the phrase "consideration other than cash to
be received" as used in subsection 3(b) of this Article XIII
shall include the shares of Common Stock and/or the shares of
any other class of outstanding Voting Stock retained by the
holders of such shares. "Subsidiary" means any corporation of
which a majority of any class of equity security is owned,
directly or indirectly, by the Company.
Section 5. The Disinterested Directors shall have the power and duty to
determine for purposes of this Article XIII, on the basis of information known
to them after reasonable inquiry, all facts necessary to determine compliance
with this Article XIII, including, without limitation, (a) whether a person is
an interested Stockholder, (b) the number of shares of Voting Stock beneficially
owned by any person, (c) whether a person is an Affiliate or Associate of
another, (d) whether the requirements of subsection 3(b) have been met with
respect to any Business Combination and (e) whether the assets which are the
subject of any Business Combination have, or whether the consideration to be
received from the issuance or transfer of securities by the Company or any
Subsidiary in any Business Combination has an aggregate Fair Market Value of
$5,000,000 or more. Any such determination made in good faith shall be binding
and conclusive.
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Section 6. Nothing contained in this Article XIII shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
Section 7. Consideration for shares to be paid to any stockholder
pursuant to this Article XIII shall be the minimum consideration payable to the
stockholder and shall not limit a stockholder's right under any provision of law
or otherwise to receive greater consideration for any shares of the Company.
Section 8. The fact that any Business Combination complies with the
provisions of Section 3 of this Article XIII shall not be construed to impose
any fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or recommend its
adoption or approval to the stockholders of the Company, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board of
Directors or any member thereof with respect to evaluations of or actions and
responses taken with respect to such Business Combination.
Section 9. Amendments to Article. Notwithstanding any other applicable
provisions of law, the Articles of Organization, or these By-laws, and
notwithstanding that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least eighty percent (80%) of the votes
which all the stockholders would be entitled to cast at any annual election of
Directors or class of Directors shall be required to amend or repeal, or to
adopt any provision inconsistent with this Article XIII.
ARTICLE XIV
Amendments - Repeal
(A) Amendment by Directors. Except with respect to any provisions
of these By- laws which by law, the Articles of Organization or these By-laws
require action by the stockholders, these By-Laws may be amended or repealed by
the affirmative vote of a majority of the Directors then in office. Not later
than the time of giving notice of the annual meeting of stockholders next
following the amending or repealing by the Directors of any By-law, notice
thereof stating the substance of such change shall be given to all stockholders
entitled to vote on amending the By-laws.
(B) Amendment by Stockholders. In addition to the right of
directors to amend the By-laws in this Article XIV, paragraph (A), these By-laws
may be amended or repealed at any annual meeting of stockholders, or special
meeting of stockholders called for such purpose, by the affirmative vote of at
least two-thirds of the total votes eligible to be cast on such amendment or
repeal by holders of voting stock, voting together as a single class; provided,
however, that if the Board of Directors recommends that stockholders approve
such amendment or repeal at such meeting of stockholders, such amendment or
repeal shall only require the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class.
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ARTICLE XV
Control Share Acquisition
The provisions of Chapter 110D of the General Laws of the Commonwealth
of Massachusetts ("Chapter 110D"), as it may be amended from time to time, shall
not apply to "control share acquisitions" of the Company within the meaning of
Chapter 110D.