EXHIBIT 3.4
CAPE COD BANK & TRUST COMPANY'S BY-LAWS
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[JSB1] 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 Secretary 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 the stockholders shall
be called by the Secretary as directed by vote of the Board of Directors or at
the written request of the President, five Directors, or one or more
stockholders of record holding at least thirty percent of the capital stock
issued and outstanding and entitled to vote, and at such time and place in the
County of Barnstable, Massachusetts, and for such purposes as shall be stated in
such vote or request consistent with these By-Laws, the Agreement of
Association, as amended, and applicable provisions of law.
SECTION 3. NOTICE. The Secretary 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 Secretary 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.
SECTION 4. 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 Secretary
of the meeting before being voted.
Election of Directors and Secretary 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 5. 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
Agreement of Association as amended.
SECTION 6. 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 7. ADDRESSES OF STOCKHOLDERS. Every stockholder, if and when
requested by the Secretary, shall file with the Secretary 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.
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ARTICLE III
DIRECTORS, OFFICERS AND COMMITTEES
SECTION 1. DIRECTORS. The Board of Directors of the Company shall consist
of not less than seven nor more than sixteen Directors as fixed by the
stockholders pursuant to these By-Laws.
At least three-fourths of the Directors shall be citizens of the
Commonwealth and resident therein.
SECTION LA. HONORARY DIRECTORS. The Board of Directors, at its
organization meeting held after each annual meeting of the stockholders, may
elect such persons as it wishes to the position of Honorary Director for a term
of one year.
Honorary Directors may attend all regular meetings of the Board of
Directors. They may attend regular committee meetings from time to time if
requested to do so by the Chairman of the Board or the President. They shall
not be entitled to vote, nor shall they bear the responsibilities or liabilities
of a Director. [JSB2]
SECTION 2. OFFICERS. The officers of the Company shall be a President, a
Treasurer, one or more Vice Presidents, one or more Trust Officers, one or more
Assistant Treasurers, a Secretary, 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 Secretary 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 Secretary.
SECTION 3. COMMITTEES. There shall be an Executive Committee, a Trust
Committee, each 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 oath as shall be required by law.
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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
72/nd/ birthday.
At the same annual meeting following adoption of these By-Laws as amended,
approximately one-third of those standing for re-election shall be elected for a
term of three years, one-third for two years and the remainder, plus any
additional persons proposed for election, for one year.
The number of Directors shall be fixed within the limits above specified 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. However, within
the above limits additional Directors may be elected between annual meetings of
the stockholders at any special meeting of the stockholders called for the
purpose of increasing the number of Directors and of electing additional
Directors accordingly and any Directors so elected shall serve until the date
herein fixed for the next annual meeting of the stockholders and until their
successors are elected and have qualified. If proposed for re-election, they
shall be elected for a term of one, two, or three years which will maintain a
Board of Directors whose terms will expire one-third each year as nearly as
possible.
At the annual meeting, or a special meeting in lieu of the annual meeting,
or a special meeting called for the purpose, the stockholders may change and fix
the number of Directors within the limits above specified and may leave open a
maximum of two directorships for election by the Board of Directors, and in such
event the Board of Directors, in its discretion from time to time, by vote of a
majority of the Directors at the time in office may elect not more than two
additional Directors to serve until the next annual meeting.
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, one Trust Officer, and one Assistant Treasurer shall be
elected by the Board of Directors at its organization 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, Trust Officers,
Assistant Treasurers and other officers and agents (other than the Secretary
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 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.
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The Secretary 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 or the Secretary 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 may be filled by the
Board of Directors and in the event of a vacancy in the Board of Directors, such
vacancy may 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
Secretary 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.
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 calendar month, 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.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held whenever called by the Secretary, or other officer designated for
the purpose by the Board, at the request of the President or two Directors, and
at such time and place and for such purposes as shall be stated in such request
consistently with these By-Laws, the Agreement of Association, as amended, and
applicable provisions of law. An organization meeting of the Board of Directors
may be held immediately after the Annual Stockholders' Meeting.
Notice of the time and place of any special meeting shall be given by the
Secretary 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 whatever may be transacted at a meeting of the Board although it may
not have been specified in the notice of the meeting.
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SECTION 3. QUORUM. Seven of the Directors at the time in office shall
constitute a quorum for the transaction of business at any meeting, provided,
however, that at any time when the number of Directors in office is less than
fourteen, five of such Directors 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 Agreement of Association, as amended, 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 Agreement of Association, 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 take or
cause to be taken any action and do any and all things not repugnant to the
Agreement of Association, as amended, 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.
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 Agreement of
Association, as amended, 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
Secretary, and Secretary of the Board. Without limiting the generality of the
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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 these By-Laws, the
Articles of Organization, as amended 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. TRUST OFFICERS. The Trust Officers in such order or respects
as the Board of Directors shall from time to time determine shall have charge of
and be responsible for the management of the Trust Department under the
supervision of the Trust Committee and the general supervision of the Board of
Directors and the President.
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SECTION 8. SECRETARY. The Secretary 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 Secretary at
any meeting of the stockholders, a temporary Secretary 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 four nor more than seven
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 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.
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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
TRUST COMMITTEE
SECTION 1. COMPOSITION. There shall be a Trust Committee consisting of
not less than three members as determined from time to time by the Board of
Directors. At or after the first meeting of the Board of Directors held after
each 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 elect from their own number a Trust Committee within the limits stated
above in this Section 1. The members of the Trust Committee shall hold office
during the pleasure of the Board of Directors. A majority of the Trust Committee
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 meeting.
SECTION 2. POWERS. The Trust Committee shall have supervision of the
Trust Department of the Company and power to transact all business of the
Company as executor, administrator, assignee, guardian, trustee, agent for the
care and management of property, and in any other fiduciary and representative
capacity, and in any such connection shall have power to give instructions to
the officers of the Company which the Trust Committee shall deem necessary or
appropriate, together with such other powers as the Board of Directors or the
Executive Committee may from time to time delegate to the Trust Committee.
SECTION 3. RULES AND REGULATIONS. The Trust Committee shall make its own
rules and regulations consistently with these By-Laws and applicable provisions
of law. It shall appoint its own Chairman from its own members, and its
Secretary, each of whom shall serve during the pleasure of the Trust Committee.
The Trust Committee shall meet as often as the business of the Trust Department
shall require.
The Board of Directors or Executive Committee shall have power to rescind
any vote, resolution or instruction of the Trust Committee but such rescission
shall have no retroactive effect.
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ARTICLE IX
SAVINGS DEPOSITS
Rules and regulations relating to savings deposits and the withdrawal
thereof, not inconsistent with the provisions of law, shall be adopted by the
Board of Directors. Such regulations shall remain in force until amended,
modified or repealed by vote of the Board. Interest may be paid on savings
deposits at such times, at such rate or rates, and for such periods, not
inconsistent with law, as the Board of Directors shall determine.
ARTICLE X
CERTIFICATES OF STOCK AND TRANSFERS THEREOF
SECTION 1. FORM - EXECUTION. Certificates of stock of the Company shall
be in such form permitted by law as the Board of Directors may from time to time
determine, and shall be signed by the President or a Vice President and by the
Treasurer or an Assistant Treasurer and sealed with the corporate seal.
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.
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ARTICLE XI
EXECUTION OF INSTRUMENTS
Checks, conveyances, deeds, assignments, discharges of mortgages and other
instruments, whether connected with the exercise by the Company of its powers as
a trust company or 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 XII
EMERGENCY OPERATIONS
In the event of a state of disaster or other emergency created by war,
civil commotion, or any other cause, of sufficient severity to prevent to a
material extent the conduct and management of the property, business and affairs
of this Company by its Board of Directors and Officers as elsewhere in these By-
Laws contemplated (such event being hereinafter called the "Emergency"), whether
or not a state of emergency shall have been declared by any governmental
official or authority, then for and during the period of the Emergency and for a
reasonable period thereafter-
(a) All available Directors, not members of the incumbent Executive
Committee at the time of the Emergency, shall automatically
become members of the Executive Committee; each member of the
Committee, including each such incumbent member, each such
available Director, and each additional member elected as
hereinafter provided, shall hold office until the election of his
successor or termination of his term by vote of the Committee or
the stockholders; three members of the Committee shall constitute
a quorum for the transaction of business and, so long as there
are at least three members in office, the action of a majority of
the members of the Committee present at any meeting of the
Committee at which a quorum is present, and the action of a
majority of the members of the Committee other than at a meeting
shall constitute the action of the Committee, provided, however,
that if by reason of death, resignation, or other cause the
membership of the Committee is reduced to two, such two
remaining members may elect not more than nine additional members
to the Committee, and if by reason of any such cause the
membership of the Committee is reduced to one, a majority of
those of the President and
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the Vice Presidents of the Company who are available to vote may
elect not more than ten additional members to the Committee.
(b) The Executive Committee shall have power to transact all
business for and on behalf of the Company which the Board of
Directors might have, in accordance with Article V of these By-
Laws, and, without in any way limiting the generality of the
foregoing, power to appoint and remove officers, members of the
Trust Committee, and members of any other committees, to declare
offices, memberships on the Trust Committee, and memberships on
any other committees vacant, and to fill vacancies in any offices
and in any committee memberships; power to exercise the powers
and authorities of the Trust Committee and any other committees
not at the time in existence or the membership of which does not
at the time exceed three; power to act by vote at a meeting or by
a writing or by telegram or telephone or by any other convenient
method or by a combination of any such methods; power to cause
notice to be given of any annual meeting of the stockholders and
of any special meetings of the stockholders, to call any such
meeting, and to designate any individual to act in place of the
Secretary; power to make its own rules as to the conduct of its
own meetings and the procedures to be followed by it with respect
to its activities; if the location of the principal office or of
any branch office of the Company becomes unavailable or
unsuitable for the conduct of the business of the Company, power
to locate the principal office or any such branch office in
quarters selected by the Committee, any such temporarily located
office to be returned to its former location as soon as
practicable and any such temporary office to be then
discontinued; power to exercise any and all additional
authorities and powers which shall at any time or times be
granted to the Executive Committee by the Board of Directors; and
furthermore such additional powers as are reasonably necessary to
enable the Company to exercise the powers granted to the Company
by law.
For the purposes of this Article, an Emergency shall be deemed to have
occurred at such time whenever the facts stated in the first paragraph of this
Article preceding portion (a) thereof have occurred, and the declaration that
such an Emergency has occurred, including a statement as to the time of the
beginning thereof, or the declaration that such an Emergency has ceased,
including a statement as to the time of such cessation, set forth in either case
in a writing signed by the President, or if he is not available, by any Vice
President or the Treasurer, and at least two members of the Board of Directors
or of the Executive Committee shall be conclusive and binding on all parties.
Any provisions of the By-Laws and any votes of the Board of Directors which
are contrary to the provisions of this Article XII shall be suspended during the
period of any Emergency and during that period the provisions of this Article
XII shall govern, provided,
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however, that the provisions of this Article XII shall be subject to repeal or
amendment by the stockholders pursuant to Article XVI hereof during the period
of any such Emergency and at any other time or times.
ARTICLE XIII
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 XIV
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 XV
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who on January 21, 1964, or thereafter becomes a Director or
officer of the Company shall be entitled, without prejudice to any other rights
he may have, to be reimbursed by the Company for, and indemnified by the Company
against, all costs and expenses reasonably incurred by him in connection with or
arising out of any claim made, or any action, suit or proceeding of whatever
nature threatened or brought against him or in which he may be involved as a
party or otherwise by reason of his having served as a Director or officer of
the Company or by reason of any action alleged to have been taken or omitted by
him as such Director or officer, whether or not he continues to be such Director
or officer at the time of incurring such costs and expenses, including amounts
paid or incurred by him in connection with reasonable settlements (other than
amounts paid to the Company itself) of any such claim, action, suit or
proceeding. No such reimbursement or indemnity shall be paid or made for any
cost or expense incurred or settlement made by such Director or officer in
connection with any matter as to which he shall be finally adjudged in any such
action, suit, or proceeding to have been derelict in the performance of his duty
as such Director or officer, nor shall anything herein contained be construed so
as to
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permit or to authorize the Company to indemnify any such Director or officer
against any costs or expenses arising out of or resulting from his own
negligence or willful misconduct. No Director or officer of the Company shall be
liable to anyone for making any determination as to the existence or absence of
liability of the Company hereunder or for making or refusing to make any payment
hereunder or for taking or omitting to take any other action hereunder, in
reliance upon the advice of counsel. Each person elected or appointed a Director
or officer of the Company shall, upon and by reason of such election or
appointment, have the right to be reimbursed and indemnified by the Company, as
above set forth, with the same force and effect as if the Company, to induce him
to accept such election or appointment, specifically agreed in writing to
reimburse and indemnify him in accordance with the foregoing provisions of this
Article XV. Nothing herein contained shall be construed as a limitation of any
right to indemnification to which any person would otherwise be entitled or as a
limitation on the powers of this Company or its Directors.
ARTICLE XVI
FAIR PRICE PROVISION
The stockholder vote required to approve Business Combinations (hereinafter
defined) shall be as set forth in this Article XVI.
SECTION 1. HIGHER VOTE FOR BUSINESS COMBINATIONS. In addition to any
affirmative vote required by applicable provisions of law, the Agreement of
Association, as amended, or these By-Laws, and except as otherwise expressly
provided in Section 3 of this Article XVI:
(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
(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
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(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 XVI 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 I
of this Article XVI 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 Agreement of Association, 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.
(b) Price and Procedure Requirements. All of the following seven
conditions shall have been met:
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(i) 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.
(ii) 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 receive consideration in
16
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 affecting the number of shares of such Voting
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Stock outstanding and the market price per share of outstanding shares of such
Voting Stock.
(iii) 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.
(iv) 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.
(v) 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,
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whether in anticipation of or in connection with such
Business Combination or otherwise.
(vi) 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).
(vii) 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 XVI:
(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
profitsharing, 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 acquired on or before April 1, 1987); 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 were acquired on or before April 1, 1987), or
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(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 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 April 1, 1987 (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 April 1, 1987.
20
(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 on April 1,
1987, or prior to the time that the Interested Stockholder became
an 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 XVI 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 XVI, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article XVI, 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
21
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.
SECTION 6. Nothing contained in this Article XVI 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 XVI 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 XVI 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 Agreement of Association, as amended, 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 XVI.
ARTICLE XVII
AMENDMENTS - REPEAL
Except as otherwise provided herein, these By-Laws may be altered, amended,
added to or repealed in whole or in part at any annual or special meeting of the
stockholders by vote of the holders of a majority of the capital stock of the
Company outstanding and entitled to vote, provided that notice of such proposed
alteration, amendment, addition or repeal is given in the notice of the meeting
at which such alteration, amendment, addition or repeal is to be acted upon.
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