Exhibit 3.2
BYLAWS
OF
PORT FINANCIAL CORP.
ARTICLE I
STOCKHOLDERS
Section 1. ANNUAL MEETING. An annual meeting of the stockholders,
for the election of Directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held on the third Tuesday of April of each year or on such other day
(other than a legal holiday or day of religious significance) as the Board of
Directors shall designate. The time and place of the annual meeting shall be
designated by the Board of Directors.
Section 2. SPECIAL MEETINGS. Subject to the rights of the holders
of any class or series of preferred stock of the Corporation, special meetings
of stockholders of the Corporation may be called by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of Directors
which the Corporation would have if there were no vacancies on the Board of
Directors (hereinafter, the "Whole Board") or otherwise as set forth in the
Articles of Organization. The hour, date and place of any special meeting and
the record date for determining the stockholders having the right to notice of
and to vote at any such meeting shall be determined by the Board of Directors or
the President.
Section 3. NOTICE OF MEETINGS. Written notice of the place, date,
and time of all meetings of the stockholders shall be given at least seven (7)
days before the date on which the meeting is to be held to each stockholder
entitled to vote at such meeting, except as otherwise provided herein or
required by law (meaning, here and hereinafter, as required from time to time by
Chapter 156B of the General Laws of the Commonwealth of Massachusetts (or
successor provisions) (the "Massachusetts Business Corporation Law"), other
applicable law, or the Articles of Organization of the Corporation).
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date, and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. QUORUM. At any meeting of the stockholders, the
holders of a majority of all of the shares of the stock entitled to vote at the
meeting, present in person or by proxy shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger
number may be required by law. Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes present in person or
represented by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter. The stockholders present at a duly
constituted meeting may continue to transact business until adjournment
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date,
or time.
Section 5. ORGANIZATION. The President or, in the absence of the
President, the Chairman of the Board of the Corporation or, in his or her
absence, a Vice President of the Corporation, shall call to order any meeting of
the stockholders and act as chairman of the meeting. In the absence of the Clerk
of the Corporation, the secretary of the meeting shall be such person as the
chairman appoints. The chairman of the meeting shall have the power, among
other things, to adjourn such meeting at any time and from time to time. The
order of business and all other matters of procedure at every meeting of
stockholders shall be determined by the chairman of the meeting.
Section 6. CONDUCT OF BUSINESS.
(a) The chairman of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to
him or her in order. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at the meeting
shall be announced at the meeting.
(b) At any annual meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting: (i) by or
at the direction of the Board of Directors; or (ii) by any stockholder of
the Corporation who is entitled to vote with respect thereto and who
complies with the notice procedures set forth in this Section 6(b). For
business to be properly brought before an annual meeting by a stockholder,
the business must relate to a proper subject matter for stockholder action
and the stockholder must have given timely notice thereof in writing to the
Clerk of the Corporation. To be timely, a stockholder's notice must be
received at the principal executive offices of the Corporation not less
than ninety (90) calendar days in advance of the date of the Corporation's
proxy statement which was released to stockholders in connection with the
previous year's annual meeting of stockholders; provided, however, with
respect to the Corporation's first annual meeting of stockholders, to be
timely notice shall be received at the principal executive offices of the
Corporation not less than ninety (90) days prior to the date of the annual
meeting except that in the event less than one hundred (100) days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the 10th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Clerk shall set forth
as to each matter such stockholder proposes to bring before the annual
meeting: (A) a brief description
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of the business desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting; (B) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business; (C) the class and number of shares of the
Corporation's capital stock that are beneficially owned by such
stockholder; and (D) any material interest of such stockholder in such
business.
At any special meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting (i) by or at the
direction of the Board of Directors or (ii) as a result of a written
application for a special meeting brought by stockholders in accordance
with the Articles of Organization. Any such written application for a
special meeting by one or more stockholders shall set forth as to each
matter proposed to be brought before the special meeting the information
described in subsections (A) through (D) of this Section 6(b).
Notwithstanding anything in these Bylaws to the contrary, no business
shall be brought before or conducted at a meeting of stockholders except in
accordance with the provisions of this Section 6(b). The President of the
Corporation or other person presiding over the meeting shall, if the facts
so warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of
this Section 6(b) and, if he or she should so determine, he or she shall so
declare to the meeting and any such business so determined to be not
properly brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible for election as Directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders at which Directors are
to be elected only: (i) by or at the direction of the Board of Directors;
or (ii) by any stockholder of the Corporation entitled to vote for the
election of Directors at the meeting who complies with the notice
procedures set forth in this Section 6(c). Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
by timely notice in writing to the Clerk of the Corporation. To be timely,
a stockholder's notice must be received at the principal executive offices
of the Corporation not less than ninety (90) calendar days in advance of
the date of the Corporation's proxy statement which was released to
stockholders in connection with the previous year's annual meeting of
stockholders; provided, however, with respect to the Corporation's first
annual meeting of stockholders, to be timely notice shall be received at
the principal executive offices of the Corporation not less than ninety
(90) days prior to the date of the annual meeting except that in the event
less than one hundred (100) days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be received not later than the close of
business on the 10th day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth: (i) as to each person whom such
stockholder proposes to nominate for election or re-election as a Director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for the election of Directors, or is otherwise
required, in each case pursuant to Regulation
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14A under the Securities Exchange Act of 1934 (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected); and (ii) as to the stockholder giving
notice of (x) the name and address, as they appear on the Corporation's
books, of such stockholder and (y) the class and number of shares of the
Corporation's capital stock that are beneficially owned by such
stockholder. At the request of the Board of Directors any person nominated
by the Board of Directors for election as a Director shall furnish to the
Clerk of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the provisions of this Section 6(c). The
Officer of the Corporation or other person presiding at the meeting shall,
if the facts so warrant, determine that a nomination was not made in
accordance with such provisions and, if he or she should so determine, he
or she shall declare to the meeting and the defective nomination shall be
disregarded.
(d) Nothing contained in this Section 6 shall require proxy materials
distributed by the management of the Corporation to include any information
with respect to nominations or other proposals by stockholders.
Section 7. PROXIES AND VOTING. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted by law
filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. Proxies shall be
in written form and shall be dated not more than six (6) months before the
meeting named therein, unless the proxy is coupled with an interest and provides
otherwise. Proxies shall be filed with the Clerk at the meeting, or of any
adjournment thereof, before being voted. Proxies solicited on behalf of the
management shall be voted as directed by the stockholder or, in the absence of
such direction, as determined by a majority of the Board of Directors. Except
as otherwise limited therein, proxies shall entitle the persons authorized
thereby to vote at any adjournment of such Meeting, but they shall not be valid
after final adjournment of such meeting. A proxy with respect to stock held in
the name of two or more persons shall be valid if executed by one of them unless
at or prior to exercise of the proxy the Clerk of the Corporation receives a
specific written notice to the contrary from any one of them. Whenever stock is
held in the name of two or more persons, in the absence of specific written
notice to the Corporation to the contrary, at any meeting of the stockholders of
the Corporation any one or more of such stockholders may cast, in person or by
proxy, all votes to which such ownership is entitled. In the event an attempt
is made to cast conflicting votes, in person or by proxy, by the several persons
in whose names shares of stock stand, the vote or votes to which those persons
are entitled shall be cast as directed by a majority of those holding such stock
and present in person or by proxy at such meeting, but no votes shall be cast
for such stock if a majority does not agree. A proxy purporting to be executed
by or on behalf of a stockholder shall be deemed valid unless successfully
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger.
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Every vote shall be taken by ballots, each of which shall state the name of
the stockholder or proxy voting and such other information as may be required
under the procedure established for the meeting. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by the Articles of Organization or by law, all
other matters shall be determined by a majority of the votes present and cast at
a properly called meeting of stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 1. GENERAL POWERS, NUMBER AND TERM OF OFFICE. The
business and affairs of the Corporation shall be under the direction of its
Board of Directors. The number of Directors who shall constitute the Whole
Board shall be such number as the Board of Directors shall from time to time
have designated. The Board of Directors may annually elect a Chairman of the
Board from among its members who shall, when present, preside at its meetings.
In the absence of a Chairman of the Board, meetings of the Board of Directors
will be chaired by a Director selected by the Board of Directors from among its
members.
The Directors, other than those who may be elected by the holders of any
class or series of Preferred Stock, shall be divided, with respect to the time
for which they severally hold office, into three classes, with the term of
office of the first class to expire at the first annual meeting of stockholders,
the term of office of the second class to expire at the annual meeting of
stockholders one year thereafter and the term of office of the third class to
expire at the annual meeting of stockholders two years thereafter, with each
Director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders, commencing with the first
annual meeting, Directors elected to succeed those Directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each Director to hold
office until his or her successor shall have been duly elected and qualified. No
person shall be eligible for election, reelection, appointment or reappointment
to the Board if such person reached seventy (70) years of age or older on
January 1 of the year in which such person seeks election, reelection,
appointment or reappointment to the Board.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject to
the rights of the holders of any class or series of Preferred Stock then
outstanding, newly created Directorships resulting from any increase in the
authorized number of Directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the Directors
then in
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office, though less than a quorum; (provided, however, that if there is an
Interested Stockholder, such action shall also require the affirmative vote of a
majority of the Disinterested Directors then in office) and Directors so chosen
shall hold office for a term specified by the Directors then in office or, if
not so specified, for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires
and until such Director's successor shall have been duly elected and qualified.
No decrease in the number of authorized Directors constituting the Board shall
shorten the term of any incumbent Director.
Section 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all Directors. A notice of each regular meeting shall not be
required.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by a majority of the Directors then in office or by the
President and shall be held at such place, on such date, and at such time as
they or he/she shall fix. Notice of the place, date, and time of each such
special meeting shall be given to each Director by whom it is not waived by
mailing written notice in person or by telephone or sent to his or her business
or home address by telecommunication at least two (2) days in advance of the
meeting, or by written notice mailed to his or her business or home address at
least three (3) days in advance of such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the mail so addressed, with postage
thereon prepaid. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting. Any Director may waive notice
of any meeting by a writing executed by him or her either before or after the
meeting and filed with the records of the meeting. The attendance of a Director
at a meeting shall constitute a waiver of notice of such meeting, except where
the Director protests the lack of notice to him or her prior to the meeting or
at its commencement. Neither the business to be transacted at, nor the purpose
of, any meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting. Notice of any special meeting may be waived
in accordance with Article VI, Section 2, hereof.
Section 5. QUORUM. At any meeting of the Board of Directors, a
majority of the Whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, date, or time, without further notice or waiver
thereof.
Section 6. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and such participation shall constitute presence
in person at such meeting but shall not constitute attendance for the purpose of
compensation pursuant to Section 9 of this Article II, unless the Board of
Directors by resolution so provides.
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Section 7. CONDUCT OF BUSINESS. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the Directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
Section 8. POWERS. The Board of Directors may, except as
otherwise required by law, exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, including, without
limiting the generality of the foregoing, the unqualified power:
(a) To declare, and the Corporation may pay, dividends on outstanding
shares of its capital stock;
(b) To issue or reserve for issue from time to time the whole or any
part of the capital stock of the Corporation which may be authorized from
time to time, to such persons or organizations, for such consideration,
whether cash, property, services or expenses, and on such terms as the
Board of Directors or a designated committee thereof may determine,
including without limitation the granting of options, warrants, or
conversion or other rights to subscribe to said capital stock;
(c) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(d) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or non-
negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(e) To remove any Officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any Officer upon
any other person for the time being;
(f) To confer upon any Officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(g) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for Directors, Officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(h) To adopt from time to time such insurance, retirement, and other
benefit plans for Directors, Officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(i) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the Corporation's business and affairs.
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Section 9. COMPENSATION OF DIRECTORS. Directors, as such, may
receive, pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as Directors, including, without limitation,
their services as members of committees of the Board of Directors.
Section 10. ACTION BY CONSENT. Any action required or permitted to
be taken by the Board of Directors at any meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the Directors then in office. Such written consents shall be filed with
the records of the meetings of the Board of Directors and shall be treated for
all purposes as a vote at a meeting of the Board of Directors.
Section 11. PRESUMPTION OF ASSENT. A Director of the Corporation
who is present at a meeting of the Board of Directors at which action on any
Corporation matter is taken shall be presumed to have assented to the action
taken unless his or her dissent or abstention has been entered in the minutes of
the meeting or unless he or she has filed a written dissent to such action with
the person acting as the Clerk of the meeting before the adjournment thereof or
has forwarded such dissent by registered mail to the Clerk of the Corporation
within five (5) days after the date such dissenting Director receives a copy of
the minutes of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
ARTICLE III
COMMITTEES
Section 1. COMMITTEES OF THE BOARD OF DIRECTORS. The Board of
Directors, by a vote of a majority of the Whole Board, may from time to time
designate committees of the Board, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board and shall,
for those committees and any others provided for herein, elect a Director or
Directors to serve as the member or members, designating, if it desires, other
Directors as alternate members who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any
member of any committee and any alternate member in his or her place, the member
or members of the committee present at the meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member.
Section 2. CONDUCT OF BUSINESS. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee.
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Section 3. NOMINATING COMMITTEE. The Board of Directors shall
appoint a Nominating Committee of the Board consisting of not less than three
(3) members. The Nominating Committee shall have authority (a) to review any
nominations for election to the Board of Directors made by a stockholder of the
Corporation pursuant to Section 6 of Article I of these Bylaws in order to
determine compliance with such Bylaw provision, and (b) to recommend to the
Whole Board nominees for election to the Board of Directors.
ARTICLE IV
OFFICERS
Section 1. GENERALLY. The Board of Directors as soon as may be
practicable after the annual meeting of stockholders may choose a Chairman of
the Board, and shall choose a President, a Treasurer, a Clerk, and one or more
Vice Presidents, and from time to time may choose such other Officers as it may
deem proper. The Chairman of the Board, if any, shall be chosen from among the
Directors. Any number of offices may be held by the same person.
(a) The term of office of all Officers shall be until the next annual
election of Officers and until their respective successors are chosen, but
any Officer may be removed from office at any time with or without cause by
the affirmative vote of a majority of the Directors then in office.
(b) All Officers chosen by the Board of Directors shall each have
such powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this Article IV. Such Officers shall
also have such powers and duties as from time to time may be conferred by
the Board of Directors or by any committee thereof.
(c) Any vacancy in any office may be filled for the unexpired portion
of the term by the Board of Directors.
Section 2. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one is chosen, shall, when present, preside at all meetings of the Board of
Directors. The Chairman of the Board shall perform all duties and have all
powers which are commonly incident to the office of Chairman of the Board or
which are delegated to him or her by the Board of Directors. He or she shall
have power to sign all stock certificates, contracts and other instruments of
the Corporation which are authorized.
Section 3. PRESIDENT. The President shall be the Chief Executive
Officer unless the Board of Directors, by special vote confer the duties of
Chief Executive Officer upon the Treasurer or a Vice President. The President
or such other Chief Executive Officer shall have general responsibility for the
management and control of the business and affairs of the Corporation and shall
perform all duties and have all powers which are commonly incident to the office
of President or which are delegated to him or her by the Board of Directors.
Subject to the direction of the Board of Directors, and in the absence of a
Chairman of the Board, the President shall have all of the powers and perform
all of the duties of the Chairman of the Board (as designated in Section 2), and
shall also have power to sign all stock certificates, contracts and other
instruments of the
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Corporation which are authorized and shall have general supervision of all of
the other Officers (other than the Chairman of the Board, if any), employees and
agents of the Corporation.
Section 4. VICE PRESIDENTS. The Vice President or Vice Presidents
shall perform the duties and exercise the powers usually incident to their
respective offices and/or such other duties and powers as may be properly
assigned to them by the Board of Directors or the Chief Executive Officer. A
Vice President or Vice Presidents may be designated as Executive Vice President
or Senior Vice President.
Section 5. TREASURER, VICE TREASURERS, AND ASSISTANT TREASURERS.
The Treasurer shall, subject to the direction of the Board of Directors, have
general charge of the financial affairs of the Corporation and shall cause to be
kept accurate books of account. He or she shall have custody of all funds,
securities, and valuable documents of the Corporation, except as the Board of
Directors may otherwise provide. The Treasurer shall also perform such other
duties as the Board of Directors may from time to time designate. Any Vice
Treasurer and any Assistant Treasurer shall have such powers and perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
Section 6. CLERK. The Clerk or an Assistant Clerk shall issue
notices of meetings, shall keep their minutes, shall have charge of the seal and
the corporate books, shall perform such other duties and exercise such other
powers as are usually incident to such offices and/or such other duties and
powers as are properly assigned thereto by the Board of Directors or the
President.
Section 7. ASSISTANT CLERKS AND OTHER OFFICERS. The Board of
Directors may appoint one or more Assistant Clerks and such other Officers who
shall have such powers and shall perform such duties as are provided in these
Bylaws or as may be assigned to them by the Board of Directors or the President.
Section 8. ACTION WITH RESPECT TO SECURITIES OF OTHER
CORPORATIONS. Unless otherwise directed by the Board of Directors, the
President or any Officer of the Corporation authorized by the President shall
have power to vote and otherwise act on behalf of the Corporation, in person or
in which the Corporation may hold securities and otherwise to exercise any and
all rights and powers which the Corporation may possess by reason of its
ownership of securities in such other corporation.
ARTICLE V
STOCK
Section 1. CERTIFICATES OF STOCK. Each stockholder shall be
entitled to a certificate of the capital stock of the Corporation in such form
as may from time to time be prescribed by the Board of Directors. Such
certificate shall be signed by the Chairman of the Board, President or a Vice
President and by the Treasurer or an Assistant Treasurer, and sealed with the
corporate seal or a facsimile thereof. 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 Corporation. In
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case any Officer who has signed or whose signature has been placed on such
certificate shall have ceased to be such Officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or she
were such Officer at the time of its issue. Each certificate for shares of
capital stock shall be consecutively numbered or otherwise identified. Every
certificate for shares of stock which is subject to any restriction on transfer
and every certificate issued when the Corporation is authorized to issue more
than one class or series of stock shall contain such legend with respect thereto
as is required by law.
Section 2. TRANSFERS OF STOCK. Transfers of stock shall be made
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with
Section 4 of Article V of these Bylaws, an outstanding certificate for the
number of shares involved shall be surrendered for cancellation before a new
certificate is issued therefor.
Section 3. RECORD DATE. The Board of Directors may fix in advance
a time of not more than sixty (60) days preceding the date of any meeting of
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. In such case only
stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date. Without fixing such record date the Board of Directors may for any
of such purposes close the transfer books for all or any part of such period.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
If no record date is fixed and the transfer books are not closed, (a) the
record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, and (b) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors acts with respect thereto.
Section 4. LOST, STOLEN OR DESTROYED CERTIFICATES. In the event
of the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
Section 5. REGULATIONS. The issue, transfer, conversion and
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
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ARTICLE VI
NOTICES
Section 1. NOTICES. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any stockholder,
Director, Officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
telecommunication. Any such notice shall be addressed to such stockholder,
Director, Officer, employee or agent at his or her last known address as the
same appears on the books of the Corporation. The time when such notice is
received, if hand delivered, or dispatched, if delivered through the mails or by
telecommunication, shall be the time of the giving of the notice.
Section 2. WAIVERS. A written waiver of any notice, signed by a
stockholder, Director, Officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, Director, Officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 1. FACSIMILE SIGNATURES. In addition to the provisions
for use of facsimile signatures elsewhere specifically authorized in these
Bylaws, facsimile signatures of any Officer or Officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee
thereof.
Section 2. CORPORATE SEAL. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Clerk. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the
Comptroller or by an Assistant Clerk or an assistant to the Comptroller.
Section 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each
Director, each member of any committee designated by the Board of Directors, and
each Officer of the Corporation shall, in the performance of his or her duties,
be fully protected in relying in good faith upon the books of account or other
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its Officers or employees, or
committees of the Board of Directors so designated, or by any other person as to
matters which such Director or committee member reasonably believes are within
such other person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
Section 4. FISCAL YEAR. The fiscal year of the Corporation shall
be as fixed by the Board of Directors.
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Section 5. TIME PERIODS. In applying any provision of these
Bylaws which requires that an act be done or not be done a specified number of
days prior to an event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall be included.
Section 6. EXECUTION OF INSTRUMENTS. All deeds, leases,
transfers, contracts, bonds, notes and other instruments and obligations to be
entered into by the Corporation in the ordinary course of its business without
Board of Directors action may be executed on behalf of the Corporation by the
Chairman of the Board, President, any Vice President, Treasurer or any other
Officer, employee or agent of the Corporation as the Board of Directors may
authorize.
Section 7. ARTICLES OF ORGANIZATION. All references in these
Bylaws to the Articles of Organization shall be deemed to refer to the Articles
of Organization of the Corporation, as amended and in effect from time to time.
Section 8. POWERS OF CORPORATION. The Corporation shall have and
may exercise all the powers, privileges and authority, express, implied and
incidental, now or hereafter conferred by applicable law and the Corporation's
Articles of Organization.
Section 9. INTERESTED STOCKHOLDER AND DISINTERESTED DIRECTORS. As
used in these Bylaws, the terms "Interested Stockholder" and "Disinterested
Director" shall have the same respective meanings assigned to them in the
Corporation's Articles of Organization. Any determination of beneficial
ownership of securities under these Bylaws shall be made in the manner specified
in the Articles of Organization.
ARTICLE VIII
AMENDMENT
Section 1. AMENDMENT BY DIRECTORS. The Bylaws of the Corporation
may be amended or repealed by the affirmative vote of two-thirds of the whole
Board at a duly constituted meeting of the Board of Directors, unless at the
time of such action there shall be an Interested Stockholder, in which case such
action shall also require the affirmative vote of a majority of the
Disinterested Directors (as such term is defined in the Articles of
Organization) then in office at such meeting. 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 Bylaw, notice thereof stating the substance of
such change shall be given to all stockholders entitled to vote on amending the
Bylaws.
Section 2. AMENDMENT BY STOCKHOLDERS. The Bylaws of the
Corporation may be amended or repealed at a duly constituted meeting of
stockholders called expressly for such purpose, by the affirmative vote of at
least 80% of the total voting power of all of the then-outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class.
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