EXHIBIT 3.2
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BY-LAWS
OF
SUBURBAN OSTOMY SUPPLY CO., INC.
A Massachusetts Corporation
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BY-LAWS
OF
SUBURBAN OSTOMY SUPPLY CO., INC.
A Massachusetts corporation
ARTICLE I. STOCKHOLDERS
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Section 1. Annual Meeting of Stockholders. An annual meeting of
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stockholders shall be held at I 0: 00 a.m. local time, on the first Wednesday in
December in each year or at such other time and date before or after such date
(but within six months after the end of each fiscal year of the Corporation) as
the Board of Directors may from time to time fix. The purposes for which an
annual meeting is to be held, in addition to those prescribed by law, by the
Articles of Organization and by these By-Laws, may be specified by the President
or by the Board of Directors.
If an annual meeting is not held as provided above, a special meeting of
stockholders may be held in place thereof and any business transacted or
elections held at such special meeting shall have the same effect as if
transacted or held at the annual meeting, and, in such case, all references in
these By-Laws, except in this Section and in Section 3 of Article 1, to the
annual meeting of stockholders shall be deemed to refer to such special meeting.
Section 2. Special Meetings of Stockholders. A special meeting of
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stockholders may be called at any time by the President or by the Board of
Directors. A special meeting of stockholders shall be called by the Clerk, or in
the case of the death, absence, incapacity or refusal of the Clerk, by any other
officer, upon written application of one or more stockholders who hold in the
aggregate at least ten percent (10%) of the capital stock entitled to vote at
the meeting or, if the Corporation has a class of voting stock registered under
the Securities Exchange Act of 1934, as amended, upon the written application of
one or more stockholders who hold in the aggregate at least forty percent (40%)
in interest of the capital stock entitled to vote at the meeting. Such call
shall state the date, time, place and purpose of the meeting.
Section 3. Place of Stockholders' Meetings. The annual meeting of
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stockholders and any special meeting of stockholders, by whomever called, shall
be held at the principal office of the Corporation in Massachusetts, or at such
other place in Massachusetts or, to the extent provided in the Articles of
Organization, within the continental limits of the United States of America as
may be determined by the Board of Directors (or, in the event such meeting shall
have been called upon the application of stockholders, by such stockholders) and
stated in the notice thereof. Any adjourned session of any annual or special
meeting of stockholders shall be held at such permitted place as is designated
in the vote of adjournment.
Section 4. Notice of Stockholders' Meeting. A written notice of each
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annual or special meeting of stockholders, stating the date, time, place and
purpose or purposes for which the meeting is to be held, shall be given by the
Clerk or any other officer at least seven (7) days, or such longer period as may
be prescribed by law or the Articles of Organization, before the meeting to each
stockholder entitled to notice of or to vote at the meeting by leaving such
notice with such stockholder or at such stockholder's residence, or usual place
of business, or by mailing it, postage prepaid, addressed to such stockholder at
such stockholder's address as it appears in the records of the Corporation. No
notice of the date, time, place and purpose(s) of any annual or special meeting
of stockholders shall be required to be given to a stockholder if a written
waiver of such notice is executed before or after the meeting by such
stockholder, or by such stockholder's attorney thereunto authorized, and filed
with the records of the meeting.
Section 5. Quorum and Adjournments. Except as otherwise provided by
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law or by the Articles of Organization, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall constitute a quorum. If two or more classes of stock are entitled
to vote as separate classes upon any question, then, in the case of each such
class, a quorum for the consideration of such question shall, except as
otherwise provided by law or by the Articles of Organization, consist of a
majority of all stock of that class issued, outstanding and entitled to vote.
Any meeting may be adjourned from time to time by the holders of a majority of
the shares present or represented by proxy and entitled to vote, whether or not
a quorum is present, and the meeting may be held as adjourned without further
notice. At any such adjourned meeting at which a quorum shall be represented any
such business may be transacted which might have been transacted at the meeting
as originally called. Subject to the requirements of law and the Articles or
Organization, on any issue on which two or more classes of stock are entitled to
vote separately, if a quorum is not present for any one class the holders of a
majority of the shares of such class present or represented by proxy and
entitled to vote at the meeting may adjourn the meeting, as provided above, as
to that class.
Section 6. Proxies, Voting, Conduct of Meeting. Stockholders entitled
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to vote may vote either in person or by written proxy dated not more than six
(6) months before the meeting named therein. A proxy with respect to stock which
is owned by two or more persons shall be valid if executed by any one of them
unless at or prior to the exercise of the proxy the Corporation receives a
specific written notice to the contrary from any one of them. Unless a proxy
otherwise provides, a proxyholder shall be valid to vote at any adjourned
meeting which is reconvened, but not after the final adjournment of such
meeting.
When a quorum is present at any meeting, except where a larger vote is
required by law, by the Articles of Organization or by these By-Laws, a
plurality of the votes properly cast for the election of a Director shall be
sufficient to elect such Director, and a majority of the votes properly cast
upon any other question (or if two or more classes of stock are entitled to
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vote as separate classes upon such question, then, in the case of each such
class, a majority of the votes of such class properly cast upon the question),
shall decide the matter.
Except as provided by law or the Articles of Organization, stockholders
entitled to vote shall have one vote for each share of stock owned by them and a
proportionate vote for a fractional share.
Shares owned by the Corporation, directly or indirectly, shall not be
entitled to vote.
The Chairman of the Board, if there be one, or in the absence of the
Chairman, the President, or in absence of both the Chairman of the Board and the
President, a Vice President, shall act as chairman of the meeting. The Clerk of
the Corporation, if present, shall record the proceedings of all meetings of
stockholders. In the absence of the Clerk, the presiding officer may appoint a
clerk pro tempore of the meeting.
Section 7. Action Without A Meeting. Any action to be taken by
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stockholders may be taken without a meeting if all stockholders entitled to vote
on the matter consent to the action by a writing or writings filed with the
records of the meetings of stockholders. Such consent shall be treated for all
purposes as a vote at a meeting.
ARTICLE II. DIRECTORS
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Section 1. Board of Directors. The Board of Directors shall consist
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of not fewer than three Directors; provided, however, that the number of
Directors shall be not fewer than two whenever there shall be only two
stockholders and not fewer than one whenever there shall be only one
stockholder. Directors shall be elected annually (by ballot if so requested by
any stockholder entitled to vote) at the annual meeting of stockholders, or if
such annual meeting is omitted, at any special meeting called pursuant to
Section 2 of Article 1, by such stockholders as have the right to vote at such
election. The number of Directors for the forthcoming year shall be fixed either
by the Board of Directors prior to, or by the Stockholders at, the stockholders'
meeting at which they are to be elected, or if not so fixed, shall be the number
of Directors immediately prior to such meeting.
Except as may be provided by law or the Articles of Organization, at any
time during any year the size of the Board of Directors may be (i) increased by
the Board of Directors and (ii) increased or reduced by the stockholders at a
meeting called for the purpose and, in the case of a reduction which involves
the termination of the directorship of an incumbent Director, by such vote as
would be required to remove such incumbent from office in the manner provided in
Section 6 of this Article II.
Each newly-created directorship resulting from any increase in the number
of Directors may be filled in the manner provided in Section 6 of this Article
II.
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No Director need be a stockholder. Except as may be otherwise provided by
law or by the Articles of Organization, each Director shall hold office until
the next annual meeting of stockholders and until his or her successor is
elected and qualified, or until he or she sooner dies, resigns or is removed.
Section 2. Powers of Directors. The business, property and affairs of
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the Corporation shall be managed by, and be under the control and direction of,
the Board of Directors, which shall have and may exercise all the powers of the
Corporation except such as are conferred upon or reserved to the stockholders by
law, the Articles of Organization or these By-Laws.
Except as may be otherwise specifically provided by law or by vote of the
stockholders, the Board of Directors is expressly authorized to issue, from time
to time, the capital stock of the Corporation of any class or series which may
have been authorized but not issued or otherwise reserved for issue, to such
person or persons, on such terms and for such consideration permitted by law as
they may determine.
The Board of Directors may delegate from time to time to any committee,
officer, employee or agent such powers and authority as applicable law, the
Articles of Organization and these By-Laws may permit. The Board of Directors in
its discretion may appoint and remove and determine the compensation and duties
in addition to those fixed by law, the Articles of Organization and these By-
Laws, of all the officers, employees and agents of the Corporation. The Board of
Directors shall have power to fix a reasonable compensation or fee for a
person's service as a director.
Section 3. Committees of Directors. The Board of Directors, by vote of
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a majority of the Directors then in office, may from time to time elect from its
own number an executive committee and/or one or more other committees, to
consist of not fewer than two members, and may from time to time designate or
alter, within the limits permitted by this Section, the duties and powers of
such committees or change their membership, and may at any time abolish such
committees or any of them.
Any committee shall be vested with such powers of the Board of Directors as
the Board may determine in the vote establishing such committee or in a
subsequent vote of a majority of Directors then in office, provided, however,
that no such committee shall have any power prohibited by law, or the Articles
of Organization, or the power:
a. to change the principal office of the Corporation;
b. to amend or authorize the amendment of the Articles of Organization or
these By-Laws;
c. to issue stock or other securities exchangeable or exercisable for or
convertible into stock;
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d. to establish and designate series of stock, or fix and determine the
relative rights and preferences of any series of stock;
e. to elect officers required by law, the Articles of Organization or
these By-Laws to be elected by Directors, or to fill vacancies in any such
office;
f. to change the number of the Board of Directors or to fill vacancies in
the Board of Directors;
g. to remove officers or Directors from office;
h. to authorize the payment of any dividend or distribution to
stockholders;
i. to authorize the reacquisition for value of stock or other securities
of the Corporation;
j. to authorize a merger or consolidation of the Corporation or a sale or
other disposition of all or substantially all the property and business of
the Corporation; and
k. to authorize the liquidation or dissolution of the Corporation;
and provided further, that the fact that a particular power appears in the
foregoing enumeration of powers denied to committees of the Board of Directors
shall not be construed to override by implication any other provision of the
Articles of Organization or these By-Laws limiting or denying to the Board of
Directors the right to exercise such power.
Each member of a committee shall hold office until the first meeting of the
Board of Directors following the next annual meeting of stockholders (or until
such other time as the Board of Directors may determine, either in the vote
establishing the committee or at the election of such member) and until his or
her successor is elected and qualified, or until he or she sooner dies, resigns,
is removed, is replaced by change of membership or becomes disqualified by
ceasing to be a Director, or until the committee is sooner abolished by the
Board of Directors.
A majority of the members of any committee then in office, but not fewer
than two, shall constitute a quorum for the transaction of business, but any
meeting may be adjourned from time to time by a majority of the votes cast upon
the question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice. Each committee may make rules not inconsistent
herewith for the holding and conduct of its meetings or the taking of any action
in lieu of a meeting, but unless otherwise provided in such rules its meetings
shall be held and conducted in the same manner, as nearly as may be, as is
provided in these By-Laws for meetings of the Board of Directors. The Board of
Directors shall have
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the power to rescind or amend any vote or resolution of any committee; provided,
however, that no rights of third parties shall be impaired by such rescission.
Section 4. Meetings of the Board of Directors, Action Without a
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Meeting. Regular meetings of the Board of Directors may be held without call or
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notice at such places and at such times as the Board may from time to time
determine; provided, however, that notice of such determination and of any
changes therein is given to each member of the Board then in office. A regular
meeting of the Board of Directors may be held without call or notice immediately
after and at the same place as the annual meeting of stockholders.
Special meetings of the Board of Directors may be held at any time and at
any place when called by the President, the Treasurer, the Chairman of the
Board, if there be one, or two or more Directors, notice thereof being given to
each Director by the Secretary, or, if there be no Secretary, by the Clerk, or,
in the case of death, absence, incapacity or refusal of the Secretary (or the
Clerk, as the case may be), by the officer or Directors calling the meeting. In
any case, it shall be deemed that sufficient notice has been given to a Director
if (a) written notice is sent by mail to such Director at least seventy-two (72)
hours before the meeting, (b) notice is sent by telegram or confirmed telex,
facsimile or other electronic transmission to such Director at least forty-eight
(48) hours before the meeting, (c) notice is given to such Director in person,
either by telephone or by handing such Director a written notice, at least
thirty-six (36) hours before the meeting, or (d) such Director has actual
knowledge of the time, place and purpose of a meeting at least twenty-four (24)
hours before the meeting. Mail or telegram notices shall be addressed to a
Director at the Director's usual or last known business or residence address.
Notices given by telex, facsimile or other electronic transmission shall be
addressed to a Director and transmitted to the Director's usual or last known
business or residence telex number, fax telephone number or electronic message
address.
Notwithstanding the foregoing, notice of a meeting need not be given to any
Director if a written waiver of notice, executed by him or her before, during or
after the meeting, is filed with the records of the meeting, or to any Director
who attends the meeting without protesting prior thereto, or at its
commencement, the lack of notice to him or her.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee of the Board of Directors may be taken without a
meeting if a written consent thereto is signed by all the Directors or the
members of such committee and such written consent is filed with the records of
the meetings of the Directors or such committee. Such consent shall be treated
as a vote at a meeting for all purposes. Such consents may be executed in one or
more counterparts and not every Director need sign the same counterpart.
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Members of the Board of Directors or of any committee of the Board of
Directors may participate in a meeting of the Board of Directors or of such
committee by means of a conference telephone, video or similar communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time and participation in a meeting by such means shall
constitute presence in person at such meeting.
Section 5. Quorum of Directors. At any meeting of the Board of
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Directors, a quorum for any election, or for the consideration of any question,
shall consist of a majority of the Directors then in office, but any meeting may
be adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice. When a quorum is present at any meeting, the
votes of a majority of the Directors present shall be requisite and sufficient
for election to any office and for any question brought before such meeting,
except in any case where a larger vote is required by law, by the Articles of
Organization or by these ByLaws.
Section 6. Resignation and Removal of Directors, Vacancies. Any
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Director may resign at any time by delivering his or her resignation in writing
to the President, the Clerk or the Secretary, or to a meeting of the Board of
Directors. The stockholders may, by vote of a majority in interest of the stock
issued and outstanding and entitled to vote at an election of Directors, remove
any Director or Directors from office with or without cause; provided, however,
that the Directors of a class elected by a particular class of stockholders may
be removed only by the vote of the holders of a majority of the shares of such
class. The Board of Directors may, by vote of the majority of the Directors in
office, remove any Director from office with cause. No Director resigning and
(except where a right to receive compensation for a definite future period shall
be expressly provided in a written agreement with the Corporation, duly approved
by the Board of Directors) no Director removed shall have any right to any
compensation as such Director for any period following such resignation or
removal, or any right to damages on account of such removal, whether such
Director's compensation be by the month, by the year or otherwise. Any Director
may be removed for cause only after reasonable notice and opportunity to be
heard before the body proposing to remove such Director.
Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from the enlargement of the Board, may be filled by the
stockholders or, in the absence of stockholder action, by a majority of the
Directors then in office.
If the office of any member of any committee becomes vacant, the Board of
Directors may elect or appoint a successor or successors by vote of a majority
of the Directors then in office.
Each successor as a Director shall hold office for the unexpired term and
until such Director's successor shall be elected or appointed and qualified, or
until such Director sooner dies, resigns, is removed or becomes disqualified.
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The Board of Directors shall have and may exercise all its powers,
notwithstanding the existence of one or more vacancies in its' number as fixed
by either the stockholders or the Directors.
ARTICLE III. OFFICERS AND AGENTS
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Section 1. Officers and Agents. The officers of the Corporation shall
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be a President, a Treasurer, a Clerk, and such other officers, which may include
a Chairman of the Board, a Secretary, a Controller, one or more Vice Presidents,
Assistant Treasurers, Assistant Secretaries, Assistant Clerks, or Assistant
Controllers, as the Board of Directors may, in its discretion, elect or appoint.
The Corporation may also have such agents, if any, as the Board of Directors
may, in its discretion, appoint. So far as is permitted by law, any two or more
offices may be held by the same person.
Subject to law, the Articles of Organization and the other provisions of
these By-Laws, each officer shall have, in addition to the duties and powers
herein set forth, such duties and powers as are commonly incident to such office
and as the Board of Directors may from time to time designate.
The President, Treasurer, and Clerk (and the Secretary and Chairman of the
Board, if, as the case may be, there be one) shall be elected annually by the
Board of Directors at its first meeting following the annual meeting of
stockholders. Such other offices of the Corporation as may be created in
accordance with these By-Laws may be filled by election at the annual or any
special meeting of the Board of Directors.
Each officer shall hold office until the first meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor is elected or appointed and qualified, or until such officer
sooner dies, resigns, is removed, or becomes disqualified. Each agent shall
retain his or her authority at the pleasure of the Board of Directors.
Any officer, employee, or agent of the Corporation may be required, as and
if determined by the Board of Directors, to furnish a bond for the faithful
performance of his or her duties.
Section 2. President and Vice Presidents, Chairman of the Board. The
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Chairman of the Board, if there be one, or if there is no Chairman of the Board,
the President shall be the chief executive officer of the Corporation and shall
have general charge and supervision of the business, property and affairs of the
Corporation and such other powers and duties as the Board of Directors may
prescribe, subject to the control of the Board of Directors, unless otherwise
provided by law, the Articles of Organization, these By-Laws or by specific vote
of the Board of Directors. The Chairman of the Board, if there be one, shall be
a member of the
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Board of Directors and shall preside at its meetings and at the meetings of the
stockholders. The Chairman shall keep informed of the administration of the
affairs of the Corporation, shall advise and counsel the President, and, in the
President's absence, shall perform the duties of the President with other
officers of the Corporation, and shall perform such other duties as may from
time to time be assigned to him or her by the Board of Directors.
If there is a Chairman of the Board, the President shall be the Chief
Operating Officer of the Corporation and shall have the duties and powers
specified in these by-laws and shall have such other duties and powers as shall
be designated from time to time by the Board of Directors. Unless a Chairman of
the Board shall have been elected, the President shall preside at all meetings
of stockholders and of the Board of Directors, except as otherwise determined by
the Board of Directors.
Any Vice President shall have such duties and powers as shall be designated
from time to time by the Board of Directors or by the President, and, in any
case, shall be responsible to and shall report to the President. In the absence
or disability of the President, the Vice President or, if there be more than
one, the Vice Presidents in the order of their seniority or as otherwise
designated by the Board of Directors shall have the powers and duties of the
President.
Section 3. Treasurer and Assistant Treasurer. The Treasurer shall be
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the chief financial officer of the Corporation and shall be in charge of its
funds and the disbursements thereof, subject to the President and the Board of
Directors, and shall have such duties and powers as are commonly incident to the
office of a corporate treasurer and such other duties and powers as may be
prescribed from time to time by the Board of Directors or by the President. If
no Controller is elected, the Treasurer shall also have the duties and powers of
the Controller as provided in these By-Laws. The Treasurer shall be responsible
to and shall report to the Board of Directors, but in the ordinary conduct of
the Corporation's business, shall be under supervision of the President.
Any Assistant Treasurer shall have such duties and powers as shall be
prescribed from time to time by the Board of Directors or by the Treasurer, and
shall be responsible to and shall report to the Treasurer. In the absence or
disability of the Treasurer, the Assistant Treasurer or, if there be more than
one, the Assistant Treasurers in their order of seniority or as otherwise
designated by the Board of Directors shall have the powers and duties of the
Treasurer.
Section 4. Controller and Assistant Controllers. The Controller shall
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be the chief accounting officer of the Corporation and shall be in charge of its
books of account and accounting records and of its accounting procedures, and
shall have such duties and powers as are commonly incident to the office of a
corporate controller and such other duties and powers as may be prescribed from
time to time by the Board of Directors or by the President. The Controller shall
be responsible to and shall report to the Board of Directors, but in the
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ordinary conduct of the Corporation's business, shall be under the supervision
of the President.
Any Assistant Controller shall have duties and powers as shall be
prescribed from time to time by the Board of Directors or by the Controller, and
shall be responsible to and shall report to the Controller. In the absence or
disability of the Controller, the Assistant Controller or, if there be more than
one, Assistant Controllers in their order of seniority or as otherwise
designated by the Board of Directors, shall have the powers and duties of the
Controller.
Section 5. Clerk, Secretary, Assistant Clerk and Assistant Secretary.
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The Clerk shall record all proceedings of the stockholders in books to be kept
therefor, and shall have custody of the Corporation's records, documents and
valuable papers. In the absence of the Clerk from any such meeting, the
Secretary, if any, may act as temporary clerk, and shall record the proceedings
thereof in the aforesaid books, or a temporary clerk may be chosen by vote of
the meeting.
The Clerk shall also keep, or cause to be kept, the stock transfer records
of the Corporation which shall contain a complete list of the names and
addresses of all stockholders and the amount of stock held by each.
Unless the Board of Directors shall otherwise designate, the Clerk or, in
the absence of the Clerk, the Assistant Clerk, if any, shall have custody of the
corporate seal and be responsible for affixing it to such documents as may be
required by law or as may be directed by the Board of Directors to be sealed.
The Clerk shall have such other duties and powers as are commonly incident
to the office of a corporate clerk, and such other duties and powers as may be
prescribed from time to time by the Board of Directors or by the President.
The Clerk shall be a resident of Massachusetts unless the Corporation has a
resident agent appointed for the purpose of receiving service of process.
If no Secretary is elected, the Clerk shall also record all proceedings of
the Board of Directors and of any meetings of any committees of the Board, and,
in the absence of the Clerk from any such meeting, a temporary clerk shall be
chosen who shall record the proceedings thereof.
The Secretary shall attend all meetings of the Board of Directors and shall
record the proceedings thereat in books provided for that purpose which shall be
available upon request for the inspection of any Director during business hours.
The Secretary shall notify the Directors of the meetings in accordance with
these By-Laws and shall have and may exercise such other powers and duties as
the Board of Directors may prescribe. In the absence of the Secretary at a
meeting of the Board of Directors, a temporary secretary shall be chosen.
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Any Assistant Clerk and any Assistant Secretary shall have such duties and
powers as shall from time to time be designated by the Board of Directors or the
Clerk or the Secretary, respectively, and shall be responsible to and shall
report to the Clerk and the Secretary, respectively.
Section 6. Resignations and Removals of Officers and Agents, Vacancies.
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Any officer may resign at any time by delivering his or her resignation in
writing to the President, the Clerk or the Secretary, or to a meeting of the
Board of Directors. The Board of Directors may, by vote of the majority of the
Directors in office, remove any officer from office, with or without cause. The
Board of Directors may, at any time, by vote of a majority of the Directors
present and voting, terminate or modify the authority of any agent. No officer
resigning and (except where a right to receive compensation for a definite
future period shall be expressly provided in a written agreement with the
Corporation, duly approved by the Board of Directors) no officer removed shall
have any right to any compensation as such officer for any period following such
officer's resignation or removal, or any right to damages on account of such
removal, whether his or her compensation be by the month, by the year or
otherwise. Any officer may be removed for cause only after reasonable notice and
opportunity to be heard before the Board of Directors.
Each successor as an officer shall hold office for the unexpired term and
until his or her successor shall be elected or appointed and qualified, or until
he or she sooner dies, resigns, is removed or becomes disqualified.
ARTICLE IV. STOCK
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Section 1. Certificates of Stock. Unless the Board of Directors
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provides by resolution that some or all of any or all classes and series of the
Corporation's shares shall be uncertificated shares, each stockholder shall be
entitled to a certificate of the capital stock of the Corporation owned by him
or her, in such form as shall, in conformity to law, be prescribed from time to
time by the Board of Directors. Such certificate shall be signed by either the
President or a Vice President, and by either the Treasurer or an Assistant
Treasurer, and may, but need not be, sealed with the corporate seal; but when
any such certificate is signed by a transfer agent or by a registrar other than
a Director, officer, or employee of the Corporation, the signature of the
President or a Vice President and of the Treasurer or an Assistant Treasurer of
the Corporation, or either or both such signatures and such seal upon such
certificate, may be facsimile. If any officer who has signed, or whose facsimile
signature has been placed on, any such certificate shall have ceased to be such
officer before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if he or she were such officer at the time
of issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to law, the Articles of Organization, these By-Laws, or any
agreement to which the
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Corporation is a party, shall have the restriction noted conspicuously on the
certificate, and shall also set forth, on the face or back, either the full text
of the restriction or a statement of the existence of such restriction and
(except if such restriction is imposed by law) a statement that the Corporation
will furnish a copy thereof to the holder of such certificate upon written
request and without charge. Every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall set forth on
its face or back either the full text of the preferences, voting powers,
qualifications, and special and relative rights of the shares of each class and
series authorized to be issued, or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 2. Transfer of Shares of Stock. Subject to the restrictions,
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if any, stated or noted on the stock certificates, shares of stock may be
transferred on the books of the Corporation only by surrender to the
Corporation, or its transfer agent, of the certificate therefor, properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with all requisite stock transfer stamps affixed, and with such proof
of the authenticity and effectiveness of the signature as the Corporation or its
transfer agent shall reasonably require. Except as may be otherwise required by
law, by the Articles of Organization or by these By-Laws, the Corporation shall
have the right to treat the person registered on the stock transfer books as the
owner of any shares of the Corporation's stock as the owner-in-fact thereof for
all purposes, including the payment of dividends, the right to vote with respect
thereto and otherwise, and accordingly shall not be bound to recognize any
attempted transfer, pledge or other disposition thereof, or any equitable or
other claim with respect thereto, whether or not it shall have actual or other
notice thereof, until such shares shall have been transferred on the
Corporation's books in accordance with these By-Laws. It shall be the duty of
each stockholder to notify the Corporation of such stockholder's post office
address.
Section 3. Transfer Agents and Registrars; Further Regulations. The
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Board of Directors may appoint one or more banks, trust companies or
corporations doing a corporate trust business, in good standing under the laws
of the United States or any state therein, to act as the Corporation's transfer
agent and/or registrar for shares of capital stock, and the Board may make such
other and further regulations, not inconsistent with applicable law, as it may
deem expedient concerning the issue, transfer and registration of capital stock
and stock certificates of the Corporation.
Section 4. Loss of Certificates. In the case of the alleged loss,
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destruction, or wrongful taking of a certificate of stock, a duplicate
certificate may be issued in place thereof upon receipt by the Corporation of
such evidence of loss and such indemnity bond, with or without surety, as shall
be satisfactory to the President and the Treasurer, or otherwise upon such
terms, consistent with law, as the Board of Directors may prescribe.
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Section 5. Record Date. The Directors may fix in advance a time,
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which shall not be more than sixty (60) days before 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, and in such case,
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date; or, without fixing such record date, the Directors may, for any
such purposes, close the transfer books for all or any part of such period.
ARTICLE V. MASSACHUSETTS CONTROL SHARE ACQUISITIONS ACT
--------------------------------------------
Section 1. Massachusetts Control Share Acquisitions Act Shall Not Apply.
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The provisions of Chapter 110D of the Massachusetts General Laws shall not apply
to control share acquisitions of the Corporation.
Section 2. Redemption Procedure. If the provisions of Chapter 110D
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shall become applicable to control share acquisitions of the Corporation through
amendment of these By-Laws or otherwise, the following provisions shall apply:
a. The Corporation is authorized to redeem shares acquired in a control
share acquisition to the extent and in accordance with the procedures specified
in Section 6 of Chapter 110D and in this Article.
b. The additional procedures for redemption specified in this Article are
as follows:
(i) Fair value shall be determined by the Board of Directors or a
committee of the Board of Directors of the Corporation, and the amount so
determined shall be included in the notice of redemption given by the
Corporation pursuant to Section 6 of Chapter 110D.
(ii) The person whose shares are being redeemed (the "Holder") may
within ten days after the date of the notice of redemption advise the
Corporation in writing that the Holder believes that the value so
determined is not fair, and in that event the Corporation shall, within the
30-day period following its receipt of the Holder's notice, permit the
Holder to submit such written and oral evidence of value as the Holder may
wish and the Board of Directors or committee considers appropriate. The
Board of Directors or committee shall affirm or revise its determination of
fair value within fifteen days after the completion of the 30-day period,
and shall promptly advise the Holder in writing of its decision.
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(iii) The notice of redemption shall specify a redemption date, which
shall be 30 days after the date of the notice (or the first business day
after the 30-day period), and a redemption office, which shall be the
principal office of the Corporation or an office of a commercial bank
specified by the Corporation in the notice. The redemption date so fixed
shall not be deferred by a request of the Holder for a redetermination of
fair value. The Holder shall cause the certificate or certificates
representing the shares being redeemed to be delivered to the redemption
office not later than the redemption date, duly endorsed or assigned for
transfer, with signature guaranteed, if such an endorsement or assignment
is required in the notice of redemption.
(iv) The certificate or certificates representing the shares being
redeemed having been deposited in accordance with item (iii) above, the
redemption price shall be paid by the Corporation on the redemption date
specified in its notice of redemption or such later date as the redemption
price may be determined if the Holder has duly requested a redetermination
of fair value.
(v) Notice of redemption having been given, from and after the
redemption date the shares being redeemed shall no longer be deemed to be
outstanding, and all rights of the holder or holders thereof as a
stockholder or stockholders of the Corporation shall cease, except the
right to receive the redemption price. If the Corporation shall default in
payment of the redemption price, interest shall accrue thereon from the
date of default at the base or prime rate of the Corporation's principal
lending bank or if none, the base or prime rate of First National Bank of
Boston, as in effect from time to time during the period of default.
(vi) Notice given by the Corporation by first class mail or
delivered in person on the basis of a good faith determination by the
Corporation of the identity and address of the person who has made a
control shares acquisition shall be deemed to have been duly given.
(vii) Any person who makes a control share acquisition of the
Corporation shall be deemed to have consented to and shall be bound by the
provisions of the Section and shall indemnify and hold the Corporation
harmless from and against any damage, loss or expense which the Corporation
may suffer as a result of any . non-compliance with the provisions of this
Section.
References in this Section to Chapter 110D mean Chapter 110D of the
Massachusetts General Laws as in effect from time to time.
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ARTICLE VI. MISCELLANEOUS
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Section 1. Seal. The seal of the Corporation shall, subject to
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alteration by the Board of Directors, consist of a flat-faced circular die with
the word "Massachusetts", together with the name of the Corporation and the
year' of incorporation, cut or engraved thereon. An impression of the seal
impressed upon the original copy of these By-Laws shall be deemed conclusively
to be the seal adopted by the Board of Directors.
Section 2. Execution of Papers. Except as the Board of Directors may
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generally or in particular cases otherwise authorize or direct, all deeds,
leases, transfers, contracts, proposals, bonds, notes, checks, drafts and other
obligations made, accepted or endorsed by the Corporation shall be signed or
endorsed on behalf of the Corporation by its President, one of its Vice
Presidents or its Treasurer.
Section 3. Voting Stock in Other Corporations. Unless otherwise
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authorized or directed by the Board of Directors, the President or, in the case
of the absence or failure of the President to act, one of its Vice Presidents or
its Treasurer, shall have full power and authority on behalf of the Corporation
to attend and to act and to vote at any meetings of stockholders of any
corporation in which this Corporation may hold stock, and at any such meeting
shall possess and may exercise any and all rights and powers incident to the
ownership of such stock and which, as the owner thereof, the Corporation might
have possessed and exercised if present. The Board of Directors, by resolution
from time to time, or, in the absence thereof, the President, may confer like
powers upon any other person or persons as attorneys and proxies of the
Corporation.
Section 4. Fiscal Year. Except as from time to time provided by the
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Board of Directors, the fiscal year of the Corporation shall end on the Saturday
closest to the 31st of August of each year.
ARTICLE VII. AMENDMENTS
----------
These By-Laws may be altered, amended or repealed, in whole or in part, at
any time by vote of the stockholders. The Board of Directors, by a majority vote
of Directors at the time in office, may also alter, amend or repeal these By-
Laws in whole or in part, except with respect to any provision hereof which by
law, the Articles of Organization or these By-Laws requires action by the
stockholders; provided, however, that not later than the time of giving notice
of the meeting of stockholders next following the alteration, amendment or
repeal of these By-Laws, in whole or in part by the Board of Directors, notice
thereof, stating the substance of such action shall be given to all stockholders
entitled to vote on amending these By-Laws. By-Laws adopted by the Directors may
be amended or repealed by the stockholders.
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