AMENDED AND RESTATED
BY-LAWS
of
INDEPENDENT BANK CORP.
As Adopted by the Board on February 10, 2005
ARTICLE FIRST
The fiscal year of the corporation shall be the year ending with the last
day of December in each year.
ARTICLE SECOND
Stockholders
Section 1. Annual Meeting. The annual meeting of stockholders shall be
held on such date and at such hour as shall be fixed by the Directors or the
Chairman of the Board each year and stated in the notice of the meeting, which
date and hour may subsequently be changed at any time, including the year any
such determination occurs. The purposes for which the annual meeting is to be
held, in addition to those prescribed by law, by the Articles of Organization or
by these By-Laws, may be specified by the Directors or the President. If no
annual meeting is held in accordance with the foregoing provisions, a special
meeting may be held in lieu thereof, and any action taken at such meeting shall
have the same effect as if taken at the annual meeting.
Section 2. Special Meeting. Special meetings of the stockholders may be
called by the Chairman of the Board, if any, the President, or by a majority of
the Directors acting by vote or by written instrument or instruments signed by
such a majority of them. Special meetings of the stockholders shall be called by
the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk,
by any other officer, upon written application of one or more stockholders who
hold beneficially at least two-thirds of the capital stock of the Corporation
entitled to vote at the meeting, stating the time, place and purposes of the
meeting. No call of a special meeting of the stockholders shall be required if
such notice of the meeting shall have been waived either in writing or by a
telegram, or other means of electronic transmission, by every stockholder
entitled to notice thereof, or by his attorney thereunto authorized.
Section 3. Place of Meetings; Adjournments. All meetings of stockholders
shall be held at the principal office of the corporation unless a different
place (within the United States) is fixed by the Directors or the Chairman of
the Board and stated in the notice of the meeting, provided, that, when any
meeting is convened, the presiding officer, if directed by the Board of
Directors, may adjourn the meeting for a period of time not to exceed 30 days if
(a) no quorum is present for the transaction of business or (b) the Board of
Directors determines that adjournment is necessary or appropriate to enable the
stockholders (i) to consider fully information which the Board of Directors
determines has not been made sufficiently or timely available to stockholders
or (ii) otherwise to exercise effectively their voting rights. The presiding
officer in such event shall announce the adjournment and date, hour and place of
reconvening and shall cause notice thereof to be posted at the place of meeting
designated in the notice which was sent to the stockholders, and if such date is
more than 10 days after the original date of the meeting the Clerk shall give
notice thereof in the manner provided in Section 4 of this Article Second. In
addition to the foregoing procedures for adjournment, any meetings of the
stockholders may be adjourned in accordance with the procedures set forth in
Section 5 of this Article Second.
Section 4. Notices. Notice of all meetings of stockholders shall be given
as follows, to wit: - A written notice, stating the place, day and hour thereof,
shall be given by the Clerk or an Assistant Clerk or the person or persons
calling the meeting, at least seven days before the meeting, to each stockholder
entitled to vote thereat and to each stockholder who, by law, the Articles of
Organization, or these By-laws, is entitled to such notice, by leaving such
notice with him or his residence or usual place of business, or by mailing it,
postage prepaid, and addressed to such stockholder at his address as it appears
upon the books of the corporation. Notices of all meetings of stockholders shall
state the purposes for which the meetings are called. No notice need be given to
any stockholder if a waiver of notice in writing or by telegram, or other means
of electronic transmission, executed before or after the meeting by the
stockholder or his attorney thereunto authorized is filed with the records of
the meeting. It shall be the duty of every stockholder to furnish to the Clerk
of the corporation or to the transfer agent, if any, of the class of stock owned
by such stockholder, his or her post office address and to notify the Clerk or
the transfer agent of any change therein.
No business may be transacted at a meeting of the stockholders except that
which is (a) specified in the notice thereof given by or at the direction of the
Board of Directors or in a supplemental notice given by or at the direction of
the Board of Directors and otherwise in compliance with the provisions hereof,
(b) brought before the meeting by or at the direction of the Board of Directors
or the presiding officer or (c) properly brought before the meeting by or on
behalf of any stockholder who shall have been a stockholder of record at the
time of giving notice by such stockholder provided for in this paragraph and who
shall continue to be entitled at the time of such meeting to vote thereat and
who complies with the notice procedures set forth in this paragraph with respect
to any business sought to be brought before the meeting by or on behalf of such
stockholder other than the election of Directors and with the notice provisions
set forth in Section 3 of Article Third with respect to the election of
Directors. In addition to any other applicable requirements, for business to be
properly brought before a meeting by or on behalf of a stockholder (other than a
stockholder proposal included in the corporation's proxy statement pursuant to
Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), the stockholder must have given timely notice thereof in writing to the
Clerk of the corporation. In order to be timely given, a stockholder's notice
must be delivered to or mailed and received at the principal executive offices
of the corporation (a) not less than 75 nor more than 125 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders of
the corporation or (b) in the case of a special meeting or in the event that the
annual meeting is called for a date (including any change in a date determined
by the Board of Directors pursuant to Section 1 of this Article Second) more
than 75 days prior to such anniversary date, notice by the stockholder to be
timely given must be so received not later than the close of business on the
20th day following the date on which notice of the date of such meeting was
mailed or public disclosure of the date of such meeting was made, whichever
first
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occurs. Such stockholder's notice to the Clerk shall set forth as to each matter
the stockholder proposes to bring before the meeting (a) a brief description of
the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (b) the name and record address of the
stockholder proposing such business, (c) the class and number of shares of
capital stock of the corporation held of record, owned beneficially and
represented by proxy by such stockholder as of the record date for the meeting
(if such date shall then have been made publicly available) and as of the date
of such notice by the stockholder and (d) all other information which would be
required to be included in a proxy statement or other filings required to be
filed with the Securities and Exchange Commission if, with respect to any such
item of business, such stockholder were a participant in a solicitation subject
to Regulation 14A under the Exchange Act (the "Proxy Rules"). In the event the
proposed business to be brought before the meeting by or on behalf of a
stockholder relates or refers to a proposal or transaction involving the
stockholder or a third party which, if it were to have been consummated at the
time of the meeting, would have required of such stockholder or third party or
any of the affiliates of either of them any prior notification to, filing with,
or any orders or other action by, any governmental authority, then any such
notice to the Clerk shall be accompanied by appropriate evidence of the making
of all such notifications or filings and the issuance of all such orders and the
taking of all such actions by all such governmental authorities.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at any meeting except in accordance with the procedures set
forth in this Section 4; provided, however, that nothing in this Section 4 shall
be deemed to preclude discussion by any stockholder of any business properly
brought before such meeting.
The presiding officer of the meeting may, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the foregoing procedures, and if he or she should so
determine, he or she shall so declare to the meeting and that business shall be
disregarded.
Section 5. Quorum. At any meeting of stockholders a quorum for the
transaction of business shall consist of one or more individuals appearing in
person and/or as proxies and owning and/or representing a majority of the shares
of the corporation then outstanding and entitled to vote. Any meeting may be
adjourned from time to time by a majority of the votes properly cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
Section 6. Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote and a proportionate vote for any fractional
share entitled to vote, held by him of record according to the records of the
corporation, unless otherwise provided by the Articles of Organization.
Stockholders may vote either in person or by written proxy dated not more than
six months before the meeting named therein. Proxies shall be filed with the
Clerk or other person responsible for recording the proceedings before being
voted at any meeting or any adjournment thereof. Except as otherwise limited
therein, proxies shall entitle the persons named therein to vote at the meeting
specified therein and at any adjourned session of such meeting but shall not be
valid after final adjournment of the 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 corporation receives a specific
written notice to the contrary
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from any one of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to its exercise
and the burden of proving invalidity shall rest on the challenger.
Section 7. Action at Meeting. When a quorum is present, the action of the
stockholders on any matter properly brought before such meeting shall be decided
by the stockholders of a majority of the stock present or represented and
entitled to vote and voting on such matter, except where a different vote is
required by law, the Articles of Organization or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election. No ballot shall be required for
such election unless requested by a stockholder present or represented at the
meeting and entitled to vote in the election.
Section 8. Special Action. Any action to be taken by stockholders may be
taken without a meeting if all stockholders entitled to vote on the matter
consent to the action by a writing filed with the records of the meetings of
stockholders. Such consent shall be treated for all purposes as a vote at a
meeting.
Section 9. Record Date. The Directors may fix in advance a time which
shall be not more than sixty days prior to (a) the date of any meeting of
stockholders, (b) the date for the payment of any dividend or the making of any
distribution to stockholders, or (c) 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, 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 Directors may for any such
purposes close the transfer books for all or any part of such period.
ARTICLE THIRD
Directors
Section 1. Powers. The business of the corporation shall be managed by a
Board of Directors who shall have and may exercise all the powers of the
corporation except as otherwise reserved to the stockholders by law, by the
Articles of Organization or by these By-laws.
Section 2. Number; Term of office and Qualification.
(a) The number of Directors of the corporation shall be not less than
three nor more than twenty-five as shall be fixed within the limits provided by
the Articles of Organization, by vote of the Board of Directors taken at any
regular or special meeting thereof. Within the limits above specified, the Board
of Directors may at any meeting increase or decrease the number of Directors in
one or more classes as may be appropriate whenever it increases or decreases the
number of Directors in order to ensure that the three classes shall be as nearly
equal as possible.
The Directors other than those who may be elected by the holders of any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation
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("Preference Stock Directors") shall be classified with respect to the time for
which they severally hold office, into three classes, as provided by law or in
the Articles of Organization. At each annual meeting of stockholders of the
corporation, the successors of the class of Directors whose term expires at that
meeting shall be elected by the stockholders to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election and when their successors shall have been elected and
qualified. No Director shall continue to serve on the corporation's Board of
Directors once he or she attains the age of 72 years.
(b) Except for Preference Stock Directors, newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause, shall be filled by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board
of Directors. Any Director elected in accordance with the preceding sentence
shall hold office for the remainder of the full term of the class of Directors
in which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been elected and qualified. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of any incumbent Director.
Section 3. Nominating Committee; Nominations for Directors. Only persons
who are nominated in accordance with the following procedures shall be eligible
for election as Directors of the corporation, except as provided in the Articles
of Organization with respect to nominations by holders of preferred stock in
certain circumstances. Nominations of persons for election to the Board of
Directors at the annual meeting of stockholders may be made at the annual
meeting of stockholders (a) by the Board of Directors or at the direction of the
Board of Directors by any nominating committee or person appointed by the Board
of Directors or designated in the Articles of organization or these By-Laws or
(b) by any stockholder of record at the time of giving notice provided for in
this Section 3 and who shall continue to be entitled at the time of the meeting
to vote for the election of Directors at the meeting who complies with the
notice procedures set forth in this Section 3 rather than the notice procedures
with respect to other business set forth in Section 4 of Article Second.
Nominations by stockholders shall be made only after timely notice by such
stockholder in writing to the Clerk of the corporation. In order to be timely
given, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 75 nor more
than 125 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders of the corporation; provided, however, that in the event
that the meeting is called for a date, including any change in a date determined
by the Directors pursuant to Section 1 of Article Second, more than 75 days
prior to such anniversary date, notice by the stockholder to be timely given
must be so received not later than the close of business on the 20th day
following the day on which notice of the date of the meeting was mailed or
public disclosure of the date of the meeting was made, whichever first occurs.
Such stockholder's notice to the Clerk shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
Director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the corporation, if any, which
are beneficially owned by the person, (iv) any other information regarding the
nominee as would be required to be included in a proxy statement or other
filings required to be filed pursuant to the Proxy Rules, and (v) the consent of
each nominee to serve as a Director of
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the corporation if so elected; and (b) as to the stockholder giving notice, (i)
the name and record address of the stockholder, (ii) the class and number of
shares of capital stock of the corporation which are beneficially owned by the
stockholder as of the record date for the meeting (if such date shall then have
been made publicly available) and as of the date of such notice, (iii) a
representation that the stockholder intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice, (iv) a
representation that the stockholder (and any party on whose behalf or in concert
with whom such stockholder is acting) is qualified at the time of giving such
notice to have such individual serve as the nominee of such stockholder (and any
party on whose behalf or in concert with whom such stockholder is acting) if
such individual is elected, accompanied by copies of any notification or filings
with, or orders or other actions by, any governmental authority which are
required in order for such stockholder (and any party on whose behalf such
stockholder is acting) to be so qualified, (v) a description of all arrangements
or understandings between such stockholder and each such nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such stockholder and (vi) such other
information regarding such stockholder as would be required to be included in a
proxy statement or other filings required to be filed pursuant to the Proxy
Rules. The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility or qualification of such proposed nominee to serve as a Director. No
person shall be eligible for election as a Director unless nominated in
accordance with the procedures set forth herein.
The presiding officer of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
foregoing procedures, and if he or she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
Section 4. Election of Directors. At each meeting of the stockholders for
the election of Directors at which a quorum is present, the persons receiving a
plurality of the votes among the nominees for the vacancies then being filled
shall be the Directors. Such election shall be by ballot whenever requested by
any person entitled to vote at such meeting; but unless so requested, such
election may be conducted in any way approved at such meeting.
Section 5. Removal of Directors. Subject to the provisions of the Articles
of Organization, any Director may be removed, but only for cause and by the
affirmative vote of the holders of a majority of all the shares of the
corporation outstanding and then entitled to vote generally in the election of
Directors.
Section 6. Annual Meeting. Immediately after each annual meeting of
stockholders, or the special meeting held in lieu thereof, and at the place
thereof, if a quorum of the Directors elected at such meeting were present
thereat, there shall be a meeting of the Directors without notice; but if such a
quorum of the Directors elected thereat were not present at such meeting, or if
present do not proceed immediately thereafter to hold a meeting of the
Directors, the annual meeting of the Directors shall be called in the manner
hereinafter provided with respect to the call of special meetings of Directors.
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Section 7. Regular Meetings. Regular meetings of the Directors may be held
at such times and places as shall from time to time be fixed by resolution of
the Board and no notice need be given of regular meetings held at times and
places so fixed, PROVIDED, HOWEVER, that any resolution relating to the holding
of regular meetings shall remain in force only until the next annual meeting of
stockholders, or the special meeting held in lieu thereof, and that if at any
meeting of Directors at which a resolution is adopted fixing the times or place
or places for any regular meetings any Director is absent, no meeting shall be
held pursuant to such resolution until either each such absent Director has in
writing or by telegram, or other means of electronic transmission, approved the
resolution or seven days have elapsed after a copy of the resolution certified
by the Clerk has been mailed, postage prepaid, addressed to each such absent
Director at his last known home or business address.
Section 8. Special Meetings. Special meetings of the Directors may be
called by the Chairman of the Board, by the President or by the Treasurer or by
any two Directors and shall be held at the place designated in the call thereof.
Section 9. Notices. Notices of any special meeting of the Directors shall
be given by the Clerk or any Assistant Clerk to each Director, by mailing to
him, postage prepaid, to the address, as registered on the books of the
corporation, or if not so registered at his last known home or business address,
a written notice of such meeting at least four days before the meeting or by
delivering such notices to him at least forty-eight hours before the meeting or
by sending to him at least forty-eight hours before the meeting, by prepaid
telegram, by facsimile, by email, or by other means of electronic transmission,
addressed to him at such address, facsimile number, email address or other
electronic contact information, as registered on the books of the corporation,
notice of such meeting. If the Clerk refuses or neglects for more than
twenty-four hours after receipt of the call to give notice of such special
meeting, or if the office of Clerk is vacant or the Clerk is absent from the
Commonwealth of Massachusetts, or incapacitated, such notice may be given by the
officer or one of the Directors calling the meeting. Notice need not be given to
any Director if a waiver of notice in writing or by electronic transmission,
executed by him before or after the meeting, is filed with the records of the
meeting, or to any Director who is present in person at the meeting without
protesting prior thereto or at its commencement the lack of notice to him. A
notice or waiver of notice of a Directors' meeting need not specify the purposes
of the meeting.
Section 10. Quorum. At any meeting of the Directors a majority of the
number of Directors required to constitute a full Board, as fixed in or
determined pursuant to these By-laws as then in effect, shall constitute a
quorum for the transaction of business. Whether or not a quorum is present, any
meeting may be adjourned from time to time by a majority of the votes properly
cast upon the question and the meeting may be held as adjourned without further
notice.
Section 11. Action at Meeting. Except as otherwise provided herein or in
the Articles of organization, at any meeting of the Directors at which a quorum
is present, the action of the Directors on any matter brought before the meeting
shall be decided by the vote of a majority of those present and voting, unless a
different vote is required by law, the Articles of Organization, or these
By-laws.
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Section 12. Participation by Telephone at a Meeting. Any Director or
member of any committee designated by the Directors may participate in a meeting
of the Directors or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at a meeting for all purposes, including,
without limitation, for purposes of Sections 9, 10, 11 and 14 of this Article.
Section 13. Special Action. Any action by the Directors may be taken
without a meeting if a written consent thereto is signed by all the Directors
and filed with the records of the Directors' meetings. Such consent shall be
treated as a vote of the Directors for all purposes.
Section 14. Committees. The Directors may, by vote of a majority of the
number of Directors required to constitute a full Board as fixed in or
determined pursuant to these By-laws as then in effect, elect from their number
an executive or other committees and may by like vote delegate thereto some or
all of their powers except those which by law, the Articles of organization or
these By-laws they are prohibited from delegating. Except as the Directors may
otherwise determine, any such committee may make rules for the conduct of its
business, but unless otherwise provided by the Directors or in such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these By-laws for the Directors.
Section 15. Honorary Directors. The Board of Directors may include such
number of honorary directors among the Board of Directors as shall be fixed from
time to time by the Board of Directors. Honorary directors shall be elected and
removed in the same manner and shall have the same tenure of office as other
Directors in their classification as determined by the Board of Directors.
Honorary directors shall not be included in any calculation to determine a
quorum of Directors for transaction of business at a meeting. The Board of
Directors shall fix from time to time the compensation to be paid, if any, to
honorary directors by a vote of a majority of the Board of Directors. Honorary
directors shall not be entitled to vote on or consent to any matters on or to
which Directors shall vote or consent but shall otherwise enjoy all privileges
of Directors.
ARTICLE FOURTH
Officers
Section 1. Enumeration. The officers of the corporation shall be a Chief
Executive Officer, a President, a Treasurer, a Clerk, and a Chairman of the
Board and such Vice Chairmen of the Board, Vice Presidents, Assistant
Treasurers, Assistant Clerks, and other officers as may from time to time be
determined by the Directors.
Section 2. Election. The Chairman of the Board, Chief Executive Officer,
President, Treasurer and Clerk shall be elected annually by the Directors at
their first meeting following the annual meeting of stockholders, or the special
meeting held in lieu thereof. Other officers may be chosen by the Directors.
Section 3. Qualification. Any officer may, but need not be, a Director or a
stockholder. Any two or more offices may be held by the same person. The Clerk
shall be a
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resident of Massachusetts unless the corporation has a resident agent appointed
for the purpose of service process. Any officer may be required by the Directors
to give bond for the faithful performance of his duties to the corporation in
such amount and with such sureties as the Directors may determine.
Section 4. Tenure. Except as otherwise provided by law, by the Articles of
organization or by these By-laws, the Chairman of the Board, Chief Executive
Officer, President, Treasurer and Clerk shall hold office until the first
meeting of the Directors following the annual meeting of stockholders, or the
special meeting held in lieu thereof, and thereafter until his successor is
chosen and qualified. Other officers shall hold office until the first meeting
of the Directors following the annual meeting of stockholders, or the special
meeting held in lieu thereof, unless a shorter term is specified in the vote
choosing or appointing them. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Clerk, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
Section 5. Removal. The Directors may remove any officer with or without
cause by a vote of a majority of the entire number of Directors then in office,
provided, that an officer may be removed for cause only after reasonable notice
and opportunity to be heard by the Board of Directors prior to action thereon.
Section 6. Chief Executive Officer. The Board shall designate which
officer shall serve as the Chief Executive Officer, who shall have the primary
authority among the officers of the corporation for the conduct of the business
and affairs of the corporation, subject always to the control and direction of
the Board of Directors. It shall be the duty of the Chief Executive Officer and
he or she shall have the power to see that all orders and resolutions of the
Directors are carried into effect. The Chief Executive Officer, as soon as
reasonably possible after the close of each fiscal year, shall submit to the
Directors a report of the operations of the corporation for such year and a
statement of its affairs and shall from time to time report to the Directors all
matters within his or her knowledge which the interests of the corporation may
require to be brought to its notice.
Section 7. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the stockholders and at all meetings of the Directors. The
Chairman of the Board shall perform such other duties and have such other powers
as the Directors may designate. The Chairman of the Board may also be the Chief
Executive Officer of the corporation.
Section 8. President. In the absence of the Chairman of the Board, the
President shall preside at all stockholders' meetings. The President shall
perform such other duties and have such other powers as the Directors may
designate.
Section 9. Vice Chairman of the Board. Each Vice Chairman of the Board
shall have such powers and perform such duties as the Directors shall from time
to time designate.
Section 10. Treasurer. The Treasurer shall keep full and accurate accounts
of receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as shall be
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designated by the Directors or in the absence of such designation in such
depositories as he shall from time to time deem proper. He shall disburse the
funds of the corporation as shall be ordered by the Directors, taking proper
vouchers for such disbursements. He shall promptly render to the Chief Executive
Officer and to the Directors such statements of his transactions and accounts as
the Chief Executive Officer and Directors respectively may from time to time
require. The Treasurer shall perform such duties and have such powers additional
to the foregoing as the Directors may designate and shall report to the Board of
Directors.
Section 11. Assistant Treasurers. In the absence or disability of the
Treasurer, his powers and duties shall be performed by the Assistant Treasurer,
if only one, or, if more than one, by the one designated for the purpose by the
Directors. Each Assistant Treasurer shall have such other powers and perform
such other duties as the Directors shall from time to time designate.
Section 12. Clerk/Secretary. The Clerk shall record in books kept for the
purposes all votes and proceedings of the stockholders and, if there be no
Secretary or Assistant Secretary, the Clerk may be referred to as Secretary and
shall record as aforesaid all votes and proceeding of the Directors at their
meetings. Unless the Directors shall appoint a transfer agent and/or registrar
or other officer or officers for the purpose, the Clerk shall be charged with
the duty of keeping, or causing to be kept, accurate records of all stock
outstanding, stock certificates issued and stock transfers; and, subject to such
other or different rules as shall be adopted from time to time by the Directors,
such records may be kept solely in the stock certificate books. The Clerk shall
perform such duties and have such powers additional to the foregoing as the
Directors shall designate.
Section 13. Assistant Clerks. In the absence or disability of the Clerk or
in the event of a vacancy in such office, the Assistant Clerk, if one be
elected, or, if there be more than one, the one designated for the purpose by
the Directors, shall perform the duties of the Clerk. Each Assistant Clerk shall
have such other powers and perform such other duties as these By-laws may
provide or as the Directors may from time to time designate. A temporary Clerk
designated by the person presiding shall perform the duties of the Clerk in the
absence of the Clerk and Assistant Clerks from any meeting of stockholders or
Directors.
Section 14. Secretary and Assistant Secretaries. If a Secretary is
elected, he shall keep a record of the meetings of the Directors and in his
absence, an Assistant Secretary, if one be elected, or, if there be more than
one, the one designated for the purpose by the Directors, otherwise the
Clerk/Secretary, or, in his absence, a Temporary Clerk/Secretary designated by
the person presiding at the meeting, shall perform the duties of the Secretary.
Each Assistant Secretary shall have such other powers and perform such other
duties as the Directors may from time to time designate.
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ARTICLE FIFTH
Provisions Relating to Capital Stock
Section 1. Unissued Stock. Subject to such limitations as may be contained
in the Articles of Organization of the corporation, the Board of Directors shall
have the authority to issue from time to time the whole or any part of any
unissued balance of the authorized stock of the corporation to such persons, for
such consideration, whether cash, property, services or expenses, and on such
terms as the Directors may from time to time determine without first offering
the same for subscription to stockholders of the corporation.
Section 2. Certificates of Stock. Each stockholder shall be entitled to a
certificate or certificates representing in the aggregate the shares owned by
him and certifying the number and class thereof, which shall be in such form as
the Directors shall adopt. Each certificate of stock shall be signed by the
President or a vice President and by the Treasurer or an Assistant Treasurer,
but when a certificate is countersigned by a transfer agent or a registrar,
other than a Director, officer or employee of the corporation, such signatures
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the time of its issue. Every
certificate for shares of stock which are subject to any restriction on transfer
pursuant to the Articles of Organization, the By-laws or any agreement to which
the corporation is a party, shall have the restriction noted conspicuously on
the certificate and shall also set forth on the face or back either the full
text of the restriction or a statement of the existence of such restriction and
a statement that the corporation will furnish a copy to the holder of such
certificate upon written request and without charge. Every certificate issued
when the corporation is authorized to issue more than one class or series of
stock shall set forth on its face or back either the full text of the
preferences, voting powers, qualifications and special and relative rights of
the shares of each class and series authorized to be issued or a statement of
the existence of such preferences, powers, qualifications and rights, and a
statement that the corporation will furnish a copy thereof to the holder of such
certificate upon written request and without charge.
Section 3. Transfer of Stock. The stock of the corporation shall be
transferable, so as to affect the rights of the corporation, only by transfer
recorded on the books of the corporation, in person or by duly authorized
attorney, and upon the surrender of the certificate or certificates properly
endorsed or assigned.
Section 4. Equitable Interests Not Recognized. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact hereof and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person
except as may be otherwise expressly provided by law.
Section 5. Lost or Destroyed Certificates. The Directors of the
corporation may, subject to Massachusetts General Laws, Chapter 106 Section
8-405, as amended from time to time, determine the conditions upon which a new
certificate of stock may be issued in place of any certificate alleged to have
been lost, destroyed, or mutilated.
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Section 6. Control Share Acquisitions. Until such time as this Section 6
shall be repealed or these By-Laws shall be amended to provide otherwise, in
each case in accordance with Article Tenth of the By-Laws, the provisions of
Chapter 110D of the Massachusetts General Laws shall not apply to "control share
acquisitions" of the corporation within the meaning of said Chapter 110D.
ARTICLE SIXTH
Stock in Other Corporation
Except as the Directors may otherwise designate, the Chief Executive
Officer may waive notice of, and appoint any person or persons to act as proxy
or attorney in fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this corporation.
ARTICLE SEVENTH
[Intentionally Omitted]
ARTICLE EIGHTH
Checks, Notes, Drafts and Other Instruments
Checks, notes, drafts and other instruments for the payment of money drawn
or endorsed in the name of the corporation may be signed by any officer or
officers or person or persons authorized by the Directors to sign the same. No
officer or person shall sign such instrument as aforesaid unless authorized by
the Directors to do so.
ARTICLE NINTH
Seal
The seal of the corporation shall be circular in form, bearing its name,
the word "Massachusetts", and the year of its incorporation. The Clerk or any
Assistant Clerk may affix the seal (as may any other officer if authorized by
the Directors) to any instrument requiring the corporate seal.
ARTICLE TENTH
Amendments
These By-laws may at any time be amended by the stockholders provided that
notice of the substance of the proposed amendment is stated in the notice of the
meeting. If authorized by the Articles of Organization, the Directors may also
make, amend, or repeal these By-laws in whole or in part, except with respect to
any provision thereof which by law, the Articles of organization, or these
By-laws requires action by the stockholders. Not later than the time of giving
notice of the meeting of stockholders next following the making, amending or
repealing
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by the Directors of any By-law, notice thereof stating the substance of such
change shall be given to all stockholders entitled to vote on amending the
By-laws. Any By-laws adopted by the Directors may be amended or repealed by the
stockholders.
ARTICLE ELEVENTH
Transactions With Related Parties
The corporation may enter into contracts or transact business with one or
more of its Directors, officers, or stockholders or with any corporation,
association, trust company, organization or other concern in which any one or
more of its Directors, officers or stockholders are Directors, officers,
trustees, shareholders, beneficiaries or stockholders or otherwise interested
and other contracts or transactions in which any one or more of its Directors,
officers or stockholders is in any way interested; and in the absence of fraud,
no such contract or transaction shall be invalidated or in any way affected by
the fact that such Directors, officers or stockholders of the corporation have
or may have interests which are or might be adverse to the interest of the
corporation even though the vote or action of Directors, officers or
stockholders having such adverse interests may have been necessary to obligate
the corporation upon such contract or transaction. At any meeting of the Board
of Directors of the corporation (or any duly authorized committee thereof) which
shall authorize or ratify any such contract or transaction, any such Director or
Directors, may vote or act thereat with like force and effect as if he had no
such interest, provided, in such case the nature of such interest (though not
necessarily the extent or details thereof) shall be disclosed or shall have been
known to the Directors or a majority thereof. A general notice that a Director
or officer is interested in any corporation or other concern of any kind above
referred to shall be a sufficient disclosure as to such Director or officer with
respect to all contracts and transactions with such corporation or other
concern. No Director shall be disqualified from holding office as Director or
officer of the corporation by reason of any such adverse interests. In the
absence of fraud, no Director, officer or stockholder having such adverse
interest shall be liable to the corporation or to any stockholder or creditor
thereof or to any other person for any loss incurred by it under or by reason of
such contract or transaction, nor shall any such Director, officer or
stockholder be accountable for any gains or profits realized thereon.
ARTICLE TWELFTH
Indemnification of Directors, Officers and Others
Section 1. Limitation On Liability of Directors and Officers.
(a) Except as otherwise provided in these By-laws or the Articles of
Organization, a Director or Officer of this Corporation shall not be personally
liable to this Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director or Officer notwithstanding any statutory
provision or other law imposing such liability, provided, however, that this
provision shall not eliminate or limit the liability of a Director or Officer
(i) for any breach of the Director's or Officer's duty of loyalty to this
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
improper distributions under Section 6.40 of Chapter 156D of the
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General Laws of Massachusetts, or (iv) for any transaction from which the
Director or Officer derived an improper personal benefit, it being the intention
of this provision to limit the liability of a Director or Officer to the maximum
extent allowed by law. If the Massachusetts Business Corporation Act hereafter
is amended to authorize the further elimination of, or limitation on, the
liability of directors or officers, then the liability of a Director or Officer
of this Corporation, in addition to the limitation of personal liability
provided herein, shall be limited to the fullest extent permitted by such
amendment or amendments. Any repeal or modification of this provision by the
stockholders of this Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a Director or
Officer of this Corporation existing at the time of such repeal or modification.
(b) A Director's or Officer's conduct with respect to an employee benefit
plan for a purpose he or she reasonably believed to be in the interests of the
participants in, and the beneficiaries of, the plan is conduct that satisfies
the requirement that his or her conduct was at least not opposed to the best
interests of the Corporation.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent, is not, of
itself, determinative that the Director or Officer did not meet the relevant
standard of conduct described in this Section.
(d) Unless ordered by a court, the Corporation may not indemnify a
Director or Officer under this Section if his or her conduct did not satisfy the
standards set forth in subsection (a) or subsection (b).
Section 2. Advance for Expenses. The Corporation shall, before final
disposition of a proceeding, advance funds to pay for or reimburse the
reasonable expenses incurred by a Director or Officer who is a party to a
proceeding because he or she is a Director or Officer if he or she delivers to
the Corporation:
(a) a written affirmation of his or her good faith belief that he or she
has met the relevant standard of conduct described in Section 1 or that the
proceeding involves conduct for which liability has been eliminated under a
provision of the By-laws or Articles of Organization as authorized by Section
2.02(b)(4) of chapter 156D or any successor provision to such Section; and
(b) his or her written undertaking to repay any funds advanced if he or
she is not wholly successful, on the merits or otherwise, in the defense of such
proceeding and it is ultimately determined pursuant to Section 3 or by a court
of competent jurisdiction that he or she has not met the relevant standard of
conduct described in Section 1. Such undertaking must be an unlimited obligation
of the Director or Officer but need not be secured and shall be accepted without
reference to the financial ability of the Director or Officer to make repayment.
Section 3. Determination of Indemnification. The determination of whether
a Director or Officer has met the relevant standard of conduct set forth in
Section 1 shall be made:
(a) if there are two or more disinterested Directors, by the Board of
Directors by a majority vote of all the disinterested Directors, a majority of
whom shall for such purpose
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constitute a quorum, or by a majority of the members of a committee of two or
more disinterested Directors appointed by vote;
(b) by special legal counsel (1) selected in the manner prescribed in
clause (a); or (2) if there are fewer than two disinterested Directors, selected
by the Board of Directors, in which selection Directors who do not qualify as
disinterested Directors may participate; or
(c) by the shareholders, but shares owned by or voted under the control of
a Director who at the time does not qualify as a disinterested Director may not
be voted on the determination.
Section 4. Notification and Defense of Claim; Settlements.
(a) In addition to and without limiting the foregoing provisions of this
Article Twelfth and except to the extent otherwise required by law, it shall be
a condition of the Corporation's obligation to indemnify under Section 1 (in
addition to any other condition provide in the By-laws or by law) that the
person asserting, or proposing to assert, the right to be indemnified, must
notify the Corporation in writing as soon as practicable of any action, suit,
proceeding or investigation involving such person for which indemnity will or
could be sought, but the failure to so notify shall not affect the Corporation's
objection to indemnify except to the extent the Corporation is adversely
affected thereby. With respect to any proceeding of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to such person. After notice from the Corporation
to such person of its election so to assume such defense, the Corporation shall
not be liable to such person for any legal or other expenses subsequently
incurred by such person in connection with such action, suit, proceeding or
investigation other than as provided below in this subsection (a). Such person
shall have the right to employ his or her own counsel in connection with such
action, suit, proceeding or investigation, but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of such person unless (1) the employment
of counsel by such person has been authorized by the Corporation, (2) counsel to
such person shall have reasonably concluded that there may be a conflict of
interest or position on any significant issue between the Corporation and such
person in the conduct of the defense of such action, suit, proceeding or
investigation or (3) the Corporation shall not in fact have employed counsel to
assume the defense of such action, suit, proceeding or investigation, in each of
which cases the fees and expenses of counsel for such person shall be at the
expense of the Corporation, except as otherwise expressly provided by this
Article Twelfth . The Corporation shall not be entitled, without the consent of
such person, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for such person shall have reasonably
made the conclusion provided for in clause (2) above.
(b) The Corporation shall not be required to indemnify such person under
this Article Twelfth for any amounts paid in settlement of any proceeding unless
authorized in the same manner as the determination that indemnification is
permissible under Section 3, except that if there are fewer than two
disinterested Directors, authorization of indemnification shall be made by the
Board of Directors, in which authorization Directors who do not qualify as
disinterested directors may participate. The Corporation shall not settle any
action, suit, proceeding or
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investigation in any manner which would impose any penalty or limitation on such
person without such person's written consent. Neither the Corporation nor such
person will unreasonably withhold their consent to any proposed settlement.
Section 5. Insurance. The Corporation may purchase and maintain insurance
on behalf of an individual who is a Director or Officer of the Corporation, or
who, while a Director or Officer of the Corporation, serves at the Corporation's
request as a director, officer, partner, trustee, employee, or agent of another
domestic or foreign corporation, partnership, joint venture, trust, employee
benefit plan, or other entity, against liability asserted against or incurred by
him or her in that capacity or arising from his or her status as a Director or
Officer, whether or not the Corporation would have power to indemnify or advance
expenses to him or her against the same liability under this Article Twelfth.
Section 6. Application of Article Twelfth.
(a) The Corporation shall not be obligated to indemnify or advance
expenses to a Director or Officer of a predecessor of the Corporation,
pertaining to conduct with respect to the predecessor, unless otherwise
specifically provided.
(b) This Article Twelfth shall not limit the Corporation's power to (1)
pay or reimburse expenses incurred by a Director or an Officer in connection
with his or her appearance as a witness in a proceeding at a time when he or she
is not a party or (2) indemnify, advance expenses to or provide or maintain
insurance on behalf of an employee or agent.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article Twelfth shall not be considered exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled.
(d) Each person who is or becomes a Director or Officer shall be deemed to
have served or to have continued to serve in such capacity in reliance upon the
indemnity provided for in this Article Twelfth. All rights to indemnification
under this Article Twelfth shall be deemed to be provided by a contract between
the Corporation and the person who serves as a Director or Officer of the
Corporation at any time while this Article Twelfth and the relevant provisions
of chapter 156D are in effect. Any repeal or modification thereof shall not
affect any rights or obligations then existing.
(e) The Corporation may, upon the affirmative vote of a majority of the
Directors then in office, indemnify or advance expenses to any person who has
served at its request as a Director, trustee, officer, employee or other agent
of another organization, or at its request in any capacity with respect to any
employee benefit plan.
(f) If the laws of the Commonwealth of Massachusetts are hereafter amended
from time to time to increase the scope of permitted indemnification,
indemnification hereunder shall be provided to the full extent permitted or
required by any such amendment.
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