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EXHIBIT 3.1
As amended through
October 27, 1994.
BAYBANKS, INC.
BY-LAWS
ARTICLE I
OFFICERS: ELECTION, POWERS AND DUTIES
SECTION 1. OFFICERS. The officers of the Company shall
be a President, a Treasurer, a Clerk, a Board of Directors,
as hereinafter provided for, and if deemed expedient by the
Board of Directors, a Chairman of said Board, an Executive
Committee of said Board, and such other officers as the Board
of Directors may elect or appoint. So far as permitted by
law, the same person may simultaneously occupy more than one
office, but no officer shall execute, acknowledge, or verify
any instrument in more than one capacity if such instrument
is required by law to be executed, acknowledged or verified
by two or more officers.
SECTION 2. Terms: VACANCIES. All officers other than Directors
shall hold office for the term of one year and until their successors are
chosen and qualified. In case a vacancy shall occur from any cause in any
office or in the Board of Directors, the Board of Directors (or the remaining
Directors, although less than a quorum) may by a majority vote fill such
vacancy. An officer or Director so elected to fill such vacancy shall hold
office only until the next meeting of the stockholders or Directors at which
the office would regularly be filled and until a successor is chosen and
qualified.
SECTION 3. REMOVAL. Any officer or Director may for cause, and any
officer elected or appointed by the Board of Directors may for or without
cause, be removed at any time by a majority vote of the Board. Any officer or
any Director whom the stockholders have power to elect may be removed for or
without cause at any regular meeting of the stockholders, or at any special
meeting of the stockholders called for the purpose, by a vote of the holders of
a majority of a quorum of the stock outstanding and entitled to vote. An
officer or Director may be removed for cause only after reasonable notice and
opportunity to be heard before the body proposing to remove him.
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SECTION 4. RESIGNATION. Any officer or Director or
member of the Executive Committee may at any time by
resignation in writing delivered to the Company resign his
office and an acceptance thereof shall not be necessary to
make said resignation effective unless so stated in the
resignation.
SECTION 5. BOARD OF DIRECTORS. From and after the 1945 annual meeting
of stockholders or any meeting of stockholders held in lieu thereof until the
1948 annual meeting of stockholders or any meeting of stockholders held in lieu
thereof, the Board of Directors shall consist of nine (9) members, including
the Chairman of said Board if one be then in office. At the 1945 annual
meeting of the stockholders or at any meeting of the stockholders held in lieu
thereof three Directors shall be elected to hold office for the term of one
year and until their respective successors are chosen and qualified, three
Directors shall be elected to hold office for the term of two years and until
their respective successors are chosen and qualified and three Directors shall
be elected to hold office for the term of three years and until their
respective successors are chosen and qualified. Subsequent to 1945 and prior
to 1948 the stockholders shall annually reelect, or elect successors to, those
Directors whose terms then expire, to hold office for the term of three (3)
years and until their respective successors are chosen and qualified.
Beginning with the 1948 annual meeting of stockholders, or with any meeting of
stockholders held in lieu thereof, and until the 1984 annual meeting of
stockholders, or any meeting of stockholders held in lieu thereof, the Board of
Directors shall consist of eleven (11) members, including the Chairman of said
Board if one be then in office. At the 1948 annual meeting of stockholders, or
at any meeting of stockholders held in lieu thereof, the stockholders shall
reelect, or elect successors to those Directors whose terms then expire to hold
office for the term of three (3) years and until their respective successors
are chosen and qualified, and shall elect two (2) additional Directors, one (1)
to hold office for the term of three (3) years and until his successor is
chosen and qualified, and the other to hold office for the term of two (2)
years and until his successor is chosen and qualified. Beginning with the 1984
annual meeting of stockholders, or with any meeting of stockholders held in
lieu thereof, and continuing thereafter the Board of Directors shall consist of
twelve (12) members, including the Chairman of said Board if one be then in
office. At the 1984 annual meeting of stockholders, or at any meeting of the
stockholders held in lieu thereof, the stockholders shall reelect, or elect
successors to, those Directors whose terms then expire to hold office for the
term of three (3) years and until their respective successors are chosen and
qualified, and shall elect one (1) additional
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Director to hold office for the term of one (1) year and until his successor is
chosen and qualified. Subsequent to 1984 the stockholders shall annually
reelect, or elect successors to, those Directors whose terms then expire,
to hold office for the term of three (3) years and until their respective
successors are chosen and qualified. Directors need not be stockholders of the
corporation.
The Board of Directors shall have the general management and control
of all the property and affairs of the Company and shall exercise all the
powers of the Company except such as are conferred by law, by the Articles of
Organization of the Company as the same may be from time to time amended, or by
these By-Laws upon the stockholders. Without limiting the generality of the
foregoing, the Board of Directors shall have full power to fix the compensation
of all officers, agents and attorneys of the Company and to provide such fees
or other compensation to Directors for their services to the Company as said
Board may deem reasonable.
The Board of Directors shall have power and authority to make
contributions, in such amounts as the Board of Directors may determine to be
reasonable, to corporations, trusts, funds or foundations organized and
operated exclusively for charitable, scientific or educational purposes, no
part of the net earnings of which inures to the benefit of any private
shareholder or individual, provided that such contributions in any fiscal year
shall not in the aggregate exceed one-half of one percent of the capital and
surplus of the Company as of the end of the preceding fiscal year. Nothing in
this paragraph shall be construed as directly or indirectly restricting or
otherwise affecting, except as herein provided, the rights and powers of the
Company with reference to payments of the nature above specified.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the
Board of Directors, if there be one, shall be elected
annually by and from the Board and shall preside at all
meetings of the stockholders and Directors at which he shall
be present. When so designated by the Board of Directors, he
shall be the chief executive officer of the Company and, if
so designated, shall have general charge and control of all
its affairs, subject to the supervision of the Board.
SECTION 7. EXECUTIVE COMMITTEE. The Board of Directors
may elect at any time from its members an Executive Committee
which shall have and may exercise such powers (which may
include powers vested in the Board of Directors) as are
delegated (to the extent permitted by law) to the Executive
Committee by the Board of Directors.
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The members of the Executive Committee shall hold office
subject to the pleasure of the Board of Directors, and the
Board may at any time remove one or more members of said
Committee and elect as aforesaid another person in lieu of
any member so removed. The Board of Directors may also
designate one or more Directors as alternate members of the
Executive Committee, who may replace any absent member at any
meeting of such Committee.
SECTION 8. PRESIDENT. The President shall be annually elected by and
from the Board of Directors. He shall be the chief executive officer of the
Company and, subject to the supervision of the Board, shall have general charge
and control of all the affairs of the Company, unless the Board of Directors
shall have designated the Chairman of the Board as the chief executive officer
of the Company. He shall have such other powers and be charged with such other
duties as the Board may prescribe. In the absence of a Chairman of the Board
of Directors, he shall preside at all meetings of the stockholders and
Directors at which he shall be present.
SECTION 9. VICE PRESIDENT. The Vice President, if there be one, shall
be elected by, but not necessarily from, the Board of Directors. Unless his
authority is expressly limited, he shall have such powers and be charged with
such duties including any and all of the powers and duties of the President as
the Board may prescribe.
The Board of Directors may elect other Vice Presidents
and may establish the powers and duties to be exercised by
each.
SECTION 10. TREASURER. The Treasurer, who shall be
annually elected by the Board of Directors, shall keep or
cause to be kept regular books of account which shall be open
at all times to any Director, and shall report to the Board
of Directors on the financial condition of the Company. He
shall have the custody of the corporate seal, of all
documents of title and valuable papers, and, unless and until
the same be delegated by the Board of Directors to a Transfer
Agent, of the stock and transfer books of the Company.
Subject to the supervision and control of the Board of
Directors, he shall receive and disburse the funds of the
Company and shall borrow money on its behalf.
One or more Assistant Treasurers may from time to time be appointed by
the Board of Directors, with such powers and duties, including any or all of
the powers and duties of the Treasurer, as the Board may prescribe.
SECTION 11. CLERK. The Clerk, who shall be a resident
of the Commonwealth of Massachusetts, shall be annually
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elected by the Board of Directors, shall attend all meetings of the
stockholders and Board of Directors, shall keep minutes of the business
transacted thereat, and shall see to the giving and serving of notice of all
meetings of the stockholders. One or more Assistant Clerks may from time to
time be appointed by the Board of Directors, with such powers and duties,
including any or all of the powers and duties of the Clerk as the Board may
prescribe.
SECTION 12. MISCELLANEOUS DUTIES AND POWERS. In addition to the
foregoing especially enumerated duties and powers, the several officers of the
Company shall be charged with such other duties and shall have such other
powers as may be delegated to them by the Board of Directors or may be imposed
upon them by law.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held in every year on the fourth Thursday in April (or if that day falls on a
legal holiday on the next succeeding business day, other than a Saturday) at
the principal office of the Company within the Commonwealth at 10:00 o'clock
A.M., or on such other date within six months after the end of the fiscal year
of the Company or at such other hour or place as the Directors shall determine.
In lieu of the annual meeting, a special meeting may be held either before or
after the date specified in this section for the annual meeting, such special
meeting to be called by the President or the Directors and held in the same
manner as provided for special meetings of stockholders set forth in Section 2
of this Article II. The purposes for which an annual meeting or special
meeting in lieu thereof is to be held shall only be those prescribed by law, by
the Articles of Organization, or by these By-Laws and those that are specified
by the Board of Directors.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders may
be called at any time by the President or by the Directors, and shall be called
by the Clerk, or in the case of his death, absence, incapacity, or refusal, by
any other officer upon written application of stockholders who hold at least
sixty-six and two-thirds percent (or, to the extent legally required, the
maximum lesser percentage permitted by law, but in no case less than forty
percent) in interest of the capital stock entitled to vote at such meeting,
stating the time, place, and purposes of the meeting. Special meetings of
stockholders may be held at such hour and such place within the Commonwealth of
Massachusetts as shall be fixed by the Board of Directors, provided that if the
Board of Directors shall not fix the hour and place of any special meeting it
shall be held at 10:30
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o'clock A.M. at the principal office of the Company within the Commonwealth.
SECTION 3. NOTICE. A written or printed notice of any meeting of the
stockholders, stating the place, day, hour, and purposes thereof, shall be
given by the Clerk, or, in the case of his death, absence, incapacity or
refusal, by a person designated by the Board of Directors or Executive
Committee, at least seven (7) days before the date of the meeting to each
stockholder entitled to vote thereat or entitled to receive notice thereof by
leaving such notice with the stockholder or at his residence or usual place of
business or by mailing the same, postage prepaid, directed to him at his
address as last recorded on the books of the Company. Whenever notice of a
meeting is required to be given a stockholder under any provisions of the
General Laws of the Commonwealth of Massachusetts or of the Company's Articles
of Organization or By-Laws, a written waiver thereof, executed before or after
the meeting by such stockholder or his attorney thereunto authorized and filed
with the records of the meeting, shall be deemed equivalent to such notice.
SECTION 4. QUORUM, ADJOURNMENT, AND CANCELLATION. A majority in
interest of the capital stock outstanding and at the time entitled to vote
represented at a meeting in person or by proxy shall constitute a quorum for
the transaction of business; but less than a quorum may adjourn or dissolve a
meeting which has been called. The vote of a majority of any quorum shall be
sufficient to elect Directors and transact any business, except as a larger
vote may be required or a lesser vote may be permitted by the provisions of the
Agreement of Association and Articles of Organization and amendments thereto,
or by law. No proxy which is dated more than six months before the meeting
named therein shall be accepted, and no such proxy shall be valid after the
final adjournment of such meeting. The Chairman of the meeting or a majority
of the shares present or represented may adjourn the meeting from time to time
or dissolve the meeting, whether or not there is a quorum. No notice of the
time and place of adjourned meetings need be given, except as required by law.
Any previously scheduled meeting of the stockholders may be postponed, and any
special meeting of the stockholders called by the President or by the Directors
may be cancelled, by resolution of the Board of Directors upon a public
announcement made by the Company prior to the date previously scheduled for
such meeting of stockholders. For purposes of Article II of these By-Laws,
"public announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press, or comparable national news service,
or in a document publicly filed by the Company with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
SECTION 5. VOTING. Every holder of stock entitled to
vote at a meeting of stockholders shall, if present in person
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or represented by valid proxy, have one vote at such meeting for each share
held of record by such holder on the date fixed for determination of
stockholders entitled to vote at such meeting. Action with respect to any
matter may be taken by ballot but need not be so taken unless a stockholder
requests that a ballot be taken.
SECTION 6. Notice of Stockholder Business and Nominations.
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A. Annual Meetings of Stockholders.
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(1) Only such business shall be conducted at an
annual meeting or special meeting in lieu thereof as shall have been
specified in the Company's notice of meeting or, to the extent
permitted by law, as shall be approved by the Chairman of the meeting
or the Board of Directors.
(2) Nominations of persons for election to the Board
of Directors of the Company may be made at an annual meeting of
stockholders or special meeting in lieu thereof (a) pursuant to the
Company's notice of meeting, (b) by, or at, the direction of the Board
of Directors or, (c) by any stockholder of the Company who complies
with the requirements set forth in this By-Law.
(3) Any nomination or other business that a
stockholder may bring before an annual meeting or special meeting in
lieu thereof pursuant to this By-Law, may only be brought before such
meeting by a stockholder of the Company who was a stockholder of
record at the time of giving notice provided for in this By-Law, who
is entitled to vote at the meeting, and who complies with the notice
procedures and other requirements set forth in this By-Law.
(4) For nominations or other business to be properly
brought before an annual meeting or special meeting in lieu thereof by
a stockholder pursuant to this By-Law, the stockholder must have given
timely notice thereof in writing to the Clerk of the Company and such
other business must otherwise be a proper matter for stockholder
action.
To be timely, a stockholder's notice of nominations
of persons for election to the Board of Directors shall be delivered
to the Clerk at the principal executive office of the Company not
later than the close of business on the 60th day, nor earlier than the
close of business on the 90th day, prior to the first anniversary of
the preceding year's annual meeting or special meeting in lieu
thereof; provided, however, that in the event that the date of the
annual meeting or special meeting in lieu thereof is more than 30 days
before, or more than 60 days after, such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such meeting, and not later
than the close of business on the later of the 60th
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day prior to such meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Company.
To be timely, a stockholder's notice of other business to be brought
before the annual meeting or special meeting in lieu thereof shall be delivered
to the Clerk at the Company's principal executive office not less than 120
calendar days in advance of the date of the Company's proxy statement in
connection with the previous year's annual meeting or special meeting in lieu
thereof, except that, if no annual meeting or special meeting in lieu thereof
was held in the previous year, or if the date of the annual meeting or special
meeting in lieu thereof has been changed by more than 30 calendar days from the
date contemplated at the time of the previous year's proxy statement, the
stockholder's notice of other business shall be delivered to the Clerk at the
Company's principal executive office not less than 60 calendar days before the
Company's proxy solicitation is made.
In no event shall the public announcement of an adjournment of an
annual meeting or special meeting in lieu thereof commence a new time period
for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a Director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to Regulation 14A under the
Exchange Act and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
Director if elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting, and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Company's books, and of such
beneficial owner and (ii) the class and number of shares of the Company that
are owned beneficially and of record by such stockholder and such beneficial
owner.
(5) Notwithstanding anything in the second sentence of paragraph A.(4)
of this By-Law to the contrary, if the number of directors to be elected to the
Board of Directors of the Company is increased between annual meetings and one
or more of the new positions is subject to
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election at the next annual meeting, and if no public announcement is
made by the Company naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 70
days prior to the first anniversary of the preceding year's annual
meeting or special meeting in lieu thereof, then with respect only to
nominees for any such new positions created by such increase, a
stockholder's notice required by this By-Law shall be considered
timely, if it shall be delivered to the Clerk at the principal
executive office of the Company not later than the close of business
on the 10th day following the day on which such public announcement is
first made by the Company.
B. SPECIAL MEETINGS OF STOCKHOLDERS. Only such business
shall be conducted at a special meeting of stockholders as shall have
been specified in the Company's notice of meeting.
C. GENERAL. (1) Only such persons who are nominated in
accordance with the procedures set forth in this By- Law shall be
eligible to be elected as Directors at an annual meeting or special
meeting in lieu thereof, and only such business shall be conducted at
a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures and requirements set forth
in this By-Law. Except as otherwise provided by law, the Articles of
Organization, or these By-Laws, the Chairman of the meeting shall have
the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with applicable law and the procedures and
requirements set forth in this By-Law, and, if any proposed nomination
or business is not in compliance with applicable law and this By-Law,
to declare that such defective nomination or proposal shall be
disregarded.
(2) A stockholder proposal of business that the
Company is required under Rule 14a-8 under the Exchange Act to set
forth in its proxy statement for an annual meeting or special meeting
in lieu thereof shall be subject to the requirements of this By-Law.
A stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect
to the matters set forth in this By-Law.
ARTICLE III
DIRECTORS' MEETINGS:
MEETINGS OF THE EXECUTIVE COMMITTEE
SECTION 1. MEETINGS OF DIRECTORS. A regular meeting of
the Board of Directors shall be held in every year as soon as
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may be after the annual meeting of stockholders or any special meeting held in
lieu of such annual meeting, for the election of officers and such other
business as may properly come before the meeting.
Any other regular meetings may be held at such time as may be fixed by
the Board of Directors. Special meetings of the Board of Directors may be
called on order of the Chairman of the Board, or of the President, or any two
Directors.
Any regular or special meeting of the Board of Directors may be held
within or without the Commonwealth of Massachusetts.
SECTION 2. NOTICE. Notice of any regular or special meeting of the
Board of Directors shall be given by the Clerk, or other officer calling the
meeting orally, or by mail, telephone, cable, radio, or telegraph. Notice so
sent to a Director's usual and last known place of business or residence two
(2) days at least before the meeting shall be sufficient notice in all cases;
and any notice received by a Director in time to enable him to attend the
meeting concerning which such notice is given shall be likewise sufficient.
Notice of a meeting need not be given to any Director if a written waiver of
notice, executed by him before or after the meeting, is filed with the records
of the meeting, or to any Director who attends a meeting without protesting
prior thereto or at its commencement the lack of notice to him of the meeting.
Any business whatever may be transacted at a meeting of the Board, although it
may not have been specified in the notice or waiver of notice of the meeting.
SECTION 3. QUORUM. Four members of the Board of Directors shall
(except as otherwise provided in Section 2 of Article I hereof) constitute a
quorum for the transaction of business; but a smaller number may adjourn or
dissolve a meeting which had been called. Except as otherwise provided in or
permitted by these By-Laws, the Agreement of Association or the Articles of
Organization of the Corporation, as any of the same may be amended from time to
time, and irrespective of the existence of a vacancy or vacancies in the Board
of Directors, the vote of a majority of the Directors present at a meeting at
which a quorum is present shall be sufficient to transact all business coming
before the meeting.
SECTION 4. MEETINGS OF THE EXECUTIVE COMMITTEE. Except as the Board of
Directors may otherwise determine, the manner of conducting the business of the
Executive Committee, whether at a meeting or otherwise, including the calling
of meetings, shall be as determined from time to time by the members of such
Committee. A majority of the members of the Executive Committee in office for
the time being shall constitute a quorum for the transaction of business at a
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meeting, but in the absence of a quorum, less than a quorum may adjourn a
meeting to another time without further notice and may dissolve a meeting.
SECTION 5. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if all the Directors consent to the action in writing and the written
consents are filed with the records of the meetings of Directors. Such
consents shall be treated as a vote for all purposes.
SECTION 6. TELEPHONIC MEETINGS. Members of the Board of Directors may
participate in any regular or special meeting of the Board of Directors 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. Participation in a meeting by such means shall constitute presence in
person at such meeting for all purposes.
ARTICLE IV
OFFICE AND SEAL
SECTION 1. LOCATION. The Company shall have such offices in addition
to the principal office set forth in the Agreement of Association and Articles
of Organization as the Board of Directors or stockholders may from time to time
designate.
SECTION 2. SEAL. The corporate seal shall be in such form as the Board
of Directors may from time to time determine.
ARTICLE V
CAPITAL STOCK AND TRANSFER OF STOCK
SECTION 1. STOCK CERTIFICATE. Certificates of stock shall be in such
form as the Board of Directors may from time to time determine, except insofar
as such form is prescribed by law, and shall be signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer and bear the seal
of the Company, provided that when any certificate is signed by a transfer
agent or transfer clerk and by a registrar, the signature of the President or a
Vice President, or of the Treasurer or an Assistant Treasurer, or both such
signatures, or the seal of the corporation upon such certificate or either or
both such signatures and such seal may be a facsimile thereof, engraved or
printed.
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SECTION 2. LOST OR DESTROYED CERTIFICATES. In case any stock
certificate shall be lost, mutilated or destroyed, a new certificate may be
issued in place thereof on reasonable evidence of the loss, mutilation or
destruction and upon such indemnity, if any, as the Board of Directors may
require for the Company, the Transfer Agent, and/or the Registrar.
SECTION 3. TRANSFER OF STOCK. Shares of stock shall be transferable
only on the books of the Company by assignment in writing, signed by the holder
of record thereof, his attorney legally constituted, or his legal
representatives, upon surrender of the certificate or certificates therefor.
The Company shall not be bound to take notice of or recognize any
trust, expressed, implied, or constructive, or any charge or equity affecting
any of the shares of the capital stock; or to ascertain or inquire whether any
sale or transfer of any such share by any holder of record thereof, his
attorney legally constituted, or his legal representative, is authorized by
such trust, charge or equity; or to recognize any person as having any interest
therein, except the holder of record thereof for the time being.
SECTION 4. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint, subject to revocation, reappointment or change, a Transfer Agent and a
Registrar of capital stock of any class, or make either one of such
appointments with respect to any class of its stock; and while any such
appointment is in force with respect to any class of its stock, no certificate
issued for stock of such class shall be valid without being countersigned by
such Transfer Agent, if one be so appointed, and registered by such Registrar,
if one be so appointed. The same person may be appointed to serve as both
Transfer Agent and Registrar.
SECTION 5. SETTING RECORD DATE AND CLOSING TRANSFER BOOKS. The Board
of Directors may fix in advance a time, 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 stock holders 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 Company after the record date, or without fixing such
record date, the Board of Directors may for any of such purposes close the
stock transfer books of the Company for all or any part of said sixty (60) day
period.
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ARTICLE VI
INDEMNIFICATION
The Company shall, to the fullest extent legally permissible, indemnify
each person at any time elected or appointed a Director or officer of the
Company, each person who serves at the Company's request as a director or
officer of another organization and each person who serves at the Company's
request in any capacity with respect to any employee benefit plan against any
and all costs and expenses (including but not limited to court costs and legal
fees) reasonably incurred by, and any and all liabilities imposed upon, him in
connection with, or arising out of, or resulting from, any claim made, or any
action, suit or proceeding (whether civil, criminal, administrative or
investigative) threatened or brought, against him or in which he may be
involved as a party or otherwise by reason of his having so served or by reason
of any action taken or omitted or alleged to have been taken or omitted by him
in such capacity unless in any proceeding such person shall have been finally
adjudicated with respect to the matter or matters as to which indemnification
is sought hereunder not to have acted in good faith in the reasonable belief
that his action was in the best interest of the Company or, to the extent that
such matter or matters relate to service with respect to an employee benefit
plan, in the best interests of the participants or beneficiaries of such
employee benefit plan.
The indemnification provided hereunder shall also include the payment
by the Company from time to time of expenses incurred in defending any such
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding, upon receipt of an undertaking by or on behalf of the
person indemnified to repay such payment if he shall be adjudicated to be not
entitled to indemnification hereunder which undertaking shall be accepted
without reference to the financial ability of such person to make repayment.
The right of indemnification under this Article shall not extend to
amounts incurred or paid in connection with any matter which shall be disposed
of through a compromise payment or other settlement prior to such final
adjudication, whether by or pursuant to a consent decree or otherwise, unless
such compromise or other settlement shall be approved by the Company, which
approval shall not unreasonably be withheld, or by a court of competent
jurisdiction.
The payment of any indemnification shall be conclusively deemed
approved by the Company under this Article, and each Director of the Company
approving such payment shall be wholly protected if:
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(i) the payment has been approved or ratified (1) by a majority vote of
a quorum of the Directors consisting of persons who are not at that time
parties to the action, suit or proceeding, (2) by a majority vote of a
committee of two or more Directors who are not at that time parties to the
action, suit or proceeding and are selected for this purpose by the full Board
of Directors (in which selection Directors who are parties may participate) or
(3) by a majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote for Directors, voting as a single class, which
majority shall include a majority of the shares voted by stockholders who are
not at that time parties to the proceeding; or
(ii) the action is taken in reliance upon the opinion of independent
legal counsel (who may be counsel to the Company) appointed for the purpose by
vote of the Directors or in the manner specified in clauses (1), (2) or (3) of
sub-paragraph (i) above; or
(iii) the Directors have otherwise acted in accordance with the
standard of conduct set forth in the Massachusetts Business Corporation Law.
Any indemnification or advance of expenses under this Article shall be
paid promptly, and in any event within 30 days, after the receipt by the
Company of a written request therefor from the person to be indemnified, unless
with respect to a claim for indemnification the Company shall have determined
that the person is not entitled to indemnification. If the Company denies the
request or if payment is not made within such 30 day period, the person seeking
to be indemnified may at any time thereafter seek to enforce his rights
hereunder in a court of competent jurisdiction and, if successful in whole or
in part, he shall be entitled also to indemnification for the expenses of
prosecuting such action. Unless otherwise provided by law, the burden of
proving that the person is not entitled to indemnification shall be on the
Company.
The right of indemnification under this Article shall be a contract
right inuring to the benefit of the Directors, officers and other persons
entitled to be indemnified hereunder, and no amendment or repeal of this
Article shall adversely affect any right of such Director, officer or other
person existing at the time of such amendment or repeal. The right of
indemnification under this Article shall be in addition to and shall not
exclude or affect any other rights to which any such Director or officer or
other person may be entitled.
The right of indemnification under this Article shall inure to the
benefit of the heirs, executors, administrators and legal representatives of a
Director, officer or other person entitled to indemnification hereunder. The
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indemnification provided hereunder shall be provided to a Director, officer or
other person entitled to indemnification whether or not he continues in such
capacity at the time any indemnifiable costs and expenses are incurred or any
indemnifiable liability is imposed.
ARTICLE VII
MISCELLANEOUS
SECTION 1. BONDS. The Board of Directors may from time to time
require from any one or more of the officers or agents of the Company that he
or they shall give bond for the faithful performance of duties; and the
premiums for all such bonds shall be paid by the Company.
SECTION 2. FISCAL YEAR. The fiscal year of the Company
shall, unless otherwise fixed by the Board of Directors, end
on the last day of December in every year.
SECTION 3. VOTING STOCK IN OTHER CORPORATIONS. Whenever the Company
shall own stock of another corporation, the Chairman of the Board, President, a
Vice Chairman of the Board, or Treasurer, acting either in person or by proxy,
may exercise in the name and on behalf of the Company all voting and
subscription rights thereof, but the Board may from time to time, either
generally or in any specific instance, delegate like authority to any one or
more other persons.
SECTION 4. EXECUTION OF WRITINGS. Unless the Board of Directors,
Executive Committee, or stockholders shall otherwise generally or in any
specific instance provide: (a) any bill, note, check, or negotiable instrument
shall be signed or endorsed in the name and on behalf of the Company by the
Chairman of the Board, or President, or a Vice Chairman of the Board, or a Vice
President, or Treasurer, or an Assistant Treasurer, and shall bear such
countersignature of an officer of the Company other than the officer so signing
or endorsing as may be required by the Board of Directors; and (b) any other
instrument whatsoever shall be signed in the name and on behalf of the Company
by the Chairman of the Board, or President, or a Vice Chairman of the Board, or
a Vice President, or Treasurer, or an Assistant Treasurer, and any officer so
signing any instrument may also seal, acknowledge and deliver the instrument.
SECTION 5. EXECUTION OF CERTIFICATIONS. Any action
taken by the stockholders, Board of Directors, or Executive
Committee at any meeting may be certified by the officer
whose duty it is to keep the minutes of such meeting or by
the officer or Director keeping the records thereof or
presiding thereat; and any such certificate shall be
conclusive evidence for all purposes that the action so
certified was taken.
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SECTION 6. CONTROL SHARE ACQUISITIONS. The provisions of Chapter 110D
of the Massachusetts General Laws, Regulation of Control Share Acquisitions, as
amended from time to time, shall not apply to control share acquisitions of the
Company.
SECTION 7. AMENDMENT. These By-Laws may be altered,
added to, amended or repealed either: (1) by the stock
holders at any meeting of the stockholders by affirmative
vote of a majority in interest of the stock outstanding and
entitled to vote thereat, provided notice of the proposed
alteration, addition, amendment or repeal shall have been
given in the notice of such meeting; or (2) by the Board of
Directors at any meeting of said Board by affirmative vote of
a majority of the Directors then in office, except with
respect to any provision as to which stockholder action is
required by law, the Articles of Organization, or these By-
Laws; and further provided that not later than the time of
giving notice of the meeting of stockholders next following
any such change in the By-Laws by the Directors, notice
thereof stating such change or the substance thereof shall be
given to all stockholders entitled to vote on amending the
By-Laws.
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