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Exhibit 3.2
BY-LAWS
OF
MEDFORD BANCORP, INC.
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TABLE OF CONTENTS
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ARTICLE I
Organization....................................................................1
ARTICLE II
Stockholders....................................................................1
SECTION 1. Annual Meeting......................................................1
SECTION 2. Matters to be Considered at the Annual Meeting......................1
SECTION 3. Special Meeting.....................................................4
SECTION 4. Notice of Meetings; Adjournments....................................4
SECTION 5. Quorum..............................................................5
SECTION 6. Voting and Proxies..................................................5
SECTION 7. Action at Meeting...................................................5
ARTICLE III
DIRECTORS.......................................................................6
SECTION 1. Powers..............................................................6
SECTION 2. Composition and Term................................................6
SECTION 3. Director Nominations................................................6
SECTION 4. Qualification.......................................................9
SECTION 5. Resignation.........................................................9
SECTION 6. Removal.............................................................9
SECTION 7. Vacancies...........................................................9
SECTION 8. Compensation........................................................9
SECTION 9. Regular Meetings....................................................9
SECTION 10. Special Meetings...................................................9
SECTION 11. Notice of Meetings................................................10
SECTION 12. Quorum............................................................10
SECTION 13. Action at a Meeting...............................................10
SECTION 14. Action by Consent.................................................10
SECTION 15. Presumption of Assent.............................................11
SECTION 16. Committees........................................................11
SECTION 17. Manner of Participation...........................................11
(i)
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ARTICLE IV
OFFICERS.............................................................................12
SECTION 1. Enumeration..............................................................12
SECTION 2. Election.................................................................12
SECTION 3. Qualification............................................................12
SECTION 4. Tenure...................................................................12
SECTION 5. Removal..................................................................12
SECTION 6. Absence or Disability....................................................13
SECTION 7. Vacancies................................................................13
SECTION 8. Chief Executive Officer..................................................13
SECTION 9. Chairman and Vice Chairman of the Board..................................13
SECTION 10. President...............................................................13
SECTION 11. Vice Presidents, Treasurer and Other Officers...........................13
SECTION 12. Clerk and Assistant Clerks..............................................13
ARTICLE V
CAPITAL STOCK........................................................................14
SECTION 1. Certificates of Stock....................................................14
SECTION 2. Transfers................................................................14
SECTION 3. Record Holders...........................................................14
SECTION 4. Record Date..............................................................14
SECTION 5. Replacement of Certificates..............................................15
SECTION 6. Issuance of Capital Stock................................................15
SECTION 7. Dividends................................................................15
ARTICLE VI
INDEMNIFICATION......................................................................15
SECTION 1. Definitions..............................................................15
SECTION 2. Officers.................................................................16
SECTION 3. Non-Officer Employees....................................................16
SECTION 4. Service at the Request or Direction of the Company.......................16
SECTION 5. Good Faith...............................................................16
SECTION 6. Prior to Final Disposition...............................................17
SECTION 7. Insurance................................................................17
SECTION 8. Other Indemnification Rights.............................................17
ARTICLE VII
MISCELLANEOUS PROVISIONS.............................................................17
(ii)
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SECTION 1. Amendment of By-laws.....................................................17
SECTION 2. Fiscal Year..............................................................17
SECTION 3. Seal.....................................................................17
SECTION 4. Execution of Instruments.................................................17
SECTION 5. Voting of Securities.....................................................18
SECTION 6. Inapplicability of Control Share Provisions..............................18
SECTION 7. Articles.................................................................18
(iii)
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BY-LAWS
OF
MEDFORD BANCORP, INC.
ARTICLE I
ORGANIZATION
The name of this corporation is "Medford Bancorp, Inc." (the
"Company"). The main office of the Company shall be in the City of Medford,
Massachusetts, or such other location as the Board of Directors may designate,
subject to applicable law. The Company shall conduct the business of a bank
holding company subject to the Bank Holding Company Act of 1956, as amended, and
shall have and may exercise all the powers, privileges and authority, whether
express or implied, now or hereafter conferred by applicable law.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the stockholders (the
"Annual Meeting") for the election of Directors and such other business as may
properly come before the Annual Meeting shall be held on the last Monday in
April at 10:00 a.m. at the main office of the Company in Medford, Massachusetts,
unless a different hour, date or place within Massachusetts (or if permitted by
law, elsewhere in the United States) is fixed by the Company's Board of
Directors (the "Board"), the Chairman of the Board, if one is elected, or the
President, consistent with the requirements of Massachusetts law. If no Annual
Meeting has been held on the date fixed as above provided, a special meeting in
lieu thereof may be held and such special meeting shall be treated for all
purposes as an Annual Meeting.
SECTION 2. Matters to be Considered at the Annual Meeting. The purposes
for which the Annual Meeting is to be held, in addition to those prescribed by
law, by the Articles of Organization (the "Articles") or by these By-laws (the
"By-laws"), may be specified by the Board of Directors, the Chairman of the
Board or the President.
At any Annual Meeting or any special meeting in lieu of Annual Meeting,
only such new business shall be conducted, and only such additional proposals
shall be acted upon, as shall have been properly brought before such Annual
Meeting. To be considered as properly brought before an Annual Meeting, business
must be: (a) specified in the notice of meeting; (b) otherwise properly brought
before the meeting by, or at the direction of, the Board of Directors (unless at
the time of such action there is an Interested Stockholder, in which case the
affirmative vote of a majority of the Continuing Directors then in office shall
also be
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required); or (c) otherwise properly brought before the Annual Meeting by or on
behalf of any stockholder of record who (i) shall have been a stockholder of
record at the time of the giving of notice as provided in this Section 2; (ii)
shall continue to be a stockholder of record on the record date for such Annual
Meeting and on the Annual Meeting date; and (iii) shall be entitled to vote at
such Annual Meeting.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Clerk of the Company; and (ii) be present at such meeting, either in person or
by a representative. For the first Annual Meeting following the effective date
of these By-Laws, to be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Company not less
than 75 days nor more than 120 days prior to the scheduled Annual Meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled Annual Meeting is given or made, notice
by the stockholder to be timely must be so received not later than the close of
business on the 10th day following the earlier of (a) the day on which such
notice of the date of the scheduled Annual Meeting was mailed, or (b) the day on
which public disclosure was made.
For all subsequent Annual Meetings, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Company at its
principal executive office not less than seventy-five (75) days nor more than
one hundred twenty (120) days prior to the anniversary date of the immediately
preceding Annual Meeting (the "Anniversary Date"); provided, however, that in
the event the Annual Meeting is scheduled to be held on a date more than thirty
(30) days before the Anniversary Date or more than sixty (60) days after the
Anniversary Date, a stockholder's notice shall be timely if delivered to, or
mailed to and received by, the Company at its principal executive office not
later than the close of business on the later of (a) the 75th day prior to the
scheduled date of such Annual Meeting, or (b) the 15th day following the day on
which public disclosure of the date of such Annual Meeting is first made by the
Company.
For purposes of these By-laws, "public disclosure" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service; (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K ); or (iii) a letter or report sent to stockholders of
record of the Company at the time of the mailing of such letter or report.
A stockholder's notice to the Clerk shall set forth as to each matter
proposed to be brought before an Annual Meeting: (i) a brief description of the
business the stockholder desires to bring before such Annual Meeting and the
reasons for conducting such business at such Annual Meeting; (ii) the name and
address, as they appear on the Company's stock transfer books, of the
stockholder proposing such business; (iii) the class and number of shares
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of the Company's capital stock beneficially owned by the stockholder proposing
such business; (iv) the names and addresses of the beneficial owners, if any, of
any capital stock of the Company registered in such stockholder's name on such
books, and the class and number of shares of the Company's capital stock
beneficially owned by such beneficial owners; (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Company's capital stock
beneficially owned by such other stockholders; and (vi) any material interest of
the stockholder proposing to bring such business before such meeting (or any
other stockholders known to be supporting such proposal) in such proposal.
The Board of Directors may reject any stockholder proposal not timely
made in accordance with the terms of this Section 2. If the Board of Directors
or a designated committee thereof determines that any stockholder proposal was
not made in a timely fashion in accordance with the provisions of this Section 2
or that the information provided in a stockholder's notice does not satisfy the
information requirements of this Section 2 in any material respect, such
stockholder proposal shall not be presented for action at the Annual Meeting in
question. The Clerk of the Company shall notify a stockholder in writing whether
his or her proposal has been made in accordance with the time and informational
requirements of this Section 2.
Notwithstanding the procedure set forth in the above paragraph, if
neither the Board of Directors nor such committee makes a determination as to
the validity of any stockholder proposal in the manner set forth above, the
presiding officer of the Annual Meeting shall determine whether the stockholder
proposal was made in accordance with the time and informational requirements of
this Section 2. If the presiding officer determines that any stockholder
proposal was not made in a timely fashion in accordance with the provisions of
this Section 2 or that the information provided in a stockholder's notice does
not satisfy the information requirements of this Section 2 in any material
respect, such proposal shall not be presented for action at the Annual Meeting
in question. If the Board of Directors, a designated committee thereof or the
presiding officer determines that a stockholder proposal was made in accordance
with the time and informational requirements of this Section 2, the presiding
officer shall so declare at the Annual Meeting and ballots shall be provided for
use at the Annual Meeting with respect to such proposal. If there is an
Interested Stockholder at the time, any determinations to be made by the Board
of Directors or a designated committee thereof pursuant to the provisions of
this Section 2, shall also require the concurrence of a majority of the
Continuing Directors then in office.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable regulations of the Securities and Exchange
Commission set forth in the Securities Exchange Act of 1934, as amended, with
respect to the matters set forth in this By-Law, and nothing in this By-Law
shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the Company's proxy statement pursuant to such regulations.
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As used in these By-laws, the terms "Interested Stockholder" and
"Continuing Director" shall have the same respective meanings assigned to them
in the Articles. Any determination of beneficial ownership of securities under
these By-laws shall be made in the manner specified in the Articles.
SECTION 3. Special Meeting. Special meetings of the stockholders for
any purpose or purposes may be called at any time only by the Chairman of the
Board, if one is elected, the President or by a majority of the Directors then
in office; provided however, that if there is an Interested Stockholder, any
such call shall also require the affirmative vote of a majority of the
Continuing Directors then in office. Only those matters set forth in the call of
the special meeting may be considered or acted upon at such special meeting,
unless otherwise provided by law.
SECTION 4. Notice of Meetings; Adjournments. A written notice of the
place, time and date of all annual and special meetings of stockholders shall be
given by the Clerk or Assistant Clerk (or other person authorized by these
By-laws or by law) not less than ten (10) days nor more than sixty (60) days
before the date on which the meeting is to be held to each stockholder entitled
to vote at such meeting by mailing it addressed to such stockholder at the
address of such stockholder as it appears on the stock transfer books of the
Company. Such notice shall be deemed to be delivered when deposited in the mail
so addressed with postage pre-paid.
Notice of an annual or special meeting of stockholders need not be
given to a stockholder if a written waiver of notice is executed before or after
such meeting by such stockholder or such stockholder's authorized attorney, if
communication with such stockholder is unlawful, or if such stockholder attends
such meeting, unless such attendance was for the express purpose of objecting at
the beginning of the meeting to the transaction of any business because the
meeting was not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of stockholders
need be specified in any written waiver of notice. A written waiver of notice,
executed before or after a meeting by a stockholder or by an authorized
attorney, shall be deemed equivalent to notice of the meeting.
When any annual or special meeting of stockholders is adjourned to
another hour, date or place, notice need not be given of the adjourned meeting
other than an announcement at the meeting at which the adjournment is taken of
the hour, date and place to which the meeting is adjourned; provided, however,
that if the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given as in the case of the original meeting to each
stockholder of record entitled to vote thereat.
The Chairman of the Board, if one is elected, shall preside at all
stockholder meetings and shall have the power, among other things, to adjourn
such meeting at any time and from time to time, subject to Section 5 of this
Article II. If a Chairman of the Board is not elected
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or is absent, the Vice Chairman shall preside at all stockholder meetings. If
both the Chairman and the Vice Chairman of the Board are not elected or are
absent, the President shall preside at all stockholder meetings.
SECTION 5. Quorum. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders; but if less than a
quorum is present at a meeting, a majority in interest of the stockholders
present or the presiding officer may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice, except as provided
in Section 4 of this Article II. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally noticed. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 6. Voting and Proxies. Stockholders shall have one (1) vote for
each share of common stock entitled to vote owned by them of record according to
the books of the Company and a proportionate vote for a fractional share, unless
otherwise provided by law or by the Articles. Stockholders may vote either in
person or by written proxy dated not more than six (6) months before the meeting
named therein. Proxies shall be filed with the Clerk of the meeting, or of any
adjournment thereof, before being voted. Except as otherwise limited therein,
proxies shall entitle the persons authorized thereby to vote at any adjournment
of such meeting, but they shall not be valid after final adjournment of such
meeting. A proxy with respect to stock held in the name of two (2) or more
persons shall be valid if executed by or on behalf of any one of them unless at
or prior to the exercise of the proxy the Company receives a specific written
notice to the contrary 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, any matter
before any annual or special meeting of stockholders shall be decided by vote of
the holders of a majority of the shares of stock voting on such matter, except
where a larger vote is required by law, by the Articles or by these By-laws. Any
election by stockholders shall be determined by a plurality of the votes cast,
except where a larger vote is required by law, by the Articles or by these
By-laws.
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ARTICLE III
DIRECTORS
SECTION 1. Powers. The business and affairs of the Company shall be
managed by a Board of Directors.
SECTION 2. Composition and Term. The Board of Directors shall be
composed of: those persons who are elected as Directors from time to time as
provided herein. The Board of Directors shall consist of not fewer than seven
(7) and not more than twenty-five (25) individuals and shall be divided into
three (3) classes, such classes to be as nearly equal in number as possible. One
of such classes of Directors shall be elected annually by the stockholders.
Subject to the foregoing requirements and applicable law, the Board of Directors
may from time to time fix the number of Directors and their respective
classifications; provided, however, that if at the time of such action there is
an Interested Stockholder such action shall in addition require a majority vote
of the Continuing Directors then in office. Up to two (2) additional Directors
may be elected by vote of a majority of the Directors then in office. Except as
otherwise provided in accordance with these By-laws, the members of each class
shall be elected for a term of three (3) years and until their successors are
elected and qualified.
SECTION 3. Director Nominations. Nominations of candidates for election
as directors of the Company at any Annual Meeting may be made only (a) by, or at
the direction of, a majority of the Board of Directors (unless at the time of
such action there is an Interested Stockholder, in which case the affirmative
vote of a majority of the Continuing Directors then in office shall also be
required), or (b) by or on behalf of any stockholder of record who (i) shall
have been a stockholder of record at the time of the giving of notice as
provided in this Section 3, (ii) shall continue to be a stockholder of record on
the record date for such Annual Meeting and on the Annual Meeting date, and
(iii) shall be entitled to vote at such Annual Meeting. Any stockholder who has
complied with the timing, informational and other requirements set forth in this
Section 3 and who seeks to make such a nomination, or his, her or its
representative, must be present in person at the Annual Meeting. Only persons
nominated in accordance with the procedures set forth in this Section 3 shall be
eligible for election as directors at an Annual Meeting.
Nominations, other than those made by, or at the direction of, the
Board of Directors (or by the Continuing Directors, if required), shall be made
pursuant to timely notice in writing to the Clerk of the Company as set forth in
this Section 3. For the first Annual Meeting following the effective date of
these By-Laws, to be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Company not less
than seventy-five (75) days nor more than one hundred twenty (120) days prior to
the scheduled Annual Meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than seventy (70) days' notice or prior
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public disclosure of the date of the scheduled Annual Meeting is given or made,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the earlier of (a) the day on which
such notice of the date of the scheduled Annual Meeting was mailed, or (b) the
day on which public disclosure was made.
For all subsequent Annual Meetings, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Company at its
principal executive office not less than seventy-five (75) days nor more than
one hundred twenty (120) days prior to the Anniversary Date; provided, however,
that in the event the Annual Meeting is scheduled to be held on a date more than
30 days before the Anniversary Date or more than sixty (60) days after the
Anniversary Date, a stockholder's notice shall be timely if delivered to, or
mailed and received by, the Company at its principal executive office not later
than the close of business on the later of (a) the 75th day prior to the
scheduled date of such Annual Meeting, or (b) the 15th day following the day on
which public disclosure of the date of such Annual Meeting is first made by the
Company.
A stockholder's notice to the Clerk shall set forth as to each person
whom the stockholder proposes to nominate for election or re-election as a
director: (i) the name, age, business address and residence address of such
person; (ii) the principal occupation or employment of such person; (iii) the
class and number of shares of the Company's capital stock which are beneficially
owned by such person on the date of such stockholder notice; (iv) the consent of
each nominee to serve as a director if elected; and (v) any other information
relating to such person that is required to be disclosed in solicitations of
proxies with respect to nominees for election as directors, pursuant to Section
14 of the Securities Exchange Act of 1934, as amended, and Regulation 14A and
Schedule 14A promulgated thereunder by the Securities and Exchange Commission. A
stockholder's notice to the Clerk shall further set forth as to the stockholder
giving such notice: (i) the name and address, as they appear on the Company's
stock transfer books, of such stockholder and of the beneficial owners (if any)
of the Company's capital stock registered in such stockholder's name and the
name and address of other stockholders known by such stockholder to be
supporting such nominee(s); (ii) the class and number of shares of the Company's
capital stock which are held of record, beneficially owned or represented by
proxy by such stockholder and by any other stockholders known by such
stockholder to be supporting such nominee(s) on the record date for the Annual
Meeting in question (if such date shall then have been made publicly available)
and on the date of such stockholder's notice; and (iii) a description of all
arrangements or understandings between such stockholder and each 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.
The Board of Directors may reject any nomination by a stockholder not
timely made in accordance with the requirements of this Section 3. If the Board
of Directors or a designated committee thereof determines that the information
provided in a stockholder's notice does not satisfy the time and informational
requirements of this Section 3 in any material respect, then
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the Board of Directors may reject such stockholder's nomination. The Clerk of
the Company shall notify a stockholder in writing whether his or her nomination
has been made in accordance with the time and informational requirements of this
Section 3.
Notwithstanding the procedures set forth in the above paragraph, if
neither the Board of Directors nor such committee makes a determination as to
whether a stockholder nomination was made in accordance with the provisions of
this Section 3, the presiding officer of the Annual Meeting shall determine
whether a nomination was made in accordance with the time and informational
requirements of this Section 3. If the presiding officer determines that any
stockholder nomination was not made in a timely fashion in accordance with the
provisions of this Section 3 or that the information provided in a stockholder's
notice does not satisfy the informational requirements of this Section 3 in any
material respect, such stockholder's nomination shall not be considered at the
Annual Meeting in question. If the Board of Directors, a designated committee
thereof or the presiding officer determines that a stockholder nomination was
made in accordance with the requirements of this Section 3, the presiding
officer shall so declare at the Annual Meeting and ballots shall be provided for
use at the meeting with respect to such nominee. If there is an Interested
Stockholder at the time, any determinations to be made by the Board of Directors
or a designated committee thereof pursuant to the provisions of this Section 3,
shall also require the concurrence of a majority of the Continuing Directors
then in office.
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 3 or the third paragraph of this Section 3, in
the event that the number of directors to be elected to the Board of Directors
of the Company is increased and there is no public disclosure by the Company
naming all of the nominees for director or specifying the size of the increased
Board of Directors at least seventy-five (75) days prior to the Anniversary
Date, a stockholder's notice required by this Section 3 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if (i) with respect only to the first Annual Meeting following the
effective date of these By-Laws, such notice shall be delivered to, or mailed
and received by the Company at its principal executive office not later than the
close of business on the tenth day following the day on which such public
announcement is first made by the Company; and (ii) for all subsequent Annual
Meetings, such notice shall be delivered to, or mailed to and received by, the
Company at its principal executive office not later than the close of business
on the 15th day following the day on which such public announcement is first
made by the Company.
No person shall be elected by the stockholders as a Director of the
Company unless nominated in accordance with the procedures set forth in this
Section 3. Election of Directors at an Annual Meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such Annual Meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the Annual Meeting in accordance with the procedures set forth in this Section
shall be provided for use at the Annual Meeting.
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SECTION 4. Qualification. Each Director shall have such qualifications
as are required by applicable law. Unless waived by a vote of the Board of
Directors, no person shall serve as a Director after reaching the age of
seventy-two (72) years.
SECTION 5. Resignation. Any Director may resign at any time by written
notice to the Chief Executive Officer. A resignation shall be effective upon
receipt, unless the resignation otherwise provides.
SECTION 6. Removal. Any Director may be removed from office as provided
in the Articles.
SECTION 7. Vacancies. Any and all vacancies occurring on the Board of
Directors, however occurring, including, without limitation, as a result of a
Director reaching the age of seventy-two (72) or by reason of an increase in the
size of the Board of Directors, or the death, resignation, disqualification or
removal of a Director, shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even if less than a quorum
of the Board of Directors, unless there is an Interested Stockholder in which
case such vacancy shall be filled solely by the affirmative vote of a majority
of the Continuing Directors then in office. Any Director appointed 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 duly
elected and qualified or until his or her earlier resignation or removal. When
the number of Directors is increased or decreased, the Board of Directors shall
determine the class or classes to which the increased or decreased number of
Directors shall be apportioned; provided, however, that no decrease in the
number of Directors shall shorten the term of any incumbent Director.
SECTION 8. Compensation. The members of the Board of Directors and the
members of standing or special committees shall receive such compensation as the
Board of Directors may determine.
SECTION 9. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-law on the same date
and at the same place as the Annual Meeting following such meeting of
stockholders. The Board of Directors may provide the hour, date and place for
the holding of regular meetings by resolution without other notice than such
resolution. The Board of Directors shall meet in each calendar quarter at a
place or places fixed from time to time by the Board of Directors, the Chairman
of the Board, if one is elected, or the President.
SECTION 10. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of a majority of the Directors, the
Chairman of the Board, if one is elected, or the President. The person or
persons authorized to call special meetings of the Board of Directors may fix
the hour, date and place for holding a special meeting.
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SECTION 11. Notice of Meetings. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each Director
by the Clerk or Assistant Clerk, or in the case of the death, absence,
incapacity or refusal of such persons, by the officer or one of the Directors
calling the meeting. Notice of any special meeting of the Board of Directors
shall be given to each Director in person, or by telephone, or sent to his or
her business or home address as shown in the Company's records by telegram,
telecopier, facsimile or similar method at least twenty-four (24) hours in
advance of the meeting or by written notice mailed to his or her business or
home address at least forty-eight (48) hours in advance of such meeting. Such
notice shall be deemed to be delivered when hand delivered to such address, read
to such Director by telephone, deposited in the mail so addressed, with postage
thereon prepaid if mailed, delivered to the telegraph company if sent by
telegram, or confirmed as the date and time of receipt if sent by telecopier,
facsimile or similar method. When any Board of Directors' meeting, either
regular or special, is adjourned for thirty (30) days or more, notice of the
adjourned meeting shall be given as in the case of an original meeting. It shall
not be necessary to give any notice of the hour, date or place of any meeting
adjourned for less than thirty (30) days or of the business to be transacted
thereat, other than an announcement at the meeting at which such adjournment is
taken of the hour, date and place to which the meeting is adjourned. A written
waiver of notice executed before or after a meeting by a Director and filed with
the records of the meeting shall be deemed to be equivalent to notice of the
meeting. The attendance of a Director at a meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting for the
express purpose of objecting to the transaction of any business because such
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 12. Quorum. A majority of the number of Directors then in
office shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors, but if less than a quorum is present at a meeting, a
majority of the Directors present may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice, except as provided
in Section 11 of this Article III. Any business which might have been transacted
at the meeting as originally noticed may be transacted at such adjourned meeting
at which a quorum is present.
SECTION 13. Action at a Meeting. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors, unless otherwise prescribed by law, by the Articles or
by these By-laws.
SECTION 14. Action by Consent. Any action required or permitted to be
taken by the Board of Directors at any meeting may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the Directors. Such written consents shall be filed with the records of the
meetings of the Board of Directors and shall be treated for all purposes as a
vote at a meeting of the Board of Directors.
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SECTION 15. Presumption of Assent. A Director of the Company who is
present at a meeting of the Board of Directors at which action on any Company
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent or abstention shall be entered in the minutes of the meeting
or unless he shall file a written dissent to such action with the person acting
as the Clerk of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Clerk of the Company within five (5) days
after the date a copy of the minutes of the meeting is received. Such right to
dissent shall not apply to a Director who voted in favor of such action.
SECTION 16. Committees. The Board of Directors shall elect from its
number not fewer than three (3) members to serve as an Executive Committee and
may elect other committees from its number. It may delegate to the Executive
Committee or such other committees some or all of its powers except those which
by law, by the Articles or by these By-laws may not be delegated. Except as the
Board of Directors may otherwise determine, any such committee may make rules
for the conduct of its business, but unless otherwise provided by the Board of
Directors or in such rules, its business shall be conducted so far as possible
in the same manner as is provided by these By-laws for the Board of Directors.
All members of such committees shall hold such offices at the pleasure of the
Board of Directors. The Board of Directors may abolish any such committee at any
time, subject to applicable law. Any committee to which the Board of Directors
delegates any of its powers or duties shall keep records of its meetings and
shall report its action to the Board of Directors. The Board of Directors shall
have power to rescind any action of any committee, but no such rescission shall
have retroactive effect. With the approval of the Board of Directors, the Chief
Executive Officer may appoint such other committees consisting of such Directors
as the Chief Executive Officer shall select. Any recommendations of such
committees appointed by the Chief Executive Officer shall be submitted to the
Board of Directors.
SECTION 17. Manner of Participation. Members of the Board of Directors
or of committees elected by the Board pursuant to Section 16 of this Article III
may participate in meetings of the Board by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other. Such participation shall constitute presence in
person but shall not constitute attendance for the purpose of compensation
pursuant to Section 8 of this Article III, unless the Board of Directors by
resolution so provides.
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ARTICLE IV
OFFICERS
SECTION 1. Enumeration. The officers of the Company shall consist of a
President, a Treasurer, a Clerk and such other officers, including, without
limitation, a Chairman of the Board, a Vice Chairman of the Board, a Secretary
and one or more Vice Presidents, Assistant Vice Presidents, Assistant Treasurers
and Assistant Clerks as the Board of Directors may determine to be necessary for
the management of the Company.
SECTION 2. Election. The President shall be elected annually by the
Board of Directors at its first meeting following the Annual Meeting; and the
Clerk shall be elected by the stockholders at their Annual Meeting or at a
special meeting of stockholders duly called for such purpose, so long as the
election of the Clerk is required by law to be by the stockholders, otherwise
the Clerk shall be elected annually by the Board of Directors. Other officers
shall be elected by the Board of Directors and serve at its pleasure.
SECTION 3. Qualification. Any two (2) or more offices may be held by any
person. The President shall be a Director. Any officer may be required by the
Board of Directors to give bond for the faithful performance of his or her
duties in such amount and with such sureties as the Board of Directors may
determine.
SECTION 4. Tenure. Except as otherwise provided by law, by the Articles,
or by these By-laws, the President shall hold office until the first meeting of
the Board of Directors following the next Annual Meeting of the stockholders and
until his or her respective successors are chosen and qualified; the Clerk shall
hold office until the next Annual Meeting of stockholders and until his or her
successor is chosen and qualified; and all other officers shall hold office
until their respective successors are elected by the Board of Directors. The
Chief Executive Officer may resign at any time by written notice to the Board of
Directors or the Clerk. Any other officer may resign at any time by written
notice to the Chief Executive Officer. Such resignation shall be effective upon
receipt unless the resignation otherwise provides. Election or appointment of an
officer, employee or agent shall not of itself create contract rights. The Board
of Directors may, however, authorize the Company to enter into an employment
contract with any officer in accordance with law, but no such contract right
shall impair the right of the Board of Directors to remove any officer at any
time in accordance with Section 5 of this Article IV.
SECTION 5. Removal. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the entire number of Directors then in office; provided,
however, that, if at the time of such removal there is an Interested
Stockholder, the affirmative vote of a majority of the Continuing Directors then
in office shall instead be required. Any such removal, other than for cause,
shall be without prejudice to the contract rights, if any, of the persons
involved. Any officer
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may be removed for cause only after reasonable notice and opportunity to be
heard by the Board of Directors.
SECTION 6. Absence or Disability. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 7. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 8. Chief Executive Officer. The President shall be the Chief
Executive Officer, unless the Board of Directors shall elect a Chairman of the
Board and designate such Chairman to be the Chief Executive Officer. The Chief
Executive Officer shall, subject to the direction of the Board of Directors,
have general supervision and control of the Company's business.
SECTION 9. Chairman and Vice Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the Board of Directors. If a Chairman of
the Board is not elected or is absent, the Vice Chairman, if one is elected,
shall preside at all meetings of the Board of Directors. If both the Chairman
and the Vice Chairman of the Board are not elected or are absent, the President
shall preside at all meetings of the Board of Directors. The Chairman of the
Board shall have such other powers and shall perform such other duties as the
Board of Directors may from time to time designate. If the Chairman of the Board
is not the Chief Executive Officer, he shall also have such powers and perform
such duties as the Chief Executive Officer may from time to time designate.
SECTION 10. President. If neither a Chairman of the Board nor a Vice
Chairman of the Board are elected or are present, the President shall preside at
all meetings of the Board of Directors and of the stockholders. If the President
is not the Chief Executive Officer, he shall have such powers and perform such
duties as the Chief Executive Officer may from time to time designate.
SECTION 11. Vice Presidents, Treasurer and Other Officers. Any Vice
President, or Assistant Vice President, any Treasurer or Assistant Treasurer and
any other officers whose powers and duties are not otherwise specifically
provided for herein shall have such powers and shall perform such duties as the
Chief Executive Officer may from time to time designate.
SECTION 12. Clerk and Assistant Clerks. The Clerk shall keep a record of
the meetings of stockholders. If a Secretary is not elected or is absent, the
Clerk shall keep a record of the meetings of the Board of Directors. In the
absence of the Clerk, an Assistant Clerk, if one is elected, shall perform the
Clerk's duties. Otherwise a Temporary Clerk designated by the person presiding
at the meeting shall perform the Clerk's duties.
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ARTICLE V
CAPITAL STOCK
SECTION 1. Certificates of Stock. Unless otherwise provided by the Board
of Directors, each stockholder shall be entitled to a certificate representing
the capital stock of the Company in such form as may from time to time be
prescribed by the Board of Directors. Such certificate shall be signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer.
Such signatures may be facsimile if the certificate is signed by a transfer
agent or by a registrar, other than a Director, officer or employee of the
Company. 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 Company 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 and every certificate
issued when the Company is authorized to issue more than one class or series of
stock shall contain such legend with respect thereto as is required by law.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of stock may be transferred
on the books of the Company by the surrender to the Company or its transfer
agent of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with transfer stamps (if
necessary) affixed, and with such proof of the authenticity of signature as the
Company or its transfer agent, if one is appointed, may reasonably require.
SECTION 3. Record Holders. Except as otherwise required by law, by the
Articles or by these By-laws, the Company shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote, regardless
of any transfer, pledge or other disposition of such stock, until the shares
have been transferred on the books of the Company in accordance with the
requirements of these By-laws.
It shall be the duty of each stockholder to notify the Company of his or
her address and any changes thereto.
SECTION 4. Record Date. The Board of Directors may fix in advance a time
of not more than sixty (60) days before the date of any meeting of the
stockholders, the date for the payment of any dividend or the making of any
distribution to stockholders or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting, and any adjournment thereof, or the right to receive such dividend
or distribution or the right to give such consent or dissent. In such case, only
stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Company after the
record date. Without fixing such record date, the Board of
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Directors may for any of such purposes close the transfer books for all or any
part of such period.
If no record date is fixed and the transfer books are not closed, (a)
the record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be the close of business on the day next
preceding the day on which notice is given, and (b) the record date for
determining stockholders for any other purpose shall be the close of business on
the date on which the Board of Directors acts with respect thereto.
SECTION 5. Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
SECTION 6. Issuance of Capital Stock. Except as provided by law, the
Board of Directors shall have the authority to issue or reserve for issue from
time to time the whole or any part of the capital stock of the Company which may
be authorized from time to time, to such persons or organizations, for such
consideration, whether cash, property, services or expenses and on such terms as
the Board of Directors may determine, including, without limitation, the
granting of options, warrants or conversion or other rights to subscribe to said
capital stock.
SECTION 7. Dividends. Subject to applicable law, the Articles and these
By-laws, the Board of Directors may from time to time declare, and the Company
may pay, dividends on outstanding shares of its capital stock.
ARTICLE VI
INDEMNIFICATION
SECTION 1. Definitions. For purposes of this Article: (a) "Officer"
means any person who serves or has served as a Director of the Company or in any
other office filled by election or appointment by the stockholders or the Board
of Directors and any heirs or personal representatives of such person; (b)
"Non-Officer Employee" means any person who serves or has served as an employee
of the Company, but who is not or was not an Officer, and any heirs or personal
representatives of such person; (c) "Proceeding" means any action, suit or
proceeding, civil or criminal, brought or threatened in or before any court,
tribunal administrative or legislative body or agency and any claim which could
be the subject of a Proceeding; and (d) "Expenses" means any liability fixed by
a judgment, order, decree or award in a Proceeding, any amount reasonably paid
in settlement of a Proceeding and any professional fees or other disbursements
reasonably incurred in a Proceeding.
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SECTION 2. Officers. Except as provided in Sections 4 and 5 of this
Article VI, each Officer of the Company shall be indemnified by the Company
against all Expenses incurred by such Officer in connection with any Proceedings
in which such Officer is involved as a result of serving or having served (a) as
an Officer or employee of the Company; (b) as a director, officer or employee of
any wholly owned subsidiary of the Company; or (c) in any capacity with any
other corporation, organization, partnership, joint venture, trust or other
entity at the request or direction of the Company.
SECTION 3. Non-Officer Employees. Except as provided in Sections 4 and 5
of this Article VI, each Non-Officer Employee of the Company may, in the
discretion of the Board of Directors, be indemnified against any or all Expenses
incurred by such Non-Officer Employee in connection with any Proceeding in which
such Non-Officer Employee is involved as a result of serving or having served
(a) as a Non-Officer Employee of the Company; (b) as a director, officer or
employee of any wholly owned subsidiary of the Company; or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the request or direction of the Company.
SECTION 4. Service at the Request or Direction of the Company. No
indemnification shall be provided to an Officer or Non-Officer Employee with
respect to serving or having served in any of the capacities described in
Section 2(c) or 3(c) above unless the following two conditions are met: (a) such
service was requested or directed in each specific case by vote of the Board of
Directors prior to the occurrence of the event to which the indemnification
relates, and (b) the Company maintains insurance coverage for the type of
indemnification sought. In no event shall the Company be liable for
indemnification under Section 2(c) or 3(c) above for any amount in excess of the
proceeds of insurance received with respect to such coverage as the Company in
its discretion may elect to carry. The Company may but shall not be required to
maintain insurance coverage with respect to indemnification under Section 2(c)
or 3(c) above. Notwithstanding any other provision of this Section 4, but
subject to Section 5 of this Article VI, the Board of Directors may provide an
Officer or Non-Officer Employee with indemnification under Section 2(c) or 3(c)
above as to a specific Proceeding even if one or both of the two conditions
specified in this Section 4 have not been met and even if the amount of the
indemnification exceeds the amount of the proceeds of any insurance which the
Company may have elected to carry, provided that the Board of Directors in its
discretion determines it to be in the best interests of the Company to do so.
SECTION 5. Good Faith. No indemnification shall be provided to an
Officer or to a Non-Officer Employee with respect to a matter as to which such
person shall have been adjudicated in any Proceeding not to have acted in good
faith in the reasonable belief that the action of such person was in the best
interests of the Company. In the event that a Proceeding is compromised or
settled so as to impose any liability or obligation upon an Officer or
Non-Officer Employee, no indemnification shall be provided to said Officer or
Non-Officer Employee with respect to a matter if there be a determination that
with respect to such matter such person did not act in good faith in the
reasonable belief that the action of such person was
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in the best interests of the Company. The determination shall be made by a
majority vote of those Directors who are not involved in such Proceeding.
However, if more than half of the Directors are involved in such Proceeding, the
determination shall be made by a majority vote of a committee of three
disinterested Directors chosen by the disinterested Directors at a regular or
special meeting. If there are fewer than three (3) disinterested Directors, the
determination shall be based upon the opinion of the Company's regular outside
counsel.
SECTION 6. Prior to Final Disposition. Unless otherwise provided by the
Board of Directors or by the committee pursuant to the procedure specified in
Section 5 of this Article VI, any indemnification provided for under this
Article VI shall include payment by the Company of Expenses incurred in
defending a Proceeding in advance of the final disposition of such Proceeding
upon receipt of an undertaking by the Officer or Non-Officer Employee seeking
indemnification to repay such payment if such Officer or Non-Officer Employee
shall be adjudicated or determined to be not entitled to indemnification under
this Article VI.
SECTION 7. Insurance. The Company may purchase and maintain insurance to
protect itself and any Officer or Non-Officer Employee against any liability of
any character asserted against or incurred by the Company or any such Officer or
Non-Officer Employee, or arising out of any such status, whether or not the
Company would have the power to indemnify such person against such liability by
law or under the provisions of this Article VI.
SECTION 8. Other Indemnification Rights. Nothing in this Article VI
shall limit any lawful rights to indemnification existing independently of this
Article VI.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. Amendment of By-laws. These By-laws may be adopted, altered,
amended, changed or repealed as provided in the Articles.
SECTION 2. Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Company shall be the twelve (12) months ending
December 31, or on such other date as may be required by law.
SECTION 3. Seal. The Board of Directors shall have power to adopt and
alter the seal of the Company.
SECTION 4. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the Company
in the ordinary course of its business without Board of Directors' action may be
executed on behalf of the Company by the Chairman of the Board, if one is
elected, the President, the Treasurer or any other officer,
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employee or agent of the Company as the Board of Directors or the Executive
Committee may authorize.
SECTION 5. Voting of Securities. Unless otherwise provided by the Board
of Directors, the Chairman of the Board, if one is elected, the President or the
Treasurer may waive notice of and act on behalf of the Company, or appoint
another person or persons to act as proxy or attorney in fact for the Company
with or without discretionary power and/or power of substitution, at any meeting
of stockholders or shareholders of any other organization, any of whose
securities are held by the Company.
SECTION 6. Inapplicability of Control Share Provisions. The provisions
of Chapter 110D of the Massachusetts Business Corporation Law, as the same may
be amended from time to time, shall not apply to control share acquisitions (as
such term is defined in such chapter) of the Company.
SECTION 7. Articles. All references in these By-laws to the Articles
shall be deemed to refer to the Articles of the Company, as amended and in
effect from time to time.
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