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Exhibit 3.20
BY-LAWS
OF
CASELLA TRANSPORTATION, INC.
ARTICLE I
OFFICES
Section 1.1 BUSINESS OFFICE. The principal office of the corporation shall
be located at any place either within or outside the State of Vermont as
designated in the company's most current Annual Report filed with the Vermont
Secretary of State. The corporation may have such other offices, either within
or without the State of Vermont as the board of directors may designate or as
the business of the corporation may require from time to time. The corporation
shall maintain at its principal office a copy of certain records, as specified
in Section 2.14 of Article II.
Section 1.2 REGISTERED OFFICE. The registered office of the corporation,
required by Section 5.01 of the Vermont Business Corporation Act (the "Act")
shall be located within the State of Vermont and may be, but need not be,
identical with the principal office (if located within the State of Vermont).
The address of the registered office may be changed from time to time.
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ARTICLE II
SHAREHOLDERS
Section 2.1 ANNUAL SHAREHOLDER MEETING. The annual meeting of the
shareholders shall be held within ninety (90) days of the close of the
corporation's fiscal year at a time and date as shall be fixed by the board of
directors, for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday in the State of Vermont such meeting shall be
held on the next succeeding business day.
If the election of directors shall not be held on the day designated herein
for any annual meeting of the shareholders, or at any subsequent continuation
after adjournment thereof, the board of directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as convenient.
Section 2.2 SPECIAL SHAREHOLDER MEETINGS. Special meetings of the
shareholders, for any purpose or purposes, described in the meeting notice, may
be called by the president, or by the board of directors, and shall be called by
the president at the request of the holders of not less than one-tenth of all
outstanding votes of the corporation entitled to be cast on any issue at the
meeting.
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Section 2.3 PLACE OF SHAREHOLDER MEETING. The board of directors may
designate any place, either within or without the State of Vermont as the place
of meeting for any annual or any special meeting of the shareholders, unless by
written consents, which may be in the form of waivers of notice or otherwise,
all shareholders entitled to vote at the meeting designate a different place,
either within or without the State of Vermont, as the place for the holding of
such meeting. If no designation is made by either the directors or unanimous
action of the voting shareholders, the place of meeting shall be the principal
office of the corporation in the State of Vermont.
Section. 2.4 NOTICE OF SHAREHOLDER MEETING.
(a) REQUIRED NOTICE. Written notice stating the place, day and
hour of any annual or special shareholder meeting shall be delivered not less
than 10 nor more than 60 days before the meeting, either personally or by
mail, by or at the direction of the president, the board of directors, or
other persons calling the meeting, to each shareholder of record, entitled to
vote at such meeting and to any other shareholder entitled by the Act or the
articles of incorporation to receive notice of the meeting. Notice shall be
deemed to be effective at the earlier of: (1) when deposited in the United
States mail, addressed to the shareholder at his address as it appears on the
stock transfer books of the corporation, with postage thereon prepaid;
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(2) on the date shown on the return receipt if sent by registered or certified
mail, return receipt requested, and the receipt is signed by or on behalf of the
addressee; (3) when received; or (4) 5 days after deposit in the United States
mail, if mailed postpaid and correctly addressed to an address other than that
shown in the corporation's current record of shareholders.
(b) ADJOURNED MEETING. If any shareholder meeting is adjourned to a
different date, time or place, notice need not be given of the new date, time,
and place, if the new date, time and place is announced at the meeting before
adjournment. But if a new record date for the adjourned meeting is, or must be
fixed, then notice must be given pursuant to the requirements of paragraph (a)
of this Section 2.4, to those persons who are shareholders as of the new record
date.
(c) WAIVER OF NOTICE. The shareholder may waive notice of the meeting
(or any notice required by the Act, articles of incorporation or by-laws), by a
writing signed by the shareholder entitled to the notice, which is delivered to
the corporation (either before or after the date and time stated in the notice)
for inclusion in the minutes or filing with the corporate records.
A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of
the meeting, unless the
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shareholder at the beginning of the meeting objects to
holding the meeting or transaction business at the meeting;
(2) waives objection to consideration of a particular matter at
the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder
makes timely objection to considering the matter when it is
presented, or when the shareholder thereafter becomes aware
that the matter has been presented.
(d) CONTENTS OF NOTICE. The notice of each special shareholder
meeting shall include a description of the purpose or purposes for which the
meeting is called. Except as provided in this Section 2.4(d), or as provided in
the corporation's articles, or otherwise in the Act, the notice of an annual
shareholder meeting need not include a description of the purpose or purposes
for which the meeting is called.
If a purpose of any shareholder meeting is to consider either: (1) a
proposed amendment to the articles of incorporation (including any restated
articles requiring shareholder approval); (2) a plan of merger or share
exchange; (3) the sale, lease, exchange or other disposition of all, or
substantially all of the corporation's property; (4) the
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dissolution of the corporation; or (5) the removal of a director, the notice
must so state and be accompanied by respectively a copy of or summary of the:
(1) articles of amendment; (2) plan of merger or share exchange; and (3)
transaction for disposition of all the corporation's property. If the proposed
corporate action creates dissenters' rights, the notice must state that
shareholders are, or may be entitled to assert dissenters' rights, and must be
accompanied by a copy of Chapter #13 of the Act. If the corporation issues, or
authorizes the issuance of shares for promissory notes or for promises to render
services in the future, the corporation shall report in writing to all the
shareholders the number of shares authorized or issued, and the consideration
received with or before the notice of the next shareholder meeting. Likewise, if
the corporation indemnifies or advances expenses to a director as defined in
Section 8.50(3) of the Act, this shall be reported to all the shareholders with
or before notice of the next shareholder's meeting.
Section 2.5 FIXING OF RECORD DATE. For the purpose of determining
shareholders of any voting group entitled to notice of or to vote at any meeting
of shareholders, or shareholders entitled to receive payment of any distribution
or dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors may fix in advance a date as the record
date. Such record date shall not be less than 10
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nor more than 70 days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If no record date
is so fixed by the board for the determination of shareholders entitled to
notice of, or to vote at a meeting of shareholders, or shareholders entitled to
receive a share dividend or distribution, the record date for determination of
such shareholders shall be at the close of business on:
(a) With respect to an annual shareholder meeting or any special
shareholder meeting called by the board or any person
specifically authorized by the board or these by-laws to call a
meeting, the date before the first notice is delivered to
shareholders;
(b) With respect to a special shareholder's meeting demanded by the
shareholders, the date the first shareholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
board authorizes the share dividend;
(d) With respect to actions taken in writing without a meeting
(pursuant to Article II, Section 2.12), the date the first
shareholder signs a consent; and
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(e) With respect to a distribution to shareholders (other than one
involving a repurchase or reacquisition of shares), the date the
board authorizes the distribution.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof unless the board of directors fixes a new
record date which it must do if the meeting is adjourned to a date more than 120
days after the date fixed for the original meeting.
Section 2.6 SHAREHOLDER LIST. The officer or agent having charge of the
stock transfer books for shares of the corporation shall make a complete record
of the shareholders entitled to vote at each meeting of shareholders thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each. The list must be arranged by voting group (if such exists, see
Article II, Section 2.7) and within each voting group by class or series of
shares. The shareholder list must be available for inspection by any
shareholder, beginning two business days after notice of the meeting is given
for which the list was prepared and continuing through the meeting. The list
shall be available at the corporation's principal office or at the place
identified in the meeting notice in the location where the meeting is to be
held. A shareholder, his agent, or attorney is entitled on
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written demand to inspect and, subject to the requirements of Section 2.14 of
this Article II, to copy the list during regular business hours and at his
expense, during the period it is available for inspection. The corporation shall
maintain the shareholder list in written form or in another form capable of
conversion into written form within a reasonable time.
Section 2.7 SHAREHOLDER QUORUM AND VOTING REQUIREMENTS. If the articles of
incorporation or the Act provides for voting by a single voting group on a
matter, action on that matter is taken when voted upon by that voting group.
Shares entitled to vote as a separate voting group may take action on a
matter at a meeting only if a quorum of those shares exists with respect to that
matter. Unless the articles of incorporation, a by-law adopted pursuant to
Section 2.8 of this Article II, or the Act provide otherwise, a majority of the
votes entitled to be cast on the matter by the voting group constitutes a quorum
of that voting group for action on that matter.
If the articles of incorporation or the Act provide for voting by two or
more voting groups on a matter, action on that matter is taken only when voted
upon by each of those voting groups counted separately. Action may be taken by
one voting group on a matter even though no action is taken by another voting
group entitled to vote on the matter.
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Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation, a by-law adopted pursuant to Section 2.8 of this
Article II, or the Act require a greater number of affirmative votes.
Section 2.8 INCREASING EITHER QUORUM OR VOTING REQUIREMENTS. For purposes
of this Section 2.8 a "supermajority" quorum is a requirement that more than a
majority of the votes of the voting group be present to constitute a quorum; and
a "supermajority" voting requirement is any requirement that requires the vote
of more than a majority of the affirmative votes of a voting group at a meeting.
The shareholders, but only if specifically authorized to do so by the
articles of incorporation, may adopt, amend or delete a by-law which fixes a
"supermajority" quorum or "supermajority" voting requirement.
The adoption or amendment of a by-law that adds, changes or deletes a
"supermajority" quorum or voting requirement for shareholders must meet the same
quorum requirement and be adopted
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by the same vote and voting groups required to take action under the quorum and
voting requirement then in effect or proposed to be adopted, whichever is
greater.
A by-law that fixes a supermajority quorum or voting requirement for
shareholders may not be adopted, amended or repealed by the board of directors.
Section 2.9 PROXIES. At all meetings of shareholders, a shareholder may
vote in person, or vote by proxy which is executed in writing by the shareholder
or which is executed by his duly authorized attorney-in-fact. Such proxy shall
be filed with the secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. No proxy shall be valid
after 11 months from the date of its execution unless otherwise provided in the
proxy.
Section 2.10 VOTING OF SHARES. Unless otherwise provided in the articles,
each outstanding share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of shareholders.
Except as provided by specific court order, no shares held by another
corporation, if a majority of the shares entitled to vote for the election of
directors of such other corporation are held by the corporation, shall be voted
at any meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting. Provided, however, the
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prior sentence shall not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
Redeemable shares are not entitled to vote after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company, or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 2.11 CORPORATION'S ACCEPTANCE OF VOTES.
(a) If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a shareholder, the corporation if acting
in good faith is entitled to accept the vote, consent, waiver or proxy
appointment and give it effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder, the corporation
if acting in good faith is nevertheless entitled to accept the vote, consent,
waiver or proxy appointment and give it effect as the act of the shareholder if:
(1) the shareholder is an entity as defined in the Act and the
name signed purports to be that of an officer or agent of
the entity;
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(2) the name signed purports to be that of an administrator,
executor, guardian, or conservator representing the
shareholder and, if the corporation requests, evidence of
fiduciary status acceptable to the corporation has been
presented with respect to the vote, consent, waiver or proxy
appointment;
(3) the name signed purports to be that of a receiver or trustee
in bankruptcy of the shareholder and, if the corporation
requests, evidence of this status acceptable to the
corporation has been presented with respect to the vote,
consent, waiver or proxy appointment;
(4) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation
of the signatory's authority to sign for the shareholder has
been presented with respect to the vote, consent, waiver or
proxy appointment;
(5) two or more persons are the shareholder as
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co-tenants or fiduciaries and the name signed purports to be
the name of at least one of the co-owners and the person
signing appears to be acting on behalf of all the co-owners.
(c) The corporation is entitled to reject a vote, consent, waiver, or
proxy appointment if the secretary or other officer or agent authorized to
tabulate votes, acting in good faith, has reasonable basis for doubt about the
validity of the signature on it or about the signatory's authority to sign for
the shareholder.
(d) The corporation and its officer or agent who accepts or rejects a
vote, consent, waiver, or proxy appointment in good faith and in accordance with
the standards of this section are not liable in damages to the shareholder for
the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this section is valid unless a court
of competent jurisdiction determines otherwise.
Section 2.12 INFORMAL ACTION BY SHAREHOLDERS.
(a) Any action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if one or more consents in writing,
setting forth the action so taken, shall be signed by all of the shareholders
entitled to vote with
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respect to the subject matter thereof and are delivered to the corporation for
inclusion in the minute book or filed with the corporate records. If the act to
be taken requires that notice be given to non-voting shareholders, the
corporation shall give the non-voting shareholders written notice of the
proposed action at least 10 days before the action is taken, which notice shall
contain or be accompanied by the same material that would have been required if
a formal meeting had been called to consider the action. A consent signed under
this section has the effect of a meeting vote and may be described as such in
any document.
(b) Notwithstanding the provisions of Section 2.12(a) to the
contrary, if the articles of incorporation contain specific authority to do so,
any action required or permitted to be taken at a meeting of the shareholders
may be taken without a meeting if one or more consents in writing, setting forth
the action so taken, shall be signed by the holders of at least a majority of
all of the shares entitled to vote with respect to the subject matter thereof
and are delivered to the corporation for inclusion in the minute book or filed
with the corporate records. Prompt notice of any action taken by less than
unanimous written consent in lieu of a meeting shall be given to all
shareholders entitled to vote on such action.
Section 2.13 VOTING FOR DIRECTORS. Unless otherwise provided in the
articles of incorporation, directors are elected
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by a plurality of the votes cast by the shares entitled to vote in the election
at a meeting at which a quorum is present.
Section 2.14 SHAREHOLDER'S RIGHTS TO INSPECT CORPORATE RECORDS.
(a) MINUTES AND ACCOUNTING RECORDS. The corporation shall keep as
permanent records minutes of all meetings of its shareholders and board of
directors, a record of all actions taken by the shareholders or board of
directors without a meeting, and a record of all actions taken by a committee of
the board of directors in place of the board of directors on behalf of the
corporation. The corporation shall maintain appropriate accounting records.
(b) ABSOLUTE INSPECTION RIGHTS OF RECORDS REQUIRED AT PRINCIPAL
OFFICE. If a shareholder gives the corporation written notice of his demand at
least five business days before the date on which he wishes to inspect and copy,
that shareholder (or his agent or attorney) has the right to inspect and copy,
during regular business hours any of the following records, all of which the
corporation is required to keep at its principal office:
(1) its articles or restated articles of incorporation and all
amendments to them currently in effect;
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(2) its by-laws or restated by-laws and all amendments to them
currently in effect;
(3) resolutions adopted by its board of directors creating one
or more classes or series of shares, and fixing their
relative rights, preferences, and limitations, if shares
issued pursuant to those resolutions are outstanding;
(4) the minutes of all shareholders' meetings, and records of
all action taken by shareholders without a meeting, for the
past three years;
(5) all written communications to shareholders generally within
the past three years, including the financial statement
furnished for the past three years to the shareholders;
(6) a list of the names and business addresses of its current
directors and officers; and
(7) its most recent annual report delivered to the Secretary of
State.
(c) CONDITIONAL INSPECTION RIGHT. In addition, if a shareholder gives
the corporation a written demand made in good faith and for a proper purpose at
least five business days before the date on which he wishes to inspect and copy,
he describes
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with reasonable particularity his purpose and the records he desires to inspect,
and the records are directly connected with his purpose, that shareholder of the
corporation (or his agent or attorney) is entitled to inspect and copy, during
regular business hours at a reasonable location specified by the corporation,
any of the following records of the corporation:
(1) excerpts from minutes of any meeting of the board of
directors, records of any action of a committee of the board
of directors on behalf of the corporation, minutes of any
meeting of the shareholders, and records of action taken by
the shareholders or board of directors without a meeting, to
the extent not subject to inspection under paragraph (a) of
this Section 2.14.
(2) accounting records of the corporation; and
(3) the record of shareholders (compiled no earlier than the
date of the shareholder's demand).
(d) COPY COSTS. The right to copy records includes, if reasonable,
the right to receive copies made by photographic, xerographic or other means.
The corporation may impose a reasonable charge, covering the costs of labor and
material, for copies of any documents provided to the shareholder. The charge
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may not exceed the estimated cost of production or reproduction of the records.
(e) SHAREHOLDER INCLUDES BENEFICIAL OWNER. For purposes of this
Section 2.14, the term "shareholder" shall include a beneficial owner whose
shares are held in a voting trust or by a nominee on his behalf.
Section 2.15 FINANCIAL STATEMENTS SHALL BE FURNISHED TO THE SHAREHOLDERS.
(a) The corporation shall furnish its shareholders annual financial
statements, which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of changes in shareholders' equity for the year unless that
information appears elsewhere in the financial statements. If financial
statements are prepared for the corporation on the basis of generally accepted
accounting principles, the annual financial statements for the shareholders also
must be prepared on that basis.
(b) If the annual financial statements are reported upon by a public
accountant, his report must accompany them. If not, the statements must be
accompanied by a statement of the president or the person responsible for the
corporation's accounting records:
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(1) stating his reasonable belief whether the statements were
prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation;
and
(2) describing any respects in which the statements were not
prepared on a basis of accounting consistent with the
statements prepared for the preceding year.
(c) A corporation shall mail the annual financial statements to each
shareholder within 120 days after the close of each fiscal year. Thereafter, on
written request from a shareholder who was not mailed the statements, the
corporation shall mail him the latest financial statements.
Section 2.16 DISSENTERS' RIGHTS. Each shareholder shall have the right to
dissent from and obtain payment for his shares when so authorized by the Act,
articles of incorporation, these by-laws, or in a resolution of the board of
directors.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 GENERAL POWERS. Unless the articles of incorporation have
dispensed with or limited the authority of the board of directors by describing
who will perform some or all of the duties of a board of directors, all
corporate powers shall be
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exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of the board of directors.
Section 3.2 NUMBER, TENURE, AND QUALIFICATIONS OF DIRECTORS. The number of
directors of the corporation shall be three unless there shall be less than
three shareholders, in which event the shareholders may provide for the number
of directors to be no less than the number of shareholders. Each director shall
hold office until the next annual meeting of shareholders or until removed.
However, if his term expires, he shall continue to serve until his successor
shall have been elected and qualified or until there is a decrease in the number
of directors. Directors need not be residents of the State of Vermont or
shareholders of the corporation unless so required by the articles of
incorporation.
Section 3.3 REGULAR MEETINGS OF THE BOARD OF DIRECTORS. A regular meeting
of the board of directors shall be held without other notice than this by-law
immediately after, and at the same place as, the annual meeting of shareholders.
The board of directors may provide, by resolution, the time and place, either
within or without the State of Vermont for the holding of regular meetings which
shall be held without other notice than such resolution. If so permitted by
Section 3.7, any such regular
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meeting may be held by telephone.
Section 3.4 SPECIAL MEETINGS OF THE BOARD. Special meetings of the board of
directors may be called by or at the request of the President or any one
director. The person or persons authorized to call special meetings of the board
of directors may fix any place, either within or without the State of Vermont,
as the place for holding any special meeting of the board of directors called by
them, or if permitted by Section 3.7, such meeting may be held by telephone.
Section 3.5 NOTICE OF, AND WAVIER OF NOTICE FOR, SPECIAL DIRECTOR
MEETINGS. Unless the articles of incorporation provide for a longer or shorter
period, notice of any special director meeting shall be given at least two days
previously thereto either orally or in writing. If mailed, notice of any
director meeting shall be deemed to be effective at the earlier of: (1) when
received; (2) five days after deposited in the United States mail, addressed to
the director's business office, with postage thereon prepaid; or (3) the date
shown on the return receipt it sent by registered or certified mail, return
receipt requested, and the receipt is signed by or on behalf of the director.
Any director may waive notice of any meeting. Except as provided in the next
sentence, the waiver must be in writing, signed by the director entitled to the
notice, and filed with the minutes or corporate records. The attendance of a
director at a meeting
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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 and at the beginning of the meeting (or promptly upon his arrival)
objects to holding the meeting or transacting business at the meeting, and does
not thereafter vote for or assent to action taken at the meeting. Unless
required by the articles of incorporation, neither the business to be transacted
at, nor the purpose of, any special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting.
Section 3.6 DIRECTOR QUORUM. If by-law Section 3.2 establishes a fixed
board size, a majority of the number of directors shall constitute a quorum for
the transaction of business at any meeting of the board of directors, unless the
articles require a greater number.
Any amendment to this quorum requirement is subject to the provisions of
Section 3.8 of this Article III.
Section 3.7 DIRECTORS, MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present when the vote is
taken shall be the act of the board of directors unless the articles of
incorporation require a greater percentage. Any amendment which changes the
number of directors needed to take action, is subject to the provisions of
Section 3.8 of this Article III.
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Unless the articles of incorporation provide otherwise, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
A director who is present at a meeting of the board of directors or a
committee of the board of directors when corporate action is taken is deemed to
have assented to the action taken unless: (1) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting business at
the meeting; or (2) his dissent or abstention from the action taken is entered
in the minutes of the meeting; or (3) he delivers written notice of his dissent
or abstention to the presiding officer of the meeting before its adjournment or
to the corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
Section 3.8 ESTABLISHING A "SUPERMAJORITY" QUORUM OR VOTING REQUIREMENT
FOR THE BOARD OF DIRECTORS. For purposes of this Section 3.8, a "supermajority"
quorum is a requirement that more than a majority of the directors in office
constitute a quorum, and a "supermajority" voting requirement is any requirement
that
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requires the vote of more than a majority of those directors present at a
meeting at which a quorum is present to be the act of the directors.
A by-law that fixes a supermajority quorum or supermajority voting
requirement may be amended or repealed:
(1) if originally adopted by the shareholders, only by the
shareholders (unless otherwise provided by the
shareholders);
(2) if originally adopted by the board of directors, either by
the shareholders or by the board of directors.
A by-law adopted or amended by the shareholders that fixes a supermajority
quorum or supermajority voting requirement for the board of directors may
provide that it may be amended or repealed only by a specified vote of either
the shareholders or the board of directors.
Subject to the provisions of the preceding paragraph, action by the board
of directors to adopt, amend, or repeal a by-law that changes the quorum or
voting requirement for the board of directors must meet the same quorum
requirement and be adopted by the same vote required to take action under the
quorum and voting requirement then in effect or proposed to be adopted,
whichever is greater.
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Section 3.9 DIRECTOR ACTION WITHOUT A MEETING. Unless the articles of
incorporation provide otherwise, any action required or permitted to be taken by
the board of directors at a meeting may be taken without a meeting if all of the
directors take the action, each one signs a written consent describing the
action taken, and the consents are filed with the records of the corporation.
Action taken by consents is effective when the last director signs the consent,
unless the consent specifies a different effective date. A signed consent has
the effect of a meeting vote and may be described as such in any document.
Section 3.10 REMOVAL OF DIRECTORS. The shareholders may remove one or more
directors at a meeting called for that purpose if notice has been given that a
purpose of the meeting is such removal. The removal may be with or without cause
unless the articles provide that directors may only be removed with cause. If a
director is elected by a voting group of shareholders, only the shareholders of
that voting group may participate in the vote to remove him. If cumulative
voting is authorized, a director may not be removed if the number of votes
sufficient to elect him under cumulative voting is voted against his removal. If
cumulative voting is not authorized, a director may be removed only if the
number of votes cast to remove him exceeds the number of votes cast not to
remove him.
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Section 3.11 BOARD OF DIRECTOR VACANCIES. Unless the articles of
incorporation provide otherwise, if a vacancy occurs on the board of directors,
including a vacancy resulting from an increase in the number of directors, the
shareholders may fill the vacancy. During such time that the shareholders fail
or are unable to fill such vacancies then and until the shareholders act:
(1) the board of directors may fill the vacancy; or
(2) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the
affirmative vote of a majority of all the directors
remaining in office.
If the vacant office was held by a director elected by a voting group of
shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date) may be filled before the vacancy occurs
but the new director may not take office until the vacancy occurs.
The term of a director elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected. However, if his term
expires, he shall continue to serve until his successor is elected and qualifies
or until there is a
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decrease in the number of directors.
Section 3.12 DIRECTOR COMPENSATION. Unless otherwise provided in the
articles of incorporation, by resolution of the board of directors, each
director may be paid his expenses, if any, of attendance at each meeting of the
board of directors, and may be paid a stated salary as a director or a fixed sum
for attendance at each meeting of the board of directors or both. No such
payment shall preclude any director from serving the corporation in any capacity
and receiving compensation therefor.
Section 3.13 DIRECTOR COMMITTEES.
(a) CREATION OF COMMITTEES. Unless the articles of incorporation
provide otherwise, the board of directors may create one or more committees and
appoint members of the board of directors to serve on them. Each committee must
have two or more members, who serve at the pleasure of the board of directors.
(b) SELECTION OF MEMBERS. The creation of a committee and appointment
of members to it must be approved by the greater of (1) a majority of all the
directors in office when the action is taken or (2) the number of directors
required by the articles of incorporation to take such action, (or if not
specified in the articles the numbers required by Section 3.7 of this Article
III to take action).
(c) REQUIRED PROCEDURES. Sections 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9 of
this Article III, which govern meetings, action
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without meetings, notice and waiver of notice, quorum and voting requirements of
the board of directors, apply to committees and their members.
(d) AUTHORITY. Unless limited by the articles of incorporation, each
committee may exercise those aspects of the authority of the board of directors
which the board of directors confers upon such committee in the resolution
creating the committee. Provided, however, a committee may not:
(1) authorize distributions;
(2) approve or propose to shareholders action that the Act
requires be approved by shareholders;
(3) fill vacancies on the board of directors or on any of its
committees;
(4) amend the articles of incorporation pursuant to the
authority of directors, to do so granted by Section 10.02 of
the Act;
(5) adopt, amend, or repeal bylaws;
(6) approve a plan of merger not requiring shareholder approval;
(7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the board of
directors; or
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(8) authorize or approve the issuance or sale or contract for
sale of shares or determine the designation and relative
rights, preferences, and limitation of a class or series of
shares, except that the board of directors may authorize a
committee (or a senior executive officer of the corporation)
to do so within limits specifically prescribed by the board
of directors.
ARTICLE IV
OFFICERS
Section 4.1 NUMBER OF OFFICERS. The officers of the corporation shall be a
president, a secretary, and a treasurer, each of whom shall be appointed by the
board of directors. Such other officers and assistant officers as may be deemed
necessary, including any vice-presidents, may be appointed by the board of
directors. If specifically authorized by the board of directors, an officer may
appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office in the corporation, except the offices
of president and secretary, unless the corporation is a professional
corporation.
Section 4.2 APPOINTMENT AND TERM OF OFFICE. The officers of the corporation
shall be appointed by the board of directors
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for a term as determined by the board of directors. (The designation of a
specified term grants to the officer no contract rights, and the board can
remove the officer at any time prior to the termination of such term.) If no
term is specified, they shall hold office until they resign, die, or until they
are removed in the manner provided in Section 4.3 of this Article IV.
Section 4.3 REMOVAL OF OFFICERS. Any officer or agent may be removed by the
board of directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
Section 4.4 PRESIDENT. The president shall be the principal executive
officer of the corporation and, subject to the control of the board of
directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the shareholders and of the board of directors. He may sign, with the secretary
or any other proper officer of the corporation thereunto authorized by the board
of directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
by-laws to some other officer or agent of the
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corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of president and such
other duties as may be prescribed by the board of directors from time to time.
Section 4.5 THE VICE PRESIDENTS. If appointed, in the absence of the
president or in the event of his death, inability or refusal to act, the vice
president (or in the event there be more than one vice president, the vice
presidents in the order designated at the time of their election, or in the
absence of any designation, then in the order of their appointment) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. (If there
is no vice president, then the treasurer shall perform such duties of the
president.) Any vice president may sign, with the secretary or an assistant
secretary, certificates for shares of the corporation the issuance of which have
been authorized by resolution of the board of directors; and shall perform such
other duties as from time to time may be assigned to him by the president or by
the board of directors.
Section 4.6 THE SECRETARY. The secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the board of directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these by-laws or as required by law; (c)
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be custodian of the corporate records and of any seal of the corporation if
there is a seal of the corporation, see that it is affixed to all documents the
execution of which on behalf of the corporation under its seal is duly
authorized; (d) when requested or required, authenticate any records of the
corporation; (e) keep a register of the post office address of each shareholder
which shall be furnished to the secretary by such shareholder; (f) sign with the
president, or a vice president, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the board of
directors; (g) have general charge of the stock transfer books of the
corporation; and (h) in general perform all duties incident to the office of the
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
Section 4.7 THE TREASURER. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for monies due and payable to the corporation from any
source whatsoever, and deposit all such monies in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected by the
board of directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the president or by the board of directors.
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If required by the board of directors, the treasurer shall give a bond for the
faithful discharge of his duties in such sum and with such surety or sureties as
the board of directors shall determine.
Section 4.8 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries, when authorized by the board of directors, may sign with the
president or a vice president certificates for shares of the corporation the
issuance of which shall have been authorized by a resolution of the board of
directors. The assistant treasurers shall respectively, if required by the board
of directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the board of directors shall determine. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or the treasurer, respectively, or by
the president or the board of directors.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS,
AGENTS AND EMPLOYEES
Section 5.1 INDEMNIFICATION OF DIRECTORS. Unless otherwise provided in the
articles of incorporation, the corporation shall indemnify any individual made a
party to a proceeding because he is or was a director of the corporation,
against liability
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incurred in the proceeding, but only if the corporation has authorized the
payment in accordance with Section 8.55(c) of the Act and a determination has
been made in accordance with the procedures set forth in Section 8.55(b) of the
Act that the director met the standards of conduct in paragraph (a), (b) and (c)
below.
(a) STANDARD OF CONDUCT. The individual shall demonstrate that:
(1) he conducted himself in good faith; and
(2) he reasonably believed:
(i) in the case of conduct in his official capacity with
the corporation, that his conduct was in its best
interests; and
(ii) in all other cases, that his conduct was at least not
opposed to its best interests;
(3) in the case of any proceeding, brought by a governmental
entity, the director had no reasonable cause to believe his
conduct was unlawful and the director is not finally found
to have engaged in a reckless or intentional unlawful act.
(b) NO INDEMNIFICATION PERMITTED IN CERTAIN CIRCUMSTANCES. The
corporation shall not indemnify a director
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under this Section 5.1 of Article V:
(i) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(ii) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in
his official capacity, in which he was adjudged liable on
the basis that personal benefit was improperly received by
him.
(c) INDEMNIFICATION IN DERIVATIVE ACTIONS LIMITED. Indemnification
permitted under this Section 5.1 of Article V in connection with a proceeding by
or in the right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
Section 5.2 ADVANCE EXPENSES FOR DIRECTORS. If a determination is made,
following the procedures of Section 8.55(b) of the Act that the director has met
the following requirements; and if an authorization of payment is made,
following the procedures and standards set forth in Section 8.55(c) of the Act
then unless otherwise provided in the articles of incorporation, the corporation
shall pay for or reimburse the reasonable expenses incurred by a director who is
a party to a
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proceeding in advance of final disposition of the proceeding, if:
(1) the director furnishes the corporation a written affirmation
of his good faith belief that he has met the standard of
conduct described in Section 5.1 of this Article V;
(2) the director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
the advance if it is ultimately determined that he did not
meet the standard of conduct (which undertaking must be an
unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial
ability to make repayment); and
(3) a determination is made that the facts then known to those
making the determination would not preclude indemnification
under Section 5.1 of this Article V or Section 8.50 through
Section 8.58 of the Act.
Section 5.3 INDEMNIFICATION OF OFFICERS, AGENTS AND EMPLOYEES WHO ARE NOT
DIRECTORS. Unless otherwise provided in the articles of incorporation, the board
of directors may indemnify and advance expenses to any officer, employee or
agent of the corporation, who is not a director of the corporation, to the same
extent as a director.
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ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 CERTIFICATES FOR SHARES.
(a) CONTENT. Certificates representing shares of the corporation
shall at minimum, state on their face the name of the issuing corporation and
that it is formed under the laws of the State of Vermont; the name of the person
to whom issued; and the number and class of shares and the designation of the
series, if any, the certificate represents; and be in such form as determined by
the board of directors. Such certificates shall be signed (either manually or by
facsimile) by the president or a vice president and by the secretary or an
assistant secretary and may be sealed with a corporate seal or a facsimile
thereof. Each certificate for shares shall be consecutively numbered or
otherwise identified.
(b) LEGEND AS TO CLASS OR SERIES. If the corporation is authorized to
issue different classes of shares or different series within a class, the
designations, relative rights, preferences and limitations applicable to each
class and the variations in rights, preferences and limitations determined for
each series (and the authority of the board of directors to determine variations
for future series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or back
that the
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corporation will furnish the shareholder this information on request in writing
or without charge.
(c) SHAREHOLDER LIST. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the corporation.
(d) TRANSFERRING SHARES. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and indemnity to
the corporation as the board of directors may prescribe.
Section 6.2 SHARES WITHOUT CERTIFICATES.
(a) ISSUING SHARES WITHOUT CERTIFICATES. Unless the articles of
incorporation provide otherwise, the board of directors may authorize the issue
of some or all of the shares of any or all of its classes or series without
certificates. The authorization does not affect shares already represented by
certificates until they are surrendered to the corporation.
(b) INFORMATION STATEMENT REQUIRED. Within a reasonable time after
the issue or transfer of shares without certificates, the corporation shall send
the shareholder a written statement containing at minimum:
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(1) the name of the issuing corporation and that it is organized
under the law of this state;
(2) the name of the person to whom issued; and
(3) the number and class of shares and the designation of the
series, if any, of the issued shares.
If the corporation is authorized to issue different classes of shares or
different series within a class, the written statement shall describe the
designations, relative rights, preferences and limitations applicable to each
class and the variation in rights, preferences and limitations determined for
each series (and the authority of the board of directors to determine variations
for future series).
Section 6.3 REGISTRATION OF THE TRANSFER OF SHARES. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the person in whose name
shares stand on the books of the corporation shall be deemed by the
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corporation to be the owner thereof for all purposes.
Section 6.4 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED. The board of
directors (or shareholders) may impose restrictions on the transfer or
registration of transfer of shares (including any security convertible into, or
carrying a right to subscribe for or acquire shares). A restriction does not
affect shares issued before the restriction was adopted unless the holders of
the shares are parties to the restriction agreement or voted in favor of the
restriction.
A restriction on the transfer or registration of transfer of shares may be
authorized:
(1) to maintain the corporation's status when it is dependent on
the number or identity of its shareholders;
(2) to preserve exemptions under federal or state securities
law;
(3) for any other reasonable purpose.
A restriction on the transfer or registration of transfer of shares may:
(1) obligate the shareholder first to offer the corporation or
other persons (separately, consecutively or simultaneously)
an opportunity to acquire the restricted shares;
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(2) obligate the corporation or other persons (separately,
consecutively or simultaneously) to acquire the restricted
shares;
(3) require the corporation, the holders of any class of its
shares, or another person to approve the transfer of the
restricted shares, if the requirement is not manifestly
unreasonable;
(4) prohibit the transfer of the restricted shares to designated
persons or classes of persons, if the prohibition is not
manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferree of the holder if the
restriction is authorized by this section and its existence is noted
conspicuously on the front or back of the certificate or is contained in the
information statement required by Section 6.2 of this Article VI with regard to
shares issued without certificates. Unless so noted, a restriction is not
enforceable against a person without knowledge of the restriction.
Section 6.5 ACQUISITION OF SHARES. The corporation may acquire its own
shares and unless otherwise provided in the articles of incorporation, the
shares so acquired constitute authorized but unissued shares.
If the articles of incorporation prohibit the reissue of
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acquired shares, the number of authorized shares is reduced by the number of
shares acquired, effective upon amendment of the articles of incorporation,
which amendment shall be adopted by the shareholders or the board of directors
without shareholder action. The articles of amendment must be delivered to the
Secretary of State and must set forth:
(1) the name of the corporation;
(2) the reduction in the number of authorized shares, itemized
by class and series; and
(3) the total number of authorized shares, itemized by class and
series, remaining after reduction of the shares.
ARTICLE VII
DISTRIBUTIONS
Section 7.1 DISTRIBUTIONS. The board of directors may authorize, and the
corporation may make, distributions (including dividends on its outstanding
shares) in the manner and upon the terms and conditions provided by law and in
the corporation's articles of incorporation.
ARTICLE VIII
CORPORATE SEAL
Section 8.1 CORPORATE SEAL. The board of directors may provide a corporate
seal which may be circular in form and have inscribed thereon any designation
including the name of the
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corporation, Vermont as the state of incorporation, and the words "Corporate
Seal."
ARTICLE IX
AMENDMENTS
Section 9.1 AMENDMENTS. The corporation's board of directors may amend or
repeal the corporation's by-laws unless:
(1) the articles of incorporation or the Act reserve this power
exclusively to the shareholders in whole or in part; or
(2) the shareholders in adopting, amending, or repealing a
particular by-law provide expressly that the board of
directors may not amend or repeal that by-law; or
(3) the by-law either establishes, amends or deletes a
supermajority shareholder quorum or voting requirement (as
defined in Section 2.8 of Article II).
Any amendment which changes the voting or quorum requirement for the board
must comply with Article III, Section 3.8., and for the shareholders, must
comply with Article II, Section 2.8.
The corporation's shareholders may amend or repeal the corporation's
by-laws even though the by-laws may also be amended or repealed by its board of
directors.
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