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Exhibit 3.78
BY-LAWS
OF
PJC REALTY MA, INC.
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BY-LAWS
OF
PJC REALTY MA, INC.
ARTICLE I STOCKHOLDERS
Section 1. ANNUAL MEETING OF STOCKHOLDERS. Beginning with the first
calendar year after the year of incorporation, an annual meeting of the
stockholders shall be held on the last Friday of September each year (or if that
be a legal holiday in the place where the meeting is to be held, on the next
succeeding business day), or at such other time and date before or after such
date (but within six (6) months after the end of each fiscal year of the
Corporation) as the Board of Directors may from time to time fix. The purposes
for which an annual meeting is to be held, in addition to those prescribed by
law, by the Articles of Organization and by these By-Laws, may be specified by
the President or by the Board of Directors.
If an annual meeting is not held as provided above, a special meeting of
stockholders may be held in place thereof and any business transacted or
elections held at such special meeting shall have the same effect as if
transacted or held at the annual meeting, and, in such case, all references in
these By-Laws, except in this Section 1 and in Section 3 of this Article I, to
the annual meeting of stockholders shall be deemed to refer to such special
meeting.
Section 2. SPECIAL MEETINGS OF STOCKHOLDERS. A special meeting of
stockholders may be called at any time by the Chairman of the Board of
Directors, if there be one, by the President or by the Board of Directors. A
special meeting of stockholders shall be called by the Clerk, or in the case of
the death, absence, incapacity or refusal of the Clerk, by any other officer,
upon written application of one or more stockholders who hold in the aggregate
at least ten percent (10%) of the capital stock entitled to vote at the meeting.
Such call shall state the date, time, place and purpose of the meeting.
Section 3. PLACE OF STOCKHOLDERS' MEETINGS. The annual meeting of
stockholders and any special meeting of stockholders, by whomever called, shall
be held at the principal office of the Corporation in Massachusetts, or at such
other place in Massachusetts or, to the extent provided in the Articles of
Organization, within the continental limits of the United States of America as
may be determined by the Board of Directors (or, in the event such meeting shall
have been called upon the application of stockholders, by such stockholders) and
stated in the notice thereof. Any adjourned session of any annual or special
meeting of stockholders shall be held at such permitted place as is designated
in the vote of adjournment.
Section 4. NOTICE OF STOCKHOLDERS' MEETINGS. A written notice of each
annual or special meeting of stockholders, stating the date, time, place and
purpose or purposes for which the meeting is to be held, shall be given by the
Clerk or any other officer at least seven (7) days, or such longer period as may
be prescribed by law or the Articles of Organization, before the meeting to each
stockholder entitled to notice of or to vote at the meeting by leaving such
notice with such stockholder or at such stockholder's residence, or usual place
of business, or by mailing it, postage prepaid, addressed to such stockholder at
such stockholder's address as it
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appears in the records of the Corporation. No notice of the date, time, place
and purpose(s) of any annual or special meeting of stockholders shall be
required to be given to a stockholder if a written waiver of such notice is
executed before or after the meeting by such stockholder, or by such
stockholder's attorney thereunto authorized, and filed with the records of the
meeting.
Section 5. QUORUM AND ADJOURNMENTS. Except as otherwise provided by law or
by the Articles of Organization, the presence in person or by proxy at any
meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall constitute a quorum. If two or more classes of stock are entitled
to vote as separate classes upon any question, then, in the case of each such
class, a quorum for the consideration of such question shall, except as
otherwise provided by law or by the Articles of Organization, consist of a
majority of all stock of each such class issued, outstanding and entitled to
vote. Any meeting may be adjourned from time to time by the holders of a
majority of the shares present or represented by proxy and entitled to vote,
whether or not a quorum is present, and the meeting may be held as adjourned
without further notice. At any such adjourned meeting at which a quorum shall be
represented any such business may be transacted which might have been transacted
at the meeting as originally called. Subject to the requirements of law and the
Articles of Organization, on any issue on which two or more classes of stock are
entitled to vote separately, if a quorum is not present for any one class the
holders of a majority of the shares of such class present or represented by
proxy and entitled to vote at the meeting may adjourn the meeting, as provided
above, as to that class.
Section 6. PROXIES; VOTING; CONDUCT OF MEETING. Stockholders entitled to
vote may vote either in person or by written proxy dated not more than six (6)
months before the meeting named therein; PROVIDED, HOWEVER, that a proxy coupled
with an interest sufficient in law to support an irrevocable power, including
without limitation, an interest in the shares of the Corporation generally, need
not specify the meeting to which it relates, and may be exercised so long as
such interest continues, or until such earlier date as shall be specified in the
proxy. A proxy with respect to stock which is owned by two or more persons shall
be valid if executed by any one of them unless at or prior to the exercise of
the proxy the Corporation receives a specific written notice to the contrary
from any one of them. Unless a proxy otherwise provides, a proxyholder shall be
entitled to vote at any adjourned meeting which is reconvened, but not after the
final adjournment of such meeting. 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 providing proof of its invalidity shall test on
the challenger. The Corporation may accept proxies executed, dated and delivered
by telephone, telecopy or other electronic means provided measures are adopted
that afford a reasonable level of security.
When a quorum is present at any meeting, except where a larger vote is
required by law, by the Articles of Organization or by these By-Laws, a
plurality of the votes properly cast for the election of a Director shall be
sufficient to elect such Director, and a majority of the votes properly cast
upon any other question (or if two or more classes of stock are entitled to vote
as separate classes upon such question, then, in the case of each such class, a
majority of the votes of such class properly cast upon the question), shall
decide the matter.
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Except as provided by law or the Articles of Organization, stockholders
entitled to vote shall have one vote for each share of stock owned by them and a
proportionate vote for a fractional share.
Shares owned by the Corporation, directly or indirectly, shall not be
entitled to vote.
Unless otherwise determined by the Board of Directors, the Chairman of the
Board, if there be one, or in the absence or in default of the Chairman of the
Board, the President, or in the absence or in default of both the Chairman of
the Board and the President, a Vice President, shall act as chairman of the
meeting. The Clerk of the Corporation, or in the absence of the Clerk, any
Assistant Clerk, shall record the proceedings of all meetings of stockholders.
In the absence of the Clerk and all Assistant Clerks, the presiding officer may
appoint a clerk pro tempore of the meeting.
Section 7. ACTION WITHOUT A MEETING. Any action to be taken by stockholders
may be taken without a meeting if all stockholders entitled to vote on the
matter consent to the action by a writing or writings filed with the records of
the meetings of stockholders. Such consent shall be treated for all purposes as
a vote at a meeting.
ARTICLE II DIRECTORS
Section 1. BOARD OF DIRECTORS. The Board of Directors shall consist of not
fewer than three (3) Directors, PROVIDED, HOWEVER, that the number of Directors
may be as few as two (2) whenever there shall be only two (2) stockholders, and
may be as few as one (1) whenever there shall be only one (1) stockholder.
Directors shall be elected annually (by ballot if so requested by any
stockholder entitled to vote) at the annual meeting of stockholders, or if such
annual meeting is omitted, at any special meeting called pursuant to Section 2
of Article I of these By-Laws, by such stockholders as have the right to vote at
such election. The number of Directors for the forthcoming year shall initially
be fixed by the Board of Directors prior to the stockholders' meeting at which
they are to be elected, or if not so fixed, shall be the number of Directors
immediately prior to such meeting.
Except as may be provided by law or the Articles of Organization, at any
time during any year the size of the Board of Directors may be (i) increased by
the Board of Directors and (ii) increased or (subject to the first paragraph of
this Section 1) reduced by the stockholders at a meeting called for the purpose
and, in the case of a reduction which involves the termination of the
directorship of an incumbent Director, by such vote as would be required to
remove such incumbent from office in the manner provided in Section 6 of this
Article II.
Each newly-created directorship resulting from any increase in the number
of Directors may be filled in the manner provided in Section 6 of this
Article II.
Except as may be otherwise provided by law or by the Articles of
Organization, each Director shall hold office until the next annual meeting of
stockholders and until his or her successor is elected and qualified, or until
he or she sooner dies, resigns or is removed.
Section 2. POWERS OF DIRECTORS. The business, property and affairs of the
Corporation shall be managed by, and be under the control and direction of, the
Board of Directors, which
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shall have and may exercise all the powers of the Corporation except such as are
conferred upon or reserved to the stockholders by law, the Articles of
Organization or these By-Laws.
Except as may be otherwise specifically provided by law or by vote of the
stockholders, the Board of Directors is expressly authorized to issue, from time
to time, the capital stock of the Corporation of any class or series which may
have been authorized but not issued or otherwise reserved for issue, to such
person or persons, on such terms and for such consideration permitted by law as
they may determine.
The Board of Directors may delegate from time to time to any committee,
officer, employee or agent such powers and authority as applicable law, the
Articles of Organization and these By-Laws may permit. The Board of Directors in
its discretion may appoint and remove and determine the compensation and duties
in addition to those fixed by law, the Articles of Organization and these
By-Laws, of all the officers, employees and agents of the Corporation. The Board
of Directors shall have power to fix a reasonable compensation or fee for a
person's service as a Director.
Section 3. COMMITTEES OF DIRECTORS. The Board of Directors, by vote of a
majority of the Directors then in office, may from time to time elect from its
own number an executive committee and/or one or more other committees, to
consist of not fewer than two members, and may from time to time designate or
alter, within the limits permitted by this Section, the duties and powers of
such committees or change their membership, and may at any time abolish such
committees or any of them.
Any committee shall be vested with such powers of the Board of Directors as
the Board may determine in the vote establishing such committee or in a
subsequent vote of a majority of the Directors then in office, PROVIDED,
HOWEVER, that no such committee shall have any power prohibited by law, or the
Articles of Organization, or the power:
a. to change the principal office of the Corporation;
b. to amend or authorize the amendment of these By-Laws;
c. to elect officers required by law, the Articles of Organization or these
By-Laws to be elected by the Board of Directors, or to fill vacancies in
any such office;
d. to change the number of the Board of Directors or to fill vacancies in
the Board of Directors;
e. to remove officers or Directors from office;
f. to authorize the payment of any dividend or distribution to
stockholders;
g. to authorize the reacquisition for value of stock or other securities of
the Corporation; or
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h. to authorize a merger of the Corporation with a subsidiary corporation
pursuant to section 82 of the Business Corporation Law of The Commonwealth
of Massachusetts, or with an association or trust pursuant to section 83 of
such Law;
and PROVIDED, FURTHER, that the fact that a particular power appears in the
foregoing enumeration of powers denied to committees of the Board of Directors
shall not be construed to override by implication any other provision of the
Articles of Organization or these By-Laws limiting or denying to the Board of
Directors the right to exercise such power.
Each member of a committee shall hold office until the first meeting of the
Board of Directors following the next annual meeting of stockholders (or until
such other time as the Board of Directors may determine, either in the vote
establishing the committee or at the election of such member) and until his or
her successor is elected and qualified, or until he or she sooner dies, resigns,
is removed, is replaced by change of membership or becomes disqualified by
ceasing to be a Director, or until the committee is sooner abolished by the
Board of Directors.
A majority of the members of any committee then in office, but not fewer
than two, shall constitute a quorum for the transaction of business, but any
meeting may be adjourned from time to time by a majority of the votes cast upon
the question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice. Each committee may make rules not inconsistent
herewith for the holding and conduct of its meetings or the taking of any action
in lieu of a meeting, but unless otherwise provided in such rules its meetings
shall be held and conducted in the same manner, as nearly as may be, as is
provided in these By-Laws for meetings of the Board of Directors. The Board of
Directors shall have the power to rescind or amend any vote or resolution of any
committee; PROVIDED, HOWEVER, that no rights of third parties shall be impaired
by such rescission.
Section 4. MEETINGS OF THE BOARD OF DIRECTORS; ACTION WITHOUT A MEETING.
Regular meetings of the Board of Directors may be held without call or notice at
such places and at such times as the Board may from time to time determine;
PROVIDED, HOWEVER, that notice of such determination and of any changes therein
is given to each member of the Board then in office. A regular meeting of the
Board of Directors may be held without call or notice immediately after and at
the same place as the annual meeting of stockholders.
Special meetings of the Board of Directors may be held at any time and at
any place when called by the Chairman of the Board, if there be one, the
President, the Treasurer, or two or more Directors, notice thereof being given
to each Director by the Clerk, or, if there be no Clerk, by the Assistant Clerk,
or, in the case of death, absence, incapacity or refusal of the Clerk (or the
Assistant Clerk, as the case may be), by the officer or Directors calling the
meeting. In any case, notice to a Director shall be deemed sufficient if (a)
written notice is sent by mail to such Director at least seventy-two (72) hours
before the meeting, (b) notice is sent by telegram or confirmed telex, facsimile
or other electronic transmission to such Director at least forty-eight (48)
hours before the meeting, (c) notice is given to such Director in person, either
by telephone or by handing such Director a written notice, at least thirty-six
(36) hours before the meeting, or (d) such Director has actual knowledge of the
time, place and purpose of a meeting at least twenty-four (24) hours before the
meeting. Mail or telegram notices shall be addressed to a Director at the
Director's usual or last known business or residence address. Notices given by
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telex, facsimile or other electronic transmission shall be addressed to a
Director and transmitted to the Director's usual or last known business or
residence telex number, fax telephone number or electronic message
address.
Notwithstanding the foregoing, notice of a meeting need not be given to any
Director if a written waiver of notice, executed by him or her before, during or
after the meeting, is filed with the records of the meeting, or to any Director
who attends the meeting without protesting prior thereto, or at its
commencement, the lack of notice to him or her.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee of the Board of Directors may be taken without a
meeting if a written consent thereto is signed by all the Directors or the
members of such committee and such written consent is filed with the records of
the meetings of the Board of Directors or such committee. Such consent shall be
treated as a vote at a meeting for all purposes. Such consents may be executed
in one or more counterparts and not every Director need sign the same
counterpart.
Members of the Board of Directors or of any committee of the Board of
Directors may participate in a meeting of the Board of Directors or of such
committee by means of a conference telephone, video or similar communications
equipment by means of which all persons participating in the meeting can hear
each other at the same time and participation in a meeting by such means shall
constitute presence in person at such meeting.
Section 5. QUORUM OF DIRECTORS. At any meeting of the Board of Directors, a
quorum for any election, or for the consideration of any question, shall consist
of a majority of the Directors then in office, but any meeting may be adjourned
from time to time by a majority of the votes cast upon the question, whether or
not a quorum is present, and the meeting may be held as adjourned without
further notice. Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
thereof at which action is taken to authorize a contract or transaction in which
one or more Directors, or one or more entities with which one or more Directors
are affiliated, participate or have an interest. When a quorum is present at any
meeting, the votes of a majority of the Directors present shall be requisite and
sufficient for election to any office and for any question brought before such
meeting, except in any case where a larger vote is required by law, by the
Articles of Organization or by these By-Laws.
Section 6. RESIGNATION AND REMOVAL OF DIRECTORS; VACANCIES. Any Director
may resign at any time by delivering his or her resignation in writing to the
Chairman of the Board, if there be one, the President, the Clerk or the
Assistant Clerk, or to a meeting of the Board of Directors. The stockholders
may, by vote of the holders of shares entitling them to cast a majority of the
votes which may be cast at an election of Directors, remove any Director or
Directors from office with or without cause, and the Board of Directors may, by
vote of a majority of the Directors in office, remove any Director from office
for cause; PROVIDED, HOWEVER, that the Directors of a class elected by a
particular class of stockholders may be removed only by the vote of the holders
of shares of such class entitling them to cast a majority of the votes which may
be cast by stockholders of such class at an election of Directors.
Notwithstanding the foregoing, a Director may be removed for cause only after
reasonable notice and opportunity to be heard before the body proposing to
effect such removal. No Director resigning and (except
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where a right to receive compensation for a definite future period shall be
expressly provided in a written agreement with the Corporation, duly approved by
the Board of Directors) no Director removed shall have any right to any
compensation as such Director for any period following such resignation or
removal, or any right to damages on account of such removal, whether such
Director's compensation be by the month, by the year or otherwise.
Any vacancy in the Board of Directors, however occurring, including a
vacancy resulting from the enlargement of the Board, may be filled by the
stockholders or, if the stockholders have not acted, by a majority of the
Directors then in office. If the office of any member of any committee becomes
vacant, the Board of Directors may elect or appoint a successor or successors by
vote of a majority of the Directors then in office.
Each successor as a Director shall hold office for his or her predecessor's
unexpired term and until such Director's successor shall be elected or appointed
and qualified, or until such Director sooner dies, resigns, is removed or
becomes disqualified.
The Board of Directors shall have and may exercise all its powers,
notwithstanding the existence of one or more vacancies in its number as fixed by
either the stockholders or the Board of Directors.
ARTICLE III OFFICERS AND AGENTS
Section 1. OFFICERS AND AGENTS.
The officers of the Corporation shall be a President, a Treasurer, a Clerk,
and such other officers, which may include a Chairman of the Board, a
Controller, one or more Vice Presidents (of such gradations and with such
responsibilities as the Board shall determine), Assistant Treasurers, Assistant
Clerks, or Assistant Controllers, as the Board of Directors may, in its
discretion, elect or appoint. The Corporation may also have such agents, if any,
as the Board of Directors may, in its discretion, appoint. So far as is
permitted by law, any two or more offices may be held by the same person.
Subject to law, the Articles of Organization and the other provisions of
these By-Laws, each officer shall have, in addition to the duties and powers
herein set forth, such duties and powers as are commonly incident to such office
or as the Board of Directors may from time to time designate.
The President, Treasurer and Clerk (and the Chairman of the Board, if there
be one) shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders. Such other offices of the
Corporation as may be created in accordance with these By-Laws may be filled by
election at the annual or any special meeting of the Board of Directors.
Each officer elected by the Board of Directors shall hold office until the
first meeting of the Board of Directors following the next annual meeting of
stockholders and until such officer's successor is elected or appointed and
qualified, or until such officer sooner dies, resigns, is removed, or becomes
disqualified. Each agent shall retain his or her authority at the pleasure of
the Board of Directors.
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Section 2. PRESIDENT AND VICE PRESIDENTS; CHAIRMAN OF THE BOARD.
The President shall be the chief executive officer of the Corporation and shall
have general charge and supervision of the business, property and affairs of the
Corporation and such other powers and duties as the Board of Directors may
prescribe, subject to the control of the Board of Directors, unless otherwise
provided by law, the Articles of Organization, these By-Laws or by specific vote
of the Board of Directors. The President need not be a Director. If elected, the
Chairman of the Board shall preside at all meetings of the stockholders and of
the Board of Directors, and shall have such other duties as the Board of
Directors shall determine. If no Chairman of the Board is elected, or in the
absence of the Chairman of the Board, the President shall preside at all
meetings of the Board of Directors at which he or she is present, except as
otherwise determined by the Board of Directors.
Any Vice President shall have such duties and powers as shall be designated
from time to time by the Board of Directors or by the President, and, in any
case, shall be responsible to and shall report to the President. In the absence
or disability of the President, the Vice President or, if there be more than
one, the Vice Presidents in the order of their seniority or as otherwise
designated by the Board of Directors shall have the powers and duties of the
President.
Section 3. TREASURER AND ASSISTANT TREASURER. The Treasurer shall be the
chief financial officer of the Corporation and shall be in charge of its funds
and the disbursements thereof, subject to the chief executive officer of the
Corporation and the Board of Directors, and shall have such duties and powers as
are commonly incident to the office of a corporate treasurer and such other
duties and powers as may be prescribed from time to time by the Board of
Directors or by the chief executive officer. If no Controller is elected, the
Treasurer shall also have the duties and powers of the Controller as provided in
these By-Laws. The Treasurer shall be responsible to and shall report to the
Board of Directors, but in the ordinary conduct of the Corporation's business,
shall be under supervision of the chief executive officer.
Any Assistant Treasurer shall have such duties and powers as shall be
prescribed from time to time by the Board of Directors or by the Treasurer, and
shall be responsible to and shall report to the Treasurer. In the absence or
disability of the Treasurer, the Assistant Treasurer or, if there be more than
one, the Assistant Treasurers in their order of seniority or as otherwise
designated by the Board of Directors shall have the powers and duties of the
Treasurer.
Section 4. CONTROLLER AND ASSISTANT CONTROLLERS. The Controller shall be
the chief accounting officer of the Corporation and shall be in charge of its
books of account and accounting records and of its accounting procedures, and
shall have such duties and powers as are commonly incident to the office of a
corporate controller and such other duties and powers as may be prescribed from
time to time by the Board of Directors or by the chief executive officer. The
Controller shall be responsible to and shall report to the Board of Directors,
but in the ordinary conduct of the Corporation's business, shall be under the
supervision of the chief executive officer.
Any Assistant Controller shall have duties and powers as shall be
prescribed from time to time by the Board of Directors or by the Controller, and
shall be responsible to and shall report to the Controller. In the absence or
disability of the Controller, the Assistant Controller or, if
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there be more than one, Assistant Controllers in their order of seniority or as
otherwise designated by the Board of Directors, shall have the powers and duties
of the Controller.
Section 5. CLERK AND ASSISTANT CLERK. The Clerk shall record all
proceedings of the stockholders in books to be kept therefor, and shall have
custody of the Corporation's records, documents and valuable papers. In the
absence of the Clerk from any such meeting, the Assistant Clerk, if any, or if
there be more than one, the Assistant Clerks in their order of seniority or as
otherwise designated by the Board of Directors, shall record the proceedings
thereof in the aforesaid books, or a temporary clerk may be chosen for the
purpose by vote of the meeting.
The Clerk shall also keep, or cause to be kept, the stock transfer records
of the Corporation which shall contain a complete list of the names and
addresses of all stockholders and the amount of stock held by each.
Unless the Board of Directors shall otherwise designate, the Clerk or, in
the absence of the Clerk, the Assistant Clerk, if any, shall have custody of the
corporate seal and be responsible for affixing it to such documents as may be
required by law or as may be directed by the Board of Directors to be sealed.
The Clerk shall attend all meetings of the Board of Directors and shall
record the proceedings thereat in books provided for that purpose, which shall
be available upon request for the inspection of any Director during business
hours. In the absence of the Clerk from any such meeting, the Assistant Clerk,
if any, or if there be more than one, the Assistant Clerks in their order of
seniority, or as otherwise designated by the Board of Directors, shall record
such proceedings in the aforesaid books, or a temporary clerk may be chosen for
the purpose. The Clerk shall notify the Directors of Director meetings in
accordance with these By-Laws and shall have and may exercise such other powers
and duties as the Board of Directors may prescribe.
The Clerk shall have such other duties and powers as are commonly incident
to the office of a corporate clerk, and such other duties and powers as may be
prescribed from time to time by the Board of Directors or by the chief executive
officer.
The Clerk shall be a resident of Massachusetts unless the Corporation has a
resident agent appointed for the purpose of receiving service of process.
Any Assistant Clerk shall have such duties and powers as shall from time to
time be designated by the Board of Directors or the Clerk, and shall be
responsible to and shall report to the Clerk.
Section 6. RESIGNATIONS AND REMOVALS OF OFFICERS AND AGENTS; VACANCIES. Any
officer may resign at any time by delivering his or her resignation in writing
to the chief executive officer, the Clerk or the Assistant Clerk, if any, or to
a meeting of the Board of Directors. Any officer elected by the stockholders may
be removed from office, with or without cause, by vote of holders of shares
entitling them to cast a majority of the votes which could be cast at an
election for such office; PROVIDED, that an officer elected by one or more
particular classes of stockholders may be removed only by such a vote of holders
of shares of such class or classes.
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The Board of Directors may, by vote of a majority of the Directors in office,
remove any officer elected by the stockholders, or any class or classes of
stockholders, from office for cause, and may remove any officer elected by the
Board with or without cause. Notwithstanding the foregoing, an officer may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to effect such removal. The Board of Directors may, at
any time, by vote of a majority of the Directors present and voting, terminate
or modify the authority of any agent. No officer resigning and (except where a
right to receive compensation for a definite future period shall be expressly
provided in a written agreement with the Corporation, duly approved by the Board
of Directors) no officer removed shall have any right to any compensation as
such officer for any period following such officer's resignation or removal, or
any right to damages on account of such removal, whether his or her compensation
be by the month, by the year or otherwise.
Each successor as an officer shall hold office for the unexpired term and
until his or her successor shall be elected or appointed and qualified, or until
he or she sooner dies, resigns, is removed or becomes disqualified.
ARTICLE IV STOCK
Section 1. CERTIFICATES FOR STOCK. Unless the Board of Directors provides
by resolution that some or all of any or all classes and series of the
Corporation's shares shall be uncertificated shares, each stockholder shall be
entitled to a certificate representing the capital stock of the Corporation
owned by him or her, in such form as shall, in conformity to law, be prescribed
from time to time by the Board of Directors. Such certificate shall be signed by
either the Chairman of the Board, if any, the President or a Vice President, and
by either the Treasurer or an Assistant Treasurer, and may, but need not be,
sealed with the corporate seal; but when any such certificate is signed by a
transfer agent or by a registrar other than a Director, officer, or employee of
the Corporation, the signature of the Chairman of the Board, if any, the
President or a Vice President and of the Treasurer or an Assistant Treasurer of
the Corporation, or either or both such signatures and such seal upon such
certificate, may be facsimile. If any officer who has signed, or whose facsimile
signature has been placed on, any such certificate shall have ceased to be such
officer before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if he or she were such officer at the time
of issue.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to law, the Articles of Organization, these By-Laws, or any
agreement to which the Corporation is a party, shall have the restriction noted
conspicuously on the certificate, and shall also set forth, on the face or back,
either the full text of the restriction or a statement of the existence of such
restriction and (except if such restriction is imposed by law) a statement that
the Corporation will furnish a copy thereof to the holder of such certificate
upon written request and without charge. Every certificate issued when the
Corporation is authorized to issue more than one class or series of stock shall
set forth on its face or back either the full text of the preferences, voting
powers, qualifications, and special and relative rights of the shares of each
class and series authorized to be issued, or a statement of the existence of
such preferences, powers, qualifications and rights, and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
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Section 2. TRANSFER OF SHARES OF STOCK. Shares of stock may be transferred
on the books of the Corporation only in compliance with the restrictions, if
any, stated or noted on the stock certificates therefor, and only upon surrender
to the Corporation, or its transfer agent, of such certificates, properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with all requisite stock transfer stamps affixed, and with such proof
of the authenticity and effectiveness of the signature as the Corporation or its
transfer agent shall reasonably require. Except as may be otherwise required by
law, by the Articles of Organization or by these By-Laws, the Corporation shall
have the right to treat the person registered on the stock transfer books as the
owner of any shares of the Corporation's stock as the owner-in-fact thereof for
all purposes, including the payment of dividends, the right to vote with respect
thereto and otherwise, and accordingly shall not be bound to recognize any
attempted transfer, pledge or other disposition thereof, or any equitable or
other claim with respect thereto, whether or not it shall have actual or other
notice thereof, until such shares shall have been transferred on the
Corporation's books in accordance with these By-Laws. It shall be the duty of
each stockholder to notify the Corporation of his or her post office address.
Section 3. TRANSFER AGENTS AND REGISTRARS; FURTHER REGULATIONS. The Board
of Directors may appoint one or more banks, trust companies or corporations
doing a corporate trust business, in good standing under the laws of the United
States or any state therein, to act as the Corporation's transfer agent and/or
registrar for shares of capital stock, and the Board may make such other and
further regulations, not inconsistent with applicable law, as it may deem
expedient concerning the issue, transfer and registration of capital stock and
stock certificates of the Corporation.
Section 4. LOSS OF CERTIFICATES. In the case of the alleged loss,
destruction, or wrongful taking of a certificate of stock, a duplicate
certificate may be issued in place thereof upon receipt by the Corporation of
such evidence of loss and such indemnity bond, with or without surety, as shall
be satisfactory to the President and the Treasurer, or otherwise upon such
terms, consistent with law, as the Board of Directors may prescribe.
Section 5. RECORD DATE. The Board of Directors may fix in advance a time,
which shall not be more than sixty (60) days before the date of any meeting of
stockholders or the date for the payment of any dividend or the making of any
distribution to stockholders, or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting and any adjournment thereof, or the right to receive such dividend
or distribution, or the right to give such consent or dissent, and in such case,
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date; or, without fixing such record date, the Board of Directors may,
for any such purposes, close the transfer books for all or any part of such
period.
ARTICLE V INDEMNIFICATION; INSURANCE
Section 1. INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS. Each present
or former officer or Director of the Corporation, and each person who, at the
Corporation's request, is serving or at any time in the past has served (whether
or not presently serving) (a) as an officer or director of another corporation,
(b) as a trustee, partner, officer, member, manager or other
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functionary of a trust, partnership, limited liability company, association or
other venture, or non-profit entity, or (c) in any capacity with respect to any
employee benefit plan, shall, to the maximum extent permitted from time to time
under the law of The Commonwealth of Massachusetts, be indemnified by the
Corporation against all liabilities, costs and expenses, including amounts paid
in satisfaction of judgments, in compromise and/or as fines or penalties
imposed, and the fees and disbursements of counsel reasonably incurred, in
connection with or arising out of any action, suit, or proceeding, civil or
criminal, or in anticipation of any such action, suit or proceeding, in which
such person is or may become involved by reason of holding or having held such
position, or serving or having served with respect to such plan, or by reason of
any alleged act or omission in any such capacity. Such indemnification may
include payment by the Corporation of expenses incurred in preparing for or
defending any such action, suit, or proceeding in advance of the final
disposition thereof, upon receipt of an undertaking by the person indemnified to
repay such payment if he or she shall be adjudicated not to be entitled to
indemnification under this Section 1, which undertaking may be accepted by the
Corporation without reference to such person's financial ability to make
repayment. The foregoing rights of indemnification shall not be exclusive of
other rights to which any such person may be entitled as a matter of law, and
any repeal or modification of any of the foregoing provisions of this Section
shall not adversely affect any right or protection of any such person with
respect to any acts or omissions that occurred prior to such repeal or
modification. These indemnity provisions shall be separable, and if any portion
thereof shall be finally adjudged to be invalid, such invalidity shall not
affect any other portion which can be given effect.
The Corporation shall not, however, indemnify any such person, or such
person's heirs, executors, administrators or other personal representatives with
respect to any matter as to which such person shall be finally adjudged in any
such action, suit, or proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interests of the
Corporation, or to the extent that such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such plan.
Notwithstanding the foregoing, no indemnification shall be provided with
respect to any matter disposed of by settlement, consent decree or other
negotiated resolution unless:
a. such indemnification shall have been approved by holders of the shares
of the Corporation's capital stock then entitled to vote for the election
of Directors, voting such shares as a single class, by a majority of the
votes cast on the question exclusive of any shares owned by an interested
Director or officer, or
b. such indemnification and such settlement, decree or resolution shall
have been approved as being in the best interest of the Corporation, or the
organization or plan or participants served, as the case may be, after
notice that it involves such indemnification, by a majority of the
disinterested Directors (or, if applicable, the sole disinterested
Director) then in office (whether or not constituting a quorum); or
c. if no Directors are disinterested, a written opinion, reasonably
satisfactory to the Corporation, of independent legal counsel selected by
the Corporation shall have been furnished to the Corporation that (1) such
indemnification and such settlement, decree or resolution are in the best
interest of the Corporation, or the organization or plan or
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participants served, as the case may be, and (2) if adjudicated, such
indemnification would not be found to have been prohibited by law.
For purposes of this Section, an "interested" Director or officer is one against
whom in such capacity the proceeding in question or another proceeding on the
same or similar grounds is then pending or threatened, and a "disinterested
Director" is any Director who is not an interested Director.
Section 2. INSURANCE. In addition to, and without limitation of, the
Corporation's authority to indemnify certain persons under the provisions of
Section 6.6 of Article VI of the Articles of Organization, the Board of
Directors may in their discretion, at any time or from time to time, cause the
Corporation to purchase and maintain on behalf of any or all of the persons
specified in Section 67 of the Massachusetts Business Corporation Law, as now in
effect, or as it may from time to time thereafter be amended, or by any
successor provision of the General Laws of Massachusetts dealing with the same
general subject matter as such Section 67, such insurance against liability as
is authorized by such Section 67 or such successor provision, whether or not the
Corporation would have the power to indemnify any such person against such
liability.
ARTICLE VI MISCELLANEOUS
Section 1. SEAL. The seal of the Corporation shall, subject to alteration
by the Board of Directors, consist of a flat-faced circular die with the word
"Massachusetts", together with the name of the Corporation and the year of
incorporation, cut or engraved thereon. An impression of the seal impressed upon
the original copy of these By-Laws shall be deemed conclusively to be the seal
adopted by the Board of Directors.
Section 2. EXECUTION OF PAPERS. Except as the Board of Directors may
generally or in particular cases otherwise authorize or direct, all deeds,
mortgages, leases, transfers, contracts, agreements, proposals, bonds, notes,
checks, drafts and other obligations made, accepted or endorsed by the
Corporation shall be signed or endorsed on behalf of the Corporation by the
Chairman of the Board, if there be one, the President, one of the Vice
Presidents or the Treasurer.
Section 3. VOTING STOCK IN OTHER CORPORATIONS OR LIMITED LIABILITY
COMPANIES. Unless otherwise authorized or directed by the Board of Directors,
the Chairman of the Board, if there be one, or, in the case of the absence or
failure of the Chairman of the Board to act, the President, one of the Vice
Presidents or the Treasurer, shall have full power and authority on behalf of
the Corporation to attend and to act and to vote at any meetings of stockholders
or members of any corporation or limited liability company in which this
Corporation may hold stock or membership, and at any such meeting shall possess
and may exercise any and all rights and powers incident to the ownership of such
stock or to such membership and which, as the owner thereof, the Corporation
might have possessed and exercised if present. The Board of Directors, by
resolution from time to time, or, in the absence thereof, the chief executive
officer, may confer like powers upon any other person or persons as attorneys
and proxies of the Corporation.
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Section 4. FISCAL YEAR. The fiscal year of the Corporation shall end on
May 31st of each year unless otherwise fixed by vote of the Board of Directors,
and may be changed by resolution of the Board if the Board determines that a
change would be desirable.
Section 5. LOCATION OF CORPORATE RECORDS. The books and records of the
Corporation may be kept at such place or places, inside or outside of
Massachusetts, as may be designated from time to time by the Board of Directors
or in the Articles of Organization; PROVIDED, HOWEVER, that the original, or
attested copies, of the Articles of Organization, these By-Laws, the records of
all meetings of incorporators and stockholders and the stock transfer records
(which shall contain the names of all stockholders and the record address and
the amount of stock held by each), shall be kept in Massachusetts for inspection
by the stockholders at its principal office or an office of its transfer agent
or of its Clerk or of its registered agent.
Section 6. CONTRACTS WITH INTERESTED PARTIES. The Corporation may enter
into contracts and transact business with one or more of its Directors,
officers, or stockholders, or in which any of them is in any other way
interested, or with any corporation, association, trust, firm, partnership,
limited liability company, or other concern in which any one or more of its
Directors, officers or stockholders are directors, officers, stockholders,
trustees, shareholders, members, beneficiaries, partners or otherwise
interested; and in the absence of fraud no such contract or transaction shall
be invalidated or in any way affected by the fact that such Directors, officers
or stockholders of the Corporation have or may have interests which are or might
be adverse to the interests of the Corporation, nor shall any Director, officer
or stockholder having such adverse interest be liable to the Corporation or to
any stockholder or creditor thereof, or to any other person, for any loss
incurred by it under or by reason of such contract or transaction, nor shall any
such Director, officer or stockholder be accountable for any gains or profits
realized thereon, even though the vote or action of the Board of Directors,
officers, or stockholders having such adverse interests may have been necessary
to obligate the Corporation upon such contract or transaction, if:
a. the material facts as to such person's or persons' relationship or
interest and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee thereof which
authorizes the contract or transaction, and the Board or such
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested Directors, even
if the disinterested Directors, be less than a quorum; or
b. the material facts as to said person's or persons' relationship or
interest as to the contract or transaction are disclosed or are known
to the stockholders (whether or not so disinterested) of the
Corporation entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by the vote of stockholders
holding stock entitling them to cast a majority of the votes which may
be cast for the election of Directors; or
c. the contract or transaction is fair to the Corporation as of the time
it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
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No person shall be disqualified from holding office as a Director or officer of
the Corporation by reason of any such adverse interest.
ARTICLE VII AMENDMENTS
These By-Laws may be altered, amended or repealed, in whole or in part, at
any time by vote of the stockholders. The Board of Directors, by a majority vote
of the Directors at the time in office, may also alter, amend or repeal these
By-Laws in whole or in part, except with respect to any provision hereof which
by law, the Articles of Organization or these By-Laws requires action by the
stockholders; PROVIDED, HOWEVER, that not later than the time of giving notice
of the meeting of stockholders next following the alteration, amendment or
repeal of these By-Laws, in whole or in part by the Board of Directors, notice
thereof, stating the substance of such action shall be given to all stockholders
entitled to vote on amending these By-Laws. By-Laws adopted by the Board of
Directors may be amended or repealed by the stockholders.
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TABLE OF CONTENTS
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Page
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ARTICLE I STOCKHOLDERS......................................................................................1
Section 1. Annual Meeting of Stockholders..........................................................1
Section 2. Special Meetings of Stockholders........................................................1
Section 3. Place of Stockholders' Meetings.........................................................1
Section 4. Notice of Stockholders' Meetings........................................................1
Section 5. Quorum and Adjournments.................................................................2
Section 6. Proxies; Voting; Conduct of Meeting.....................................................2
Section 7. Action Without a Meeting................................................................3
ARTICLE II DIRECTORS........................................................................................3
Section 1. Board of Directors......................................................................3
Section 2. Powers of Directors.....................................................................3
Section 3. Committees of Directors.................................................................4
Section 4. Meetings of the Board of Directors; Action Without a Meeting............................5
Section 5. Quorum of Directors.....................................................................6
Section 6. Resignation and Removal of Directors; Vacancies.........................................6
ARTICLE III OFFICERS AND AGENTS............................................................................7
Section 1. Officers and Agents.....................................................................7
Section 2. President and Vice Presidents; Chairman of the Board....................................8
Section 3. Treasurer and Assistant Treasurer.......................................................8
Section 4. Controller and Assistant Controllers....................................................8
Section 5. Clerk and Assistant Clerk...............................................................9
Section 6. Resignations and Removals of Officers and Agents; Vacancies.............................9
ARTICLE IV STOCK..........................................................................................10
Section 1. Certificates for Stock.................................................................10
Section 2. Transfer of Shares of Stock............................................................11
Section 3. Transfer Agents and Registrars; Further Regulations....................................11
Section 4. Loss of Certificates...................................................................11
Section 5. Record Date............................................................................11
ARTICLE V INDEMNIFICATION; INSURANCE......................................................................11
Section 1. Indemnification of Directors, Officers and Others......................................11
Section 2. Insurance..............................................................................13
ARTICLE VI MISCELLANEOUS..................................................................................13
Section 1. Seal...................................................................................13
Section 2. Execution of Papers....................................................................13
Section 3. Voting Stock in Other Corporations or Limited Liability Companies......................13
Section 4. Fiscal Year............................................................................14
Section 5. Location of Corporate Records..........................................................14
Section 6. Contracts with Interested Parties......................................................14
ARTICLE VII AMENDMENTS....................................................................................15
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