Exhibit 3 ii
AMENDED AND RESTATED
BY-LAWS
OF
LSB CORPORATION
REFLECTING ALL AMENDMENTS
THROUGH MARCH 22, 2005
 

 

TABLE OF CONTENTS     ARTICLE I Organization  1      ARTICLE II Stockholders  1      SECTION 1. Annual Meeting  1 SECTION 2. Matters to be Considered at the Annual Meeting  1 SECTION 3. Special Meeting  4 SECTION 4. Notice of Meetings; Adjournments  4 SECTION 5. Quorum  5 SECTION 6. Voting and Proxies  5 SECTION 7. Action at Meeting  5 SECTION 8. Control Share Acquisition  5      ARTICLE III Directors  6      SECTION 1. Powers  6 SECTION 2. Composition and Term  6 SECTION 3. Director Nominations  6 SECTION 4. Qualification  8 SECTION 5. Resignation  9 SECTION 6. Removal  9 SECTION 7. Vacancies  9 SECTION 8. Compensation  9 SECTION 9. Regular Meetings  9 SECTION 10. Special Meetings  9 SECTION 11. Notice of Meetings  9 SECTION 12. Quorum  10 SECTION 13. Action at a Meeting  10 SECTION 14. Action by Consent  10 SECTION 15. Presumption of Assent  10 SECTION 16. Committees  11 SECTION 17. Manner of Participation  11      ARTICLE IV Officers  11      SECTION 1. Enumeration  11 SECTION 2. Election  12 SECTION 3. Qualification  12 SECTION 4. Tenure  12 SECTION 5. Removal  12 SECTION 6. Absence or Disability  12 SECTION 7. Vacancies  13 SECTION 8. Chief Executive Officer  13 SECTION 9. President  13 
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     SECTION 10. Chairman of the Board  13 SECTION 11. Vice Presidents, Treasurer and Other Officers  13 SECTION 12. Clerk and Assistant Clerks  13 SECTION 13. Secretary and Assistant Secretary  13      ARTICLE V Capital Stock  13      SECTION 1. Certificates of Stock  13 SECTION 2. Transfers  14 SECTION 3. Record Holders  14 SECTION 4. Record Date  14 SECTION 5. Replacement of Certificates  15 SECTION 6. Issuance of Capital Stock  15 SECTION 7. Dividends  15      ARTICLE VI Indemnification  15      SECTION 1. Definitions  15 SECTION 2. Officers  15 SECTION 3. Non-Officer Employees  15 SECTION 4. Service at the Request or Direction of the Company  16 SECTION 5. Good Faith  16 SECTION 6. Prior to Final Disposition  16 SECTION 7. Insurance  17 SECTION 8. Other Indemnification Rights  17      ARTICLE VII Miscellaneous Provisions  17      SECTION 1. Amendment of By-laws  17 SECTION 2. Fiscal Year  17 SECTION 3. Seal  17 SECTION 4. Execution of Instruments  17 SECTION 5. Voting of Securities  17 SECTION 6. Inapplicability of Control Share Provisions  17 SECTION 7. Articles  17 
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BY-LAWS
OF
LSB CORPORATION
ARTICLE I
ORGANIZATION
     The name of this corporation is “LSB Corporation” (the “Company”). The main office of theCompany is located in North Andover, Massachusetts, or such other location as the Board ofDirectors may designate, subject to applicable law. The Company shall engage directly orindirectly only in such activities as shall be proper activities for bank holding companiesregistered under the Bank Holding Company Act of 1956, as amended, and shall have and may exerciseall the powers, privileges and authority, whether express or implied, now or hereafter conferred byapplicable law.
ARTICLE II
STOCKHOLDERS
     SECTION 1. Annual Meeting. The annual meeting of the stockholders (the “AnnualMeeting”) for the election of Directors and such other business as may properly come before theAnnual Meeting shall be held on the first Tuesday in May at 10:00 a.m. at the main office of theCompany in Massachusetts, unless a different hour, date or place within Massachusetts (or ifpermitted by law, elsewhere in the United States) is fixed by the Board of Directors (the “Board”),the Chief Executive Officer, the President or, in the President’s absence, the Chairman of theBoard, if one is elected. If no Annual Meeting has been held on the date fixed as above provided,a special meeting in lieu thereof may be held and such special meeting shall be treated for allpurposes as an Annual Meeting.
     SECTION 2. Matters to be Considered at the Annual Meeting. The purposes for whichthe Annual Meeting is to be held, in addition to those prescribed by law, by the Articles ofOrganization (the “Articles”) or by these By-laws (the “By-laws”), may be specified by the Board ofDirectors, the Chief Executive Officer, the President or, in the absence of the President, theChairman of the Board if one is elected.
     At any Annual Meeting or any special meeting in lieu of Annual Meeting, only such new businessshall be conducted, and only such additional proposals shall be acted upon, as shall have beenproperly brought before such Annual Meeting. To be considered as properly brought before an AnnualMeeting, business must be: (a) specified in the notice of meeting; (b) otherwise properly broughtbefore the meeting by, or at the direction of, the Board of Directors (unless at the time of suchaction there is an Interested Stockholder, in which case the affirmative vote of a majority of theContinuing Directors then in office shall also be required); or (c) otherwise properly brought before the Annual Meetingby or on behalf of any stockholder of
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record who (i) shall have been a stockholder of record at thetime of the giving of notice as provided in this Section 2; (ii) shall continue to be a stockholderof record on the record date for such Annual Meeting and on the Annual Meeting date; and (iii)shall be entitled to vote at such Annual Meeting.
     In addition to any other applicable requirements, for business to be properly brought beforean Annual Meeting by a stockholder of record of any shares of capital stock entitled to vote atsuch Annual Meeting, such stockholder shall: (i) give timely notice as required by this Section 2to the Clerk of the Company; and (ii) be present at such meeting, either in person or by arepresentative. For the first Annual Meeting following the effective date of these By-Laws, to betimely, a stockholder’s notice must be delivered to, or mailed and received at, the principalexecutive offices of the Company not less than sixty (60) days nor more than ninety (90) days priorto the anniversary of the last succeeding Annual Meeting of Lawrence Savings Bank (the “PriorAnniversary Date”); provided, however, that in the event the Annual Meeting is scheduled to be heldon a date more than thirty (30) days before the Prior Anniversary Date or more than sixty (60) daysafter the Prior Anniversary Date, a stockholder’s notice shall be timely if delivered to, or mailedto and received by, the Company at its principal executive office not later than the close ofbusiness on the later of (a) the 75th day prior to the scheduled date of such Annual Meeting, or(b) the 15th day following the day on which public disclosure of the date of such Annual Meeting isfirst made by the Company.
     For all subsequent Annual Meetings, a stockholder’s notice shall be timely if delivered to, ormailed to and received by, the Company at its principal executive office not less than sixty (60)days nor more than ninety (90) days prior to the anniversary date of the immediately precedingAnnual Meeting (the “Anniversary Date”); provided, however, that in the event the Annual Meeting isscheduled to be held on a date more than thirty (30) days before the Anniversary Date or more thansixty (60) days after the Anniversary Date, a stockholder’s notice shall be timely if delivered to,or mailed to and received by, the Company at its principal executive office not later than theclose of business on the later of (a) the 75th day prior to the scheduled date of such AnnualMeeting, or (b) the 15th day following the day on which public disclosure of the date of suchAnnual Meeting is first made by the Company.
     For purposes of these By-laws, “public disclosure” shall mean: (i) disclosure in a pressrelease reported by the Dow Jones News Service, Associated Press or comparable national newsservice; (ii) a report or other document filed publicly with the Securities and Exchange Commission(including, without limitation, a Form 8-K); or (iii) a letter or report sent to stockholders ofrecord of the Company at the time of the mailing of such letter or report.
     A stockholder’s notice to the Clerk shall set forth as to each matter proposed to be broughtbefore an Annual Meeting: (i) a brief description of the business the stockholder desires to bringbefore such Annual Meeting and the reasons for conducting such business at such Annual Meeting;(ii) the name and address, as they appear on theCompany’s stock transfer books, of the stockholder proposing such business; (iii) the class andnumber of shares of the Company’s capital stock
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beneficially owned by the stockholder proposingsuch business; (iv) the names and addresses of the beneficial owners, if any, of any capital stockof the Company registered in such stockholder’s name on such books, and the class and number ofshares of the Company’s capital stock beneficially owned by such beneficial owners; (v) the namesand addresses of other stockholders known by the stockholder proposing such business to supportsuch proposal, and the class and number of shares of the Company’s capital stock beneficially ownedby such other stockholders; and (vi) any material interest of the stockholder proposing to bringsuch business before such meeting (or any other stockholders known to be supporting such proposal)in such proposal.
     The Board of Directors may reject any stockholder proposal not timely made in accordance withthe terms of this Section 2. If the Board of Directors or a designated committee thereof determinesthat any stockholder proposal was not made in a timely fashion in accordance with the provisions ofthis Section 2 or that the information provided in a stockholder’s notice does not satisfy theinformation requirements of this Section 2 in any material respect, such stockholder proposal shallnot be presented for action at the Annual Meeting in question. The Clerk of the Company shallnotify a stockholder in writing whether his or her proposal has been made in accordance with thetime and informational requirements of this Section 2.
     Notwithstanding the procedure set forth in the above paragraph, if neither the Board ofDirectors nor such committee makes a determination as to the validity of any stockholder proposalin the manner set forth above, the presiding officer of the Annual Meeting shall determine whetherthe stockholder proposal was made in accordance with the time and informational requirements ofthis Section 2. If the presiding officer determines that any stockholder proposal was not made in atimely fashion in accordance with the provisions of this Section 2 or that the information providedin a stockholder’s notice does not satisfy the information requirements of this Section 2 in anymaterial respect, such proposal shall not be presented for action at the Annual Meeting inquestion. If the Board of Directors, a designated committee thereof or the presiding officerdetermines that a stockholder proposal was made in accordance with the time and informationalrequirements of this Section 2, the presiding officer shall so declare at the Annual Meeting andballots shall be provided for use at the Annual Meeting with respect to such proposal. If there isan Interested Stockholder at the time, any determinations to be made by the Board of Directors or adesignated committee thereof pursuant to the provisions of this Section 2, shall also require theconcurrence of a majority of the Continuing Directors then in office.
     Notwithstanding the foregoing provisions of this By-law, a stockholder shall also comply withall applicable regulations of the Securities and Exchange Commission promulgated under theSecurities Exchange Act of 1934, as amended, with respect to the matters set forth in this By-law,and nothing in this By-law shall be deemed to affect any rights of stockholders to requestinclusion of proposals in the Company’s proxy statement pursuant to such regulations.
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     As used in these By-laws, the terms “Interested Stockholder” and “Continuing Director” shallhave the same respective meanings assigned to them in the Articles. Any determination of beneficialownership of securities under these By-laws shall be made in the manner specified in the Articles.
     SECTION 3. Special Meeting. Special meetings of the stockholders for any purpose orpurposes may be called at any time only by a majority of the Directors then in office (providedhowever, that if there is an Interested Stockholder, any such call shall also require theaffirmative vote of a majority of the Continuing Directors then in office), the President or theChairman of the Board, if one is elected. Only those matters set forth in the call of the specialmeeting may be considered or acted upon at such special meeting, unless otherwise provided by law.
     SECTION 4. Notice of Meetings; Adjournments. A written notice of the place, time anddate of all annual and special meetings of stockholders shall be given by the Clerk or AssistantClerk (or other person authorized by these By-laws or by law) not less than ten (10) days nor morethan sixty (60) days before the date on which the meeting is to be held to each stockholderentitled to vote at such meeting by mailing it addressed to such stockholder at the address of suchstockholder as it appears on the stock transfer books of the Company. Such notice shall be deemedto be delivered when deposited in the mail so addressed with postage pre-paid.
     Notice of an annual or special meeting of stockholders need not be given to a stockholder if awritten waiver of notice is executed before or after such meeting by such stockholder or suchstockholder’s authorized attorney, if communication with such stockholder is unlawful, or if suchstockholder attends such meeting, unless such attendance was for the express purpose of objectingat the beginning of the meeting to the transaction of any business because the meeting was notlawfully called or convened. Neither the business to be transacted at, nor the purpose of, anyannual or special meeting of stockholders need be specified in any written waiver of notice. Awritten waiver of notice, executed before or after a meeting by a stockholder or by an authorizedattorney, shall be deemed equivalent to notice of the meeting.
     When any annual or special meeting of stockholders is adjourned to another hour, date orplace, notice need not be given of the adjourned meeting other than an announcement at the meetingat which the adjournment is taken of the hour, date and place to which the meeting is adjourned;provided, however, that if the adjournment is for more than thirty (30) days, or if after theadjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meetingshall be given as in the case of the original meeting to each stockholder of record entitled tovote thereat.
     The Chief Executive Officer, or in the Chief Executive Officer’s absence, the President or theChairman of the Board if one is elected, shall preside at all stockholdermeetings and shall have the power, among other things, to adjourn such meeting at any time and fromtime to time, subject to Section 5 of this Article
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II. The order of business and all other matters of procedure including, without limitation, the rules for conducting themeeting at any meeting of the stockholders shall be determined by the presiding officer.
     SECTION 5. Quorum. The holders of a majority in interest of all stock issued,outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at ameeting of stockholders; but if less than a quorum is present at a meeting, a majority in interestof the stockholders present or the presiding officer may adjourn the meeting from time to time, andthe meeting may be held as adjourned without further notice, except as provided in Section 4 ofthis Article II. At such adjourned meeting at which a quorum is present, any business may betransacted which might have been transacted at the meeting as originally noticed. The stockholderspresent at a duly constituted meeting may continue to transact business until adjournment,notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
     SECTION 6. Voting and Proxies. Stockholders shall have one (1) vote for each share ofcommon stock entitled to vote owned by them of record according to the books of the Company and aproportionate vote for a fractional share, unless otherwise provided by law or by the Articles.Stockholders may vote either in person or by written proxy dated not more than six (6) monthsbefore the meeting named therein. Proxies shall be filed with the Clerk of the meeting, or of anyadjournment thereof, before being voted. Except as otherwise limited therein, proxies shallentitle the persons authorized thereby to vote at any adjournment of such meeting, but they shallnot be valid after final adjournment of such meeting. A proxy with respect to stock held in thename of two (2) or more persons shall be valid if executed by or on behalf of any one of themunless at or prior to the exercise of the proxy the Company receives a specific written notice tothe contrary from any one of them. A proxy purporting to be executed by or on behalf of astockholder shall be deemed valid unless challenged at or prior to its exercise, and the burden ofproving invalidity shall rest on the challenger.
     SECTION 7. Action at Meeting. When a quorum is present, any matter before any annualor special meeting of stockholders shall be decided by vote of the holders of a majority of theshares of stock voting on such matter, except where a larger vote is required by law, by theArticles or by these By-laws. Any election by stockholders shall be determined by a plurality ofthe votes cast, except where a larger vote is required by law, by the Articles or by these By-laws.
     SECTION 8. Control Share Acquisition. The provisions of Chapter 110D of the GeneralLaws of the Commonwealth of Massachusetts, as amended, shall not apply to any “control shareacquisition” of the Company as that term is defined in Chapter 110D of the General Laws of theCommonwealth of Massachusetts, as amended.
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ARTICLE III
DIRECTORS
     SECTION 1. Powers. The business and affairs of the Company shall be managed by aBoard of Directors.
     SECTION 2. Composition and Term. The Board of Directors shall be composed of: thosepersons who are elected as Directors from time to time as provided herein. The Board of Directorsshall consist of not fewer than seven (7) and not more than twenty-five (25) individuals and shallbe divided into three (3) classes, such classes to be as nearly equal in number as possible. Oneof such classes of Directors shall be elected annually by the stockholders. Subject to theforegoing requirements and applicable law, the Board of Directors may from time to time fix thenumber of Directors and their respective classifications; provided, however, that if at the time ofsuch action there is an Interested Stockholder such action shall in addition require a majorityvote of the Continuing Directors then in office. Up to two (2) additional Directors may be electedby vote of a majority of the Directors then in office. Except as otherwise provided in accordancewith these By-laws, the members of each class shall be elected for a term of three (3) years anduntil their successors are elected and qualified.
     SECTION 3. Director Nominations. Nominations of candidates for election as Directorsof the Company at any Annual Meeting may be made only (a) by, or at the direction of, a majority ofthe Board of Directors (unless at the time of such action there is an Interested Stockholder, inwhich case the affirmative vote of a majority of the Continuing Directors then in office shall alsobe required), or (b) by or on behalf of any stockholder of record who (i) shall have been astockholder of record at the time of the giving of notice as provided in this Section 3, (ii) shallcontinue to be a stockholder of record on the record date for such Annual Meeting and on the AnnualMeeting date, and (iii) shall be entitled to vote at such Annual Meeting. Any stockholder who hascomplied with the timing, informational and other requirements set forth in this Section 3 and whoseeks to make such a nomination, or his, her or its representative, must be present in person atthe Annual Meeting. Only persons nominated in accordance with the procedures set forth in thisSection 3 shall be eligible for election as Directors at an Annual Meeting.
     Nominations, other than those made by, or at the direction of, the Board of Directors (or bythe Continuing Directors, if required), shall be made pursuant to timely notice in writing to theClerk of the Company as set forth in this Section 3. For the first Annual Meeting following theeffective date of these By-Laws, to be timely, a stockholder’s notice must be delivered to, ormailed and received at, the principal executive offices ofthe Company not less than sixty (60) days nor more than ninety (90) days prior to the PriorAnniversary Date; provided, however, that in the event the Annual Meeting is scheduled to be heldon a date more than thirty (30) days before the Prior Anniversary Date or more than sixty (60) daysafter the Prior Anniversary Date, a stockholder’s notice shall be timely if delivered to, or mailedand received by, the Company at its principal executive office not later than
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the close of business on the later of (a) the 75th day prior to the scheduled date of such Annual Meeting, or (b) the15th day following the day on which public disclosure of the date of such Annual Meeting is firstmade by the Company.
     For all subsequent Annual Meetings, a stockholder’s notice shall be timely if delivered to, ormailed to and received by, the Company at its principal executive office not less than sixty (60)days nor more than ninety (90) days prior to the Anniversary Date; provided, however, that in theevent the Annual Meeting is scheduled to be held on a date more than thirty (30) days before theAnniversary Date or more than sixty (60) days after the Anniversary Date, a stockholder’s noticeshall be timely if delivered to, or mailed and received by, the Company at its principal executiveoffice not later than the close of business on the later of (a) the 75th day prior to the scheduleddate of such Annual Meeting, or (b) the 15th day following the day on which public disclosure ofthe date of such Annual Meeting is first made by the Company.
     A stockholder’s notice to the Clerk shall set forth as to each person whom the stockholderproposes to nominate for election or re-election as a Director: (i) the name, age, business addressand residence address of such person; (ii) the principal occupation or employment of such person;(iii) the class and number of shares of the Company’s capital stock which are beneficially owned bysuch person on the date of such stockholder notice; (iv) the consent of each nominee to serve as aDirector if elected; and (v) any other information relating to such person that is required to bedisclosed in solicitations of proxies with respect to nominees for election as directors, pursuantto Section 14 of the Securities Exchange Act of 1934, as amended, and Regulation 14A and Schedule14A promulgated thereunder by the Securities and Exchange Commission. A stockholder’s notice to theClerk shall further set forth as to the stockholder giving such notice: (i) the name and address,as they appear on the Company’s stock transfer books, of such stockholder and of the beneficialowners (if any) of the Company’s capital stock registered in such stockholder’s name and the nameand address of other stockholders known by such stockholder to be supporting such nominee(s); (ii)the class and number of shares of the Company’s capital stock which are held of record,beneficially owned or represented by proxy by such stockholder and by any other stockholders knownby such stockholder to be supporting such nominee(s) on the record date for the Annual Meeting inquestion (if such date shall then have been made publicly available) and on the date of suchstockholder’s notice; and (iii) a description of all arrangements or understandings between suchstockholder and each nominee and any other person or persons (naming such person or persons)pursuant to which the nomination or nominations are to be made by such stockholder.
     The Board of Directors may reject any nomination by a stockholder not timely made inaccordance with the requirements of this Section 3. If the Board of Directors or a designated committee thereof determines that the information provided in a stockholder’s noticedoes not satisfy the time and informational requirements of this Section 3 in any material respect,then the Board of Directors may reject such stockholder’s nomination. The Clerk of the Companyshall notify a stockholder in writing whether his or her nomination has been made in accordance
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with the time and informational requirements of this Section 3.
     Notwithstanding the procedures set forth in the above paragraph, if neither the Board ofDirectors nor such committee makes a determination as to whether a stockholder nomination was madein accordance with the provisions of this Section 3, the presiding officer of the Annual Meetingshall determine whether a nomination was made in accordance with the time and informationalrequirements of this Section 3. If the presiding officer determines that any stockholdernomination was not made in a timely fashion in accordance with the provisions of this Section 3 orthat the information provided in a stockholder’s notice does not satisfy the informationalrequirements of this Section 3 in any material respect, such stockholder’s nomination shall not beconsidered at the Annual Meeting in question. If the Board of Directors, a designated committeethereof or the presiding officer determines that a stockholder nomination was made in accordancewith the requirements of this Section 3, the presiding officer shall so declare at the AnnualMeeting and ballots shall be provided for use at the meeting with respect to such nominee. Ifthere is an Interested Stockholder at the time, any determinations to be made by the Board ofDirectors or a designated committee thereof pursuant to the provisions of this Section 3, shallalso require the concurrence of a majority of the Continuing Directors then in office.
     Notwithstanding anything to the contrary in the second sentence of the second paragraph ofthis Section 3 or the third paragraph of this Section 3, in the event that the number of Directorsto be elected to the Board of Directors of the Company is increased and there is no publicdisclosure by the Company naming all of the nominees for Director or specifying the size of theincreased Board of Directors at least seventy-five (75) days prior to the Anniversary Date, astockholder’s notice required by this Section 3 shall also be considered timely, but only withrespect to nominees for any new positions created by such increase, if (i) with respect only to thefirst Annual Meeting following the effective date of these By-Laws, such notice shall be deliveredto, or mailed and received by the Company at its principal executive office not later than theclose of business on the tenth day following the day on which such public announcement is firstmade by the Company; and (ii) for all subsequent Annual Meetings, such notice shall be deliveredto, or mailed to and received by, the Company at its principal executive office not later than theclose of business on the 15th day following the day on which such public announcement is first madeby the Company.
     No person shall be elected by the stockholders as a Director of the Company unless nominatedin accordance with the procedures set forth in this Section 3. Election of Directors at an AnnualMeeting need not be by written ballot, unless otherwise provided by the Board of Directors orpresiding officer at such Annual Meeting. If written ballots are to be used, ballots bearing thenames of all the persons who have been nominated for election as Directors at the Annual Meeting inaccordance with the procedures set forth in this Section shall be provided for use at the Annual Meeting.
     SECTION 4. Qualification. Each Director shall have such qualifications as arerequired by applicable law. Unless waived by a vote of the Board of Directors, no
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individual may serve as a Director if he had reached the age of seventy-five (75) years at the time of election.
     SECTION 5. Resignation. Any Director may resign at any time by written notice to theChief Executive Officer. A resignation shall be effective upon receipt, unless the resignationotherwise provides.
     SECTION 6. Removal. Any Director may be removed from office as provided in theArticles.
     SECTION 7. Vacancies. Any and all vacancies occurring on the Board of Directors,however occurring, or the death, resignation, disqualification or removal of a Director, shall befilled solely by the affirmative vote of a majority of the remaining Directors then in office, evenif less than a quorum of the Board of Directors, unless there is an Interested Stockholder in whichcase such vacancy shall be filled solely by the affirmative vote of a majority of the ContinuingDirectors then in office. Any Director elected in accordance with the preceding sentence shall beelected to serve for a term of office continuing until the next election of Directors by thestockholders. When the number of Directors is increased or decreased, the Board of Directors shalldetermine the class or classes to which the increased or decreased number of Directors shall beapportioned; provided, however, that no decrease in the number of Directors shall shorten the termof any incumbent Director.
     SECTION 8. Compensation. The members of the Board of Directors and the members ofstanding or special committees shall receive such compensation as the Board of Directors maydetermine.
     SECTION 9. Regular Meetings. A regular meeting of the Board of Directors shall beheld without other notice than this By-law on the same date and at the same place as the AnnualMeeting following such meeting of stockholders. The Board of Directors may provide the hour, dateand place for the holding of regular meetings by resolution without other notice than suchresolution. The Board of Directors shall meet in each calendar quarter at a place or places fixedfrom time to time by the Board of Directors, the Chairman of the Board, if one is elected, or thePresident.
     SECTION 10. Special Meetings. Special meetings of the Board of Directors may becalled by or at the request of a majority of the Directors, the Chairman of the Board, if one iselected, or the President. The person or persons authorized to call special meetings of the Boardof Directors may fix the hour, date and place for holding a special meeting.
     SECTION 11. Notice of Meetings. Notice of the hour, date and place of all specialmeetings of the Board of Directors shall be given to each Director by the Clerk or Assistant Clerk,or in the case of the death, absence, incapacity or refusal of such persons, by the officer or oneof the Directors calling the meeting. Notice of any special meeting of the Board of Directorsshall be given to each Director in person, or by telephone, or sent to his or her business or homeaddress as shown
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in the Company’s records by telegram, telecopier, facsimile or similar method at least twenty-four (24) hours in advance of the meeting or by written notice mailed to his or herbusiness or home address at least forty-eight (48) hours in advance of such meeting. Such noticeshall be deemed to be delivered when hand delivered to such address, read to such Director bytelephone, deposited in the mail so addressed, with postage thereon prepaid if mailed, delivered tothe telegraph company if sent by telegram, or confirmed as the date and time of receipt if sent bytelecopier, facsimile or similar method. When any Board of Directors meeting, either regular orspecial, is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be givenas in the case of an original meeting. It shall not be necessary to give any notice of the hour,date or place of any meeting adjourned for less than thirty (30) days or of the business to betransacted thereat, other than an announcement at the meeting at which such adjournment is taken ofthe hour, date and place to which the meeting is adjourned. A written waiver of notice executedbefore or after a meeting by a Director and filed with the records of the meeting shall be deemedto be equivalent to notice of the meeting. The attendance of a Director at a meeting shallconstitute a waiver of notice of such meeting, except where a Director attends a meeting for theexpress purpose of objecting to the transaction of any business because such meeting is notlawfully called or convened. Neither the business to be transacted at, nor the purpose of, anymeeting of the Board of Directors need be specified in the notice or waiver of notice of suchmeeting.
     SECTION 12. Quorum. A majority of the number of Directors then in office shallconstitute a quorum for the transaction of business at any meeting of the Board of Directors, butif less than a quorum is present at a meeting, a majority of the Directors present may adjourn themeeting from time to time, and the meeting may be held as adjourned without further notice, exceptas provided in Section 11 of this Article III. Any business which might have been transacted atthe meeting as originally noticed may be transacted at such adjourned meeting at which a quorum ispresent.
     SECTION 13. Action at a Meeting. The act of the majority of the Directors present ata meeting at which a quorum is present shall be the act of the Board of Directors, unless otherwiseprescribed by law, by the Articles or by these By-laws.
     SECTION 14. Action by Consent. Any action required or permitted to be taken by theBoard of Directors at any meeting may be taken without a meeting if a consent in writing, settingforth the action so taken, shall be signed by all of the Directors. Such written consents shall befiled with the records of the meetings of the Board of Directors andshall be treated for all purposes as a vote at a meeting of the Board of Directors.
     SECTION 15. Presumption of Assent. A Director of the Company who is present at ameeting of the Board of Directors at which action on any Company matter is taken shall be presumedto have assented to the action taken unless his or her dissent or abstention shall be entered inthe minutes of the meeting or unless he shall file a written dissent to such action with the personacting as the Clerk of the meeting before the adjournment thereof or shall forward such dissent byregistered
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mail to the Clerk of the Company within five (5) days after the date a copy of the minutes of the meeting is received. Such right to dissent shall not apply to a Director who votedin favor of such action.
     SECTION 16. Committees. The Board of Directors shall elect from its number not fewerthan three (3) members to serve as an Executive Committee and may elect other committees from itsnumber. It may delegate to the Executive Committee or such other committees some or all of itspowers except those which by law, by the Articles or by these By-laws may not be delegated. Exceptas the Board of Directors may otherwise determine, any such committee may make rules for theconduct of its business, but unless otherwise provided by the Board of Directors or in such rules,its business shall be conducted so far as possible in the same manner as is provided by theseBy-laws for the Board of Directors. All members of such committees shall hold such offices at thepleasure of the Board of Directors. The Board of Directors may abolish any such committee at anytime, subject to applicable law. Any committee to which the Board of Directors delegates any of itspowers or duties shall keep records of its meetings and shall report its action to the Board ofDirectors. The Board of Directors shall have power to rescind any action of any committee, but nosuch rescission shall have retroactive effect. With the approval of the Board of Directors, theChief Executive Officer may appoint such other committees consisting of such Directors as the ChiefExecutive Officer shall select. Any recommendations of such committees appointed by the ChiefExecutive Officer shall be submitted to the Board of Directors.
     SECTION 17. Manner of Participation. Members of the Board of Directors or ofcommittees elected by the Board pursuant to Section 16 of this Article III may participate inmeetings of the Board and of such committees by means of conference telephone or similarcommunications equipment by which all persons participating in the meeting can hear each other.Such participation shall constitute presence in person but shall not constitute attendance for thepurpose of compensation pursuant to Section 8 of this Article III, unless the Board of Directors byresolution so provides.
ARTICLE IV
OFFICERS
     SECTION 1. Enumeration. The officers of the Company shall consist of a President, aTreasurer, a Clerk and such other officers, including, without limitation, a Chairman of the Board,a Vice Chairman of the Board, a Secretary and one or more Vice Presidents, Assistant Vice Presidents, Assistant Treasurersand Assistant Clerks as the Board of Directors may determine to be necessary for the management ofthe Company.
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     SECTION 2. Election. The President shall be elected annually by the Board ofDirectors at its first meeting following the Annual Meeting; and the Clerk shall be elected by thestockholders at their Annual Meeting or at a special meeting of stockholders duly called for suchpurpose, so long as the election of the Clerk is required by law to be by the stockholders,otherwise the Clerk shall be elected annually by the Board of Directors. Other officers shall beelected by the Board of Directors and serve at its pleasure.
     SECTION 3. Qualification. Any two (2) or more offices may be held by any person.The President shall be a Director. The Clerk shall be a resident of the Commonwealth ofMassachusetts unless the Company shall have appointed a resident agent pursuant to applicable law.Any officer may be required by the Board of Directors to give bond for the faithful performance ofhis or her duties in such amount and with such sureties as the Board of Directors may determine.
     SECTION 4. Tenure. Except as otherwise provided by law, by the Articles, or by theseBy-laws, the President shall hold office until the first meeting of the Board of Directorsfollowing the next Annual Meeting of the stockholders and until his or her respective successorsare chosen and qualified; the Clerk shall hold office until the next Annual Meeting of stockholdersand until his or her successor is chosen and qualified; and all other officers shall hold officeuntil their respective successors are elected by the Board of Directors. The Chief ExecutiveOfficer may resign at any time by written notice to the Board of Directors or the Clerk. Any otherofficer may resign at any time by written notice to the Chief Executive Officer. Such resignationshall be effective upon receipt unless the resignation otherwise provides. Election or appointmentof an officer, employee or agent shall not of itself create contract rights. The Board ofDirectors may, however, authorize the Company to enter into an employment contract with any officerin accordance with law, but no such contract right shall impair the right of the Board of Directorsto remove any officer at any time in accordance with Section 5 of this Article IV.
     SECTION 5. Removal. Except as otherwise provided by law, the Board of Directors mayremove any officer with or without cause by the affirmative vote of a majority of the entire number of Directors then inoffice; provided, however, that, if at the time of such removal there is an Interested Stockholder,the affirmative vote of a majority of the Continuing Directors then in office shall instead berequired. Any such removal, other than for cause, shall be without prejudice to the contractrights, if any, of the persons involved. Any officer may be removed for cause only afterreasonable notice and opportunity to be heard by the Board of Directors.
     SECTION 6. Absence or Disability. In the event of the absence or disability of anyofficer, the Board of Directors may designate another officer to act temporarily in place of suchabsent or disabled officer.
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     SECTION 7. Vacancies. Any vacancy in any office may be filled for any unexpiredportion of the term of such office by the Board of Directors.
     SECTION 8. Chief Executive Officer. The President shall be the Chief ExecutiveOfficer, unless the Board of Directors shall designate another officer enumerated in Section 1 ofthis Article IV to be the Chief Executive Officer. The Chief Executive Officer shall, subject tothe direction of the Board of Directors, have general supervision and control of the Company’sbusiness, and shall preside at all meetings of the stockholders and Board of Directors.
     SECTION 9. President. If the President is not the Chief Executive Officer, he shallhave such power and perform such duties as the Board of Directors and the Chief Executive Officermay from time to time designate. If the Chief Executive Officer is absent, the President shallpreside at all meetings of the Stockholders and Board of Directors.
     SECTION 10. Chairman of the Board. In the absence of the Chief Executive Officer orthe President, the Chairman of the Board shall preside, when present, at all meetings of the Boardof Directors and stockholders. The Chairman of the Board shall have such powers and shall performsuch duties as the Board of Directors may from time to time designate. If the Chairman of theBoard is not the Chief Executive Officer, he shall also have such powers and perform such duties asthe Chief Executive Officer may from time to time designate.
     SECTION 11. Vice Presidents, Treasurer and Other Officers. Any Vice President, theTreasurer and any other officers whose powers and duties are not otherwise specifically providedfor herein shall have such powers and shall perform such duties as the Chief Executive Officer mayfrom time to time designate.
     SECTION 12. Clerk and Assistant Clerks. The Clerk shall keep a record of themeetings of stockholders. If a Secretary is not elected or is absent, the Clerk shall keep arecord of the meetings of the Board of Directors. In the absence of the Clerk, an Assistant Clerk, if one is elected, shallperform the Clerk’s duties. Otherwise a Temporary Clerk designated by the person presiding at themeeting shall perform the Clerk’s duties.
     SECTION 13. Secretary and Assistant Secretary. The Secretary, if one is selected,shall keep a record of the meetings of the Board of Directors. In the absence of the Secretary,any Assistant Secretary, the Clerk and any Assistant Clerk, a Temporary Secretary designated by theperson presiding at such meeting shall perform the Secretary’s duties.
ARTICLE V
CAPITAL STOCK
     SECTION 1. Certificates of Stock. Unless otherwise provided by the Board ofDirectors, each stockholder shall be entitled to a certificate representing the capital stock ofthe Company in such form as may from time to time be
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prescribed by the Board of Directors. Such certificate shall be signed by the President or a Vice President and by the Treasurer or anAssistant Treasurer. Such signatures may be facsimile if the certificate is signed by a transferagent or by a registrar, other than a Director, officer or employee of the Company. In case anyofficer who has signed or whose facsimile signature has been placed on such certificate shall haveceased to be such officer before such certificate is issued, it may be issued by the Company withthe same effect as if he were such officer at the time of its issue. Every certificate for sharesof stock which are subject to any restriction on transfer and every certificate issued when theCompany is authorized to issue more than one class or series of stock shall contain such legendwith respect thereto as is required by law.
     SECTION 2. Transfers. Subject to any restrictions on transfer and unless otherwiseprovided by the Board of Directors, shares of stock may be transferred on the books of the Companyby the surrender to the Company or its transfer agent of the certificate therefor properly endorsedor accompanied by a written assignment and power of attorney properly executed, with transferstamps (if necessary) affixed, and with such proof of the authenticity of signature as the Companyor its transfer agent, if one is appointed, may reasonably require.
     SECTION 3. Record Holders. Except as otherwise required by law, by the Articles orby these By-laws, the Company shall be entitled to treat the record holder of stock as shown on itsbooks as the owner of such stock for all purposes, including the payment of dividends and the rightto vote, regardless of any transfer, pledge or other disposition of such stock, until the shareshave been transferred on the books of the Company in accordance with the requirements of theseBy-laws.
It shall be the duty of each stockholder to notify the Company of his or her address and any changes thereto.
     SECTION 4. Record Date. The Board of Directors may fix in advance a time of not morethan sixty (60) days before the date of any meeting of the stockholders, the date for the paymentof any dividend or the making of any distribution to stockholders or the last day on which theconsent or dissent of stockholders may be effectively expressed for any purpose, as the record datefor determining the stockholders having the right to notice of and to vote at such meeting, and anyadjournment thereof, or the right to receive such dividend or distribution or the right to givesuch consent or dissent. In such case, only stockholders of record on such record date shall havesuch right, notwithstanding any transfer of stock on the books of the Company after the recorddate. Without fixing such record date, the Board of Directors may for any of such purposes closethe transfer books for all or any part of such period.
If no record date is fixed and the transfer books are not closed, (a) the record date fordetermining stockholders having the right to notice of or to vote at a meeting of stockholdersshall be the close of business on the day next preceding the day on which notice is given, and (b)the record date for determining stockholders for any other purpose shall be the close of businesson the date on which the Board of Directors acts with respect thereto.
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     SECTION 5. Replacement of Certificates. In case of the alleged loss, destruction ormutilation of a certificate of stock, a duplicate certificate may be issued in place thereof, uponsuch terms as the Board of Directors may prescribe.
     SECTION 6. Issuance of Capital Stock. Except as provided by law, the Board ofDirectors shall have the authority to issue or reserve for issue from time to time the whole or anypart of the capital stock of the Company which may be authorized from time to time, to such personsor organizations, for such consideration, whether cash, property, services or expenses and on suchterms as the Board of Directors may determine, including, without limitation, the granting ofoptions, warrants or conversion or other rights to subscribe to said capital stock.
     SECTION 7. Dividends. Subject to applicable law, the Articles and these By-laws, theBoard of Directors may from time to time declare, and the Company may pay, dividends on outstandingshares of its capital stock.
ARTICLE VI
INDEMNIFICATION
     SECTION 1. Definitions. For purposes of this Article: (a) “Officer” means any personwho serves or has served as a Director of the Company or in any other office filled by election or appointment by the stockholders or theBoard of Directors and any heirs or personal representatives of such person; (b) “Non-OfficerEmployee” means any person who serves or has served as an employee of the Company, but who is notor was not an Officer, and any heirs or personal representatives of such person; (c) “Proceeding”means any action, suit or proceeding, civil or criminal, brought or threatened in or before anycourt, tribunal administrative or legislative body or agency and any claim which could be thesubject of a Proceeding; and (d) “Expenses” means any liability fixed by a judgment, order, decreeor award in a Proceeding, any amount reasonably paid in settlement of a Proceeding and anyprofessional fees or other disbursements reasonably incurred in a Proceeding.
     SECTION 2. Officers. Except as provided in Sections 4 and 5 of this Article VI, eachOfficer of the Company shall be indemnified by the Company against all Expenses incurred by suchOfficer in connection with any Proceedings in which such Officer is involved as a result of servingor having served (a) as an Officer or employee of the Company; (b) as a director, officer oremployee of any wholly owned subsidiary of the Company; or (c) in any capacity with any othercorporation, organization, partnership, joint venture, trust or other entity at the request ordirection of the Company.
     SECTION 3. Non-Officer Employees. Except as provided in Sections 4 and 5 of thisArticle VI, each Non-Officer Employee of the Company may, in the discretion of the Board ofDirectors, be indemnified against any or all Expenses incurred by such Non-Officer Employee inconnection with any Proceeding in which such Non-Officer Employee is involved as a result ofserving or having served (a) as a Non-Officer Employee of the Company; (b) as a director, officeror employee of any wholly owned
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subsidiary of the Company; or (c) in any capacity with any other corporation, organization, partnership, joint venture, trust or other entity at the request ordirection of the Company.
     SECTION 4. Service at the Request or Direction of the Company. No indemnificationshall be provided to an Officer or Non-Officer Employee with respect to serving or having served inany of the capacities described in Section 2(c) or 3(c) above unless the following two conditionsare met: (a) such service was requested or directed in each specific case by vote of the Board ofDirectors prior to the occurrence of the event to which the indemnification relates, and (b) theCompany maintains insurance coverage for the type of indemnification sought. In no event shall theCompany be liable for indemnification under Section 2(c) or 3(c) above for any amount in excess ofthe proceeds of insurance received with respect to such coverage as the Company in its discretionmay elect to carry. The Company may but shall not be required to maintain insurance coverage withrespect to indemnification under Section 2(c) or 3(c) above. Notwithstanding any other provisionof this Section 4, but subject to Section 5 of this Article VI, the Board of Directors may providean Officer or Non-Officer Employee with indemnification under Section 2(c) or 3(c) above as to aspecific Proceeding even if one or both of the two conditions specified in this Section 4 have notbeen met and even if the amount of the indemnification exceeds the amount of the proceeds of anyinsurance which the Company may have elected to carry, provided that the Board of Directors in its discretiondetermines it to be in the best interests of the Company to do so.
     SECTION 5. Good Faith. No indemnification shall be provided to an Officer or to aNon-Officer Employee with respect to a matter as to which such person shall have been adjudicatedin any Proceeding not to have acted in good faith in the reasonable belief that the action of suchperson was in the best interests of the Company. In the event that a Proceeding is compromised orsettled so as to impose any liability or obligation upon an Officer or Non-Officer Employee, noindemnification shall be provided to said Officer or Non-Officer Employee with respect to a matterif there be a determination that with respect to such matter such person did not act in good faithin the reasonable belief that the action of such person was in the best interests of the Company.The determination shall be made by a majority vote of those Directors who are not involved in suchProceeding. However, if more than half of the Directors are involved in such Proceeding, thedetermination shall be made by a majority vote of a committee of three disinterested Directorschosen by the disinterested Directors at a regular or special meeting. If there are fewer thanthree (3) disinterested Directors, the determination shall be based upon the opinion of theCompany’s regular outside counsel.
     SECTION 6. Prior to Final Disposition. Unless otherwise provided by the Board ofDirectors or by the committee pursuant to the procedure specified in Section 5 of this Article VI,any indemnification provided for under this Article VI shall include payment by the Company ofExpenses incurred in defending a Proceeding in advance of the final disposition of such Proceedingupon receipt of an undertaking by the Officer or Non-Officer Employee seeking indemnification torepay such payment if such Officer or Non-Officer Employee shall be adjudicated or determined
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to be not entitled to indemnification under this Article VI.
     SECTION 7. Insurance. The Company may purchase and maintain insurance to protectitself and any Officer or Non-Officer Employee against any liability of any character assertedagainst or incurred by the Company or any such Officer or Non-Officer Employee, or arising out ofany such status, whether or not the Company would have the power to indemnify such person againstsuch liability by law or under the provisions of this Article VI.
     SECTION 8. Other Indemnification Rights. Nothing in this Article VI shall limit anylawful rights to indemnification existing independently of this Article VI.
ARTICLE VII
MISCELLANEOUS PROVISIONS
     SECTION 1. Amendment of By-laws. These By-laws may be adopted, altered, amended,changed or repealed as provided in the Articles.
     SECTION 2. Fiscal Year. Except as otherwise determined by the Board of Directors,the fiscal year of the Company shall be the twelve (12) months ending October 31, or on such otherdate as may be required by law.
     SECTION 3. Seal. The Board of Directors shall have power to adopt and alter the sealof the Company.
     SECTION 4. Execution of Instruments. All deeds, leases, transfers, contracts, bonds,notes and other obligations to be entered into by the Company in the ordinary course of itsbusiness without Board of Directors action may be executed on behalf of the Company by the ChiefExecutive Officer, the President, the Chairman of the Board, if one is elected, the Treasurer orany other officer, employee or agent of the Company as the Board of Directors or the ExecutiveCommittee may authorize.
     SECTION 5. Voting of Securities. Unless otherwise provided by the Board of Directors,the Chief Executive Officer, the President, the Chairman of the Board, if one is elected, or theTreasurer may waive notice of and act on behalf of the Company, or appoint another person orpersons to act as proxy or attorney in fact for the Company with or without discretionary powerand/or power of substitution, at any meeting of stockholders or shareholders of any otherorganization, any of whose securities are held by the Company.
     SECTION 6. Inapplicability of Control Share Provisions. The provisions of Chapter110D of the Massachusetts Business Corporation Law, as the same may be amended from time to time,shall not apply to control share acquisitions (as such term is defined in such chapter) of theCompany.
     SECTION 7. Articles. All references in these By-laws to the Articles shall be deemedto refer to the Articles of the Company, as amended and in effect from time to time.
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