SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
__________________________________
Date of Report (Date of earliest event reported): January 21, 1998
WESTBANK CORPORATION
(Exact name of Registrant as specified in charter)
Massachusetts 000-12784 04-2830731
(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
225 Park Avenue, P.O. Box 149, West Springfield, MA 01090-0149
(Address of principal executive offices) (Zip Code)
(413) 747-1400
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events
On January 21, 1998, the Board of Directors of the Company
adopted amendments to the Company s By-Laws. These amendments
relate to, inter alia, the rescheduling of meetings/adjournments,
enlargement of the board, voting procedures and inspectors of
elections, control share acquisition, removal of a director by the
board of directors without cause, and the issuance of capital stock.
Set forth below is a description of certain of the other
amendments which does not purport to be complete and is qualified in
its entirety by reference to the By-Laws.
Advance Notice Provisions/Presence at a Meeting. The
amendments require, inter alia, at least 75 days notice of
business or director nominations to be considered at an
annual meeting of stockholders and also require that a
stockholder or his or her representative be present at a
meeting in order for the stockholder s proposal to be
presented.
Special Meetings. The amendments increase the percentage
of stockholders required to call a special meeting of
stockholders to 66 2/3% unless otherwise provided by law.
Election and Eligibility of Directors. The amendments
provide that the number of directors is to be set by the
Board of Directors.
Amendment and Repeal. The amendments provide for a 66
2/3% vote of stockholders to amend or repeal any By-Law,
except in specified circumstances.
The complete text of the amended By-Laws is attached hereto as
Exhibit 5.1 and is incorporated herein by reference. As noted
above, the foregoing description of the By-Laws does not purport to
be complete and is qualified in its entirety by reference to the
By-Laws which are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits
Exhibit 5.1 - By-Laws of Westbank Corporation, as amended
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
WESTBANK CORPORATION
Date: February 2, 1998 By:/s/ Donald R. Chase
Donald R. Chase
President and
Chief Executive Officer
<PAGE>
EXHIBIT INDEX
Exhibit No.
5.1 By-Laws of Westbank Corporation, as amended
WESTBANK CORPORATION
West Springfield, Massachusetts
BY-LAWS
Dated 11/15/83
Amended 3/30/89
Amended 11/29/89
Amended 09/20/90
Amended 02/21/91
Amended
<PAGE>
WESTBANK CORPORATION
BY-LAWS
ISTOCKHOLDERS
1. Place of Meeting. All meetings of stockholders shall be
held within Massachusetts unless the Articles of Organization permit
the holding of stockholder meetings outside Massachusetts, in which
event such meetings may be held either within or without
Massachusetts. Meetings of stockholders shall be held at the
principal office of the Corporation unless a different place is
fixed by the Directors or the President and stated in the notice of
the meeting.
2. Annual Meeting. The annual meeting of stockholders shall
be held on the third Wednesday of April in each year (or if that be
a legal holiday in the place where the meeting is to be held, on the
next succeeding full business day) at 10 o clock A.M., unless a
different hour is fixed by the Directors or the President and stated
in the notice of the meeting. The purposes for which the annual
meeting is to be held, in addition to those prescribed by law, by
the Articles of Organization or by these By-Laws, may be specified
by the Directors or the President. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be
held in lieu thereof and any action taken at such meeting shall have
the same effect as if taken at the annual meeting.
2A.Matters to be Considered at an Annual Meeting. At any annual
meeting of stockholders or any special meeting in lieu of annual
meeting of stockholders (the "Annual Meeting"), only such business
shall be conducted, and only such proposals shall be acted upon, as
shall have been properly brought before such Annual Meeting. To be
considered as properly brought before an Annual Meeting, business
must be: (a) specified in the notice of meeting, (b) otherwise
properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the
meeting by any holder of record (both as of the time notice of such
proposal is given by the stockholder as set forth below and as of
the record date for the Annual Meeting in question) of any shares of
capital stock of the Corporation entitled to vote at such Annual
Meeting who complies with the requirements set forth in this By-Law.
In addition to any other applicable requirements, for business to
be properly brought before an Annual Meeting by a stockholder of
record of any shares of capital stock entitled to vote at such
Annual Meeting, such stockholder shall: (i) give timely notice as
required by this By-Law to the Clerk of the Corporation and (ii) be
present at such meeting, either in person or by a representative.
For Annual Meetings, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its
principal executive office not less than 75 days nor more than 120
days prior to the anniversary date of the immediately preceding
Annual Meeting (the "Anniversary Date"); provided, however, that in
the event the Annual Meeting is scheduled to be held on a date more
than 30 days before the Anniversary Date or more than 60 days after
the Anniversary Date, a stockholder's notice shall be timely if
<PAGE>
delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on
the later of (A) the 75th day prior to the scheduled date of such
Annual Meeting or (B) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
For purposes of these By-Laws, "public announcement" shall mean:
(i) disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service, (ii)
a report or other document filed publicly with the Securities and
Exchange Commission (including, without limitation, a Form 8-K), or
(iii) a letter or report sent to stockholders of record of the
Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Clerk shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief
description of the business the stockholder desires to bring before
such Annual Meeting and the reasons for conducting such business at
such Annual Meeting, (ii) the name and address, as they appear on
the Corporation's stock transfer books, of the stockholder proposing
such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder
proposing such business, (iv) the names and addresses of the
beneficial owners, if any, of any capital stock of the Corporation
registered in such stockholder's name on such books, and the class
and number of shares of the Corporation's capital stock beneficially
owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business
to support such proposal, and the class and number of shares of the
Corporation's capital stock beneficially owned by such other
stockholders, and (vi) any material interest of the stockholder
proposing to bring such business before such meeting (or any other
stockholders known to be supporting such proposal) in such proposal.
If the Board of Directors or a designated committee thereof
determines that any stockholder proposal was not made in a timely
fashion in accordance with the provisions of this By-Law or that the
information provided in a stockholder's notice does not satisfy the
information requirements of this By-Law in any material respect,
such proposal shall not be presented for action at the Annual
Meeting in question. If neither the Board of Directors nor such
committee makes a determination as to the validity of any
stockholder proposal in the manner set forth above, the presiding
officer of the Annual Meeting shall determine whether the
stockholder proposal was made in accordance with the terms of this
By-Law. If the presiding officer determines that any stockholder
proposal was not made in a timely fashion in accordance with the
provisions of this By-Law or that the information provided in a
stockholder's notice does not satisfy the information requirements
of this By-Law in any material respect, such proposal shall not be
presented for action at the Annual Meeting in question. If the
Board of Directors, a designated committee thereof or the presiding
officer determines that a stockholder proposal was made in
accordance with the requirements of this By-Law, the presiding
officer shall so declare at the Annual Meeting and ballots shall be
provided for use at the meeting with respect to such proposal.
<PAGE>
Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations thereunder with respect to the
matters set forth in this By-Law and nothing in this By-Law shall be
deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
3. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors. Special meetings shall be called
by the Clerk or in 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 at least (i) 66 2/3% in interest of
the capital stock entitled to vote at such meeting or (ii) such
lesser percentage, if any, as shall be determined to be the maximum
percentage which the Corporation is permitted by applicable law to
establish for the call of such a meeting. Application to a court
pursuant to Section 34(b) of Chapter 156B of the General Laws of the
Commonwealth of Massachusetts requesting the call of a special
meeting of stockholders because none of the officers is able and
willing to call such a meeting may be made only by stockholders who
hold at least (i) 66 2/3% in interest of the capital stock entitled
to vote at such meeting or (ii) such lesser percentage, if any, as
shall be determined to be the maximum percentage which the
Corporation is permitted by applicable law to establish for the call
of such a meeting. The hour, date and place of any special meeting
and the record date for determining the stockholders having the
right to notice of and to vote at such meeting shall be determined
by the Board of Directors or the President. At a special meeting of
stockholders, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been stated in the
written notice of the special meeting and otherwise properly brought
before the special meeting.
4. Notice of Meetings. A written notice of every meeting of
stockholders, stating the place, date and hour thereof, and the
purposes for which the meeting is to be held, shall be given by the
Clerk or an Assistant Clerk or other officer at least seven days
before the meeting to each stockholder entitled to vote thereat and
to each stockholder who, by law, by the Articles of Organization or
by these By-Laws, is entitled to such notice, by leaving such notice
with him or at his residence or usual place of business, or by
mailing it postage prepaid and addressed to him at his address as it
appears upon the books of the Corporation. Such notice shall be
deemed to be delivered when hand delivered to such address or
deposited in the mail so addressed, with postage prepaid. Whenever
any notice is required to be given to a stockholder by law, by the
Articles of Organization or by these By-Laws, no such notice need be
given if a written waiver of notice, executed before or after the
meeting by the stockholder or his attorney thereunto duly
authorized, is filed with the records of the meeting, if
communication with such stockholder is unlawful, or if such
stockholder attends such meeting, unless such attendance was for the
express purpose of objecting at the beginning of the meeting because
the meeting was not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any annual or
special meeting of stockholders need be specified in any written
waiver of notice.
<PAGE>
5. Quorum. Unless the Articles of Organization or the
provisions of law otherwise require, a majority in interest of all
stock issued, outstanding and entitled to vote on any matter shall
constitute a quorum with respect to that matter, except that if two
or more classes of stock are outstanding and entitled to vote as
separate classes, then in the case of each such class a quorum shall
consist of a majority in interest of the stock of that class issued,
outstanding and entitled to vote. If a quorum is not present, a
majority in interest of the stockholders present or the presiding
officer may adjourn the meeting from time to time and the meeting
may be held as adjourned without further notice other than an
announcement at the meeting at which the adjournment is taken of the
hour, date and place to which the meeting is adjourned. At such
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as
originally noticed. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
6. Adjournments; Rescheduling of Meetings. The Board of
Directors may postpone and reschedule any previously scheduled
annual or special meeting of stockholders, and a record date with
respect thereto, regardless of whether any notice or public
disclosure with respect to any such meeting or record date has been
sent or made pursuant to Section 2A of this Article I or Section 4
of Article II hereof or otherwise. In no event shall the public
announcement of an adjournment, postponement or rescheduling of any
previously scheduled Annual Meeting of stockholders commence a new
time period for the giving of a stockholder's notice under Section
2A of Article I and Section 4 of Article II of these By-Laws.
When any meeting is convened, the presiding officer may adjourn
the meeting if (a) no quorum is present for the transaction of
business, (b) the Board of Directors determines that adjournment is
necessary or appropriate to enable the stockholders to consider
fully information which the Board of Directors determines has not
been made sufficiently or timely available to stockholders, or (c)
the Board of Directors determines that adjournment is otherwise in
the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date
or place, notice need not be given of the adjourned meeting other
than an announcement at the meeting at which the adjournment is
taken of the hour, date and place to which the meeting is adjourned.
7. Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote held by him of record according
to the records of the Corporation and a proportionate vote for a
fractional share so held by him, unless otherwise provided by the
Articles of Organization. Stockholders may vote either in person or
by written proxy dated not more than six months before the meeting
named therein. Notwithstanding the preceding sentence, a proxy
coupled with an interest sufficient in law to support an irrevocable
power, including, without limitation, an interest in the shares or
in the Corporation generally, may be made irrevocable if it so
provides, need not specify the meeting to which it relates, and
shall be valid and enforceable until the interest terminates, or for
such shorter period as may be specified in the proxy. Proxies shall
be filed with the Clerk of the meeting, or of any adjournment
<PAGE>
thereof, before being voted. Except as otherwise limited therein,
proxies shall entitle the persons named therein to vote at any
adjournment of such meeting, but shall not be valid after final
adjournment of such meeting. A proxy with respect to stock held in
the name of two or more persons shall be valid if executed by one of
them, unless at or prior to exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of
them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to
its exercise.
8. Action at Meeting. When a quorum is present, the holders of
a majority of the stock present or represented and voting on a
matter (or if entitled to vote as separate classes, then in the case
of each class, the holders of a majority of the stock of that class
present or represented and voting on a matter), shall decide any
matter to be voted on by the stockholders except where a larger vote
is required by law, by the Articles of Organization or by these
By-Laws. Any election by stockholders shall be determined by a
plurality of the votes cast by the stockholders entitled to vote at
the election, except where a greater vote is required by law, by the
Articles of Organization or by these By-Laws. No ballot shall be
required for such election unless requested by a stockholder present
or represented at the meeting and entitled to vote in the election.
The Corporation shall not directly or indirectly vote any share of
its stock.
9. Action Without a Meeting. Any action required or permitted
to be taken at a meeting of the stockholders may be taken without a
meeting if all the stockholders (including any actions or powers
reserved to the shareholders under these By-Laws) entitled to vote
on a matter consent to the action in writing and the written
consents are filed with the records of the meeting of stockholders.
Each such consent shall be treated for all purposes as a vote at the
meeting. The procedures set forth in Section 10 of this Article I
and Section 3 of Article IV shall apply to shareholder action taken
without a meeting in connection with this Section.
10. Voting Procedures and Inspectors of Elections. In advance
of any meeting of stockholders, the Board of Directors may appoint
one or more inspectors to act at an annual or special meeting of
stockholders and make a written report thereon. Any inspector may,
but need not, be an officer, employee or agent of the Corporation.
Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
or her ability. The inspector(s) shall (i) ascertain the number of
shares outstanding and the voting power of each, (ii) determine the
shares represented at a meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares represented at
the meeting, and their count of all votes and ballots. The
inspector(s) may appoint or retain other persons or entities to
assist the inspector(s) in the performance of the duties of the
inspector(s). The presiding officer may review all determinations
made by the inspector(s), and in so doing the presiding officer
shall be entitled to exercise his sole judgment and discretion and
he shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and, if
applicable, the presiding officer shall be subject to further review
by any court of competent jurisdiction.
<PAGE>
The Board of Directors may remove the inspector(s) at any time.
The officer presiding at any annual or special meeting of
stockholders may remove the inspector(s) at any time during such
meeting.
11. Presiding Officer. The Chairman or, in his absence, the
President or, in his absence, such other officer, shall preside at
all annual or special meetings of stockholders and shall have the
power, among other things, to adjourn such meetings at any time and
from time to time in accordance with the provisions of Sections 5
and 6 of this Article I. The order of business and all other matters
of procedure at any meeting of the stockholders shall be determined
by the presiding officer.
12. Control Share Acquisition. The provisions of Chapter 110D
of the General Laws of the Commonwealth of Massachusetts ("Chapter
110D"), as it may be amended from time to time, shall not apply to
"control share acquisitions" of the Corporation within the meaning
of Chapter 110D.
ARTICLE II DIRECTORS
1. Powers. The business of the Corporation shall be managed by
a Board of Directors which may exercise all the powers of the
Corporation except as otherwise provided by law, by the Articles of
Organization or by these By-Laws. In the event of a vacancy in the
Board of Directors, the remaining Directors, except as otherwise
provided by law, by the Articles of Organization or by these
By-Laws, may exercise the powers of the full Board until the vacancy
is filled. In particular, and without limiting the generality of
the foregoing, the Directors may at any time issue all or from time
to time any part of the unissued capital stock of the Corporation
from time to time authorized under the Articles of Organization and
may determine, subject to any requirements of law, the consideration
for which stock is to be issued and the manner of allocating such
consideration between capital and surplus.
2. Election and Eligibility. (a) A Board of Directors of such
number as shall be fixed by resolution duly adopted from time to
time by the Board of Directors, shall be elected by the stockholders
at the annual meeting. The Directors shall hold office in the
manner provided in the Articles of Organization. Unless waived by
the affirmative vote of at least two-thirds of the stockholders or
two-thirds of the Directors then in office, no person shall be
eligible to be a director of the Corporation unless such person: (1)
is not, and has not been for a period of at least six (6) months
prior to the date of his election, an officer or director of any
bank (other than a subsidiary of the Corporation) any bank holding
company (as defined in Section 2 of the Bank Holding Company Act of
1956, as amended) or any company in competition with the Corporation
or any subsidiary thereof; and (2) has been a United States citizen
for at least six (6) months.
Amended 3/30/89 and 11/29/89
<PAGE>
In the event that the Corporation shall issue preferred stock and
if so provided by the Articles of Organization, or the resolutions
or votes adopted by the Board of Directors providing for the issue
of such series, the holders of the preferred stock of the
Corporation may enlarge the Board of Directors by the addition of
Directors as provided therein. Any vacancy in the number of
directors so elected shall be filled only by the affirmative vote of
the holders of preferred stock of the Corporation.
3. Vacancies. Any vacancy in the Board of Directors (other than
a vacancy caused by the death, resignation, or removal of a Director
elected by holders of preferred stock of the Corporation) including
a vacancy resulting from the enlargement of the Board, unless and
until filled by the stockholders, may be filled by a majority of the
Directors present at any meeting of the Directors at which a quorum
is present.
Should a Director resign, be removed from office or die, and
should the remaining Directors fail to fill the vacancy within
forty-five (45) days of the effective date of the resignation or
removal, or within forty-five (45) days of the death of the
director, then the total number of Directors shall automatically be
decreased by the number of unfilled vacancies.
4. Director Nominations. Nominations of candidates for election
as Directors of the Corporation at any Annual Meeting may be made
only (a) by, or at the direction of, a majority of the Board of
Directors or (b) by any holder of record (both as of the time notice
of such nomination is given by the stockholder as set forth below
and as of the record date for the Annual Meeting in question) of any
shares of the capital stock of the Corporation entitled to vote at
such Annual Meeting who complies with the timing, informational and
other requirements set forth in this By-Law. Any stockholder who
has complied with the timing, informational and other requirements
set forth in this By-Law and who seeks to make such a nomination, or
his, her or its representative, must be present in person at the
Annual Meeting. Only persons nominated in accordance with the
procedures set forth in this By-Law 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, shall be made pursuant to timely notice in
writing to the Clerk of the Corporation as set forth in this By-Law.
For Annual Meetings, a stockholder's notice shall be timely if
delivered to, or mailed to and received by, the Corporation at its
principal executive office not less than 75 days nor more than 120
days prior to the Anniversary Date; provided, however, that in the
event the Annual Meeting is scheduled to be held on a date more than
30 days before the Anniversary Date or more than 60 days after the
Anniversary Date, a stockholder's notice shall be timely if
delivered to, or mailed and received by, the Corporation at its
principal executive office not later than the close of business on
the later of (i) the 75th day prior to the scheduled date of such
Annual Meeting or (ii) the 15th day following the day on which
public announcement of the date of such Annual Meeting is first made
by the Corporation.
<PAGE>
A stockholder's notice to the Clerk shall set forth as to each
person whom the stockholder proposes to nominate for election or
re-election as a Director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of
the Corporation's capital stock which are beneficially owned by such
person on the date of such stockholder notice, and (iv) the consent
of each nominee to serve as a Director if elected. A stockholder's
notice to the Clerk shall further set forth as to the stockholder
giving such notice (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the
beneficial owners (if any) of the Corporation's capital stock
registered in such stockholder's name and the name and address of
other stockholders known by such stockholder to be supporting such
nominee(s), (ii) the class and number of shares of the Corporation's
capital stock which are held of record, beneficially owned or
represented by proxy by such stockholder and by any other
stockholders known by such stockholder to be supporting such
nominee(s) on the record date for the Annual Meeting in question (if
such date shall then have been made publicly available) and on the
date of such stockholder's notice, and (iii) a description of all
arrangements or understandings between such stockholder and each
nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be
made by such stockholder.
If the Board of Directors or a designated committee thereof
determines that any stockholder nomination was not made in
accordance with the terms of this By-Law or that the information
provided in a stockholder's notice does not satisfy the
informational requirements of this By-Law in any material respect,
then such nomination shall not be considered at the Annual Meeting
in question. If neither the Board of Directors nor such committee
makes a determination as to whether a nomination was made in
accordance with the provisions of this By-Law, the presiding officer
of the Annual Meeting shall determine whether a nomination was made
in accordance with such provisions. If the presiding officer
determines that any stockholder nomination was not made in
accordance with the terms of this By-Law or that the information
provided in a stockholder's notice does not satisfy the
informational requirements of this By-Law in any material respect,
then such nomination shall not be considered at the Annual Meeting
in question. If the Board of Directors, a designated committee
thereof or the presiding officer determines that a nomination was
made in accordance with the terms of this By-Law, the presiding
officer shall so declare at the Annual Meeting and ballots shall be
provided for use at the meeting with respect to such nominee.
Notwithstanding anything to the contrary in the second sentence of
the second paragraph of this By-Law, in the event that the number of
Directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 75 days prior to the
Anniversary Date, a stockholder's notice required by this By-Law
shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if such notice shall
be delivered to, or mailed to and received by, the Corporation at
its principal executive office not later than the close of business
on the 15th day following the day on which such public announcement
is first made by the Corporation.
<PAGE>
No person shall be elected by the stockholders as a Director of
the Corporation unless nominated in accordance with the procedures
set forth in this By-Law. Election of Directors at the Annual
Meeting need not be by written ballot, unless otherwise provided by
the Board of Directors or presiding officer at such Annual Meeting.
If written ballots are to be used, ballots bearing the names of all
the persons who have been nominated for election as Directors at the
Annual Meeting in accordance with the procedures set forth in this
Section shall be provided for use at the Annual Meeting.
Amended 03/30/89 and 11/29/89
5. Tenure.
(a) Except as otherwise provided by law, by the Articles of
Organization or by these By-Laws, each Director shall serve until
his successor is elected and qualified or until his earlier
resignation, removal from office or death.
(b) The Board of Directors shall be divided into three
classes: Class 1, Class 2 and Class 3, which shall be as nearly
equal in number as possible. Each Director shall serve for a term
ending on the date of the third annual meeting of Stockholders
following the annual meeting at which such Director was elected or,
if the Director was not elected at an annual meeting, until the end
of the term of the class to which he was elected; provided, however,
that each initial Director in Class I shall hold office until the
annual meeting of Stockholders in 1985; each initial Director in
Class 2 shall hold office until the annual meeting of Stockholders
in 1986; and each initial Director in Class 3 shall hold office
until the annual meeting of Stockholders in 1987.
In the event of any increase or decrease in the authorized number
of Directors, (1) each Director then serving as such shall
nevertheless continue as a Director of the class of which he is a
member until the expiration of his current term, or his earlier
resignation, removal from office or death, and (2) the newly-created
or eliminated directorships resulting from such increase or decrease
shall be apportioned by the Board of Directors among the three
classes of Directors so as to maintain such classes as nearly equal
as possible.
(c) Any Director may resign by delivering his written
resignation to the Corporation at its principal office or to the
President or Clerk. Such resignation shall be effective upon
receipt unless it is specified at some other time or upon the
happening of some other event.
6. Removal.
(a) Removal by Directors. A Director may be removed, with or
without cause, by vote of a majority of the Directors then in
office.
<PAGE>
(b) Removal by Stockholders. Stockholders may remove a Director
only with cause and only by the affirmative vote of at least
two-thirds (or such other percentage required by the Articles of
Organization, these By-Laws or applicable law, but in no case less
than the maximum percentage which the Corporation is permitted by
applicable law to establish for the removal of a Director by
stockholders) of the total votes which would be eligible to be cast
by stockholders in the election of such Director.
For purposes of this Section 6, "cause," with respect to the
removal of any Director shall mean only (i) conviction of a felony,
(ii) declaration of unsound mind by order of court, (iii) gross
dereliction of duty, (iv) commission of any action involving moral
turpitude, or (v) commission of an action which constitutes
intentional misconduct or a knowing violation of law if such action
in either event results both in an improper substantial personal
benefit and a material injury to the Corporation. A Director may be
removed for cause only after reasonable notice and opportunity to be
heard before the body proposing removal.
7. Meetings. Regular meetings of the Directors may be held
without call or notice at such places, within or without
Massachusetts, and at such times as the Directors may from time to
time determine, provided that any Director who is absent when such
determination is made shall be given notice of the determination. A
regular meeting of the Directors may be held without a call or
notice at the same place as the annual meeting of stockholders, or
the special meeting held in lieu thereof, following such meeting of
stockholders.
Special meetings of the Directors may be held at any time and
place, within or without Massachusetts, designated in a call by the
President, Treasurer or one or more Directors.
Unless otherwise provided by law or the Articles of Organization,
members of the Board of Directors may participate in a meeting of
the Board of Directors by means of a conference telephone or similar
communications equipment by means of which all persons participating
in the meeting can hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
8. Notice of Special Meetings. Notice of all special meetings
of the Directors shall be given to each Director by the Secretary,
by the Clerk, or Assistant Clerk, or in case of the death, absence,
incapacity or refusal of such person, by the officer or one of the
Directors calling the meeting. Notice shall be given to each
Director in person or by telephone or by telegram sent to his
business or home address at least forty-eight hours in advance of
the meeting, or by written notice mailed to his business or home
address at least seventy-two hours in advance of the meeting.
Notice need not be given to any Director if a written waiver of
notice, executed by him before or after the meeting, is filed with
the records of the meeting, or to any Director who attends the
meeting without protesting prior thereto or at its commencement the
lack of notice to him. A notice or waiver of notice of a Directors
meeting need not specify the purpose of the meeting.
<PAGE>
9. Quorum. At any meeting of the Directors, a majority of the
Directors then in office shall constitute a quorum. Less than a
quorum may adjourn any meeting from time to time without further
notice.
10. Action at Meeting. At any meeting of the Directors at which
a quorum is present, the vote of a majority of those present, unless
a different vote is specified by law, by the Articles of
Organization or by these By-Laws, shall be sufficient to take any
action.
11. Action by Consent. Any action required or permitted to be
taken at any meeting of the Directors may be taken without a meeting
if all the Directors consent to the action in writing and the
written consents are filed with the records of the Directors
meeting. Each such consent shall be treated for all purposes as a
vote at a meeting.
12. Committees. The Directors may by vote of a majority of the
Directors then in office, elect from their number an Executive
committee or other committees and may by like vote delegate thereto
some or all of their powers except those which by law, by the
Articles of Organization or by these By-Laws they are prohibited
from delegating. Except as the Directors may otherwise determine,
any such committee may make rules for the conduct of its business,
but unless otherwise provided by the Directors or in such rules, its
business shall be conducted as nearly as may be in the same manner
as is provided by these By-Laws for the Directors. All members of
such committees shall hold such offices at the pleasure of the Board
of Directors. The Board of Directors by vote of a majority of the
Directors then in office may abolish any such committee at any time.
Any committee to which the Board of Directors delegates any of its
powers or duties shall keep records of its meetings and shall report
its action to the Board of Directors. The Board of Directors shall
have power to rescind any action of any committee, but no such
rescission shall have retroactive effect.
13. Amendment of Certain Sections. Sections (3), (5(b)) and
(13) of this Article II may not be altered, amended or repealed
except by the affirmative vote of at least seventy-five percent
(75%) of the shares of each class of the stock of the Corporation
outstanding and entitled to vote. Sections 2, 4, 5(a), 5(c) and 6
of this Article II may not be altered, amended or repealed except by
the affirmative vote of at least sixty-six and two thirds percent
(66 %) of the total number of Directors then in office or by an
affirmative vote of at least sixty-six and two-thirds percent (66 %)
of the shares of each class of stock of the Corporation outstanding
and entitled to vote.
Amended 09/20/90
ARTICLE III OFFICERS
1. Enumeration. The officers of the Corporation shall consist
of a Chairman of the Board, a President, a Treasurer, a Clerk, and
such other officers, including a Vice Chairman of the Board, one or
more vice Presidents (including one or more Executive Vice
Presidents), Assistant Treasurers, and Assistant Clerks as the
Directors may determine.
<PAGE>
2. Election. The Chairman of the Board, President, Treasurer
and Clerk shall be elected annually by the Directors at their first
meeting following the annual meeting of stockholders. Other
officers may be appointed by the Directors at such meeting or at any
other meeting.
3. Qualification. The President shall be a Director. No
officer need be a stockholder. Any two or more offices may be held
by the same person, provided that the President and Clerk shall not
be the same person. The Clerk shall be a resident of Massachusetts
unless the Corporation has a resident agent appointed for the
purpose of service of process. Any officer may be required by the
Directors to give bond for the faithful performance of his duties to
the Corporation in such amount and with such sureties as the
Directors may determine.
4. Tenure. Except as otherwise provided by law, by the Articles
of Organization or by these By-Laws, the Chairman of the Board,
President, Treasurer and Clerk shall hold office until the first
meeting of the Directors following the annual meeting of
stockholders and thereafter until his successor is chosen and
qualified; and all other officers shall hold office until the first
meeting of the Directors following the annual meeting of
stockholders and until their successors are chosen and qualified, or
for such shorter term as the Board of Directors may fix at the time
such officers are chosen. Any officer may resign by delivering his
written resignation to the Corporation at its principal office or to
the President or Clerk and such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or
upon the happening of some other event.
5. Removal. The Directors may remove any officer with or
without cause by a vote of a majority of the entire number of
Directors then in office, provided that an officer may be removed
for cause only after reasonable notice and opportunity to be heard
by the Board of Directors prior to action thereon.
6. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Directors and the Stockholders and
shall have such other powers and duties as are usually vested in the
office of Chairman of the Board or as may be vested in him by the
Board of Directors.
7. President. Unless otherwise provided by the Board of
Directors, the President shall be the chief executive officer of the
Corporation and shall, subject to the direction of the Directors,
have general supervision and control of its business. The
President, in the absence of the Chairman of the Board, shall
preside at all meetings of stockholders and Directors.
8. Vice Presidents. The Executive Vice President, or if there
shall be no Executive Vice President, the Vice Presidents in the
order determined by the Directors, shall, in the absence or
disability of the President, perform the duties and exercise the
powers of the President and shall perform such other duties and
shall have such other powers as the Directors may from time to time
prescribe.
9. Treasurer and Assistant Treasurers. The Treasurer shall,
subject to the direction of the Directors, have general charge of
the financial affairs of the Corporation and shall cause to be kept
<PAGE>
accurate books of account. He shall have custody of all funds,
securities and valuable documents of the Corporation, except as the
Directors may otherwise provide.
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Directors,
shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer and shall perform
such other duties and shall have such other powers as the Directors
may from time to time prescribe.
10. Clerk and Assistant Clerks. The Clerk shall keep a record
of the meetings of stockholders. Unless a Transfer Agent is
appointed, the Clerk shall keep or cause to be kept in
Massachusetts, at the principal office of the Corporation or at his
office, the stock and transfer records of the Corporation, in which
are contained the names of all stockholders and the record address,
and the amount of stock held by each.
If there is no Secretary or Assistant Secretary, the Clerk shall
keep a record of the meetings of the Directors.
The Assistant Clerk, or if there shall be more than one, the
Assistant Clerks in the order determined by the Directors, shall, in
the absence or disability of the Clerk, perform the duties and
exercise the powers of the Clerk and shall perform such other duties
and shalt have such other powers as the Directors may from time to
time prescribe.
11. Other Powers and Duties. Each officer shall, subject to
these By-Laws, have in addition to the duties and powers
specifically set forth in these By-Laws, such duties and powers as
are customarily incident to his office, and such duties and powers
as the Directors may from time to time designate.
12. Salaries. The salaries and other compensation of officers,
agents and employees of the Corporation shall be fixed from time to
time by or under authority of the Board of Directors. No officer
shall be prevented from receiving a salary or other compensation by
reason of the fact that such person is also a Director of the
Corporation.
ARTICLE IV CAPITAL STOCK
1. Certificate of Stock. Each stockholder shall be entitled to
a certificate of the capital stock of the Corporation in such form
as may be prescribed from time to time by the Directors. However,
the Board of Directors may provide that such stock be
uncertificated. The certificate, if any, shall be signed by the
President, or a Vice President, and by the Treasurer or an Assistant
Treasurer, but when a certificate is counter-signed by a transfer
agent or a registrar, other than a Director, officer or employee of
the Corporation, such signature may be a facsimile. In case any
<PAGE>
officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the Corporation with
the same effect as if he were such officer at the time of its issue.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Articles of Organization,
the By-Laws or any agreement to which the Corporation is a party,
shall have conspicuously noted on the face or back of the
certificate either the full text of the restriction or a statement
of the existence of such restrictions and 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.
2. Transfers. Subject to the, restrictions, if any, stated or
noted on the stock certificates, shares of stock may be transferred
on the books of the Corporation by the surrender to the Corporation
or its Transfer Agent of the certificate therefore properly endorsed
or accompanied by a written assignment and power of attorney
properly executed, with necessary transfer stamps affixed, and with
such proof of the authenticity of signature as the Corporation or
its Transfer Agent may reasonably require. Except as may be
otherwise required by law, by the Articles of Organization or by
these By-Laws, the Corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to
vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock until the shares have been
transferred on the books of the Corporation in accordance with the
requirements of these By-Laws.
It shall be the duty of each stockholder to notify the
Corporation of his post office address and of his taxpayer
identification number.
3. Record Date. The Directors may fix in advance a time not
more than sixty days preceding 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 of determining the stockholders
having the right to notice of and to vote at such meeting, and any
adjournment thereof, or the right to receive such dividend or
distribution or the right to give such consent or dissent. In such
case, only stockholders of record on such record date shall have
such right, notwithstanding any transfer of stock on the books of
the Corporation after the record date. Without fixing such record
date the Directors may for any of such purposes close the transfer
books for all or any part of such period.
If no record date is fixed and the transfer books are not closed,
the record date for determining the stockholders having the right to
notice of or to vote at a meeting of stockholders shall be at the
<PAGE>
close of business on the date next preceding the day on which notice
is given, and the record date for determining the stockholders for
any other purpose shall be at the close of business on the day on
which the Board of Directors acts with respect thereto.
4. Replacement of Certificates. In case of the alleged loss or
destruction or the mutilation of a certificate of stock, a duplicate
certificate may be issued in place thereof, upon such terms as the
Directors may prescribe, including the presentation of reasonable
evidence of such loss, destruction or mutilation and the giving of
such indemnity as the Directors may require for the protection of
the Corporation or any transfer agent or registrar.
5. Issue of Capital Stock. The Board of Directors shall have
the authority to issue or reserve for issue from time to time the
whole or any part of the capital stock of the Corporation which may
be authorized from time to time, to such persons or organizations,
for such consideration, whether cash, property, services or expenses
and on such terms as the Board of Directors may determine, including
without limitation the granting of options, warrants, or conversion
or other rights to subscribe to said capital stock. Pursuant to
Section 12 of Article II, the Board of Directors may, if permitted
by law, delegate some or all of its authority under this Section 5
to one or more committees of Directors.
ARTICLE V MISCELLANEOUS PROVISIONS
1. Fiscal Year. Except as from time to time otherwise
determined by the Directors, the fiscal year of the Corporation
shall be the calendar year.
2. Seal. The seal of the Corporation shall, subject to
alteration by the Directors, bear its name, the word Massachusetts,
and the year of its incorporation.
3. Execution of Instruments. All checks, deeds, leases,
transfers, contracts, bonds, notes and other obligations authorized
to be executed by an officer of the Corporation on its behalf shall
be signed by the President or the Treasurer except as the Directors
may generally or in particular cases otherwise determine.
4. Voting of Securities. Except as the Directors way otherwise
designate, the President or Treasurer way waive notice of, and act
as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this Corporation (with or without power of
substitution) at, any meeting of stockholders or shareholders of any
other corporation or organization, the securities of which may be
held by this Corporation.
5. Corporate Records. The original, or attested copies, of the
Articles of Organization, By-Laws and records of all meetings of the
incorporators and stockholders, and the Stock and 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 at the principal office of the Corporation, or at the
office of its transfer Agent or of the Clerk. The stock and
transfer records, which shall contain the names of all stockholders
<PAGE>
and the record address and the amount of stock held by each, shall
be kept at the principal office of the Corporation in Massachusetts,
or at an office of its Transfer Agent or Clerk. Said copies and
records need not all be kept in the same office. They shall be
available at all reasonable times to the inspection of any
stockholder for any proper purpose, but not to secure a list of
stockholders for the purpose of selling said list or copies thereof
or of using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the
Corporation.
6. Evidence of Authority. A certificate by the Clerk or an
Assistant Clerk, or a Temporary Clerk, as to any action taken by the
stockholders, Directors, Executive Committee, or any officer or
representative of the Corporation shall as to all persons who rely
thereon in good faith be conclusive evidence of such action.
7. Articles of Organization. All references in these By-Laws to
the Articles of Organization shall be deemed to refer to the
Articles of Organization of the Corporation, as amended and in
effect from time to time.
8. Transactions with Interested Parties. In the absence of
fraud, no contract or other transaction between this Corporation and
any other corporation or any firm, association, partnership or
person shall be affected or invalidated by the fact that any
Director or officer of this Corporation is pecuniarily or otherwise
interested in or is a director, member or officer of such other
corporation or of such firm, association or partnership or is a
party to or is pecuniarily or otherwise interested in such contract
or other transaction or is in any way connected with any person or
persons, firm, association, partnership, or corporation pecuniarily
or otherwise interested therein; provided that the fact that he
individually or as a director, member or officer of such
corporation, firm, association or partnership is such a party or is
so interested shall be disclosed to or shall have been known by the
Board of Directors or a majority of such members thereof as shall be
present at a meeting of the Board of Directors at which action upon
any such contract or transaction shall be taken; any Director may be
counted in determining the existence of a quorum and may vote at any
meeting of the Board of Directors of this Corporation for the
purpose of authorizing any such contract or transaction with like
force and effect as if he were not so interested, or were not a
director, member or officer of such other corporation, firm,
association or partnership, provided that any vote with respect to
such contract or transaction must be adopted by a majority of the
Directors then in office who have no interest in such contract or
transaction.
9. Indemnification. The Corporation shall indemnify each person
(and his heirs, executors, administrators, or other legal
representatives) who is, or shall have been, a Director, officer,
employee or agent of the Corporation or any person who is serving,
or shall serve as a Director, officer, employee or agent of another
organization in which the Corporation owns shares or of which it is
a creditor, against all liabilities and expenses (including
judgments, fines, penalties and attorneys fees and all amounts paid,
other than to the Corporation or such other organization, in
compromise or settlement) reasonably incurred by any such Director,
officer, or person in connection with, or arising out of, any
<PAGE>
action, suit or proceeding in which any such Director, officer, or
person may be a party defendant or with which he may be threatened
or otherwise involved, directly or indirectly, by reason of his
being or having been a Director or officer of the Corporation or
such other organization, except in relation to matters as to which
any such Director, officer, or person shall be finally adjudged
(other than by consent) in such action, suit or proceeding not to
have acted in good-faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation or
such other organization, and, with respect to any criminal action or
proceeding he had no reasonable cause to believe his conduct was
unlawful; provided, however, that indemnity shall not be made with
respect to any such amounts paid in compromise or settlement or by
consent, unless the Board of Directors shall have determined in good
faith that the Director officer or person making such compromise,
settlement, or consent acted, in connection with the matter or
matters out of which such compromise, settlement or consent arose,
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation or such other
organization, and, with respect to any criminal action or proceeding
that he had no reasonable cause to believe his conduct was unlawful.
Such indemnification may include payment by the Corporation of
expenses in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding upon
receipt of any undertaking by the person indemnified to repay such
payment if he shall be adjudicated to be not entitled to
indemnification under this section.
The foregoing right to indemnification shall not be exclusive of
any other rights to which any such Director, officer or person is
entitled under any agreement, vote of stockholders, statute, or as a
matter of law, or otherwise. The provisions of this section are
separable, and if any provision or portion hereof shall for any
reason be held inapplicable, illegal or ineffective, this shall not
affect any right of indemnification existing otherwise than under
this section.
10. Stock in Other Corporations. Except as the Directors may
otherwise designate, the President or Treasurer may waive notice of,
and appoint any person or persons to act as proxy or attorney in
fact for the Corporation (with or without power of substitution) at
any meeting of stockholders or shareholders of any other corporation
or organization, the securities of which may be held by this
Corporation.
11. Severability. If any term or provision of these By-Laws, or
the application thereof to any person or circumstance or period of
time, shall to any extent be invalid or unenforceable, the remainder
of the By-Laws shall be valid and enforceable to the fullest extent
permitted by law.
ARTICLE VI AMENDMENTS
1. Amendment by Directors. Except with respect to any
provisions of these By-Laws which by law, the Articles of
Organization or these By-Laws require action by the stockholders,
these By-Laws may be amended or repealed by the affirmative vote of
a majority of the Directors then in office. Not later than the time
of giving notice of the annual meeting of stockholders next
following the amending or repealing by the Directors of any By-Law,
notice thereof stating the substance of such change shall be given
to all stockholders entitled to vote on amending the By-Laws.
2. Amendment by Stockholders. These By-Laws may be amended or
repealed at any annual meeting of stockholders, or special meeting
of stockholders called for such purpose, by the affirmative vote of
at least two-thirds of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a
single class; provided, however, that if the Board of Directors
recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only
require the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class. Notwithstanding the
foregoing, no shareholder approval shall be required unless mandated
by the Articles of Organization, these By-Laws, or other applicable
law.
<PAGE>
A true record.
ATTEST: /s/Robert J. Perlak, Clerk
DOCSC\579655.1
12/17/97
