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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE PROVIDENCE JOURNAL COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 05-0481966
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(State of incorporation (IRS Employer
or organization) Identification No.)
75 Fountain Street
Providence, Rhode Island 02902
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(Address of principal executive offices) (Zip Code)
<TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<CAPTION>
Title of each class Name of each exchange on which
to be so registered: each class is to be registered
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<S> <C>
Not applicable Not applicable
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock, $1.00 par value
Class B Common Stock, $1.00 par value
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Item 1. Description of Registrant's Securities to be Registered.
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Incorporated by reference herein is the description of
the Class A Common Stock and Class B Common Stock set
forth in the Registrant's Registration Statement on
Form S-4, as amended, filed pursuant to the Securities
Act of 1933 (Registration No. 33-57479) (the
"Registration Statement") beneath the caption labeled
"Description of New Providence Journal Common Stock".
Item 2. Exhibits.
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1. Certificate of Incorporation, as amended, of the
Registrant.
2. By-laws of the Registrant.
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Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
registration statement to be signed on its behalf by the undersigned
thereunto duly authorized.
THE PROVIDENCE JOURNAL COMPANY
By: /s/ Stephen Hamblett
---------------------------
Stephen Hamblett
Chairman of the Board and
Chief Executive Officer
Dated: September 29, 1995
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EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF
THE PROVIDENCE JOURNAL COMPANY
------------------------------
SECTION 1
Name
----
The name of the corporation (hereinafter called the
"Company") is: The Providence Journal Company.
SECTION 2
Delaware Office and Registered Agent
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The registered office of the Company in the State of Delaware
is located at 32 Loockerman Square, Suite L-100, in the City of
Dover, County of Kent 19904. The name of the registered agent
of the Company at said address is The Prentice-Hall Corporation
System, Inc., 32 Loockerman Square, Suite L-100, Dover,
Delaware 19904.
SECTION 3
Purposes
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The nature of the business of the Company and the objects and
purposes to be transacted, promoted or carried on by it are as
follows:
(1) To publish an independent newspaper which is
devoted to the dissemination of local, state, national
and international news to residents of Rhode Island and
adjoining communities and which is dedicated to the
welfare of the community, in keeping with the
principles of free press;
(2) To own and operate other media, communications
and broadcasting businesses; and
(3) To engage in any lawful act or activity for
which corporations may be organized under the General
Corporation Law of the State of Delaware.
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SECTION 4
Capital Structure
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4.1 AUTHORIZED SHARES. The total number of shares of
capital stock which the Company shall have authority to
issue is Nine Hundred Thousand (900,000) shares,
consisting of two classes of capital stock:
(a) Six Hundred Thousand (600,000) shares of Class
A Common Stock, par value $1.00 per share (the "Class A
Stock"); PROVIDED, HOWEVER, that Four Hundred Fifty
Thousand (450,000) of such shares of Class A Stock
authorized hereby but not outstanding as of the date of
original issuance may be issued by the Company only upon
the exercise of rights issued pursuant to the Rights
Agreement to be effective as of December 1, 1994, between
the Company and the Rights Agent named therein (the
"Rights Agreement") or pursuant to another agreement which
the Board of Directors of the Company determines to be
substantially similar to the Rights Agreement; and
(b) Three Hundred Thousand (300,000) shares of Class B
Common Stock, par value $1.00 per share (the "Class B
Stock"); PROVIDED, HOWEVER, that Two Hundred Twenty-Five
Thousand (225,000) shares of Class B Stock authorized
hereby but not outstanding as of the original issuance
thereof may be issued by the Company only upon the
exercise of rights issued pursuant to the Rights Agreement
or pursuant to another agreement which the Board of
Directors of the Company determines to be substantially
similar to the Rights Agreement.
The Class A Stock and the Class B Stock are hereinafter
collectively called the "Common Stock".
The designations, powers, preferences and rights, and
the qualifications, limitations or restrictions thereof,
of each class of Common Stock of the Company are as set
forth in the following subsections of this Section 4.
4.2 VOTING RIGHTS. At every meeting of stockholders of
the Company, every holder of Class A Stock shall be
entitled to one (1) vote in person or by proxy for each
share of Class A Stock outstanding in his name on the
transfer records of the Company, and every holder of Class
B Stock shall be entitled to four (4) votes in person or
by proxy for each share of Class B Stock outstanding in
his name on the transfer records of the Company. Except
as may otherwise be required by law, the holders of Class
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A Stock and Class B Stock shall vote together as a single
class. Every reference in this Certificate of
Incorporation to a majority or other proportion of shares
of stock shall be deemed to refer to such majority or
other proportion of the votes entitled to be cast by such
shares of stock. The holders of Class A Stock and Class B
Stock are not entitled to cumulative votes in the election
of any directors.
4.3 DIVIDENDS. When and as dividends are declared,
whether payable in cash, in property or in shares of stock
of the Company (except as hereinafter provided in this
subsection 4.3), the holders of Class B Stock and the
holders of Class A Stock shall be entitled to share
equally, share for share, in such dividends. A dividend
payable in shares of Class B Stock to the holders of Class
B Stock and in shares of Class A Stock to the holder of
Class A Stock shall be deemed to be shared equally among
both classes. No dividends shall be declared or paid in
shares of Class B Stock except to holders of Class B
Stock, but dividends may be declared and paid, as
determined by the Board of Directors, in shares of Class A
Stock to all holders of Common Stock.
4.4 LIQUIDATION RIGHTS. In the event of any
liquidation, dissolution or winding up of the Company,
either voluntary or involuntary, the holders of Class A
Stock and the holders of Class B Stock shall have the
right to share, ratably according to the number of shares
of Common Stock held by them, in all remaining assets of
the Company available for distribution to its stockholders.
4.5 CONVERSION RIGHTS.
(a) At any time each share of Class B Stock may be
converted into one fully paid and nonassessable share of
Class A Stock. Such right shall be exercised by the
surrender to the Company of the certificate representing
such share of Class B Stock to be converted at any time
during normal business hours at the principal executive
offices of the Company, or if an agent for the
registration of transfer of shares of Common Stock is then
duly appointed and acting (said agent being hereinafter
referred to as the "Transfer Agent"), then at the office
of the Transfer Agent, accompanied by a written notice of
the election by the holder thereof to convert and (as so
required by the Company or the Transfer Agent) by
instruments of transfer, in form satisfactory to the
Company and the Transfer Agent, duly executed by such
holder or his duly authorized attorney, and by transfer
tax stamps or funds therefor, if required pursuant to
paragraph (d) below.
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(b) As promptly as practicable after the surrender
for conversion of a certificate representing shares of
Class B Stock in the manner provided for in paragraph (a)
above and the payment of any amount required by the
provisions of paragraphs (a) and (d), the Company will
deliver, or cause to be delivered, a certificate or
certificates representing the number of full shares of
Class A Stock issuable upon such conversion, issued in
such name or names as such holder may direct. Such
conversion shall be deemed to have been made at the close
of business on the date of the surrender of the
certificate representing shares of Class B Stock, and all
rights of the holder of such shares as such holder shall
cease at such time and the person or persons ii whose name
or names the certificate or certificates representing the
shares of Class A Stock are to be issued shall be treated
for all purposes as having become the record holder or
holders of such shares of Class A Stock at such time.
(c) The Company covenants that it will at all
times reserve and keep available, solely for the purpose
of issuance upon conversion of the outstanding shares of
Class B Stock, such number of shares of Class A Stock as
shall be issuable upon the conversion of all such
outstanding shares, provided that nothing contained herein
shall be construed to preclude the Company from satisfying
its obligation in respect of the conversion of the
outstanding shares of Class B Stock by delivery of
purchased shares of Class A Stock which are held in the
treasury of the Company.
(d) The issuance of certificates for shares of
Class A Stock upon conversion of shares of Class B Stock
shall be made without charge for any stamp or other
similar tax in respect of such issuance. However, if any
such certificate is to be issued in a name other than that
of the holder of the share or shares of Class B Stock
converted, the person or persons requesting the issuance
thereof shall pay to the Company the amount of any tax
which may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of
the Company that such tax has been paid.
4.6 TRANSFER OF CLASS B STOCK. No person holding
shares of Class B Stock (a "Class B Holder") may transfer,
and the Company shall not register the transfer of, such
shares of Class B Stock, whether by sale, assignment,
gift, devise, bequest, appointment or otherwise, except to
a "Permitted Transferee" of such Class B Holder; PROVIDED,
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HOWEVER, that a Class B Holder may sell, and the Company may
purchase from such person, shares of Class B Stock to be
held in the treasury of the Company. The term "Permitted
Transferee" shall have the following meaning:
(a) In the case of a Class B Holder who is a
natural person holding record and beneficial ownership
of the shares of Class B Stock in question, "Permitted
Transferee" means: (i) the spouse of such Class B
Holder, (ii) a parent of such Class B Holder, (iii) a
lineal descendant of a parent of such Class B Holder
(said lineal descendants, together with the Class B
Holder and his or her parents and spouse, are
hereinafter referred to as such Class B Holder's
"Family Members"), (iv) the trustee of a trust solely
for the benefit of one or more of such Class B Holder's
Family Members, and (v) a corporation, all the
outstanding capital stock of which is owned by, a
limited liability company, all of the members of which
are, or a partnership, all of the partners of which
are, one or more of such Class B Holder's Family
Members, provided that if any share of capital stock
of such corporation (or any survivor of a merger or a
consolidation of such a corporation), or any membership
or partnership interest in such a limited liability
company or partnership, is acquired by any person who
is not a Class B Holder's Family Member, all shares of
Class B Stock then held by such corporation, limited
liability company or partnership, as the case may be,
shall be deemed without further act on anyone's part to
be converted into shares of Class A Stock and shall
thereupon and thereafter be deemed to represent a like
number of shares of Class A Stock.
(b) In the case of a Class B Holder holding the
shares of Class B Stock in question as trustee pursuant
to a trust other than a trust described in paragraph
(c) below, "Permitted Transferee" means (i) the person
who established such trust; and (ii) a Permitted
Transferee of the person who established such trust
determined pursuant to paragraph (a) above.
(c) In the case of a Class B Holder holding shares
of Class B Stock in question as trustee pursuant to a
trust which was irrevocable on the record date for
determining the persons to whom Class B Stock is first
distributed by the Company (the "Record Date"),
"Permitted Transferee" means any
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person to whom or for whose benefit principal may be
distributed either during or at the end of the term of
such trust whether by power of appointment or otherwise.
(d) In the case of a Class B Holder holding record
(but not beneficial) ownership of the shares of Class B
Stock in question as nominee for the person who was the
beneficial owner thereof on the Record Date, "Permitted
Transferee" means such beneficial owner and a Permitted
Transferee of such beneficial owner determined pursuant
hereto.
(e) In the case of a Class B Holder which is a
partnership or a limited liability company holding
record and beneficial ownership of the shares of Class
B Stock in question, "Permitted Transferee" means any
partner of such a partnership or any member of such a
limited liability company.
(f) In the case of a Class B Holder which is a
corporation holding record and beneficial ownership of
the shares of Class B Stock in question, "Permitted
Transferee" means any stockholder of such corporation
receiving shares of Class B Stock through a dividend or
through a distribution made upon liquidation of such
corporation and a survivor of a merger or consolidation
of such corporation.
(g) In the case of a Class B Holder which is the
estate (or representative thereof) of a deceased Class
B Holder or which is the estate of a bankrupt or
insolvent Class B Holder and provided such deceased,
bankrupt or insolvent Class B Holder, as the case may
be, held record or beneficial ownership of the shares
of Class B Stock in question, "Permitted Transferee"
means a Permitted Transferee of such deceased, bankrupt
or insolvent Class B Holder as determined pursuant to
paragraphs (a), (b) and (c) above, as the case may be.
4.7 PLEDGE OF CLASS B STOCK. Notwithstanding anything to the
contrary set forth herein, any Class B Holder may pledge such
Holder's shares of Class B Stock to a pledgee pursuant to a
bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares
shall not be transferred to or registered in the name of the
pledgee and shall remain subject to the provisions of this
Section 4. In the event of foreclosure or other similar action
by the pledgee, such pledged shares of Class B Stock may only
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be transferred to a Permitted Transferee of the pledgor or
converted into shares of Class A Stock, as the pledgee may
elect.
4.8 EFFECT OF PURPORTED TRANSFER. Any purported transfer of
shares of Class B Stock, other than to a Permitted Transferee,
shall be null and void and of no effect and the purported
transfer by a holder of Class B Stock, other than to a
Permitted Transferee, will result in the immediate and
automatic conversion of the shares of Class B Stock of such
holder into shares of Class A Stock. The purported transferee
shall have no rights as a stockholder of the Company and other
rights against, or with respect to, the Company except the
right to receive shares of Class A Stock.
4.9 "STREET" OR "NOMINEE" REGISTRATION. Shares of Class B
Stock shall be registered in the name(s) of the beneficial
owner(s) thereof (as hereafter defined) and not in "street" or
"nominee" names; PROVIDED, HOWEVER, that certificates
representing shares of Class B Stock may be registered in
"street" or "nominee" name if such shares are being held in
such manner only for the benefit of a Class B Holder(s) who is
the beneficial owner(s) of such shares. For the purposes of
this subsection 4.9, the term "beneficial owner(s)" of any
shares of Class B Stock shall mean the person or persons who
possess the power to dispose of, or to direct the disposition
of, such shares. Any shares of Class B Stock registered in
"street" or "nominee" name may be transferred to the beneficial
owner of such shares upon proof satisfactory to the Company
that such person is, in fact, the beneficial owner of such
shares. Any shares of Class B Stock to be registered in
"street" or "nominee" name may be so registered only upon proof
satisfactory to the Company that such shares are to be held
only for the benefit of a Class B Holder(s) who is the
beneficial owner(s) of such shares.
4.10 LEGENDS; CONDITIONS OF TRANSFER. The Company shall note
on the certificates representing the shares of Class B Stock
the restrictions on transfer and registration of transfer
imposed by this Section 4. The Company may, as a condition to
the transfer of or the registration of transfer of shares of
Class B Stock to a purported Permitted Transferee, require the
furnishing of such affidavits or other proof as it deems
necessary to establish that such transferee is a Permitted
Transferee.
4.11 INTERPRETIVE PROVISIONS. For purposes of subsections
4.6, 4.7, 4.8, 4.9 and 4.10 of this Section 4:
(i) Each joint owner of shares of Class B Stock
shall be considered a Class B Holder of such shares.
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(ii) A minor for whom shares of Class B Stock are
held pursuant to a Uniform Gifts to Minors Act or
similar laws shall be considered a Class B Holder of
such shares.
(iii) The relationship of any person that is
derived by or through legal adoption shall be
considered a natural one.
(iv) Unless otherwise specified, the term "person"
includes natural person, corporation, partnership,
unincorporated association, limited liability company,
firm, joint venture, trust or other entity.
4.12 RESTRICTIONS APPLICABLE TO OTHER SECURITIES. Any
securities of the Company which are convertible into shares of
Class B Stock or carry a right to subscribe to or acquire
shares of Class B Stock shall be subject to the restrictions on
transfer applicable to Class B Stock as set forth in this
Section 4.
4.13 ISSUANCE OF STOCK; PREEMPTIVE RIGHTS.
(a) Except as provided herein, without the affirmative vote
or written consent of the holders of a majority of the
outstanding shares of Class B Stock, the Company shall not
issue or sell any shares of Class B Stock or any obligation or
security that shall be convertible into, or exchangeable for,
or entitle the holder thereof to subscribe for or purchase, any
shares of Class B Stock; PROVIDED, HOWEVER, nothing contained
herein shall preclude the Company from reissuing purchased
shares of Class B Common Stock which are held in the treasury
of the Company.
(b) Holders of Class A Stock shall have preemptive rights to
acquire authorized but unissued shares or treasury shares or
securities convertible into shares or carrying a right to
subscribe to or acquire shares of Class A Stock, and holders of
Class B Stock shall have preemptive rights to acquire
authorized but unissued shares, or treasury shares or
securities convertible into shares, of both Class A Stock and
Class B Stock; PROVIDED, HOWEVER, in no event shall holders of
Common Stock have any preemptive right to acquire (i) Class A
Stock issued upon conversion of Class B Stock under this
Section 4, (ii) shares which are issued pursuant to any
employee stock purchase plan, employee stock option plan or
comparable plan pursuant to which employees of the Company or
its subsidiaries may acquire shares as part of their incentive
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compensation benefits, as long as such stock option plan, stock
purchase plan or other comparable plan is approved by the
stockholders of the Company, (iii) shares sold other than for
money, or (iv) shares which are contrary to the provisions of
the Rights Agreement or another agreement which the Board of
Directors of the Company determines to be substantially similar
to the Rights Agreement.
4.14. RIGHTS OR OPTIONS. Subject to subsection 4.13 of this
Section 4, the Company shall have the power to create and
issue, whether or not in connection with the issue and sale of
any shares of stock or other securities of the Company, rights
or options entitling the holders thereof to purchase from the
Company any shares of its capital stock of any class or classes
at the time authorized, such rights or options to be evidenced
by or in such instrument or instruments as shall be approved by
the Board of Directors. The terms upon which, the time or
times, which may be limited or unlimited in duration, at or
within which, and the price or prices at which any such rights
or options may be issued and any such shares may be purchased
from the Company upon the exercise of any such right or option
shall be such as shall be fixed and stated in a resolution or
resolutions adopted by the Board of Directors providing for the
creation and issuance of such rights or options, and, in every
case, set forth or incorporated by reference in the instrument
or instruments evidencing such rights or options. In the
absence of actual fraud in the transaction, the judgment of the
Board of Directors as to the consideration for the issuance of
such rights or options and the sufficiency thereof shall be
conclusive.
4.15. RIGHT OF FIRST REFUSAL.
(a) The Company shall have the right, in case of a proposed
sale of shares of Common Stock of the Company by any holder
thereof, to purchase said shares at the lowest price at which
said holder is willing to sell before the same shall be sold by
such holder to any other party; PROVIDED, HOWEVER, that the
Company shall exercise its right to purchase within fifteen
(15) days after receipt of written notice of said holder's
desire to sell said shares and the price at which the holder is
willing to sell and other pertinent terms of the sale. If the
Company shall decide to purchase said shares on such terms and
conditions, said holder shall, upon tender of the purchase
price thereof, transfer to the Company the shares so sold. If
the Company shall not accept said offer within said period of
fifteen (15) days, said holder may at any time within thirty
(30) days after the expiration of said fifteen (15) day period,
sell said shares (and no more) at a price not lower than that
at which it was offered to the Company and on terms no more
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favorable than as offered to the Company without re-offering it
to the Company. For the purposes of this subsection 4.15 all
references to shares of Common Stock shall be deemed to refer
not only to such shares but also to all securities of the
Company which are convertible into, or carry a right to
subscribe to or acquire, shares of Common Stock of the Company.
(b) Notwithstanding any other provision of this Certificate
of Incorporation or the By-Laws of the Company (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Certificate of Incorporation or the
By-Laws of the Company), the affirmative vote of the holders of
at least 80% of the combined voting power of the then
outstanding shares of stock of all classes entitled to vote
generally in the election of directors cast at a meeting called
for the purpose of amending, altering, changing, repealing or
adopting any provisions inconsistent with this subsection 4.15
shall be required to amend, alter, change, repeal, or adopt any
provisions inconsistent with this subsection 4.15; PROVIDED,
HOWEVER, that this paragraph (b) shall not apply to, and such
vote shall not be required for, any amendment, alteration,
change, repeal or adoption of any inconsistent provision that
is recommended to the stockholders by the vote of not less than
two-thirds of the whole Board of Directors, and any such
amendment, alteration, change, repeal or adoption of any
inconsistent provision recommended shall require only the vote,
if any, required under the applicable provisions of Delaware
law.
4.16. UNCLAIMED DIVIDENDS. Any and all right, title,
interest and claim in or to any dividends declared, or other
distributions made, by the Company, whether in cash, stock or
otherwise, which are unclaimed by the stockholder entitled
thereto for a period of three years after the close of business
on the payment date, shall be and be deemed to be extinguished
and abandoned; and such unclaimed dividends or other
distributions in the possession of the Company, its transfer
agents or other agents or depositaries shall at such time
become the absolute property of the Company, free and clear of
any and all claims of any persons or other entities whatsoever.
SECTION 5
Incorporator
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The name and mailing address of the incorporator is as
follows:
Benjamin P. Harris, III
c/o Edwards & Angell
2700 Hospital Trust Tower
Providence, Rhode Island 02903
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SECTION 6
Duration of Existence
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The Company is to have perpetual existence.
SECTION 7
Board of Directors
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7.1. NUMBER OF DIRECTORS. The business and affairs of the
Company shall be managed by or under the direction the Board of
Directors. Except as provided in subsection 7.3 with regard to
the period prior to March, 1995, the number of directors of the
Company which shall constitute the Board of Directors shall be
twelve (12) unless otherwise determined from time to time by
resolution adopted by the affirmative vote of a majority of the
whole Board of Directors. As used in this Certificate of
Incorporation, the term "whole Board of Directors" means the
total number of Directors which the Company would have if there
were no vacancies.
7.2 POWERS OF THE BOARD. In furtherance and not in
limitation of the powers conferred by the laws of the State of
Delaware, the Board of Directors, subject to the provisions of
this Certificate of Incorporation, is expressly authorized and
empowered:
(a) To make, alter, amend or repeal the By-Laws of
the Company in any manner not inconsistent with the
laws of the State of Delaware or this Certificate of
Incorporation, subject to the power of the stockholders
to amend, alter or repeal the by-laws made by the Board
of Directors or to limit or restrict the power of the
Board of Directors so to make, alter, amend or repeal
the by-laws.
(b) Subject to the applicable provisions of the
By-Laws, to determine, from time to time, whether and
to what extent and at what times and places and under
what conditions and regulations the accounts and books
and documents of the Company, or any of them, shall be
open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any
account or book or document of the Company, except as
conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution adopted by
the Board of Directors or the stockholders of the
Company entitled to vote in respect thereof.
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(c) Without the assent or vote of the
stockholders, to authorize and issue obligations of
the Company, secured or unsecured, to include therein
such provisions as to redeemability, convertibility or
otherwise, as the Board of Directors in its sole
discretion may determine, and to authorize the
mortgaging or pledging, as security therefor, of any
property of the Company, real or personal, including
after-acquired property.
(d) To fix and determine, and to vary the amount
of, the working capital of the Company; to determine
whether any, and if any, what part of any, accumulated
profits shall be declared in dividends and paid to the
stockholders; to determine the time or times for the
declaration and payment of dividends; to direct and to
determine the use and disposition of any surplus or net
profits over and above the capital stock paid in; and
in its discretion the Board of Directors may use or
apply any such surplus or accumulated profits in the
purchase or acquiring of bonds or other pecuniary
obligations of the Company to such extent, in such
manner and upon such terms as the Board of Directors
may deem expedient.
(e) To sell, lease or otherwise dispose of, from
time to time, any part or parts of the properties of
the Company and to cease to conduct the business
connected therewith or again to resume the same, as it
may deem best.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board of Directors may
exercise all such powers and do all such acts and things as may
be exercised or done by the Company, subject, nevertheless, to
the provisions of the laws of the State of Delaware, of this
Certificate of Incorporation and of the By-Laws of the Company.
7.3. BOARD TERMS. Prior to March l, l995, the Board of
Directors shall consist of three (3) members. Thereafter, the
Board of Directors shall consist of twelve (12) members (until
such time as the Board of Directors acting pursuant to
subsection 7.1 above shall amend such number) and shall be
divided into three (3) classes, each class to be equal in
number. The term of office of directors of the first class
shall expire at the annual meeting of stockholders to be held
in 1996; the term of office of directors of the second class
shall expire at the annual meeting of stockholders to be held
in 1997; and the term of office of directors of the third class
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shall expire at the annual meeting of stockholders to be held
1998. At each annual meeting of stockholders following the
annual meeting for 1995, the number of directors equal to the
number of the class whose term expires at the time of such
meeting shall be elected to hold office until the third
succeeding annual meeting of stockholders.
7.4. CHANGE IN SIZE OF BOARD; VACANCIES. In the event of
any change in the authorized number of directors, the Board of
Directors shall apportion any newly created directorships to,
or reduce the number of directorships in, such class or classes
as shall, so far as possible, equalize the number of directors
in each class. At all times all classes of directors shall be
as nearly equal in number as possible. If, consistent with the
concept that the three classes shall be as nearly equal in
number as possible, any newly created directorship may be
allocated to more than one class, the Board of Directors shall
allocate it to the available class whose term of office is due
to expire at the earliest date following such allocation.
Vacancies in the Board of Directors, however caused, and newly
created directorships shall be filled solely by a majority vote
of the directors then in office, whether or not a quorum, and
any director so chosen shall hold office for a term expiring at
the annual meeting of stockholders which the term of the class
to which the director has been chosen expires and when the
director's successor is elected and qualified, subject,
however, to prior death, resignation, retirement,
disqualification or removal from office. No decrease in the
number of directors shall shorten the term of an incumbent
director.
7.5. REMOVAL. Notwithstanding any other provisions of this
Certificate of Incorporation or the By-Laws of the Company (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Certificate of Incorporation or the
By-Laws of the Company), any director or the entire Board of
Directors of the Company may be removed at any time, without
cause AND only by the affirmative vote of the holders of at
least 80% of the combined voting power of the then outstanding
shares of stock of all classes entitled to vote generally in
the election of directors cast at a meeting of stockholders
called for the purpose of such removal; PROVIDED, HOWEVER, that
such 80% vote shall not be required for any such removal
recommended to the stockholders by the vote of not less than
two-thirds of the whole Board of Directors.
7.6. AMENDMENT OF THIS SECTION. Notwithstanding any other
provision of this Certificate of Incorporation or the By-Laws
of the Company (and notwithstanding the fact that some lesser
percentage may be specified by law, this Certificate of
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<PAGE> 14
Incorporation or the By-Laws of the Company), the affirmative
vote of the holders of at least 80% of the combined voting
power of the then outstanding shares of stock of all classes
entitled to vote generally in the election of directors, cast
at a meeting of the stockholders called for the purpose of
amending, altering, changing, repealing or adopting any
provisions inconsistent with this Section 7, shall be required
to amend, alter, change, repeal, or adopt any provisions
inconsistent with, this Section 7; PROVIDED, HOWEVER, that this
subsection 7.6 shall not apply to, and such 80% vote shall not
be required for, any amendment, alteration, change, repeal or
adoption of any inconsistent provision that is recommended to
the stockholders by the vote of not less than two-thirds of the
whole Board of Directors, and any such amendment, alteration,
change, repeal or adoption of any inconsistent provision so
recommended shall require only the vote, if any, required by
the applicable provisions of Delaware Law.
7.7. APPLICATION OF BY-LAWS. In all other regards, the
powers, terms, qualifications, election, manner of acting,
compensation and conduct of meetings of, and other matters
relating to, directors shall be governed by By-Laws not
inconsistent with this Certificate of Incorporation.
SECTION 8
Business Combinations
---------------------
8.1. DEFINITIONS. For purposes of this Section 8 the
following terms shall have these meanings:
(a) "Business Combination" means:
(i) The sale, exchange, lease, transfer or
other disposition by the Company or any of its
Subsidiaries (in a single transaction or a series
of related transactions) of all or substantially
all of the consolidated assets or business of the
Company;
(ii) Any merger or consolidation of the
Company or any subsidiary thereof into or with a
corporation, irrespective of which corporation is
the surviving entity in such merger or
consolidation;
(iii) Any reclassification of securities,
recapitalization or other transaction which has
the effect, directly or indirectly, of any partial
or complete liquidation, spin-off, split-off or
split-up of the Company.
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<PAGE> 15
As used in this definition, a "series of related
transactions" shall be deemed to include not only a series of
transactions with the same Participant but also a series of
separate transactions with a Participant or any affiliate or
associate of such Participant.
Anything in this definition to the contrary notwithstanding,
this definition shall not be deemed to include any transaction
of the type set forth in subsection (i) through (iii) above
between or among (A) any two or more Subsidiaries of the
Company, (B) or the Company and one or more Subsidiaries of the
Company where (1) the Company is the surviving or continuing
entity, (2) the Company's Certificate of Incorporation and
By-Laws will remain the Certificate of Incorporation and
By-Laws of such surviving or continuing entity, and (3) the
stockholders of the Company prior to such transaction retain
the same percentage ownership in such surviving or continuing
entity after such transaction.
(b) "Participant" shall mean any individual, partnership,
corporation, group or other entity (other than the Company, any
Subsidiary of the Company or a trustee holding stock for the
benefit of employees of the Company or its Subsidiaries, or any
one of them, pursuant to one or more employee benefit plans or
arrangements) participating in the Business Combination. When
two or more Participants act as a partnership, limited
partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock,
such partnership, syndicate, association or group shall be
deemed a "Participant."
(c) "Subsidiary" shall mean any company, corporation or
entity of which the Company owns not less than 50% of any class
of equity securities, directly or indirectly.
8.2. DETERMINATIONS BY THE BOARD. The directors shall have
the exclusive power and authority to determine, for the
purposes of this Section 8, on the basis of information known
to them: (a) whether two or more transactions constitute a
"series of related transactions" as hereinabove defined, and
(b) such other matters with respect to which a determination is
required under this Section 8. Any such determination shall be
final and binding for all purposes hereunder.
8.3. APPROVAL OF BUSINESS COMBINATIONS. Whether or not a
vote of the stockholders is otherwise required in connection
with the transaction, neither the Company nor any of its
Subsidiaries shall become a party to any Business Combination
without prior compliance with the provisions of this subsection
8.3.
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<PAGE> 16
(a) Such Business Combination shall be approved by
the Board of Directors of the Company by the
affirmative vote of not less than two-thirds of the
whole Board of Directors of the Company; OR
(b) If there is not full compliance with the
provisions of paragraph (a) of this subsection 8.3,
such Business Combination shall be approved by the
affirmative vote of the holders of at least 80% of the
combined voting power of the then outstanding shares of
stock of all classes entitled to vote generally in the
election of directors; if there is full compliance with
the provisions of said paragraph (a), such vote shall
be as required by law. In addition, any proxy
statement used in connection with the solicitation of
such vote shall contain at the front thereof, in a
prominent place, any recommendations as to the
advisability (or inadvisability) of the Business
Combination which the directors, or any of them, may
have furnished in writing and, if deemed advisable by
majority of the directors, an opinion of a reputable
investment banking firm as to the fairness (or lack of
fairness) of the terms of such Business Combination
from the point of view of the holders of capital stock
(such investment banking firm to be selected by
majority of the directors), which investment banking
firm will have been furnished with all information it
reasonably requests, and will be paid a reasonable fee
by the Company for its services upon receipt of the
Company of such opinion; AND
(c) (i) The aggregate amount of the cash and the
fair market value of other consideration to be received
per share of capital stock in such Business Combination
by holders of capital stock, other than any
Participant, shall be not less than the highest per
share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by any
Participant in the last 24 months in acquiring any of
its holdings of capital stock, and not less than the
book value of a share of the capital stock, as
reflected in the balance sheet of the Company as of
the last day of the last fiscal quarter of the Company
preceding such Business Combination; and
(ii) The consideration (if any) to be
received in such Business Combination by holders of
capital stock other than any Participant shall, except
to the extent that a stockholder agrees otherwise as
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<PAGE> 17
to all or part of the shares which such stockholder
owns, be in the same form and of the same kind as the
consideration paid by any Participant in acquiring
capital stock already owned by it during the last 12
months.
For purposes of paragraphs (i) and (ii) of this
subsection 8.3(c), in the event of a Business
Combination upon the consummation of which the Company
would be the surviving corporation or company or would
continue to exist (unless it is provided, contemplated
or intended that as part of such Business Combination
or within one year after consummation thereof a plan of
liquidation or dissolution of the Company will be
effected), the term "other consideration to be
received" shall include, without limitation, capital
stock retained by stockholders of the Company other
than any Participant.
8.4. FACTORS TO BE CONSIDERED BY THE BOARD. Prior to voting
with regard to any Business Combination, the directors shall,
consistent with their overall responsibilities to the
stockholders of the Company, consider the impact of the
proposed Business Combination on the following:
(a) The working conditions, job security or
compensation of the employees of the Company and its
Subsidiaries;
(b) The management of the Company;
(c) The short-term and long-term financial
stability of the Company;
(d) The ability of the Company to publish an
independent, high-quality, comprehensive newspaper and
to freely conduct its other operations and those of its
Subsidiaries to the advantage of the customers and
markets served;
(e) The economic strength, business reputation,
managerial ability and recognized integrity of any
Participant (or the principals thereof) proposing a
Business Combination with the Company; and
(f) The effect on the communities served by the
Company's newspapers and by its other operations and
Subsidiaries in light of any change which might occur
as a result of the factors outlined in paragraph (a)
through (e) above, considered together or singly.
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<PAGE> 18
8.5. AMENDMENT OF THIS SECTION. Notwithstanding any other
provisions of this Certificate of Incorporation or the By-Laws
of the Company (and notwithstanding the fact that some lesser
percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the Company), the affirmative
vote of the holders of at least 80% of the combined voting
power of the then outstanding shares of stock of all classes
entitled to vote generally in the election of directors, cast
at a meeting of the stockholders called for the purpose of
amending, altering, changing, repealing or adopting any
provisions inconsistent with this Section 8, shall be required
to amend, alter, change, repeal or adopt any provisions
inconsistent with, this Section 8; PROVIDED, HOWEVER, that this
subsection 8.5 shall not apply to any amendment, alteration,
change, repeal or adoption of any inconsistent provision that
is recommended to the stockholders by the vote of not less than
two-thirds of the whole Board of Directors, and any such
amendment, alteration, change, repeal or adoption of any
inconsistent provision so recommended shall require only the
vote, if any, required under the applicable provisions of
Delaware law.
8.6. BUSINESS COMBINATION ACT. The Company shall be subject
to the provisions of Title 8, Section 203 of the General
Corporation Law of the State of Delaware as in effect or as
hereafter amended.
SECTION 9
Conflict of Interest
--------------------
No contract or transaction between the Company and one or
more of its directors or officers, or between the Company and
any other corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers or have a financial interest, shall
be void or voidable solely for such reason, or solely because
such director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which
authorizes such contract or transaction, or solely because such
director is counted in determining the presence of a quorum at
such meeting and votes upon the authorization of such contract
or transaction, if (a) the material facts as to such director's
or officer's relationship or interest as to the contract or
transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or the
committee in good faith authorizes the contract or transaction
by the affirmative vote of a majority of the disinterested
members thereof, even though such disinterested members be less
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<PAGE> 19
than a quorum, or (b) the material facts as to such director's or
officer's relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of such
stockholders, or (c) the contract or transaction is fair as to
the Company as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof, or the
stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board
of Directors or of a committee which authorizes the contract or
transaction.
SECTION 10
Limitation of Liability; Indemnification
----------------------------------------
10.1. LIMITATION OF DIRECTORS' LIABILITY. To the fullest
extent that the General Corporation Law of the State of
Delaware, as it exists on the date hereof or as it may
hereafter be amended, permits the limitation or elimination of
the liability of directors, no director of the Company shall be
liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director. No amendment to or
repeal of this Section 10 shall apply to or have any effect on
the liability or alleged liability of any director of the
Company for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
10.2. RIGHT TO INDEMNIFICATION. The Company shall, to the
fullest extent permitted by applicable law as then in effect,
indemnify any person (the "Indemnitee") who was or is involved
in any manner (including, without limitation, as a party or
witness) or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative (including, without limitation, any action, suit
or proceeding by or in the right of the Company to procure a
judgment in its favor) (a "Proceeding") by reason of the fact
that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan)
against all expenses (including attorneys' fee), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such Proceeding. Such
indemnification shall be a contract right and shall include the
right to receive payment in advance of any expenses incurred by
the Indemnitee in connection with such Proceeding, consistent
with the provisions of applicable law as then in effect.
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<PAGE> 20
10.3. INSURANCE, CONTRACTS AND FUNDING. The Company may
purchase and maintain insurance to protect itself and any
Indemnitee against any expenses, judgments, fines and amounts
paid in settlement as specified in subsection 10.1 of this
Section or incurred by any Indemnitee in connection with any
Proceeding referred to in subsection 10.2 of this Section, to
the fullest extent permitted by applicable law as then in
effect. The Company may enter into contracts with any
director, officer, employee or agent of the Company in
furtherance of the provisions of this Section and may create a
trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect
indemnification as provided in this Section.
10.4. INDEMNIFICATION NOT EXCLUSIVE RIGHT. The right of
indemnification provided in this Section shall not be exclusive
of any other rights to which those seeking indemnification may
otherwise be entitled, and the provisions of this Section shall
inure to the benefit of the heirs and legal representatives of
any person entitled to indemnity under the Section and shall be
applicable to proceedings commenced or continuing after the
adoption of this Section, whether arising from acts or
omissions occurring before or after or after such adoption.
10.5. ADVANCEMENT OF EXPENSES; PROCEDURES; PRESUMPTIONS AND
EFFECTS OF CERTAIN PROCEEDINGS; REMEDIES. In furtherance but
not in limitation of the foregoing provisions, the following
procedures, presumptions and remedies shall apply with respect
to advancement of expenses and the right to indemnification
under this Section:
(a) ADVANCEMENT OF EXPENSES. All reasonable
expenses incurred by or on behalf of an Indemnitee in
connection with any Proceeding shall be advanced to the
Indemnitee by the Company within 20 days after the
receipt by the Company of a statement or statements
from the Indemnitee requesting such advance or advances
from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or
statements shall reasonably evidence the expenses
incurred by the Indemnitee and, if required by law at
the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of the
Indemnitee to repay the amounts advanced if it should
ultimately be determined that the Indemnitee is not
entitled to be indemnified against such expenses
pursuant to this Section.
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<PAGE> 21
(b) PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. (i) To obtain indemnification under
this Section, an Indemnitee shall submit to the
Secretary of the Company a written request, including
such documentation as is reasonably available to the
Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled
to indemnification (the "Supporting Documentation").
The determination of the Indemnitee's entitlement to
indemnification shall be made not later than 60 days
after receipt by the Company of the written request for
indemnification together with the Supporting
Documentation. The Secretary of the Company shall,
promptly upon receipt of such a request for
indemnification, advise the Board of Directors in
writing that the Indemnitee has requested
indemnification.
(ii) The Indemnitee's entitlement to
indemnification under this Section shall be determined
in one of the following ways: (A) by a majority vote
of the Disinterested Directors (as hereinafter
defined), if they constitute a quorum of the Board of
Directors; (B) by a written opinion of Independent
Counsel (as hereinafter defined) if a quorum of the
Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, a
majority of such Disinterested Directors so directs;
(C) by the stockholders of the Company entitled to vote
(but only if a majority of the Disinterested Directors,
if they constitute a quorum of the Board of Directors,
presents the issue of entitlement to indemnification to
such stockholders for their determination); or (D) as
provided in subsection 10.5(c) of this Section.
(iii) In the event the determination of
entitlement to indemnification is to be made by
Independent Counsel pursuant to subsection 11.5(b)(ii)
of this Section, a majority of the Disinterested
Directors shall select the Independent Counsel, but
only an Independent Counsel to which the Indemnitee
does not reasonably object.
(c) PRESUMPTIONS AND EFFECT OF CERTAIN
PROCEEDINGS. Except as otherwise expressly provided in this
Section, the Indemnitee shall be presumed to be
entitled to indemnification under this Section upon
submission of a request for indemnification together
with the Supporting Documentation in accordance with
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<PAGE> 22
subsection 10.5(b)(i), and thereafter the Company shall
have the burden of proof to overcome that presumption
in reaching a contrary determination. In any event, if
the person or persons empowered under subsection
10.5(b) of this Section to determine entitlement to
indemnification shall not have been appointed or shall
not have made a determination within 60 days after the
receipt by the Company of the request therefor together
with the Supporting Documentation, the Indemnitee shall
be entitled to indemnification unless (i) the
Indemnitee misrepresented or failed to disclose a
material fact in making the request for
indemnification or in the Supporting Documentation or
(ii) such indemnification is prohibited by law. The
termination of any Proceeding described in subsection
10.2, or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not,
of itself, adversely affect the right of the Indemnitee
to indemnification or create a presumption that the
Indemnitee did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to
the best interests of the Company or, with respect to
any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was
lawful.
(d) REMEDIES OF INDEMNITEE. (i) In the event that
a determination is made pursuant to subsection 10.5(b)
of this Section that the Indemnitee is not entitled to
indemnification under this Section, (A) the Indemnitee
shall be entitled to seek an adjudication of his
entitlement to such indemnification in an appropriate
court of the State of Delaware; (B) any such judicial
proceeding shall be de novo and the Indemnitee shall
not be prejudiced by reason of such adverse
determination; and (C) in any such judicial proceeding
the Company shall have the burden of proving that the
Indemnitee is not entitled to indemnification under
this Section.
(ii) If a determination shall have been made
or deemed to have been made, pursuant to subsection
10.5(b) or (c), that the Indemnitee is entitled to
indemnification, the Company shall be obligated to pay
the amounts constituting such indemnification within
five days after such determination has been made or
deemed to have been made and shall be conclusively
bound by such
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<PAGE> 23
determination unless (A) the Indemnitee misrepresented
or failed to disclose a material fact in making the
request for indemnification or in the Supporting
Documentation or (B) such indemnification in
prohibited by law. In the event that (C) advancement
of expenses is not timely made pursuant to subsection
10.5 (a) or (D) payment of indemnification is not made
within five days after a determination of entitlement
to indemnification has been made or deemed have been
made pursuant to subsection 10.5(b) or (c), the
Indemnitee shall be entitled to seek judicial
enforcement of the Company's obligation to pay to the
indemnitee such advancement of expenses or
indemnification. Notwithstanding the foregoing, the
Company may bring an action, in an appropriate court of
the State of Delaware or the State of Rhode Island
contesting the right of the Indemnitee to receive
indemnification hereunder due to the occurrence of an
event described in subparagraph (A) or (B) of this
paragraph (ii) (a "Disqualifying Event"); PROVIDED,
HOWEVER, that in any such action the Company shall
have the burden or proving the occurrence of such
Disqualifying Event.
(iii) The Company shall be precluded from
asserting in any judicial proceeding commenced
pursuant to this subsection 10.5(d) that the
procedures and presumptions of this Section are not
valid, binding and enforceable and shall stipulate in
any such court that the Company is bound by all the
provisions of this Section.
(iv) In the event that the Indemnitee,
pursuant to this subsection 10.5(d), seeks a judicial
adjudication of his rights under, or to recover damages
for breach of, this Section, the Indemnitee shall be
entitled to recover from the Company, and shall be
indemnified by the Company against, any expenses
actually and reasonably incurred by him if the
Indemnitee prevails in such judicial adjudication. If
it shall be determined in such judicial adjudication
that the Indemnitee is entitled to receive part but not
all of the indemnification or advancement of expenses
sought, the expenses incurred by the Indemnitor in
connection with such judicial adjudication shall be
prorated accordingly.
(e) Definitions. For purposes of this subsection
10.5:
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<PAGE> 24
(i) "Disinterested Director" means a director
of the Company who is not or was not a party to the
Proceeding in respect of which indemnification is
sought by the Indemnitee.
(ii) "Independent Counsel" means a law firm
or a member of a law firm that neither presently is,
nor in the past five years has been, retained to
represent (A) the Company or the Indemnitee in any
matter material to either such party or (B) any other
party to the Proceeding giving rise to a claim for
indemnification under this Section. Notwithstanding
the foregoing, the term "Independent Counsel" shall not
include any person who, under the applicable standards
of professional conduct then prevailing under the law
of the State of Delaware, would have a conflict of
interest in representing either the Company or the
Indemnitee in an action to determine the Indemnitee's
rights under this Section.
10.6. SEVERABILITY. If any provision or provisions of this
Section shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Section
(including, without limitation, all portions of any paragraph
of this Section containing any such provision held to be
invalid, illegal or unenforceable that are not themselves
invalid, illegal or unenforceable) shall not in any way be
affected in impaired thereby; and (b) to the fullest extent
possible, the provisions of this Section 10 (including, without
limitation, all portions of any subsection or paragraph of this
Section containing any such provision held to be invalid,
illegal or unenforceable that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
10.7 AMENDMENT OF THIS SECTION. Notwithstanding any other
provision of this Certificate of Incorporation or the By-Laws
of the Company (and notwithstanding the fact that some lesser
percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the Company), any amendment,
alteration or repeal of this Section 10 shall require the
affirmative vote of the holders of at least 80% of the combined
voting power of the then outstanding shares of stock of all
classes entitled to vote generally in the election of directors.
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SECTION 11
By-Laws
-------
To the extent deemed necessary or appropriate by the Board of
Directors to enable the Company to engage in any business or
activity directly or indirectly conducted by it in compliance
with the laws of the United States of America as now in effect
or as they may hereafter from time to time be amended, the
Company may adopt such by-laws as may be necessary or advisable
to comply with the provisions and avoid the prohibitions of any
such law. Without limiting the generality of the foregoing,
such by-laws may restrict or prohibit the transfer of shares of
capital stock of the Company to, and the voting of such stock
by, aliens or their representatives, or corporations organized
under the laws of any foreign country or their representatives,
or corporations directly or indirectly controlled by aliens or
by any such corporation or representative.
SECTION 12
Meetings
--------
Meetings of stockholders may be held within or without the
State of Delaware, as the By-Laws may provide. The books of
the Company may be kept (subject to any provisions contained in
the statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of
Directors or in the By-Laws of the Company.
SECTION 13
Participation Of Non-Citizens; Regulatory Compliance
- - ----------------------------------------------------
13.1. PARTICIPATION OF NON-CITIZENS. The following
provisions are included for the purpose of ensuring that
control and management of the Company remains with loyal
citizens of the United States and/or corporations formed under
the laws of the United States or any of the states of the
United States, as required by the Communications Act of 1934,
as the same may be amended from time to time.
(a) The Company shall not issue to "Aliens" (which
term shall include (i) a person who is a citizen of a
country other than the United States; (ii) any entity
organized under the laws of a government other than the
government of the United States or any state,
territory, or possession of the United States; (iii) a
government other than the government of the United
States or of any state,
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<PAGE> 26
territory, or possession of the United States; and (iv)
a representative of, or an individual or entity
controlled by, any of the foregoing, either
individually or in the aggregate, in excess of
twenty-five percent (25%) of the total number of
shares of capital stock of the Company outstanding at
any time and shall seek not to permit the transfer on
the books of the Company of any capital stock to any
Alien that would result in the total number of shares
of such capital stock held by Aliens exceeding such
twenty-five percent (25%) limit.
(b) No Alien or Aliens shall be entitled to vote
or direct or control the vote of more than twenty-five
percent (25%) of (i) the total number of shares of
capital stock of the Company outstanding and entitled
to vote at any time and from time to time, or (ii) the
total voting power of all shares of capital stock of
the Company outstanding and entitled to vote at any
time and from time to time.
(c) No Alien shall be qualified to act as an
officer of the Company, and no more than one-fourth of
the total number of directors of the Company at any
time and from time to time may be Aliens.
(d) The Board of Directors of the Company shall
have all powers necessary to implement the provisions
of this Section 13.
13.2. REGULATORY COMPLIANCE. The Company shall not do, nor
shall it cause any act to be done, that would cause it to be in
violation of the Communications Act of 1934 or of the rules and
regulations promulgated thereunder, as the same may be amended
from time to time.
SECTION 14
Amendment of Certificate of Incorporation
-----------------------------------------
The Company reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained
in this Certificate or Incorporation in the manner now or
hereafter prescribed by law or the specific provisions of this
Certificate of Incorporation, and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders,
directors or any other persons whomsoever by and pursuant to
this Certificate of Incorporation in its present form, or as
hereinafter amended, are granted subject to the right reserved
in this Section 14.
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<PAGE> 27
IN WITNESS WHEREOF, I, the undersigned, being the
incorporator hereinabove named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the
State of Delaware, do make and file this certificate, hereby
declaring and certifying that the facts herein stated are true,
and accordingly have hereunto set my hand this 11th day of
November, l994.
/s/Benjamin P. Harris, III
--------------------------------
Benjamin P. Harris, III
STATE OF RHODE ISLAND )
: ss.:
COUNTY OF PROVIDENCE )
BE IT REMEMBERED that on the 11th day of November, l994
personally appeared before me, Lauren E. Marandola, a notary
public for the State of Rhode Island, Benjamin P. Harris, III,
the party to the foregoing Certificate of Incorporation, known
to me personally to be such, and acknowledged the said
Certificate to be his act and deed and that the facts therein
stated are true.
GIVEN under my hand and seal of office the day and year
aforesaid.
/s/Lauren E. Marandola
--------------------------------
Notary Public
-27-
<PAGE> 28
CERTIFICATE OF CORRECTION OF
CERTIFICATE OF INCORPORATION
of
THE PROVIDENCE JOURNAL COMPANY
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is The Providence Journal Company.
2. The Certificate of Incorporation of the corporation,
which was filed by the Secretary of State of Delaware on
November 15, 1994, is hereby corrected.
3. The inaccuracies to be corrected in said instrument and
the corrected form are as follows:
a. On Page 4, paragraph (b) in the thirteenth line, the
language should be changed from "ii" to "in" to read
as follows:
"(b) As promptly as practicable after the surrender for
conversion of a certificate representing shares of Class B
Stock in the manner provided for in paragraph (a) above and the
payment of any amount required by the provisions of paragraphs
(a) and (d), the Company will deliver, or cause to be
delivered, a certificate or certificates representing the
number of full shares of Class A Stock issuable upon such
conversion, issued in such name or names as such holder may
direct. Such conversion shall be deemed to have been made at
the close of business on the date of the surrender of the
certificate representing shares of Class B Stock, and all
rights of the holder of such shares as such holder shall cease
at such time and the person or persons in whose name or names
the certificate or certificates representing the shares of
Class A Stock are to be issued shall be treated for all
purposes as having become the record holder or holders of such
shares of Class A Stock at such time."
b. On page 12, Section 7.3 in the 13th line, the word "in"
was omitted before the "1998"; Section 7.3 should now
read as follows:
"7.3. BOARD TERMS. Prior to March l, l995, the Board of
Directors shall consist of three (3) members. Thereafter, the
Board of Directors shall consist of twelve (12) members (until
such time as the Board of Directors acting pursuant to
subsection 7.1 above shall amend such number) and shall be
divided into three (3) classes, each class to be equal in
number. The term of office of directors of the first class
shall expire at the annual meeting of stockholders to be held
in 1996; the term of office of directors of the second class
shall expire at the annual meeting of stockholders to be held
in 1997; and the term of office of directors of the third class
<PAGE> 29
shall expire at the annual meeting of stockholders to be held
in 1998. At each annual meeting of stockholders following the
annual meeting for 1995, the number of directors equal to the
number of the class whose term expires at the time of such
meeting shall be elected to hold office until the third
succeeding annual meeting of stockholders."
IN WITNESS WHEREOF, I, the undersigned, being the
incorporator for the purpose of forming a corporation pursuant
to the General Corporation Law of the State of Delaware, do
make and file this certificate of correction, hereby declaring
and certifying that the facts herein stated are true, and
accordingly have hereunto set my hand this 12th day of January,
1995.
/s/Benjamin P. Harris, III
--------------------------------
Benjamin P. Harris, III
STATE OF RHODE ISLAND )
: ss.:
COUNTY OF PROVIDENCE )
BE IT REMEMBERED that on the 12th day of January, l995
personally appeared before me, Lauren E. Marandola, a notary
public for the State of Rhode Island, Benjamin P. Harris, III,
the party to the foregoing Certificate of Incorporation, known
to me personally to be such, and acknowledged the said
Certificate to be his act and deed and that the facts therein
stated are true.
GIVEN under my hand and seal of office the day and year
aforesaid.
/s/Lauren E. Marandola
--------------------------------
Notary Public
-28-
<PAGE> 30
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THE PROVIDENCE JOURNAL COMPANY
The Providence Journal Company, a corporation organized and
existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: Pursuant to an unanimous written consent of the Board
of Directors of the Corporation dated August 3, l995,
resolutions were duly adopted setting forth proposed amendments
to the Certificate of Incorporation of the Corporation,
declaring said amendment to be advisable and authorizing the
submission of said amendment to the sole stockholder of the
Corporation for consideration thereof. The resolution setting
forth the proposed amendment is as follows:
RESOLVED: That the Certificate of Incorporation of the
- - --------- Corporation be amended as follows:
- To effect an increase in the number of authorized
shares of capital stock, Subsection 4.l be amended
to read as follows:
"4.1 AUTHORIZED SHARES. The total number of shares
of capital stock which the Company shall have
authority to issue is Two Hundred Twenty-six
Million Eight Hundred Twenty-five Thousand
(226,825,000) shares, consisting of two classes of
capital stock:
"(a) One Hundred Eighty Million (180,000,000)
shares of Class A Common Stock, par value $1.00 per
share (the "Class A Stock"); PROVIDED, HOWEVER, that
One Hundred Thirty-five Million (l35,000,000) of
such shares of Class A Stock authorized hereby but
not outstanding as of the date of original issuance
may be issued by the Company only upon the exercise
of rights issued pursuant to a contemplated Rights
Agreement to be effective on or before December 31,
1995, between the Company and the Rights Agent to be
named therein (the "Rights Agreement") or pursuant
to another agreement which the Board of Directors of
the Company determines to be substantially similar
to the Rights Agreement; and
"(b) Forty-six Million Eight Hundred Twenty-five
Thousand (46,825,000) shares of Class B Common
Stock, par value $1.00 per share (the "Class B
-29-
<PAGE> 31
Stock"); PROVIDED, HOWEVER, that Thirty-five Million
One Hundred Eighteen Thousand Seven Hundred Fifty
(35,118,750) shares of Class B Stock authorized
hereby but not outstanding as of the original
issuance thereof may be issued by the Company only
upon the exercise of rights issued pursuant to the
Rights Agreement or pursuant to another agreement
which the Board of Directors of the Company
determines to be substantially similar to the
Rights Agreement.
"The Class A Stock and the Class B Stock are
hereinafter collectively called the 'Common Stock'.
"The designations, powers, preferences and rights,
and the qualifications, limitations or restrictions
thereof, of each class of Common Stock of the
Company are as set forth in the following
subsections of this Section 4."
- Subsection 4.13 be deleted in its entirety.
- Subsection 4.l4 be redesignated as Subsection 4.13
and amended to delete the phrase "Subject to
subsection 4.13 of this Section 4" at the beginning
of the first sentence thereof.
- Subsection 4.l5 be deleted in its entirety.
- Subsection 4.16 be redesignated as Subsection 4.l4.
SECOND: That thereafter, pursuant to the written consent of
the sole stockholder of the Corporation in accordance with the
General Corporation Law of the State of Delaware, the necessary
number of shares as required by statute were voted in favor of
the amendment.
THIRD: That said amendment was duly adopted in accordance
with the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed by Trygve E. Myhren, its President,
and Harry Dyson, its Secretary, this day of September, l995.
/s/Trygve E. Myhren
--------------------------------
Trygve E. Myhren
President
/s/Harry Dyson
--------------------------------
Harry Dyson
Secretary
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<PAGE> 32
STATE OF RHODE ISLAND )
: ss.:
COUNTY OF PROVIDENCE )
BE IT REMEMBERED that on the ____ day of September, l995
personally appeared before me, ____________________________, a
notary public for the State of Rhode Island, Trygve E. Myhren,
a party to the foregoing Certificate of Amendment and President
of The Providence Journal Company, known to me personally to be
such, and he acknowledged the said Certificate to be his free
act and deed and the free act and deed of the Corporation and
that the facts therein stated are true.
GIVEN under my hand and seal of office the day and year
aforeaid.
--------------------------------
Notary Public
-31-
<PAGE> 1
Exhibit 2
THE PROVIDENCE JOURNAL COMPANY
BY-LAWS
-32-
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I Certificate of Incorporation 1
ARTICLE II Offices
2.01. Registered Office 1
2.02. Principal Office 1
2.03. Other Offices 1
ARTICLE III Meetings of Stockholders
3.01. Place of Meetings 1
3.02. Annual Meetings 2
3.03. Special Meetings 2
3.04. Notice of Meetings 2
3.05. Quorum 3
3.06. Organization 4
3.07. Voting 4
3.08. Inspectors 5
3.09. List of Stockholders 6
3.10. Comon Stock 7
ARTICLE IV Board of Directors
4.01. General Powers 7
4.02. Number and Qualifications 7
4.03. Classes, Election and Terms 7
4.04. Quorum and Manner of Acting 8
4.05. Offices; Place of Meetings and Records 8
4.06. Annual Meeting 8
4.07. Regular Meetings 8
4.08. Special Meetings; Notice 9
4.09. Organization 9
4.10. Order of Business 9
4.11. Removal of Directors 9
4.12. Resignation 10
4.13. Vacancies and Newly Created Directorships 10
4.14. Compensation 10
4.15. Amendments to Article IV 10
ARTICLE V Committees
5.01. Executive Committee 10
5.02. Powers 11
5.03. Procedure; Meetings; Quorum 11
5.04. Compensation 12
5.05. Other Board Committees 12
5.06. Alternates 12
5.07. Additional Committees 13
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VI Waiver of Notice and Action by Consent
6.01. Waiver of Notice 13
6.02. Consent by Stockholders 13
6.03. Consent by Directors 14
ARTICLE VII Officers
7.01. Number 14
7.02. General Powers 14
7.03. Election, Qualifications and Term of Office 14
7.04. Other Officers 15
7.05. Removal 15
7.06. Resignation 15
7.07. Vacancies 15
7.08. Chairman of the Board 16
7.09. Chairman of the Executive Committee 16
7.10. President 16
7.11. Vice Presidents 17
7.12. Treasurer 17
7.13. Secretary 17
7.14. Assistant Treasurers 18
7.15. Assistant Secretaries 18
7.16. Bonding 18
7.17. Salaries 18
ARTICLE VIII Indemnification of Directors and Officers
8.01. Right to Indemnification 19
8.02. Non-Exclusivity of Rights 19
8.03. Insurance 19
ARTICLE IX Contracts, Checks, Drafts, Bank Accounts, etc.
9.01. Execution of Contracts 20
9.02. Loans 20
9.03. Checks, Drafts, etc. 21
9.04. Deposits 21
9.05. Proxies in Respect of Securities of Other
Corporations 21
ARTICLE X Books and Records
10.01. Place 22
10.02. Addresses of Stockholders 22
10.03. Record Dates 22
10.04. Closing of Transfer Books 24
10.05. Audit of Books and Accounts 24
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE XI Shares and Their Transfer
11.01. Certificates for Shares 24
11.02. Record 24
11.03. Transfer of Stock; Restrictions 25
11.04. Transfer Agent and Registrar: Regulations 25
11.05. Lost, Destroyed or Mutilated Certificates 25
11.06. Shares Liable for Debts 25
11.07. No Fractional Shares 26
ARTICLE XII Seal 26
ARTICLE XIII Fiscal Year 26
ARTICLE XIV Amendments 26
</TABLE>
-iii-
<PAGE> 5
BY-LAWS
OF
THE PROVIDENCE JOURNAL COMPANY
------------------------------
ARTICLE I
CERTIFICATE OF INCORPORATION
These By-laws, the powers of THE PROVIDENCE JOURNAL
COMPANY (the "Corporation") and of its directors and
stockholders, and all matters concerning the conduct and
regulation of the business of the Corporation shall be subject
to such provisions in regard thereto, if any, as are set forth
in the Certificate of Incorporation of the Corporation. All
references herein to the Certificate of Incorporation shall be
construed to mean the Certificate of Incorporation of the
Corporation as from time to time amended.
ARTICLE II
OFFICES
SECTION 2.01. REGISTERED OFFICE. The registered office of
the Corporation in the State of Delaware shall be at 32
Lookerman Square, Suite L-100, in the City of Dover, County of
Kent. The name of the registered agent of the Corporation is
The Prentice-Hall Corporation System, Inc.
SECTION 2.02. PRINCIPAL OFFICE. The principal office of the
Corporation shall be located in Providence, Rhode Island.
SECTION 2.03. OTHER OFFICES. The Corporation may also have
an office at such other place or places either within or
without the State of Rhode Island as the Board of Directors may
from time to time determine or the business of the Corporation
may require.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 3.01. PLACE OF MEETINGS. All meetings of the
stockholders of the Corporation shall be held at such place
either within or without the State of Rhode Island as shall be
fixed by the Board of Directors and specified in the respective
notices or waivers of notice of said meetings. Whenever the
directors shall fail to fix such place, the meeting shall be
held at the principal office of the Corporation.
<PAGE> 6
SECTION 3.02. ANNUAL MEETINGS.
(a) The annual meeting of the stockholders for the election
of directors and for the transaction of such other business as
may come before the meeting shall be held at the principal
office of the Corporation, or such other place as shall be
fixed by the Board of Directors, at noon, local time, on the
Third Thursday in April in each year, if not a legal holiday
at the place where such meeting is to be held and, if a legal
holiday, then on the next succeeding business day not a legal
holiday at the same hour.
(b) In respect of the annual meeting for any particular
year the Board of Directors may, by resolution fix a different
day, time or place (either within or without the State of
Rhode Island) for the annual meeting.
(c) If the election of directors shall not be held on the
day designated herein or the day fixed by the Board, as the
case may be, for any annual meeting, or on the day of any
adjourned session thereof, the Board of Directors shall cause
the election to be held at a special meeting as soon
thereafter as conveniently may be. At such special meeting
the stockholders may elect the directors and transact other
business with the same force and effect as at an annual
meeting duly called and held.
(d) The purposes for which an annual meeting is to be held,
in addition to those prescribed by law or these By-laws, may
be specified by a majority of the Board of Directors, the
Chairman of the Board, the President or a stockholder or
stockholders holding of record at least twenty percent (20%)
in voting power of the outstanding shares of the Corporation
entitled to vote at such meeting.
SECTION 3.03. SPECIAL MEETINGS. A special meeting of the
stockholders for any purpose or purposes, unless otherwise
prescribed by statute, may be called at any time by the
Chairman of the Board, the President, the Board of Directors
or by the Secretary upon the request in writing of a
stockholder or stockholders holding of record at least twenty
percent (20%) of the outstanding shares of stock of the
Corporation entitled to vote at such meeting.
SECTION 3.04. NOTICE OF MEETINGS.
(a) Except as otherwise expressly required by statute,
notice of all meetings shall be given, stating the place,
date, and hour of the meeting and stating the place within the
city or other municipality or community at which the list of
stockholders of the Corporation may be examined.
-2-
<PAGE> 7
(b) The notice of an annual meeting shall state that the
meeting is called for the election of directors and for the
transaction of other business which may properly come before
the meeting, and shall (if any other action which could be
taken at a special meeting is to be taken at such annual
meeting) state the purpose or purposes.
(c) The notice of a special meeting shall in all instances
state the purpose or purposes for which the meeting is called.
(d) The notice of any meeting shall also include, or be
accompanied by, any additional statements, information, or
documents prescribed by law.
(e) Except as otherwise provided by law, a copy of the
notice of any meeting shall be given, personally or by mail,
not less than ten (10) days nor more than fifty (50) days
before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed
to each stockholder at his record address or at such other
address which he may have furnished by request in writing to
the Secretary of the Corporation.
(f) Notice by mail shall be deemed to be given when
deposited, with postage thereon prepaid, in the United States
Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an
announcement of the adjourned time and/or place is made at the
meeting, it shall not be necessary to give notice of the
adjourned meeting unless the directors, after adjournment, fix
a new record date for the adjourned meeting.
(g) Notice need not be given to any stockholder who submits
a written waiver of notice signed by him before or after the
time stated therein. Attendance of a stockholder at a meeting
of stockholders shall constitute a waiver of notice of such
meeting, except when the stockholder attends the meeting for
the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
(h) Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice.
SECTION 3.05 QUORUM.
(a) At each meeting of the stockholders, stockholders of
-3-
<PAGE> 8
record representing a majority of the votes entitled to be cast
at such meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business
except where otherwise provided by law or by the Certificate
of Incorporation as from time to time amended.
(b) In the absence of a quorum, stockholders of record
representing a majority of the votes entitled to be cast at
such meeting, present in person or represented by proxy or, if
none of the stockholders are present or represented by proxy,
any officer entitled to preside or to act as secretary at such
meeting, may adjourn the meeting from time to time, until
stockholders holding the requisite number of votes entitled to
be cast shall be present or represented.
(c) At any such adjourned meeting at which a quorum may be
present, any business may be transacted which might have been
transacted at the meeting as originally called.
(d) The absence from any meeting of the stockholders
representing the number of votes required by law, the
Certificate of Incorporation or by these By-laws for specific
action(s) upon any given matter(s) shall not prevent other
action(s) by the stockholders at such meetings upon any other
matter(s) which properly come before the meeting, if the
stockholders representing the number of votes required in
respect of such other matter(s) shall be present.
SECTION 3.06. ORGANIZATION. At each meeting of the
stockholders, the Chairman of the Board or, in his absence,
the President or, in the absence of each of them, any Vice
President or, in the absence of all such officers, a chairman
chosen by a majority vote of the stockholders entitled to vote
thereat, present in person or by proxy, shall act as chairman,
and the Secretary or an Assistant Secretary of the
Corporation, or in the absence of the Secretary and all
Assistant Secretaries, a person whom the chairman of such
meeting shall appoint, shall act as secretary of the meeting
and keep the minutes thereof.
SECTION 3.07. VOTING.
(a) Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, at every meeting of the
stockholders, each stockholder of the Corporation's Class A
Common Stock shall, at every meeting of the stockholders,
whether the voting is by one or more classes voting separately
or by two or more classes voting as one class, be entitled to
one (1) vote in person or by proxy for each share of the
Corporation's Class A Common Stock registered in the
-4-
<PAGE> 9
stockholder's name on the books of the Corporation. Except as
otherwise provided by law, the Certificate of Incorporation or
these By-laws, at every meeting of the stockholders, each
stockholder of Class B Common Stock shall, at every meeting of
the stockholders, whether the voting is by one or more classes
voting separately or by two or more classes voting as one
class, be entitled to four (4) votes in person or by proxy for
each share of the Corporation's Class B Common Stock
registered in the stockholder's name on the books of the
Corporation.
(b) Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. In the case of stock
held jointly by two or more executors, administrators,
guardians, conservators, trustees or other fiduciaries, such
fiduciaries may designate in writing one or more of their
number to represent such stock and vote the shares so held,
unless there is a provision to the contrary in the instrument,
if any, defining their powers and duties.
(c) Persons whose stock is pledged shall be entitled to
vote thereon until such stock is transferred on the books of
the Corporation to the pledgee, and thereafter only the
pledgee shall be entitled to vote.
(d) Every stockholder may authorize another person or
persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving
notice of any meeting, voting or participating at a meeting,
or expressing consent or dissent without a meeting. Every
proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after
three years from its date unless such proxy provides for a
longer period. A duly executed proxy shall be irrevocable if
it states that it is irrevocable and, if, and only as long as,
it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless
of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation
generally.
(e) At all meetings of the stockholders, all matters
(except where other provision is made by law or by the
Certificate of Incorporation or these By-laws) shall be
decided by the majority vote of the stockholders entitled to
vote thereon, present in person or by proxy, at such meeting,
a quorum being present.
SECTION 3.08. INSPECTORS.
(a) The directors, in advance of any meeting, may, but
-5-
<PAGE> 10
need not, appoint one or more inspectors of election to act at
the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the
meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made
by the directors in advance of the meeting or at the meeting
by the person presiding thereat.
(b) Each inspector, if any, before entering upon the
discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of his
ability.
(c) The inspectors, if any, shall determine the number of
shares of stock outstanding and the voting power of each, the
shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive
votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote,
count and tabulate all votes, ballots, or consents; determine
the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector
or inspectors, if any, shall make a report in writing of any
challenge, question, or matter determined by him or them and
execute a certificate of any fact found by him or them.
Except as otherwise required by subsection (e) of Section 231
of the General Corporation Law, the provisions of that Section
shall not apply to the Corporation.
SECTION 3.09. LIST OF STOCKHOLDERS.
(a) It shall be the duty of the Secretary or other officer
of the Corporation who shall have charge of its stock ledger
to prepare and make, or cause to be prepared and made, at
least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of
stockholder. Such list shall be open during ordinary business
hours to the examination of any stockholder for any purpose
germane to the meeting for a period of at least ten days prior
to the election, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place
where the meeting is to be held.
(b) Such list shall be produced and kept at the time and
place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
-6-
<PAGE> 11
(c) Upon the wilful neglect or refusal of the directors to
produce such list at any meeting for the election of directors
they shall be ineligible for election to any office at such
meeting.
(d) The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger and
the list of stockholders required by this Section 3.09 on the
books of the Corporation or to vote in person or by proxy at
any meeting of stockholders.
SECTION 3.10. COMMON STOCK. Every reference in these
By-laws to stock or capital stock shall be deemed to refer to
the Common Stock (both Class A and Class B) of the
Corporation. Every reference in these By-laws to the
stockholders of the Corporation shall be deemed to refer to
the holders of the Common Stock (both Class A and Class B) of
the Corporation.
ARTICLE IV
BOARD OF DIRECTORS
SECTION 4.01. GENERAL POWERS. The business, property and
affairs of the Corporation shall be managed by the Board of
Directors and the Board shall have, and may exercise, all of
the powers of the Corporation, except such as are conferred by
law, the Certificate of Incorporation or these By-laws, upon
the stockholders. The use of the phrase "whole board" herein
refers to the total number of directors which the Corporation
would have if there were no vacancies.
SECTION 4.02. NUMBER AND QUALIFICATIONS.
(a) The number of directors of the Corporation which shall
constitute the whole Board of Directors shall be determined
according to the provisions of Section 7 of the Certificate of
Incorporation.
(b) No person who shall have attained the age of seventy
(70) years prior to the first day of January proceeding a
meeting of the stockholders for the election of directors
shall be nominated or be eligible to be elected or re-elected
a director.
SECTION 4.03. CLASSES, ELECTION AND TERMS. The Board of
Directors shall be divided into three classes, shall be
elected and shall serve in accordance with the provisions of
Section 7 of the Certificate of Incorporation.
-7-
<PAGE> 12
SECTION 4.04. QUORUM AND MANNER OF ACTING.
(a) Except as otherwise provided by law or by the
Certificate of Incorporation, a majority of the directors at
the time in office, but not less than two (2) directors, shall
constitute a quorum for the transaction of business at any
meeting and the affirmative vote of a majority of the
directors present at any meeting at which a quorum is present
shall be required for the taking of any action by the Board of
Directors.
(b) In the absence of a quorum at any meeting of the Board
such meeting need not be held, or a majority of the directors
present thereat or, if no director be present, the Secretary
may adjourn such meeting from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be
given.
(c) Any member or members of the Board of Directors or of
any committee designated by the Board, may participate in a
meeting of the Board, or any such committee, as the case may
be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other.
SECTION 4.05. OFFICES, PLACE OF MEETING AND RECORDS. The
Board of Directors may hold meetings, have an office or
offices and keep the books and records of the Corporation at
such place or places within or without the State of Rhode
Island as the Board may from time to time determine. The
place of meeting shall be specified or fixed in the respective
notices or waivers of notice thereof, except where otherwise
provided by law, the Certificate of Incorporation or these
By-laws.
SECTION 4.06. ANNUAL MEETING. The Board of Directors shall
meet for the purpose of organization, the election of officers
and the transaction of other business, as soon as practicable
following each annual election of directors on the same day
and at the same place at which such election was held. No
notice of such meeting need be given. Such meeting shall be
called and held at the place and time specified in the notice
or waiver of notice thereof as in the case of a special
meeting of the Board of Directors.
SECTION 4.07. REGULAR MEETINGS. Regular meetings of the
Board of Directors shall be held at such places and at such
times as the Board shall from time to time by resolution
determine. If any day fixed for a regular meeting shall be a
-8-
<PAGE> 13
legal holiday at the place where the meeting is to be held, then
the meeting which would otherwise be held on that day shall be
held at said place at the same hour on the next succeeding
business day. Notice of regular meetings need not be given.
SECTION 4.08. SPECIAL MEETINGS; NOTICE.
(a) Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board, the
President or any director.
(b) The Secretary shall mail notice of each such meeting to
each director, addressed to him at his residence or usual
place of business, at least three days before the day on which
the meeting is to be held, or such notice shall be sent to him
at his residence or at such place of business by telegraph,
cable, telecopier or other available means, or such notice
shall be delivered personally or by telephone, not later than
two days before the day on which the meeting is to be held.
(c) Each such notice shall state the time and place of the
meeting but need not state the purposes thereof except as
otherwise herein expressly provided.
(d) Notice of any such meeting need not be given to any
director, however, if waived by him in writing or by
telegraph, cable, telecopier or otherwise, whether before or
after such meeting shall be held, or if he shall be present at
such meeting.
SECTION 4.09. ORGANIZATION.
(a) At each meeting of the Board of Directors, the Chairman
of the Board or, in his absence, the President or, in the
absence of each of them, a director chosen by a majority of
the directors present shall act as chairman.
(b) The Secretary or, in his absence an Assistant Secretary
or, in the absence of the Secretary and all Assistant
Secretaries, a person whom the chairman of such meeting shall
appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 4.10. ORDER OF BUSINESS. At all meetings of the
Board of Directors business shall be transacted in the order
determined by the Board.
SECTION 4.11. REMOVAL OF DIRECTORS. Any one or more
directors of the Corporation may be removed at any time, but
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only in accordance with Section 7 of the Certificate of
Incorporation.
SECTION 4.12. RESIGNATION. Any director of the Corporation
may resign at any time by giving written notice of his
resignation to the Board of Directors, the Chairman of the
Board, the President or the Secretary of the Corporation.
Such resignation shall take effect at the date of receipt of
such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS.
Any vacancy in the Board of Directors caused by death,
resignation, removal, disqualification, an increase in the
number of directors, or any other cause shall be filled only
in accordance with the provisions of Section 7 of the
Certificate of Incorporation.
SECTION 4.14. COMPENSATION. Each director, in
consideration of his serving as such, shall be entitled to
receive from the Corporation, as and to the extent the Board
of Directors shall from time to time determine, (i) an annual
fee for service, (ii) fees for attendance at directors'
meetings or (iii) participation in stock option, deferred
compensation, retirement and other benefit plans, or any
combination of the foregoing. Each director shall also be
entitled to reimbursement for the reasonable expenses incurred
by him in connection with the performance of his duties.
Nothing herein contained shall be construed to preclude any
director from serving the Corporation or its affiliates in any
other capacity and receiving proper compensation therefor.
SECTION 4.15 AMENDMENTS TO ARTICLE IV. Sections 4.02,
4.03, 4.11, 4.13 and 4.15 of this Article IV may be altered,
amended or repealed only by the affirmative vote of the
holders of not less than eighty percent (80%) of the votes
entitled to be cast in respect thereof by the holders of the
capital stock of the Corporation entitled to vote generally in
election of directors; provided, however, this Section 4.15
shall not apply to, and such eighty percent (80%) vote shall
not be required for any amendment, alteration, or repeal of,
any provision recommended to the stockholders by the vote of
not less than two-thirds of the whole Board of Directors.
ARTICLE V
COMMITTEES
SECTION 5.01. EXECUTIVE COMMITTEE.
(a) The Board of Directors shall, by resolution or
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resolutions passed by a majority of the whole Board at the
annual meeting of the Board, appoint an Executive Committee to
consist of not less than three nor more than seven members of
the Board of Directors, including the Chairman of the Board
and the Chairman of the Executive Committee.
(b) Notwithstanding any limitation on the size of the
Executive Committee, the Committee may invite members of the
Board to attend one at a time on a rotational basis at its
meetings. For the purpose of the meeting he so attends, the
invited director shall be entitled to vote on matters
considered at such meeting unless otherwise provided by the
Board of Directors.
(c) Each member of the Executive Committee shall hold
office, so long as he shall remain a director, until the first
meeting of the Board of Directors held after the next annual
election of directors and until his successor is duly
appointed and qualified.
(d) The Chairman of the Executive Committee or, in his
absence, the Chairman of the Board or a member of the
Committee chosen by a majority of the members present shall
preside at meetings of the Executive Committee and the
Secretary or an Assistant Secretary of the Corporation, or
such other person as the Executive Committee shall from time
to time determine, shall act as secretary of the Executive
Committee.
(e) The Board of Directors, by action of the majority of
the whole Board, shall fill vacancies in the Executive
Committee.
SECTION 5.02. POWERS. During the intervals between the
meetings of the Board of Directors, the Executive Committee
shall have and may exercise all of the powers of the Board of
Directors in all cases in which specific directions shall not
have been given by the Board of Directors.
SECTION 5.03. PROCEDURE; MEETINGS; QUORUM.
(a) The Executive Committee shall fix its own rules of
procedure subject to the approval of the Board of Directors,
and shall meet at such times and at such place or places as
may be provided by such rules.
(b) At every meeting of the Executive Committee the
presence of a majority of all the members shall be necessary
to constitute a quorum and the affirmative vote of a majority
of the members present shall be necessary for the adoption by
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it of any resolution. In the absence of a quorum at any meeting
of the Executive Committee such meeting need not be held, or a
majority of the members present thereat or, if no members be
present, the secretary of the meeting may adjourn such meeting
from time to time until a quorum be present.
(c) The secretary of the Executive Committee shall keep
minutes of the actions taken at its meetings and shall present
the minutes of the meeting to the next following meeting of
the Board of Directors.
SECTION 5.04. COMPENSATION. Each member of the Executive
Committee shall be entitled to receive from the Corporation
such fee, if any, as shall be fixed by the Board of Directors,
together with reimbursement for the reasonable expenses
incurred by him in connection with the performance of his
duties.
SECTION 5.05. OTHER BOARD COMMITTEES.
(a) The Board of Directors may from time to time, by
resolution passed by a majority of the whole Board, designate
one or more committees in addition to the Executive Committee,
each committee to consist of two or more of the directors of
the Corporation.
(b) Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise the
powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation with
the exception of any authority the delegation of which is
prohibited by Section 141 of the Delaware General Corporation
Law, and may authorize the seal of the Corporation to be
affixed to all papers which may require it.
(c) A majority of all the members of any such committee may
determine its action and fix the time and place of its
meetings, unless the Board of Directors shall otherwise
provide.
(d) The Board of Directors shall have power to change the
members of any committee at any time, to fill vacancies and to
discharge any such committee, either with or without cause, at
any time.
SECTION 5.06. ALTERNATES. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate
one or more directors as alternate members of any committee
who may replace any absent or disqualified member at any
meeting of the committee; provided, however, that in the
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absence of any such designation of alternates the member or
members of any committee present at any meeting and not
disqualified from acting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any absent or
disqualified member.
SECTION 5.07. ADDITIONAL COMMITTEES.
(a) The Board of Directors may from time to time create
such additional committees of directors, officers, employees
or other persons designated by it (or any combination of such
persons) for the purpose of advising with the Board, the
Executive Committee and the officers and employees of the
Corporation in all such matters as the Board shall deem
advisable and with such functions and duties as the Board
shall by resolutions prescribe.
(b) A majority of all the members of any such committee may
determine its action and fix the time and place of its
meetings, unless the Board of Directors shall otherwise
provide.
(c) The Board of Directors shall have power to change the
members of any committee at any time, to fill vacancies and to
discharge any such committee, either with or without cause, at
any time.
ARTICLE VI
WAIVER OF NOTICE AND ACTION BY CONSENT
SECTION 6.01. WAIVER OF NOTICE.
(a) Whenever any notice is required to be given by law, the
Certificate of Incorporation or these By-laws, a waiver
thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
(b) Attendance in person, or in case of a meeting of the
stockholders, by proxy, shall be the equivalent to having
waived notice thereof.
SECTION 6.02. CONSENT BY STOCKHOLDERS.
(a) Any action required by the law to be taken at any
annual or special meeting of stockholders, or any action which
may be taken at any annual or special meeting of stockholders,
may be taken without a meeting, without prior notice and
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without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were
present and voted.
(b) Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in
writing.
(c) Action taken pursuant to this paragraph shall be
subject to the provisions of Section 228 of the Delaware
General Corporation Law.
Section 6.03. CONSENT BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors
or any committee thereof may be taken without a meeting if
prior to such action a written consent thereto is signed by
all members of the Board or such committee, as the case may
be, and such written consent is filed with the minutes of the
proceedings of the Board or such committee.
ARTICLE VII
OFFICERS
SECTION 7.01. NUMBER. The principal officers of the
Corporation shall be a Chairman of the Board, a Chairman of
the Executive Committee, a President, one or more Vice
Presidents (the number thereof and variations in title to be
determined by the Board of Directors), a Treasurer and a
Secretary. In addition, there may be such other or
subordinate officers, agents and employees as may be appointed
in accordance with the provisions of Section 7.04. Any two or
more offices, may be held by the same person.
SECTION 7.02. GENERAL POWERS. All officers of the
Corporation shall have such authority and perform such duties
in the management and operation of the Corporation as shall be
prescribed in the resolutions of the Board of Directors
designating and choosing such officers and prescribing their
authority and duties, and shall have such additional authority
and duties as are incident to their office except to the
extent that such resolutions may be inconsistent therewith.
SECTION 7.03. ELECTION, QUALIFICATIONS AND TERM OF OFFICE.
(a) Each officer of the Corporation, except such officers
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as may be appointed in accordance with the provisions of Section
7.04, shall be elected annually by the Board of Directors and
shall hold office until his successor shall have been duly
elected and qualified, or until his death, or until he shall
have resigned or shall have been removed in the manner herein
provided.
(b) The Chairman of the Board and the Chairman of the
Executive Committee shall be elected from the directors of the
Corporation.
SECTION 7.04. OTHER OFFICERS.
(a) The Corporation may have such other officers, agents,
and employees as the Board of Directors may deem necessary,
including, without limitation, one or more Associate or
Assistant Vice Presidents, one or more Assistant Treasurers
and one or more Assistant Secretaries, each of whom shall hold
office for such period, have such authority, and perform such
duties as the Board of Directors or the Chief Executive
Officer (as determined pursuant to Section 7.08) may from time
to time determine.
(b) The Board of Directors may delegate to any principal
officer the power to appoint or remove any such subordinate
officers, agents or employees.
SECTION 7.05. REMOVAL. Any officer may be removed, either
with or without cause, by the vote of a majority of the whole
Board of Directors or, except in case of any officer elected
by the Board of Directors, by any committee or officer upon
whom the power of removal may be conferred by the Board of
Directors.
SECTION 7.06. RESIGNATION.
(a) Any officer may resign at any time by giving written
notice to the Board of Directors, the Chairman of the Board,
the President or the Secretary.
(b) Any such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 7.07. VACANCIES. A vacancy in any office because
of death, resignation, removal, disqualification or any other
cause shall be filled for the unexpired portion of the term in
the manner prescribed in these By-laws for regular election or
appointment to such office.
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SECTION 7.08. CHAIRMAN OF THE BOARD.
(a) The Chairman of the Board shall be the Chief Executive
Officer of the Corporation and shall have general direction of
its business and affairs, subject, however, to the control of
the Board of Directors and the Executive Committee, provided,
however, the Board of Directors may by resolution instead
designate the President as the Chief Executive Officer.
(b) The Chairman of the Board shall, when present, preside
at all meetings of the Board of Directors and at all meetings
of the stockholders and shall have such additional powers and
shall perform such further duties as may from time to time be
assigned to him by the Board of Directors or the Executive
Committee.
SECTION 7.09. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The
Chairman of the Executive Committee shall, when present,
preside at all meetings of the Executive Committee and, at the
request of the Chairman of the Board, or in case of his
absence or disability, shall preside at all meetings of the
Board of Directors and at all meetings of the stockholders.
In addition, the Chairman of the Executive Committee shall
have such additional powers and shall perform such further
duties as may from time to time be assigned to him by the
Board of Directors or the Executive Committee.
SECTION 7.10. PRESIDENT.
(a) The President shall be the Chief Operating Officer of
the Corporation and shall have general direction of the
operations and the administrative affairs of the Corporation,
subject to the control of the Board of Directors, the
Executive Committee and the Chairman of the Board.
(b) If so designated by resolution of the Board of
Directors as specified in Section 7.08, he shall also be the
Chief Executive Officer of the Corporation.
(c) The President shall, in the absence or disability of
the Chairman of the Board, perform the duties of the Chairman
of the Board and, when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the Chairman
of the Board. He shall, in the absence or disability of the
Chairman of the Board and the Chairman of the Executive
Committee, preside at all meetings of the Board of Directors
and at all meetings of the stockholders. He shall have such
additional powers and shall perform such further duties as may
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from time to time be assigned to him by the Board of Directors
or the Executive Committee.
SECTION 7.11. VICE PRESIDENTS. Each Vice President shall
have such powers and perform such duties as the Board of
Directors or the Executive Committee may from time to time
prescribe or as shall be assigned to him by the Chief
Executive Officer or the Chief Operating Officer.
SECTION 7.12. TREASURER.
(a) The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities, books and papers of
the Corporation, and shall deposit all such funds to the
credit of the Corporation in such banks, trust companies or
other depositaries as shall be selected in accordance with the
provisions of these By-laws; he shall disburse the funds of
the Corporation as may be ordered by the Board of Directors or
the Executive Committee, making proper vouchers for such
disbursements, and shall render to the Board of Directors or
the stockholders, whenever the Board may require him so to do,
a statement of all his transactions as Treasurer or the
financial condition of the Corporation.
(b) He shall keep faithful books of account, and all such
books shall at all times be subject to inspection by the Board
of Directors, any committee thereof and the stockholders, and
in general, he shall perform all the duties incident to the
office of Treasurer and such other duties as from time to time
may be assigned to him by the Board of Directors, any
committee of the Board designated by it so to act or the Chief
Executive Officer of the Corporation.
SECTION 7.13. SECRETARY.
(a) The Secretary shall record or cause to be recorded in
books provided for the purpose the minutes of the meetings of
the stockholders, the Board of Directors, and all committees
of which a secretary shall not have been appointed.
(b) He shall see that all notices are duly given in
accordance with the provisions of these By-laws and as
required by law.
(c) He shall be custodian of all corporate records (other
than financial) and of the seal of the Corporation and see
that the seal is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these By-laws.
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(d) He shall keep, or cause to be kept, the list of
stockholders as required by Section 3.09, which includes the
post-office addresses of the stockholders and the number of
shares held by them, respectively, and shall make or cause to
be made, all proper changes therein, shall see that the books,
reports, statements, certificates and all other documents and
records required by law are properly kept and filed.
(e) In general, he shall perform all duties incident to the
office of Secretary and such other duties as may from time to
time be assigned to him by the Board of Directors, the
Executive Committee or the Chief Executive Officer of the
Corporation.
SECTION 7.14. ASSISTANT TREASURERS.
(a) At the request of the Treasurer or in his absence or
disability, the Assistant Treasurer designated by him or by
the Board of Directors or the Executive Committee shall
perform all the duties of the Treasurer, and when so acting,
shall have all the powers of the Treasurer.
(b) The Assistant Treasurers shall perform such other
duties as from time to time may be assigned to them by the
Board of Directors, Executive Committee, the Chief Executive
Officer of the Corporation or the Treasurer.
SECTION 7.15. ASSISTANT SECRETARIES.
(a) At the request of the Secretary or in his absence or
disability, the Assistant Secretary designated by him or by
the Board of Directors or the Executive Committee shall
perform all the duties of the Secretary and, when so acting,
shall have all the powers of the Secretary.
(b) The Assistant Secretaries shall perform such other
duties as from time to time may be assigned to them by the
Board of Directors, the Executive Committee, the Chief
Executive Officer of the Corporation or the Secretary.
SECTION 7.16. BONDING. Any officer, employee, agent or
factor shall give such bond with such surety or sureties for
the faithful performance of his duties as the Board of
Directors may, from time to time, require.
SECTION 7.17. SALARIES. The salaries of the principal
officers of the Corporation shall be fixed from time to time
by the Board of Directors, and none of such officers shall be
prevented from receiving a salary by reason of the fact that
he is a director of the Corporation.
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ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 8.01. RIGHT TO INDEMNIFICATION.
Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, or
investigative by reason of the fact that such person, or a
person of whom such person is the legal representative, is or
was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at
the request of the Corporation as a director, officer,
employee or agent of any foreign or domestic corporation,
partnership, joint venture, trust, other enterprise or
employee benefit plan, whether the basis of such proceeding is
alleged action (or failure to act) in an official capacity as
a director or officer or in any other capacity while serving
as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the
fullest extent permitted by the Delaware General Corporation
Law as provided in the Certificate of Incorporation of the
Corporation.
SECTION 8.02. NON-EXCLUSIVITY OF RIGHTS. The rights
conferred on any person by this Article VIII and the
Certificate of Incorporation shall not be exclusive of any
other right which such person may have or hereafter acquire
under the law, any agreement, the law, vote of stockholders or
disinterested directors or otherwise.
SECTION 8.03. INSURANCE. As provided in the Certificate of
Incorporation, the Corporation may purchase and maintain
insurance, at its expense, to protect itself and any person
who is or was a director or officer of the Corporation, or
who, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of any foreign or
domestic corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan, against any such
expenses, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such
expenses, liability or loss under the Delaware General
Corporation Law.
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ARTICLE IX
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 9.01. EXECUTION OF CONTRACTS.
(a) Unless the Board of Directors or the Executive
Committee shall otherwise determine, the Chairman of the
Board, the President, any Vice President or the Treasurer and
the Secretary or any Assistant Secretary may enter into any
contract or execute any contract or other instrument, the
execution of which is not otherwise specifically provided for,
in the name and on behalf of the Corporation.
(b) The Board of Directors or any committee designated
thereby with power so to act, except as otherwise provided in
these By-laws, may authorize any other or additional officer
or officers or agent or agents of the Corporation to enter
into any contract or execute and deliver any instrument in the
name and on behalf of the Corporation, and such authority may
be general or confined to specific instances.
(c) Unless authorized so to do by these By-laws or by the
Board of Directors or by any such committee, no officer, agent
or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its
credit or to render it liable pecuniarily for any purpose or
to any amount.
SECTION 9.02. LOANS.
(a) No loan shall be contracted on behalf of the
Corporation, and no evidence of indebtedness shall be issued,
endorsed or accepted in its name, unless authorized by the
Board of Directors, the Executive Committee or other committee
designated by the Board so to act.
(b) Such authority may be general or confined to specific
instances. When so authorized, the officer or officers
thereunto authorized may effect loans and advances at any time
for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and
for such loans and advances may make, execute and deliver
promissory notes or other evidences of indebtedness of the
Corporation, and, when authorized as aforesaid, as security
for the payment of any and all loans, advances, indebtedness
and liabilities of the Corporation, may mortgage, pledge,
hypothecate or transfer any real or personal property at any
time owned or held by the Corporation, and to that end execute
instruments of mortgage or pledge or otherwise transfer such
property.
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SECTION 9.03. CHECKS, DRAFTS, ETC. All checks, drafts,
bills of exchange or other orders for the payment of money,
obligations, notes, or other evidence of indebtedness, bills
of lading, warehouse receipts and insurance certificates of
the Corporation, shall be signed or endorsed by such officer
or officers, agent or agents, attorney or attorneys, employee
or employees, of the Corporation as shall from time to time be
determined by resolution of the Board of Directors or
Executive Committee or other committee designated by the Board
so to act.
SECTION 9.04. DEPOSITS. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or
other depositaries as the Board of Directors, the Executive
Committee or other committee designated by the Board so to act
may from time to time designate, or as may be designated by
any officer or officers or agent or agents of the Corporation
to whom such power may be delegated by the Board of Directors,
the Executive Committee or other committee designated by the
Board so to act and, for the purpose of such deposit and for
the purposes of collection for the account of the Corporation,
all checks, drafts, and other orders for the payment of money
which are payable to the order of the Corporation may be
endorsed, assigned and delivered by any officer, agent or
employee of the Corporation or in such other manner as may
from time to time be designated or determined by resolution of
the Board of Directors, the Executive Committee or other
committee designated by the Board so to act.
SECTION 9.05. PROXIES IN RESPECT OF SECURITIES OF OTHER
CORPORATIONS. Unless otherwise provided by resolution adopted
by the Board of Directors, the Executive Committee or other
committee so designated to act by the Board, the Chairman of
the Board, the President, any Vice President or the Treasurer
may from time to time act as agent or agents of the
Corporation, in the name and on behalf of the Corporation, to
cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other
corporation, association or trust, any of whose stock or other
securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other
corporation, association or trust, or to consent in writing,
in the name of the Corporation as such holder, to any action
by such other corporation, association or trust, and may
instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the
Corporation and under its corporate seal, or otherwise, all
such written proxies or other instruments as he may deem
necessary or proper in the premises.
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ARTICLE X
BOOKS AND RECORDS
SECTION 10.01. PLACE.
(a) The books and records of the Corporation may be kept at
such places within or without the State of Rhode Island as the
Board of Directors may from time to time determine.
(b) The stock record books and the blank stock certificate
books shall be kept by the Secretary or by any other officer
or agent designated by the Board of Directors.
SECTION 10.02. ADDRESSES OF STOCKHOLDERS. Each stockholder
shall furnish to the Secretary of the Corporation or to the
transfer agent of the Corporation an address at which notices
of meetings and all other corporate notices may be served upon
or mailed to him, and if any stockholder shall fail to
designate such address, corporate notices may be served upon
him by mail, postage prepaid, to him at his post-office
address last known to the Secretary or to the transfer agent
of the Corporation or by transmitting a notice thereof to him
at such address by telegraph, cable, telecopier or other
available method.
SECTION 10.03. RECORD DATES.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days
before the date of such meeting.
(b) If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(c) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned
meeting.
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(d) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors.
(e) If no record date has been fixed by the Board of
Directors, the record date for determining the stockholders
entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its
principal office in the State of Rhode Island, or an officer
or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded.
(f) Delivery made to the Corporation's principal office
shall be by hand or by certified or registered mail, return
receipt requested.
(g) If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is
required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which
the Board of Directors adopts the resolution taking such prior
action.
(h) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any
change, conversion, or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and
which record date shall be not more than fifty days prior to
such action.
(i) If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
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SECTION 10.04. CLOSING OF TRANSFER BOOKS. Insofar as
permitted by law, the Board of Directors may direct that the
stock transfer books of the Corporation be closed for a period
not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date for the payment of any
dividend or the date for the allotment of rights or the date
when any change or conversion or exchange of shares of the
Corporation shall go into effect, or for a period not
exceeding fifty (50) days in connection with obtaining the
consent of stockholders for any purpose.
SECTION 10.05. AUDIT OF BOOKS AND ACCOUNTS. The books and
accounts of the Corporation shall be audited at least once in
each fiscal year by certified public accountants of good
standing selected by the Board of Directors.
ARTICLE XI
SHARES AND THEIR TRANSFER
SECTION 11.01. CERTIFICATES FOR SHARES.
(a) Every owner of shares of capital stock of the
Corporation shall be entitled to have a certificate certifying
the number of shares owned by him in the Corporation and
designating the class of shares to which such shares belong,
which shall otherwise be in such form, in conformity to law,
as the Board of Directors shall prescribe.
(b) Each such certificate shall be signed by the Chairman
of the Board or the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Corporation; provided, however,
that where such certificate is signed or countersigned by a
transfer agent or registrar, the signatures of such officers
of the Corporation may be in facsimile form. In case any
officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or
officers of the Corporation whether because of death,
resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be issued
and delivered by the Corporation as though the person or
persons who signed such certificate or whose facsimile
signature or signatures shall have been used thereon had not
ceased to be such officer or officers of the Corporation.
SECTION 11.02. RECORD. A record shall be kept of the name
of the person, firm or corporation owning the stock
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represented by each certificate for stock of the Corporation
issued, the number of shares represented by each such
certificate, and the date thereof, and, in the case of
cancellation, the date of cancellation. The person in whose
name shares of stock stand on the books of the Corporation
shall be deemed the owner thereof for all purposes as regards
the Corporation.
SECTION 11.03. TRANSFER OF SHARES; RESTRICTIONS.
(a) Transfers of shares of the Corporation shall be made
only on the books of the Corporation by the registered holder
thereof, or by his attorney thereunto authorized, and on the
surrender of the certificate or certificates for such shares
properly endorsed.
SECTION 11.04. TRANSFER AGENT AND REGISTRAR; REGULATIONS.
(a) The Corporation shall, if and whenever the Board of
Directors shall determine, maintain one or more transfer
offices or agencies, each under the charge of a transfer agent
designated by the Board of Directors, where the shares of the
capital stock of the Corporation shall be directly
transferable, and also if and whenever the Board of Directors
shall so determine, maintain one or more registry offices,
each under the charge of a registrar designated by the Board
of Directors, where such shares of stock shall be registered.
(b) Unless prohibited by law or the rules or regulations of
a stock exchange or other body having jurisdiction in the
circumstances, any transfer agent or registrar designated by
the Board of Directors may be an officer or employee of the
Corporation. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with
these By-laws, concerning the issue, transfer and registration
of certificates for shares the capital stock of the
Corporation.
SECTION 11.05. LOST, DESTROYED OR MUTILATED CERTIFICATES.
In case of the alleged loss or destruction or the mutilation
of a certificate representing shares of capital stock of the
Corporation, a new certificate may be issued in place thereof,
in the manner and upon such terms as the Board of Directors
may prescribe.
SECTION 11.06. SHARES LIABLE FOR DEBTS. The shares of
capital stock of any stockholder which may be pledged and
liable to the Corporation for any debts and demands due and
owing from such stockholder to the Corporation, under and in
accordance with the Certificate of Incorporation, may be sold
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at any time for the payment of such debts and demands at public
auction in the City of Providence, Rhode Island after first
giving notice of the time and place of such sale once in each
week for three successive weeks in one or more of the public
newspapers published in said City of Providence.
SECTION 11.07. NO FRACTIONAL SHARES.
(a) The shares of capital stock of the Corporation shall be
full shares only.
(b) The Corporation may not issue and the owner of shares
of capital stock of the Corporation may not transfer fractions
of a share.
ARTICLE XII
SEAL
The Board of Directors shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of
the Corporation and the words and figures "Incorporated 1994,
Delaware."
ARTICLE XIII
FISCAL YEAR
Except as otherwise provided by the Board of Directors, the
fiscal year of the Corporation shall end on the last day of
December in each year.
ARTICLE XIV
AMENDMENTS
Except as otherwise set forth in these By-Laws, all By-laws
of the Corporation shall be subject to alteration or repeal,
and new By-laws not inconsistent with the laws of the State of
Delaware or any provision of the Certificate of Incorporation
may be made, either (i) by the affirmative vote of a majority
of the votes entitled to be cast in respect thereof by the
holders of record of the outstanding shares of capital stock
of the Corporation present in person or represented by proxy,
given at an annual meeting or at any special meeting at which
a quorum shall be present, or (ii) by the affirmative vote of
a majority of the whole Board of Directors given at any
meeting (except that the Board of Directors may not amend
Sections 4.02, 4.03, 4.ll, 4.13 and 4.15 of these By-laws to
alter the range of the number of
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directors which may constitute the Board of Directors), provided
that in each case notice of the proposed alteration or repeal
or of the proposed new By-laws be included in the notice of
such meeting.
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