File No. 70-8473
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM U-1
APPLICATION-DECLARATION WITH RESPECT TO
THE ACQUISITION OF CERTAIN ASSETS OF
AN ENERGY SERVICES BUSINESS
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EUA COGENEX CORPORATION
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
(Name of company filing this statement
and address of principal executive office)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company parent of
applicant or declarant)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333, BOSTON, MASSACHUSETTS 02107
(Name and address of agent for service)
The Commission is requested to mail signed copies
of all orders, notices and communications to:
ARTHUR I. ANDERSON, ESQ.
McDermott, Will & Emery
75 State Street
Boston, MA 02109
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (*Filed herewith) (**Filed
herewith with confidential treatment requested)
Item 6 is hereby amended and restated in its entirety as follows:
(a) Exhibits.
*Exhibit A-1 Form of Articles of Organization for CCS.
*Exhibit A-2 Form of By-laws of CCS.
Exhibit B-1 Memorandum of Understanding dated September
2, 1994, as amended by Amendment No. 1 dated
October 4, 1994, between EUA Cogenex
Corporation and Citizens Conservation
Corporation.
**Exhibit B-2 Definitive Agreement among Cogenex, CCS and
CCC.
Exhibit B-3 Service contract between CCS and CCC (filed
with Exhibit B-2).
Exhibit F Opinion of counsel (to be filed by
amendment).
Exhibit G Proposed Form of Notice.
(b) Financial Statements (to be filed by amendment).
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, the undersigned applicant has duly caused this statement to be
signed on its behalf by the undersigned duly authorized individual.
EUA COGENEX CORPORATION
By: /s/ Basil G. Pallone
Basil G. Pallone
Vice President
Dated: January 13, 1995
Exhibit A-1
The Commonwealth of Massachusetts
Office of the Secretary of State
Michael J. Connolly, Secretary
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF ORGANIZATION
(Under G.L. Ch. 156B)
ARTICLE I
The name of the corporation is:
EUA CITIZENS CONSERVATION SERVICES, INC.
ARTICLE II
The purpose of the corporation is to engage in the following activities:
To engage in the business of energy conservation programs including
but not limited to the creation of alternative energy sources and the
provision of energy-conservation services to multi-family dwellings,
including public and publicly-assisted housing.
To contract, enter joint ventures, partnerships or other associations
or affiliations with public or private utility companies and other private
companies for the purpose of the sale, distribution or conservation of
energy.
To provide conservation services to utility companies and their
customers including residential, commercial, industrial, governmental and
other users, and to engage in activities reasonably ancillary thereto.
To engage in and carry on any other business or activity which may
lawfully be engaged in or carried on by a corporation which is organized
under the Business Corporation Law of The Commonwealth of Massachusetts, as
presently in effect or as amended from time to time.
ARTICLE III
The type and classes of stock and the total number of shares and par value,
if any, of each type and class of stock which the corporation is authorized
to issue is as follows:
WITHOUT PAR VALUE STOCKS
TYPE NUMBER OF SHARES
COMMON N/A
PREFERRED N/A
WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES PAR VALUE
COMMON 200,000 $.01
PREFERRED 7,500 $.01
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a
class, if shares of another class are outstanding, the corporation must
provide a description of the preferences, voting powers, qualifications,
and special or relative rights or privileges of that class and of each
other class of which shares are outstanding and of each series then
established within any class.
The corporation is authorized to issue 200,000 shares of common stock and
7,500 shares of preferred stock, all of which is designated as Class A
Preferred Stock. The Class A Preferred Stock shall be non-redeemable until
January 1, 2002. Upon such date and up until January 1, 2005, the Class A
Preferred Stock may be redeemed at the corporation's sole discretion at a
redemption price equal to $100 per share plus then-accrued dividends, if
any, plus an additional amount, if any, determined in accordance with the
following formula:
if upon the redemption date the cumulative dividends paid and
accrued to the holders of the Class A Preferred Stock equal
$1,000,000 or less, such additional amount shall be equal to $200
per share; if such dividends equal $6,000,000 or more, such
additional amount shall be equal to $0 per share; if such
dividends equal between $1,000,000 and $6,000,000, such
additional amount shall be calculated proportionately.
In the event that the Class A Preferred Stock has not been redeemed by the
corporation prior to January 1, 2005, the corporation may redeem all of the
outstanding shares of the Class A Preferred Stock for a purchase price of
one dollar.
The holders of the Class A Preferred Stock shall be entitled to an annual
dividend per share at a rate equal to 33% of the corporation's Adjusted Net
Income (as hereinafter defined) divided by 7,500. The corporation shall
accrue in each fiscal year beginning with the fiscal year ending
December 31, 1995, preferred dividends, but only to the extent that the
Adjusted Net Income for such fiscal year is greater than zero. No
preferred dividends shall accrue for any fiscal year in which the Adjusted
Net Income is equal to or less than zero.
The Class A Preferred Stock dividends shall be paid annually when and in
the manner declared by the board of directors of the corporation, but not
later than June 30th of the calendar year following the fiscal year for
which preferred dividends have been accrued.
Preferred dividends shall be non-cumulative. No dividend shall be paid to
the holders of the common stock in any given year unless the holders of the
Class A Preferred Stock have received their dividend.
Adjusted Net Income shall be equal to net income calculated according to
generally accepted accounting principles (GAAP):
(a) less the following items to the extent they have not otherwise
been deducted in accordance with GAAP:
1. An overhead allocation charged by EUA Cogenex Corporation ("EUA
Cogenex") to the corporation in an amount equal to 5% of the
corporation's total selling, general and administrative expenses
(SG&A) where SG&A includes direct salaries, employee benefits,
rents, utilities, office overheads, travel related expenses,
employee expenses, and such other expenses normally included
under the caption SG&A in accordance with GAAP;
2. Interest expense on intercompany loans or advances at an interest
rate equal to:
(i) in the case of short term loans or advances, at EUA
Cogenex's monthly average short-term borrowing rate
inclusive of commitment fees and compensating balances, if
any;
(ii) in the case of long term loans or advances, or loans or
advances whether short term or long term in nature
supporting principal for permanent projects placed in
service, at EUA Cogenex's average long term borrowing rate,
inclusive of issuance costs, plus 600 basis points; and
3. An equity maintenance fee charged by EUA Cogenex to the
corporation equal to (a) an interest rate of 6% in all cases,
except for amounts paid in connection with debts owed to the
Federal National Mortgage Association which shall be a rate of
4%, multiplied by (b) the average outstanding balance of short
and long term debt of the corporation payable to entities other
than EUA Cogenex, including obligations payable more than one
year from the date of creation thereof which under GAAP is shown
on the balance sheet as a liability (including capitalized lease
obligations); and
(b) plus capitalized interest to the extent capitalized interest has
not otherwise been added to net income in accordance with GAAP.
Capitalized interest shall be based on EUA Cogenex's capitalized
interest rate and shall be capitalized in accordance with GAAP.
Capitalized interest will be calculated based upon the weighted
average short and long term debt of EUA Cogenex on a monthly
basis. The Corporation shall accrue capitalized interest
monthly.
The Class A Preferred Stock is non-voting stock; provided, however, that
holders of Class A Preferred Stock shall be entitled to vote on (i) any
amendment to these Articles of Organization and (ii) the sale of all or
substantially all of the assets of the corporation.
In the case of liquidation or sale of the corporation or a sale of all or
substantially all of the assets of the corporation, the proceeds thereof
shall first be applied to all outstanding liabilities of the corporation,
whether absolute or contingent. Any excess proceeds shall be distributed
one third to the holders of Class A Preferred Stock and two thirds to the
holders of the common stock.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
N/A
ARTICLE VI
Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the corporation, or of
its directors or stockholders, or of any class of stockholders:
ONE: Meetings of the stockholders may be held anywhere in the United
States.
TWO: The corporation may be a partner, either general or limited, in
any business enterprise it would have the power to conduct by
itself.
THREE: Except as specifically authorized by statute or by agreement with
the corporation, no stockholder shall have any right to examine
any property or any books, accounts or other writings of the
corporation if there is reasonable ground for belief that such
examination will for any reason be adverse to the interests of
the corporation, and a vote of the directors refusing permission
to make such examination and setting forth that in the opinion of
the directors such examination would be adverse to the interests
of the corporation shall be prima facie evidence that such
examination would be adverse to the interests of the corporation.
Every such examination shall be subject to such reasonable
regulations as the directors may establish in regard thereto.
FOUR: Except as otherwise provided for in these Articles of
Organization, the Board of Directors may specify the manner in
which the accounts of the corporation shall be kept and may
determine what constitutes net earnings, profits and surplus,
what amounts, if any, shall be reserved for any corporate
purpose, and what amounts, if any, shall be declared as
dividends. Unless the Board of Directors otherwise specifies,
the excess of the consideration for any share of its capital
stock with par value issued by it over such par value shall be
surplus. The Board of Directors may allocate to capital stock
less than all of the consideration for any share of its capital
stock without par value issued by it, in which case the balance
of such consideration shall be surplus. All surplus shall be
available for any corporate purpose, including the payment of
dividends.
FIVE: The purchase or other acquisition or retention by the corporation
of shares of its own capital stock shall not be deemed a
reduction of its capital stock. Upon any reduction of capital or
capital stock, no stockholder shall have any right to demand any
distribution from the corporation, except as and to the extent
that the stockholders shall have provided at the time of
authorizing such reduction.
SIX: In the absence of fraud, no contract or transaction between the
corporation and one or more of its directors or officers, or
between the corporation and any other organization of which one
or more of its directors or officers are directors, trustees or
officers, or in which any of them has any financial or other
interest, shall be void or voidable, or in any way affected,
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the board of
directors or committee thereof which authorizes, approves or
ratifies the contract or transaction, or solely because his/her
or their votes are counted for such purposes, if:
(i) The material facts as to his/her relationship or interest
and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee which
authorizes, approves or ratifies the contract or
transaction, and the board or committee in good faith
authorizes, approves or ratifies the contract or transaction
by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less
than a quorum; or
(ii) The material facts as to his/her 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 authorized, approved
or ratified in good faith by vote of the stockholders; or
(iii) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof, or the
stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of
a committee thereof which authorizes, approves or ratifies the
contract or transaction. No director or officer of the
corporation shall be liable or accountable to the corporation or
to any of its stockholders or creditors or to any other person,
either for any loss to the corporation or to any other person or
for any gains or profits realized by such director or officer, by
reason of any contract or transaction as to which clauses (i),
(ii) or (iii) above are applicable.
SEVEN: No current or former director of the corporation shall be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability;
provided, however, that this provision shall not eliminate
liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61
or 62 or successor provisions of the Massachusetts Business
Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. If the
Massachusetts Business Corporation Law is hereafter amended to
authorize corporate action further than the liability of the
directors, then the liability of the director of the corporation
shall be eliminated or limited to the fullest extent permitted by
the Massachusetts Business Corporation Law, as so amended from
time to time. No amendment or repeal of this paragraph shall
adversely affect any of the rights or protection afforded to a
director of the corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or
repeal.
EIGHT: A liquidation or sale of the corporation or a sale of all or
substantially all of its assets shall require the consent of a
majority of each of the holders of the corporation's common stock
and preferred stock.
ARTICLE VII
The effective date of organization of the corporation shall be the date
approved and filed by the Secretary of the Commonwealth.
ARTICLE VIII
a. The street address of the corporation IN MASSACHUSETTS is: (post
office boxes are not acceptable)
Boott Mills South
100 Foot of John Street
Lowell, MA 01852
b. The name, residence and post office address (if different) of the
directors and officers of the corporation are:
NAME RESIDENCE POST OFFICE
ADDRESS
President: Basil G. Pallone 112 Thunder Road Same
Sudbury, MA 01776
Treasurer: Same Same Same
Clerk: Same Same Same
Directors: Same Same Same
c. The fiscal year (i.e., tax year) of the corporation shall end on the
last day of the month of:
DECEMBER
d. The name and BUSINESS address of the RESIDENT AGENT of the
corporation, if any, is:
N/A
ARTICLE IX
By-laws of the corporation have been duly adopted and the president,
treasurer, clerk and directors whose names are set forth above, have been
duly elected.
IN WITNESS WHEREOF and under the pains and penalties of perjury, I, whose
signature appears below as incorporator and whose name and business address
ARE CLEARLY TYPED OR PRINTED beneath my signature do hereby associate with
the intention of forming this corporation under the provisions of General
Laws Chapter 156B and do hereby sign these Articles of Organization as
incorporator(s) this 12th day of January, 1995.
/s/ Alicia M.V. Wyman
Alicia M.V. Wyman, Esq.
c/o McDermott, Will & Emery
75 State Street
Boston, MA 02109
EXHIBIT A-2
BY-LAWS
OF
EUA CITIZENS CONSERVATION SERVICES, INC.
ARTICLE I
OFFICES
Section 1.1. Principal Office. The initial principal
office of the Corporation shall be as indicated in the Articles
of Organization of the Corporation. The Corporation may have
such other offices, either within or without the Commonwealth of
Massachusetts, as it may require from time to time.
Section l.2. Change in Principal Office. The Board of
Directors of the Corporation may at any time and from time to
time, change the principal office of the Corporation in the
Commonwealth, provided that no such change shall be effective
until a certificate of such change, specifying the post-office
address of its new principal office in the Commonwealth, signed
under the penalties of perjury by the clerk or an assistant clerk
of the Corporation, has been filed with the state secretary.
ARTICLE II
STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of the
stockholders for the election of directors shall be held at the
offices of the Corporation or elsewhere in the United States as
the Board of Directors may designate.
Section 2.2. Annual Meetings. An annual meeting of the
stockholders, commencing with the year 1995 shall be held on the
second Tuesday in April in each year, but if a legal holiday,
then on the next business day following, at 10:00 o'clock A.M.,
at which the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before
such meeting.
Section 2.3. Special Meetings. Special meetings of the
stockholders may be called by the President or by the directors,
and shall be called by the Clerk, or in case of the death,
absence, incapacity or refusal of the Clerk, by any other
officer, upon written application of one or more stockholders who
hold at least one-tenth part in interest of the capital stock
entitled to vote thereat. In case none of the officers is able
and willing to call a special meeting, the Supreme Judicial or
Superior Court, upon application of one or more stockholders who
hold at least one-tenth part in interest of the capital stock
entitled to vote thereat, shall have jurisdiction in equity to
authorize one or more of such stockholders to call a meeting by
giving such notice as is required by law.
Section 2.4. Notice of Meetings. A written notice of the
place, date and hour of all meetings of stockholders stating the
purposes of the meeting shall be given by the Clerk or an
assistant Clerk (or other person authorized by the By-Laws or
empowered pursuant to Section 2.3) at least seven days before the
meeting to each stockholder entitled to vote thereat and to each
stockholder who, under the Articles of Organization or under the
By-Laws, is entitled to such notice, by leaving such notice with
him or at his residence or usual place of business, or by mailing
it, postage prepaid, and addressed to such stockholder at his
address as it appears in the records of the Corporation.
Section 2.5. Waiver of Notice. Whenever notice of a
meeting is required to be given a stockholder under any provision
of the law or of the Articles of Organization or these By-Laws, a
written waiver thereof, executed before or after the meeting by
such stockholder or his attorney thereunto authorized and filed
with the records of meeting, shall be deemed equivalent to such
notice.
Section 2.6. Closing of Transfer Books and Fixing of Record
Date. The directors may fix in advance a time, which, unless a
shorter period is provided in the Articles of Organization, shall
be not more than sixty days before the date of any meeting of
stockholders or the date for the payment of any dividend or the
making of any distribution to stockholders or the last day on
which the consent or dissent of stockholders may be effectively
expressed for any purpose, as the record date for determining the
stockholders having the right to notice of and to vote at such
meeting and any adjournment thereof or the right to receive such
dividend or distribution or the right to give such consent or
dissent, and in such case only stockholders of record on such
record date shall have such right, notwithstanding any transfer
of stock on the books of the Corporation after the record date;
or without fixing such record date the directors may for any of
such purposes close the transfer books for all or any part of
such period.
If no record date is fixed and the transfer books are not
closed:
The record date for determining stockholders having the
right 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.
The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board of Directors acts with respect thereto.
Section 2.7. Quorum. A majority of the shares of the
Corporation issued, outstanding and entitled to vote at a meeting
represented in person or by proxy shall constitute a quorum at
any meeting of stockholders.
Section 2.8. Manner of Acting. If a quorum is present, the
affirmative vote of the majority of the shares represented at the
meeting shall be the act of the stockholders, unless the vote of
a greater number or voting by classes is required by the Business
Corporation Law of the Commonwealth of Massachusetts or the
Articles of Organization or these By-Laws.
Section 2.9. Proxies. Stockholders may vote in person or
by proxy. No proxy dated more than six months before the meeting
named therein shall be valid and no proxy shall be valid after
the final adjournment of such meeting. Notwithstanding the
provisions of the foregoing sentence, a proxy coupled with an
interest sufficient in law to support an irrevocable power,
including, without limitation, an interest in shares or in the
corporation generally, may be made irrevocable if it so provides,
need not specify the meeting to which it relates, and shall be
valid and enforceable until the interest terminates, or for such
shorter period as may be specified in the proxy. Any proxy shall
be filed with the Clerk of the Corporation before or at the time
of the meeting. A proxy with respect to stock held in the name
of two or more persons shall be valid if executed by any one of
them unless at or prior to exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one
of them. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior
to its exercise and the burden of proving invalidity shall rest
on the challenger.
Section 2.10. Voting of Shares. Stockholders entitled to
vote shall have one vote for each share of stock owned by them
and a proportionate vote for a fractional share, unless otherwise
provided by the Articles of Organization.
Section 2.11. Informal Action by Stockholders. Any action
required or permitted to be taken at any meeting of the
stockholders may be taken without a meeting if all stockholders
entitled to vote on the matter consent to the action in writing
and the written consents are filed with the records of the
meetings of stockholders. Such consent shall be treated for all
purposes as a vote at a meeting.
Section 2.12. Voting Agreements. An agreement between two
or more stockholders or between one or more stockholders and one
or more other persons, if in writing and signed by the parties
thereto, may provide that the shares held by such stockholders
shall be voted under procedures set forth in said agreement.
ARTICLE III
DIRECTORS
Section 3.1. General Powers. The business and affairs of
the Corporation shall be managed by a Board of Directors.
Section 3.2. Number, Election and Term of Office. The
Board of Directors shall consist of not less than three
directors, except that whenever there shall be only two
stockholders the number of directors shall be not less than two,
and whenever there shall be only one stockholder the number of
directors shall be not less than one. The number of the
directors shall be as determined from time to time by the
stockholders and may be enlarged between meetings of the
stockholders by the vote of a majority of the directors then in
office. The directors shall be chosen at the annual meeting of
the stockholders by such stockholders as have the right to vote
thereon, and each shall hold office until the next annual
election of directors and until his successor is chosen and
qualified or until he sooner dies, resigns, is removed or becomes
disqualified. No director need be a stockholder. Any election
of directors by stockholders shall be by ballot if so requested
by any stockholder entitled to vote thereon.
Section 3.3. Regular Meetings. A regular meeting of the
Board of Directors shall be held without other notice than this
By-Law, immediately after, and at the same place as, the annual
meeting of stockholders. The Board of Directors may provide, by
resolution, the time and place, either within or without the
Commonwealth of Massachusetts, for the holding of additional
regular meetings in which case no other notice need be given.
Section 3.4. Special Meetings. Special meetings of the
Board of Directors may be called by or at the request of the
President or any two (2) directors. The person or persons
authorized to call special meetings of the Board of Directors may
fix any place, either within or without the Commonwealth of
Massachusetts, as the place for holding any special meeting of
the Board of Directors.
Section 3.5. Notice. Written notice of any special meeting
of directors shall be given as follows:
By mail to each director at his business address at
least three days prior to the meeting; or
By personal delivery or telegram to each director at
his business address at least 24 hours prior to the meeting, or
in the event such notice is given on a Saturday, Sunday or
holiday, to each director at his residence address at least 24
hours prior to the meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice is given
by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company.
Notice of a meeting need not be given to any director,
if a written waiver of notice, executed by him before or after
the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto
or at its commencement the lack of notice to him. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
Section 3.6. Quorum. The number of directors required to
constitute a quorum shall be a majority of the directors then in
office. If a quorum is present, a majority of the directors
present may take any action on behalf of the board except to the
extent that a larger number is required by law or the Articles of
Organization or these By-Laws.
Section 3.7. Meetings by Telecommunications. Unless the
Articles of Organization otherwise provide, members of the Board
of Directors or any committee designated thereby may participate
in a meeting of such board or committee by means of a conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at
the same time and participation by such means shall constitute
presence in person at a meeting.
Section 3.8. Vacancies. Any vacancy occurring in the Board
of Directors and any directorship to be filled by reason of an
increase in the number of directors may be filled by election at
a meeting of the stockholders or of the Board of Directors. A
director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office.
Section 3.9. Compensation. By resolution of the Board of
Directors, irrespective of any personal interest of any of the
members, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at meetings or a stated salary as
directors. These payments shall not preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor.
Section 3.10. Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be
conclusively presumed to have assented to the action taken unless
his dissent is entered in the minutes of the meeting or unless he
files his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment of the
meeting or forwards such dissent by registered mail to the Clerk
of the Corporation immediately after the adjournment of the
meeting. Such right to dissent does not apply to a director who
voted in favor of such action.
Section 3.11. Committees of Directors. The Corporation may
provide for an executive committee or other committees to be
elected from and by the Board of Directors, and the directors may
delegate to any such committee or committees some or all of their
powers, except, however, the power
(a) to change the principal office of the Corporation;
(b) to amend By-Laws;
(c) to elect officers and to fill vacancies in any
such offices;
(d) to change the number of the Board of Directors and
to fill vacancies in the Board of Directors;
(e) to remove officers or directors from office;
(f) to authorize the payment of any dividend or
distribution to shareholders;
(g) to authorize the reacquisition for value of stock
of the Corporation; or
(h) to authorize a merger.
Except as otherwise provided in the Articles of
Organization, the directors may determine the manner of
conducting committee business, whether at a meeting or otherwise,
and the number of members required to take specified types of
action. The designation of any such committee and the delegation
of any authority thereto shall not operate to relieve the
directors from any responsibility imposed upon them by law.
Section 3.12. Informal Action by Directors. Any action
required or permitted to be taken at any meeting of the Board of
Directors or the Executive Committee, if any, may be taken
without a meeting, if all the directors entitled to vote consent
to the action in writing and the written consents are filed with
the records of the meetings. Such consents shall be treated for
all purposes as a vote at a meeting.
Section 3.13. Removal of Directors. Any director may be
removed from his office with or without cause by vote of the
holders of a majority of the shares entitled to vote in the
election of directors, provided that the directors of a class
elected by a particular class of stockholders may be removed only
by the vote of the holders of a majority of the shares of the
particular class of stockholders entitled to vote for the
election of such directors. Any director may be removed from his
office for cause by vote of a majority of the directors then in
office. A director may be removed for cause only after a
reasonable notice and opportunity to be heard before the body
proposing to remove him.
ARTICLE IV
OFFICERS
Section 4.1. Number. The officers of the Corporation shall
be a President, a Treasurer and a Clerk, each of whom shall be
elected by the Board of Directors. The Board of Directors may
appoint such other officers as they deem necessary who shall have
such authority and shall perform such duties as from time to time
may be prescribed by the Board of Directors. Any person may
simultaneously hold more than one office of the Corporation.
Section 4.2. Election and Term of Office. The officers of
the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held
after each annual meeting of stockholders. If the election of
officers is not held at that meeting, the election shall be held
as soon thereafter as practicable. Each officer shall hold
office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided.
Section 4.3. Removal. Any officer or agent of the
Corporation may be removed with or without cause by the Board of
Directors whenever in its judgment the best interests of the
Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person
so removed.
Section 4.4. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, may
be filled by the Board of Directors for the unexpired portion of
the term. Vacancies may be filled or new offices filled at any
meeting of the Board of Directors.
Section 4.5. Bonds. If the Board of Directors by
resolution shall so require, any officer or agent of the
Corporation shall give bond to the Corporation in such amount and
with such surety as the Board of Directors may deem sufficient,
conditioned upon the faithful performance of their respective
duties and offices.
Section 4.6. President. The President shall be the chief
executive officer of the Corporation and shall in general
supervise and control all of the business and affairs of the
Corporation. He shall preside at all meetings of the
stockholders and of the Board of Directors. He may sign, with
the Clerk or any other proper officer of the Corporation
thereunto authorized by the Board of Directors, certificates for
shares of the Corporation, any deeds, mortgages, bonds, contracts
or other instruments which the Board of Directors has authorized
to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or
by these By-Laws to some other officer or agent of the
Corporation or shall be required by law to be otherwise signed or
executed; and in general shall perform all duties incident to the
office of President and such other duties as may be prescribed by
the Board of Directors from time to time. The President need not
be a director.
Section 4.7. Vice Presidents. In the absence of the
President or in the event of his inability or refusal to act, the
Vice President (or, in the event there is more than one Vice
President, Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election)
shall perform the duties of the President. Any Vice President
may sign, with the Treasurer or an Assistant Treasurer,
certificates for shares of the Corporation, and shall perform
those other duties which from time to time may be assigned to him
by the Board of Directors or by the chief executive officer.
Section 4.8. Treasurer. The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any source
whatsoever and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories
as shall be selected in accordance with the provisions of
Article V of these By-Laws; (b) sign with the President or Vice
President certificates for shares of the Corporation's stock; and
(c) in general, perform all duties incident to the office of
Treasurer and all other duties as from time to time may be
assigned to him by the Board of Directors or the chief executive
officer. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in the
sum and with a surety or sureties as the Board of Directors shall
determine.
Section 4.9. Clerk. The Clerk shall: (a) keep the minutes
of the stockholders' and of the Board of Directors' meetings in
one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these
By-Laws or as required by law; (c) be custodian of the corporate
records and, if the Corporation has a corporate seal, of the seal
of the Corporation and see that the seal of the Corporation is
affixed to all certificates for shares prior to the issue thereof
and 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; (d) keep a register of the post
office address of each stockholder which shall be furnished to
the Clerk by such stockholder; (e) have general charge of the
share transfer books of the Corporation; and (f) in general,
perform all duties incident to the office of Clerk and all other
duties as from time to time may be assigned to him by the Board
of Directors or the chief executive officer.
Section 4.10. Assistant Treasurers and Assistant Clerks.
The Assistant Treasurer as thereunto authorized by the Board of
Directors may sign with the President or a Vice President
certificates for shares of the Corporation's stock, the issue of
which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers and Assistant Clerks, in
general, shall perform such duties as shall be assigned to them
by the Treasurer or the Clerk, respectively, or by the Board of
Directors or the chief executive officer. The Assistant
Treasurers shall, if required by the Board of Directors, give
bonds for the faithful discharge of their duties in sums and with
sureties as the Board of Directors shall determine.
Section 4.11. Salaries. The salaries of the officers shall
be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the Corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.1. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents to enter into
any contract or execute and deliver any instrument in the name of
and on behalf of the Corporation, and such authority may be
general or confined to specific instances.
Section 5.2. Loans. No loans shall be contracted on behalf
of the Corporation and no evidences of indebtedness shall be
issued in its name unless authorized by a resolution of the Board
of Directors. Such authority may be general or confined to
specific instances. No loans shall be made by the Corporation
secured by its shares.
Section 5.3. Checks, Drafts, Etc. All checks, drafts or
other order for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the
Corporation and in the manner which shall from time to time be
determined by resolution of the Board of Directors.
Section 5.4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in banks, trust companies or other
depositories which the Board of Directors may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
Section 6.1. Regulation. The Board of Directors may make
such rules and regulations as it may deem expedient concerning
the issuance, transfer and registration of certificates for
shares of the Corporation, including the appointment of transfer
agents and registrars. Any unissued capital stock from time to
time authorized under the Articles of Organization may be issued
by vote of the stockholders or by vote of the directors. No
stock shall be issued unless the cash, so far as due, or the
property, services or expenses for which it was authorized to be
issued, has been actually received or incurred by, or conveyed or
rendered to, the Corporation, or is in its possession as surplus.
Section 6.2. Certificates for Shares. Each stockholder
shall be entitled to a certificate stating the number and the
class and the designation of the series, if any, of the shares
held by him. Such certificate shall be signed by the President
or a Vice President and by the Treasurer or an Assistant
Treasurer. Such signatures may be facsimiles if the certificate
is signed by a transfer agent, or by a registrar, other than a
\director, officer or employee of the Corporation. In case any
officer who has signed or whose facsimile signature has been
placed on such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at
the time of its issue. Every certificate issued for shares of
stock at a time when such shares are subject to any restriction
on transfer pursuant to the Articles of Organization, these
By-Laws or any agreement to which the Corporation is a party
shall have the restriction noted conspicuously on the certificate
and shall also set forth on the face or back of the certificate
either the full text of the restriction, or a statement of the
existence of such restriction and a statement that the
Corporation will furnish a copy thereof to the holder of such
certificate upon written request and without charge. Every stock
certificate issued at a time when the Corporation is authorized
to issue more than one class or series of stock shall set forth
upon the face or back of the certificate either the full text of
the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series, if any,
authorized to be issued, as set forth in the Articles of
Organization, or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement
that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Each certificate representing shares shall also state
the name of the Corporation, the date of issue, that the
Corporation is organized under the laws of the Commonwealth of
Massachusetts, the name of the person to whom it is issued, and
the par value of each share represented by the certificate or a
statement that the shares are without par value. Each
certificate shall be otherwise in such form as may be prescribed
by the Board of Directors and as shall conform to the rules of
any Stock Exchange on which the shares may be listed.
Section 6.3. Cancellation of Certificates. All
certificates surrendered to the Corporation for transfer shall be
canceled and no new certificates shall be issued in lieu thereof
until the former certificate for a like number of shares shall
have been surrendered and canceled, except as herein provided
with respect to lost, stolen or destroyed certificates.
Section 6.4. Lost, Stolen or Destroyed Certificates.
Subject to Section 8-405 of the Massachusetts Uniform Commercial
Code, as amended from time to time, the Board of Directors shall
determine the conditions upon which a new certificate of stock
may be issued in place of any certificate alleged to have been
lost, mutilated or destroyed. They may, in their discretion,
require the owner of a lost, mutilated or destroyed certificate,
or his legal representative, to give a bond, sufficient in their
opinion, with or without surety, to indemnify the Corporation
against any loss or claim which may arise by reason of the issue
of a certificate in place of such lost, mutilated or destroyed
stock certificate.
Section 6.5. Transfer of Shares. The Corporation may from
time to time enter into an agreement or agreements with one or
more of its stockholders restricting the transferability of its
shares in accordance with the general corporate purpose to have
its shares owned by persons actively engaged in the corporate
business. Subject to the terms of any such agreement, shares of
the Corporation shall be transferable on the books of the
Corporation by the holder thereof, in person or by his duly
authorized attorney, upon the surrender and cancellation of a
certificate or certificates for a like number of shares. Upon
presentation and surrender of a certificate for shares properly
endorsed and payment of all required taxes, if any, the
transferee shall be entitled to a new certificate or certificates
in lieu thereof. As against the Corporation, a transfer of
shares can be made only on the books of the Corporation and in
the manner hereinabove provided, and the Corporation shall be
entitled to treat the holder of record of any share as the owner
thereof and shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice
thereof, except as expressly provided by the statutes of the
Commonwealth of Massachusetts.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end on the
31st day of December in each calendar year.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare,
and the Corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law
and its Articles of Organization.
ARTICLE IX
SEAL
The Board of Directors may provide a corporate seal
which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate
Seal, Massachusetts," or shall be in such other form as the Board
of Directors may from time to time determine.
ARTICLE X
INDEMNIFICATION
The Corporation shall, to the maximum extent legally
permissible, indemnify all directors, officers, employees and
other agents of the Corporation, and persons who serve at its
request as directors, officers, employees or other agents of
another organization, or who serve at its request in any capacity
with respect to any employee benefit plan, against all liability
and expenses, including counsel fees, reasonably incurred by or
imposed upon such person in connection with any proceeding in
which he may become involved by reason of his serving or having
served in such capacity (other than a proceeding voluntarily
initiated by such person unless he is successful on the merits,
the proceeding was authorized by a majority of the Board of
Directors or the proceeding seeks a declaratory judgment
regarding his own conduct). Such indemnification shall include
payment by the Corporation of expenses incurred in defending a
civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an
undertaking by the person indemnified to repay such payment if he
shall be adjudicated to be not entitled to indemnification under
this Article which undertaking may be accepted without reference
to the financial ability of such person to make repayment. Any
such indemnification shall be provided although the person to be
indemnified is no longer an officer, director, employee or agent
of the Corporation or of such other organization or no longer
serves with respect to any such employee benefit plan.
No indemnification shall be provided for any person
with respect to any matter as to which he shall have been
adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interests
of the Corporation or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee
benefit plan. The Board of Directors shall have power to
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or other agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or other agent of
another organization or with respect to any employee benefit
plan, against any liability incurred by him in any such capacity,
or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability.
ARTICLE XI
CONFLICT OF INTEREST
No contract or transaction between the corporation and one
or more of its directors or officers, or between the corporation
and any other organization of which one or more of its directors
or officers are directors, trustees or officers, or in which any
of them has any financial or other interest, shall be void or
voidable, or in any way affected, solely for this reason, or
solely because the director or officer is present at or
participates in the meeting of the board of directors or
committee thereof which authorizes, approves or ratifies the
contract or transaction, or solely because his or their votes are
counted for such purposes, if:
(i) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee
which authorizes, approves or ratifies the contract or
transaction, and the board or committee in good faith
authorizes, approves or ratifies the contract or
transaction by the affirmative vote of a majority of
the disinterested directors, even though the
disinterested directors be less than a quorum; or
(ii) The material facts as to his 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
authorized, approved or ratified in good faith by vote
of the stockholders; or
(iii) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved
or ratified by the Board of Directors, a committee
thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of
a committee thereof which authorizes, approves or ratifies the
contract or transaction. No director or officer of the
corporation shall be liable or accountable to the corporation or
to any of its stockholders or creditors or to any other person,
either for any loss to the corporation or to any other person or
for any gains or profits realized by such director or officer, by
reason of any contract or transaction as to which clauses (i),
(ii) or (iii) above are applicable.
ARTICLE XII
CORPORATE RECORDS
The original, or attested copies, of the Articles of
Organization, By-Laws, and records of all meetings of the
incorporators and stockholders, and the stock and transfer
records, which shall contain the names of all stockholders and
the record address and the amount of stock held by each, shall be
kept in the Commonwealth for inspection by the stockholders at
the Corporation's principal office or an office of the Clerk, or
of the transfer agent or the Resident Agent, if any. Said copies
and records need not all be kept in the same office.
ARTICLE XIII
AMENDMENTS
These By-Laws may be altered, amended or repealed and
new By-Laws may be adopted by a majority of the stockholders
present at any meeting of the stockholders of the Corporation at
which a quorum is present. These By-Laws may also be altered,
amended or repealed and new By-Laws may be adopted by a majority
of the directors present at any meeting of the Board of Directors
of the Corporation at which a quorum is present, except with
respect to any provision thereof which by law, the Articles of
Organization or these By-Laws requires action by the
stockholders. Not later than the time of giving notice of the
meeting of stockholders next following the making, amending or
repealing by the directors of any by-law, notice thereof stating
the substance of such changes shall be given to all stockholders
entitled to vote on amending the by-laws. Any by-law adopted by
the directors may be amended or repealed by the stockholders.
EXHIBIT B-2
EXHIBIT B-2 IS BEING CONCURRENTLY FILED UNDER SEPARATE COVER FOR WHICH
CONFIDENTIAL TREATMENT IS BEING REQUESTED. SEE "DOCUMENT TYPE - COVER"
FOR FURTHER EXPLANATION.
