8-K

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

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FORM 8-K

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CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 1, 2016

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PROVIDENCE AND WORCESTER RAILROAD COMPANY

(Exact name of registrant as specified in its charter)

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Rhode Island

(State or other jurisdiction of incorporation)

0-16704	05-0344399
(Commission File Number)	(IRS Employer Identification Number)

75 Hammond Street, Worcester, Massachusetts 01610 (Address of principal executive offices)

(508) 755-4000 (Registrant's telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 ☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 ☐ Solicitation material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)

Introduction

On November 1, 2016, Providence and Worcester Railroad Company, a Rhode Island corporation (the "Company"), completed its previously-announced merger (the "Merger") with Pullman Acquisition Sub Inc. ("Merger Sub"), a wholly-owned subsidiary of Genesee & Wyoming Inc. ("Parent"), pursuant to the terms of the Merger Agreement, dated as of August 12, 2016 (the "Merger Agreement"), by and among Parent, Merger Sub and the Company. Upon consummation of the Merger, the Company became a wholly-owned subsidiary of Parent. As contemplated by the Merger Agreement, Parent obtained a written informal opinion from the staff of the Surface Transportation Board (the "STB") that the proposed voting trust submitted by Parent to the STB would insulate Parent from unauthorized control of the Company between the effective time of the Merger and receipt of final STB approval, authorization or exemption, as the case may be, with respect to the Merger. Therefore, immediately following consummation of the Merger, Parent transferred the stock of the Company to a voting trustee (the "Trustee") to hold such shares of stock in trust pending formal STB approval of the Merger.

ITEM 1.02.  Termination of a Material Definitive Agreement.

On November 1, 2016, in connection with the Merger, the Company (A) repaid in full all outstanding loans, together with interest and all other amounts due in connection with such repayment under the Business Loan Agreement dated as of May 4, 2015 (the "Prior Term Loan Credit Facility"), between the Company and Commerce Bank & Trust Company ("Commerce Bank") and (B) terminated the Prior Term Loan Credit Facility.  The Company and Commerce Bank & Trust Company are also parties to a Business Loan Agreement, dated as of June 25, 2009, which facility remains outstanding and provides the Company with an unsecured line of credit.

ITEM 2.01.  Completion of Acquisition or Disposition of Assets.

On November 1, 2016, pursuant to the terms of the Merger Agreement, the acquisition of the Company by Parent through the merger of Merger Sub with and into the Company, with the Company surviving as a wholly-owned subsidiary of Parent, was consummated. At the effective time of the Merger, each share of the Company's preferred stock, par value $50.00 per share (the "Preferred Stock"), issued and outstanding immediately prior to the effective time of the Merger was deemed to be converted, along with the aggregate accrued or accumulated and unpaid dividends thereon, into 100 shares of Common Stock (as defined below). At the effective time of the Merger, each share of the Company's common stock, par value $0.50 per share (the "Common Stock"), including the Preferred Stock deemed to be converted into Common Stock (other than shares of Common Stock (i) owned by Parent as treasury stock, (ii) owned by Parent, Merger Sub or any other subsidiary of Parent or (iii) owned by any wholly-owned subsidiary of Company (collectively, the "Excluded Shares")), was canceled and converted into the right to receive $25.00 in cash, without interest (the "Merger Consideration").

Outstanding options to purchase Common Stock, whether vested or unvested, were canceled at the effective time of the Merger and the holder will receive, for each share subject to any such option, cash equal to the Merger Consideration, less the exercise price for the option, net of all applicable withholding taxes.  Outstanding restricted share units, whether vested or unvested, were canceled at the effective time of the Merger and converted automatically into the right to receive, for each restricted share unit, cash equal to the Merger Consideration, less any required withholdings.

Immediately following the consummation of the Merger, Parent transferred the stock of the Company to the Trustee to hold such shares of stock in trust pending formal STB approval of the Merger. The aggregate purchase price paid for all of the equity securities of the Company was approximately $126 million, which purchase price was funded by drawing upon the revolving credit facility of Parent and available cash from Parent's balance sheet.

The description of the Merger set forth above does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed by the Company as Exhibit 2.1 to the Company's Current Report on Form 8-K filed on August 16, 2016, and is incorporated by reference into this Item 2.01.

ITEM 3.01.  Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

In connection with the closing of the Merger, the Company notified the NASDAQ Stock Market, LLC (the "NASDAQ") that as of November 1, 2016, each outstanding share of Common Stock is canceled and automatically converted into the right to receive the Merger Consideration (other than the Excluded Shares) and requested that the NASDAQ file with the Securities and Exchange Commission (the "SEC") an application on Form 25 to report that the shares of Common Stock are no longer listed on the NASDAQ. Trading of the Common Stock on the NASDAQ will be suspended prior to the opening of the NASDAQ on November 2, 2016. In addition, the Company intends to file with the SEC a certificate on Form 15 with respect to the Common Stock, requesting that the Common Stock be deregistered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and that the reporting obligations of the Company with respect to the Common Stock under the Exchange Act be suspended.  Once such Form 25 and Form 15 become effective, the Company will no longer be required to prepare and file public reports, and will cease to file such reports with the SEC.

ITEM 3.03.  Material Modification to Rights of Security Holders.

The information set forth in the Introduction and under Items 2.01, 3.01, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

Upon the effective time of the Merger, each holder of shares of Common Stock and Preferred Stock issued and outstanding immediately prior to the effective time of the Merger ceased to have any rights as a shareholder of the Company (other than the right, in respect of each share of Common Stock (including the Preferred Stock into which the Common Stock was deemed converted), other than any Excluded Shares, to receive the Merger Consideration).

ITEM 5.01.  Changes in Control of Registrant.

The information set forth in the Introduction and under Items 2.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

As a result of the Merger, a change in control of the Company occurred, and the Company became a wholly-owned subsidiary of Parent.

ITEM 5.02.  Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

Consistent with the terms of the Merger Agreement and in connection with the consummation of the Merger, each of Robert H. Eder, P. Scott Conti, Richard W. Anderson, Frank W. Barrett, Roger N. Begin, James C. Garvey, John J. Healy, David J. McQuade and Alfred P. Smith resigned from the board of directors of the Company effective as of the effective time of the Merger on November 1, 2016. Pursuant to the terms of the Merger Agreement, each of the members of Merger Sub's board of directors immediately prior to the effective time of the Merger became a member of the Company's board of directors following the effective time of the Merger. Immediately following such time, such directors resigned from the Company's board of directors and Tony Lamar Ingram was appointed to the Company's board of directors by the Trustee. The director is to serve in accordance with the Amended and Restated Bylaws (as defined below) of the Company until his successor is elected and qualified or until his earlier resignation or removal. Individual appointments to the various committees of the board of directors have not been determined as of the date hereof.

Consistent with the terms of the Merger Agreement, Robert H. Eder resigned as Chairman and Chief Executive Officer of the Company on November 1, 2016.  The remainder of the incumbent officers of the Company immediately prior to the consummation of the Merger continued as officers of the Company.

ITEM 5.03.  Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the consummation of the Merger, the Company's Articles of Incorporation were amended and restated, effective November 1, 2016, so that it reads in its entirety as set forth in Exhibit B to the Merger Agreement in accordance with the Merger Agreement (the "Amended and Restated Articles of Incorporation"). The Amended and Restated Articles of Incorporation are attached as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference.

Further, in connection with the consummation of the Merger, the Company's Bylaws were amended and restated, effective November 1, 2016, so that they read in their entirety as the Bylaws of Merger Sub read immediately prior to the closing of the Merger in accordance with the Merger Agreement (the "Amended and Restated Bylaws") with the exception of the change of the legal name set forth therein to "Providence and Worcester Railroad Company". A copy of the Company's Amended and Restated Bylaws are attached as Exhibit 3.2 to this Current Report on Form 8-K and are incorporated herein by reference.

ITEM 9.01.  Financial Statements and Exhibits.

(d)Exhibit

Exhibit no.Exhibit

2.1 Merger Agreement by and among Genesee & Wyoming Inc., Pullman Acquisition Sub Inc. and Providence and Worcester Railroad Company, dated as of August 12, 2016 (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on August 16, 2016)

3.1 Amended and Restated Articles of Incorporation of Providence and Worcester Railroad Company

3.2 Amended and Restated Bylaws of Providence and Worcester Railroad Company

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	PROVIDENCE AND WORCESTER RAILROAD COMPANY
Date:  November 1, 2016	By:	/s/ Charles D. Rennick
		Charles D. Rennick
		Secretary and General Counsel

EXHIBIT INDEX

Exhibit No.	Description
2.1 3.1	Merger Agreement by and among Genesee & Wyoming Inc., Pullman Acquisition Sub Inc. and Providence and Worcester Railroad Company, dated as of August 12, 2016 (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on August 16, 2016) Amended and Restated Articles of Incorporation of Providence and Worcester Railroad Company
3.2	Amended and Restated By-Laws of Providence and Worcester Railroad Company

EX-3.1

Exhibit 3.1

AMENDED AND RESTATED ARTICLES OF INCORPORATIONOFPROVIDENCE AND WORCESTER RAILROAD COMPANY

FIRST:  The name of the corporation (which is hereinafter referred to as the "Corporation") is Providence and Worcester Railroad Company.

SECOND:  The name and address of the registered agent in the State of Rhode Island is CT Corporation System, 450 Veterans Memorial Parkway, Suite 7A, East Providence, Rhode Island 02914.

THIRD:  The purpose or purposes which the Corporation is authorized to pursue are:

Said Corporation is formed for the purpose and shall have the power to conduct a general railroad business in the State of Rhode Island and in all states of the United States; to survey, build, own, lease, acquire, mortgage, operate, and maintain and sell or otherwise dispose of a line or lines of railroad for the purpose of carrying and transporting freight, passengers, baggage, mail and express, and to do a general railroad business for hire and for toll; to purchase, construct, own, maintain and operate wharves, bridges and trestles, and to lay rails and operate railroads thereon; to purchase, construct, own, maintain and operate in connection therewith ferries, vessels, ships, steamers, barges, docks, slips and landings and discharging places for freight and passenger traffic; to purchase, sell, lease, mortgage, hold and operate all classes of real estate; and to purchase, sell, mortgage, hold, control and operate easements, franchises, roads and rights-of-way; to construct power plants; to construct and operate common carrier pipelines for hire and for toll in the state of Rhode Island and in all states of the United States; to buy, own, build, maintain, lease and sell, mortgage or otherwise dispose of plants for the manufacture and repair of engines, motors, cars, trucks and rolling stock of all kinds and machinery and mechanical devices of every kind and nature for the furtherance of the purposes herein stated; to do, either as principal or agent and either alone or through subsidiaries or in connection with other persons, firms, associations or corporations, all and everything necessary, suitable, convenient or proper for, or in connection with, or incident to, the accomplishment of any one or more of the purposes herein enumerated or designed directly or indirectly to promote the interests of the Corporation or to enhance the value of its properties; and in general to engage in any lawful act or activity for which corporations may now or hereafter be organized under the general laws of Rhode Island. In addition to the foregoing, the Corporation shall have all powers granted to business corporations pursuant to Section 7-1.2-302 of the Business Corporation Act of the State of Rhode Island, as amended.

FOURTH:  The total number of shares of capital stock which the Corporation shall have authority to issue is 1,000 (ONE THOUSAND), all of which shares shall be Common Stock having a par value per share of $0.01.

FIFTH:  In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in these Articles of Incorporation, bylaws of the Corporation may be adopted, amended or repealed by a majority of the board of directors of the Corporation, but any bylaws adopted by the board of directors may be amended or repealed by the stockholders entitled to vote thereon.  Election of directors need not be by written ballot.

SIXTH: The Corporation reserves the right to amend any provision contained in these Articles of Incorporation as the same may from time to time be in effect in the manner now or hereafter prescribed by law, and all rights conferred on shareholders or others hereunder are subject to such reservation.

SEVENTH:  (a)  No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under the Business Corporation Act of the State of Rhode Island as currently in effect or as the same may hereafter be amended.  Any repeal or modification of this subsection (a) of this Article SEVENTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director, officer or the Corporation existing at the time of such repeal or modification.  If the Business Corporation Act of the State of Rhode Island is amended after the filing of these Articles of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Business Corporation Act of the State of Rhode Island, as so amended.

The Corporation shall indemnify and hold harmless any person who was or is a party or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, claim, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, against all claims, losses, liabilities, expenses (including attorneys' fees and disbursements), damages, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the fullest extent permitted under the Business Corporation Act of the State of Rhode Island, and the Corporation may adopt bylaws or enter into agreements with any such person for the purpose of providing for such indemnification.

To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph (b) of this Article SEVENTH, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith.

Expenses (including attorneys' fees) incurred by an officer or director in defending or testifying in a civil, criminal, administrative or investigative action, claim, suit or proceeding by reason of the fact that such person is or was an officer or director of the Corporation (or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise) shall be paid by the Corporation in advance of the final disposition of such action, claim, suit or proceeding within ten business days of the Corporation's receipt of a request for advancement of such expenses from such director or officer and, to the extent required by law, upon receipt of an undertaking by or on behalf of any such director or officer to repay such amount if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation against such expenses as authorized by the relevant sections of the Business Corporation Act of the State of Rhode Island, and the Corporation may adopt bylaws or enter into agreements with such persons for the purpose of providing for such advances.

The indemnification permitted by this Article SEVENTH shall not be deemed exclusive of any other rights to which any person may be entitled under any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding an office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person.

The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article SEVENTH or otherwise.

EX-3.2

Exhibit 3.2

PROVIDENCE AND WORCESTER RAILROAD COMPANY

AMENDED AND RESTATED BY-LAWS

ARTICLE I

MEETING OF SHAREHOLDERS

Section 1.  Place of Meeting and Notice.  Meetings of the shareholders of the Corporation shall be held at such place either within or without the State of Rhode Island as the Board of Directors may determine.

Section 2.  Annual and Special Meetings.  Annual meetings of shareholders shall be held, at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, to elect a Board of Directors and to transact such other business as may properly come before the meeting.  Special meetings of the shareholders may be called by the President for any purpose and shall be called by the President or Secretary if directed by the Board of Directors or requested in writing by the holders of not less than 25% of the capital stock of the Corporation.  Each such shareholder request shall state the purpose of the proposed meeting.

Section 3.  Notice.  Except as otherwise provided by law, at least 10 and not more than 60 days before each meeting of shareholders, written notice of the time, date and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each shareholder.

Section 4.  Quorum.  At any meeting of shareholders, the holders of record, present in person or by proxy, of a majority of the Corporation's issued and outstanding capital stock shall constitute a quorum for the transaction of business, except as otherwise provided by law.  In the absence of a quorum, any officer entitled to preside at or to act as secretary of the meeting shall have power to adjourn the meeting from time to time until a quorum is present.

Section 5.  Voting.  Except as otherwise provided by law, all matters submitted to a meeting of shareholders shall be decided by vote of the holders of record, present in person or by proxy, of a majority of the Corporation's issued and outstanding capital stock.

ARTICLE II

DIRECTORS

Section 1.  Number, Election and Removal of Directors.  The number of Directors that shall constitute the Board of Directors shall be not less than one nor more than five.  The first Board of Directors shall consist of two Directors.  Thereafter, within the limits specified above, the number of Directors shall be determined by the Board of Directors or by the shareholders.  The Directors shall be elected by the shareholders at their annual meeting.  Vacancies and newly created directorships resulting from any increase in the number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by the sole remaining Director or by the shareholders.  A Director may be removed with or without cause by the shareholders.

Section 2.  Meetings.  Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors or as may be specified in a notice of meeting.  Special meetings of the Board of Directors may be held at any time upon the call of the President and shall be called by the President or Secretary if directed by the Board of Directors.  Telegraphic, facsimile or written notice of each special meeting of the Board of Directors shall be sent to each Director not less than two hours before such meeting.  A meeting of the Board of Directors may be held without notice immediately after the annual meeting of the shareholders.  Notice need not be given of regular meetings of the Board of Directors.

Section 3.  Quorum.  A majority of the total number of Directors shall constitute a quorum for the transaction of business; provided that when the Board of Directors consists of one or two directors, then the one or two directors, respectively, shall constitute a quorum.  If a quorum is not present at any meeting of the Board of Directors, the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until such a quorum is present.  Except as otherwise provided by law, the Articles of Incorporation of the Corporation, these By-Laws or any contract or agreement to which the Corporation is a party, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors.

Section 4.  Committees of Directors.  The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more committees, including without limitation an Executive Committee, to have and exercise such power and authority as the Board of Directors shall specify.  In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he/she or they constitute a quorum, may unanimously appoint another Director to act at the meeting in place of any such absent or disqualified member.

ARTICLE III

OFFICERS

The officers of the Corporation shall consist of a President, one or more Vice Presidents, a Secretary, and such other additional officers with such titles as the Board of Directors shall determine, all of whom shall be chosen by and shall serve at the pleasure of the Board of Directors.  Such officers shall have the usual powers and shall perform all the usual duties incident to their respective offices.  All officers shall be subject to the supervision and direction of the Board of Directors.  The authority, duties or responsibilities of any officer of the Corporation may be suspended by the President with or without cause.  Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.

ARTICLE IV

INDEMNIFICATION

Section 1.  Right to Indemnification.  Each person (a "Covered 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 (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she 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 another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a Director, officer, employee or agent 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 authorized by the Rhode Island Business Corporation Act as the same exists or may hereafter be amended, against all expense, liability and loss (including, without limitation, attorneys' fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a Director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section (2) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Director. The right to indemnification and advancement of expenses conferred in this Article shall be a contract right. The Corporation shall pay the expenses (including attorneys' fees) incurred by a Covered Person in defending any such proceeding in advance of its final disposition; provided, however, that, if the Rhode Island Business Corporation Act requires, the payment of such expenses incurred by a Covered Person as set forth herein in advance of the final disposition of a proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Director or officer, to repay all amounts so advanced if it shall ultimately be determined that such Director or officer is not entitled to be indemnified under this Article or otherwise. The Corporation may, by action of the Board of Director, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of and advancement of expenses to Directors and officers.

Section 2.  Right of Claimant to Bring Suit.  If a claim under Section (1) of this Article is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Rhode Island Business Corporation Act for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Director, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Rhode Island Business Corporation Act, nor an actual determination by the Corporation (including its Board of Director, independent legal counsel, or its shareholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 3.  Non-Exclusivity of Rights.  The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation, By-Law, agreement, vote of shareholders or disinterested Directors or otherwise.

Section 4.  Insurance.  The Corporation may maintain insurance, at its expense, to protect itself and any Director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Rhode Island Business Corporation Act.

Section 5.  Amendment or Repeal.  Any repeal or modification of the foregoing provisions of this Article IV shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

ARTICLE V

GENERAL PROVISIONS

Section 1.  Notices.  Whenever any statute, the Certificate of Incorporation or these By-Laws require notice to be given to any Director or shareholder, such notice may be given in writing by mail, addressed to such Director or shareholder at his address as it appears on the records of the Corporation, with postage thereon prepaid.  Such notice shall be deemed to have been given when it is deposited in the United States mail.  Notice to Directors may also be given by facsimile or telegram.

Section 2.  Fiscal Year.  The fiscal year of the Corporation shall be January 1 through December 31.

Section 3.  Action Without A Meeting.  Any action that might have been taken under these By-Laws by a vote of the shareholders at a meeting thereof may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken, shall be individually signed and dated by the holders of outstanding shares of stock of the Corporation 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; provided, however, that no written consent will be effective unless the necessary number of written consents is delivered to the Corporation within 60 days of the earliest delivered consent to the Corporation; and provided, further, that prompt notice shall be given to those shareholders who have not so consented if less than unanimous written consent is obtained.  Any action that might have been taken under these By-Laws by vote of the directors at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.