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EXHIBIT 3.1
ARTICLES OF ORGANIZATION
(MASSACHUSETTS GENERAL LAWS, CHAPTER 156B)
ARTICLE I
The exact name of the corporation is:
WESTBANK CORPORATION
ARTICLE II
The purpose of the corporation is to engage in the following business
activities:
To become and be a bank holding company controlling, directly or
indirectly, voting shares of one or more commercial banking institutions or
other organizations and to engage, directly or indirectly, in any activity,
business or transaction permissible to a bank holding company.
To subscribe for, purchase, take, receive, underwrite, invest or
reinvest in, or otherwise acquire, own, use, employ, hold, vote, accept,
endorse, guarantee, take and hold as security, discount or have discounted,
sell, exchange, lend, lease, transfer, assign, negotiate, mortgage, pledge,
encumber, create a security interest in or otherwise dispose of, and generally
to deal in and with, stocks, bonds, bills, commercial paper, notes, debentures,
mortgages, certificates and other evidences of interest, participations,
investment contracts, warrants, rights, loans, drafts, checks, bills of
exchange, bank and trade and other acceptances, warehouse receipts and other
documents and instruments of title, cable transfers and other commercial and
trade paper, choses in action and certificates or evidences of indebtedness, and
any other obligations and securities (all hereinafter sometimes referred to
generally as "securities") (a) of trust companies, national banking
associations, banking companies, other corporations, joint stock companies,
trusts, associations, partnerships, joint ventures, firms and other entities and
persons, domestic or foreign (all hereinafter sometimes referred to generally as
"concerns"), and (b) of the United States of America, and of any state thereof
(including the District of Columbia, Puerto Rico, or any possession of the
United States), and of any county, district or municipality or other political
subdivision and of any agency or public corporation of any of the foregoing, and
of any foreign government or political subdivision or agency or public
corporation thereof, and while the owner or any of the aforesaid to exercise all
of the rights, powers and privileges of ownership in the same manner and to the
same extent that an individual might.
To engage or participate generally, directly or indirectly, including,
without limitation, as a partner, in financial and other commercial and trading
transactions, undertaking and operations of all kinds, and in the promotion,
advancement and assistance, financial or otherwise, of the same, and to transact
any of the business in which it engages or participates, either as principal on
its own account or as a partner or as agent, factor, broker, manager, assignee
or other representative and on commission or otherwise.
To undertake, carry on, assist or participate in the organization,
reorganization, consolidation or liquidation of any concerns and to promote or
assist the same, financially or otherwise.
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To acquire and pay for in cash or securities of the corporation or
otherwise the whole or any part of the goodwill, rights, assets and property,
and to undertake, guarantee, endorse, or assume the whole or any part of the
obligations or liabilities, including, without limiting the generality of the
foregoing, leases and other contracts, of any concern.
To borrow money and otherwise contract indebtedness, with or without
security, to issue, repurchase or otherwise acquire, hold, sell, assign,
transfer, mortgage, pledge, or otherwise dispose of and deal with stocks, bonds,
debentures, notes and other evidences of indebtedness, warrants, rights and
other securities of this corporation and to secure the same by the mortgage,
charge, hypothecation, pledge or other transfer or encumbrance of all or any
part of the assets of this corporation.
To lend money to, guarantee or otherwise lend credit to, and aid in any
manner, with or without security, any concern, any obligation of which or any
interest in which is held by this corporation or in the affairs or prosperity of
which this corporation has a lawful interest; and to secure any undertaking made
by it in pursuance of the foregoing by the mortgage, pledge or other transfer of
all or any part of its assets.
To buy, lease or otherwise acquire, hold, manage, improve, care for,
supervise, exchange, sell, let, lease, pledge, mortgage or otherwise dispose of
or encumber any and all personal property or real estate or any interest
therein, in any state of the United States, including the District of Columbia,
Puerto Rico, any possession of the United States, or any foreign country.
To carry on any business permitted by the laws of the Commonwealth of
Massachusetts to a corporation organized under Chapter 156B.
To do any or all of the things herein set forth to the same extent as
natural persons might or could do in any part of the world as principals,
agents, contractors, partners, or otherwise, and either alone or in connection,
in conjunction, or in association with others, and to do every other act or
acts, and thing or things, incidental or appurtenant to or growing out of or
connected with the foregoing purposes or any part or parts thereof, provided the
same be not inconsistent with the laws under which this corporation is
organized.
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ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue.
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
Common: None Common: 9,000,000 $2.00
Preferred: None Preferred: 100,000 $5.00
ARTICLE IV
If more than one class of stock is authorized, state a distinguished 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 following is a description of each of the different classes of
stock with, if any, the preferences, voting rights, qualifications, special or
relative rights or privileges for each class thereof:
1. Common Stock.
(a) Subject to the preference and other rights of any shares
of Preferred Stock that may be issued and outstanding, the holders of
the Common Stock shall be entitled to receive dividends when and as
declared by the Board of Directors out of funds legally available
therefor.
(b) In the event of any liquidation, dissolution or winding up
of the affairs of this corporation, after payment to the holders of any
shares of Preferred Stock then issued and outstanding of the amounts to
which they are entitled pursuant to the resolutions or votes of the
Board of Directors providing for the issue of such Preferred Stock, the
holders of the common stock shall be entitled to share ratably in all
assets then remaining subject to distribution to the stockholders.
(c) The holders of Common Stock shall be entitled to one vote
for each of the shares held by them of record on the books of this
corporation at the time for determining holders thereof entitled to
vote. Except as otherwise expressly provided in the resolutions or
votes creating a series of Preferred Stock, or where
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(notwithstanding the provisions of these Articles of Organization) a
separate class vote is conferred by law on any class or series of
stock, the holders of Common Stock shall vote together with the holders
of the Preferred Stock, if any, outstanding and entitled to vote, as
one class.
2. Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one
or more series. The terms of each series shall be consistent with these
Articles of Organization and shall be as specified in the resolutions
or votes adopted by the Board of Directors providing for the issue of
such series, which resolutions or votes the Board of Directors is
hereby expressly authorized to adopt. Such resolutions or votes with
respect to each series shall establish and designate the series and fix
and determine the relative rights and preferences thereof, and in
particular shall specify:
(i) The number of shares to constitute such series
and the distinctive designation thereof;
(ii) The annual dividend rate on the shares of such
series, whether or not dividends shall be cumulative or participating,
and the date or dates on which dividends shall be payable and from
which they shall accrue and (if cumulative) shall be cumulative;
(iii) The price, time and terms and conditions, if
any, upon which or at which the shares of such series shall be subject
to redemption;
(iv) The terms and conditions of a retirement or
sinking fund, if any, for the purchase or redemption of the shares of
such series;
(v) The amount which shares of such series shall be
entitled to receive in the event of any liquidation, dissolution or
winding up of this corporation or upon any distribution of the assets
of this corporation;
(vi) The terms and conditions, if any, on which
shares of such series shall be convertible into or redeemable or
exchangeable for, shares of stock of any other class or classes, or
other series of the same class, of the corporation;
(vii) The voting rights, if any, of shares of such
series (including the conditions, if any, under which such series shall
have the right to vote separately as a class or together with any one
or more of the Common Stock and any other series of Preferred Stock as
one class), provided, however, that the holders of Preferred Stock
shall not be entitled to more than one vote for each share held by them
of record on the books of this corporation at the time for determining
holders thereof entitled to vote;
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(viii) The status as to reissuance or sale of shares
of such series redeemed, purchased or otherwise reacquired, or
surrendered to this corporation on conversion, redemption or exchange;
and
(ix) Such other and relative powers, preferences and
rights and qualifications, limitations or restrictions as shall not be
inconsistent with any such resolution or votes previously adopted as to
shares then still authorized, with the provisions of these Articles of
Organization or with the laws of the Commonwealth of Massachusetts.
(b) Each share of any one series of Preferred Stock shall be
identical with each other share of the same series in all respects,
except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall accrue and
(unless dividends on the shares of such series are non-cumulative)
shall be cumulative; and all series shall rank equally and be identical
in all respects, except as otherwise provided herein, and in any
resolutions or votes of the Board of Directors providing for the issue
thereof. The amount of the authorized Preferred Stock (or of any class
of equity securities) may be increased or decreased (but not below the
number of shares of such class then issued and outstanding) by the
affirmative vote of the holders of a majority of the stock of this
corporation entitled to vote on such increase or decrease, without any
requirement that such increase or decrease be approved by a class vote
on the part of the Preferred Stock, or any series thereof, or of any
other class of equity securities, except as may be otherwise provided
in the above-mentioned votes or resolutions fixing the voting rights of
any series of Preferred Stock. Each shareholder shall be deemed not to
have been adversely affected by any such increase or decrease.
(c) A liquidation, dissolution or winding up of the
corporation, as such terms are used in these Articles of Organization,
or as may be used in any resolutions or votes or the Board of Directors
providing for the issue of any series of this corporation's capital
stock, shall not be deemed to be occasioned by or to include:
(i) Any consolidation or merger of this corporation
with or into any other corporation or corporations, or
(ii) Any sale, lease, exchange or other transfer of
any or all of the assets of this corporation to another corporation or
corporations pursuant to a plan which shall provide for the receipt of
securities by this corporation or its stockholders, as all or the major
portion of the consideration for such sale, lease, exchange or
transfer, of such other corporation or corporations or of any company
or companies subsidiary to, controlled by, or affiliated with such
other corporation or corporations.
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3. Stockholders Rights.
Stockholders shall have no preemptive rights. Stockholders
shall have no right to cumulate in any election of directors or other
matter submitted to stockholders for vote.
4. Series A Junior Participating Cumulative Preferred Stock.
The Board of Directors hereby establishes and designates a
series of Preferred Stock of the corporation, and hereby fixes and
determines the relative rights and preferences of the shares of such
series, in addition to those set forth in the Articles, as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Cumulative Preferred Stock" (the
"Series A Preferred Stock"), and the number of shares constituting such series
shall be 12,000.
Section 2. Dividends and Distributions.
(A) (i) Subject to the rights of the holders of any shares of any
series of preferred stock (or any similar stock) ranking prior and superior to
the Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of shares of common stock
and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being preferred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provisions for
adjustments hereinafter set forth, 10,000 times the aggregate per share amount
of all cash dividends, and 10,000 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of common stock or a subdivision of the outstanding shares of
common stock (by reclassification or otherwise), declared on the common stock
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Preferred Stock. The multiple of
cash and non cash dividends declared on the common stock to which holders of the
Series A Preferred Stock are entitled, which shall be 10,000 initially but which
shall be adjusted from time to time as hereinafter provided, is hereinafter
referred to as the "Dividend Multiple." In the event the corporation shall at
any time after December 3, 1997 (the "Rights Declaration Date") (i) declare or
pay any dividend on common stock payable in shares of common stock, or (ii)
effect a subdivision or combination or consolidation of the outstanding shares
of common stock (by reclassification or otherwise than by payment of a dividend
in shares of common stock) into a greater or lesser number of shares of common
stock, then in each such case the Dividend Multiple thereafter applicable to the
determination of the amount of dividends which holders of shares of Series A
Preferred Stock shall be entitled to receive shall be the Dividend Multiple
applicable immediately prior to such event multiplied by a fraction, the
numerator of which is the number of shares of common stock outstanding
immediately after such
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event and the denominator of which is the number of shares of common stock that
were outstanding immediately prior to such event.
(ii) Notwithstanding anything else contained in this paragraph
(A), the corporation shall, out of funds legally available for that purpose,
declare a dividend or distribution on the Series A Preferred Stock as provided
in this paragraph (A) immediately after it declares a dividend or distribution
on the common stock (other than a dividend payable in shares of common stock);
provided that, in the event no dividend or distribution shall have been declared
on the common stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$1.00 per share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix in
accordance with applicable law a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than such
number of days prior to the date fixed for the payment thereof as may be allowed
by applicable law.
Section 3. Voting Rights. In addition to any other voting rights
required by law, the holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 10,000
votes on all matters submitted to a vote of the stockholders of the corporation.
The number of votes which a holder of a share of Series A Preferred Stock is
entitled to cast, which shall initially be 10,000 but which may be adjusted from
time to time as hereinafter provided, is hereinafter referred to as the "Vote
Multiple." In the event the corporation shall at any time after the Rights of
Declaration Date (i) declare or pay any dividend on common stock payable in
shares of common stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of common stock (by reclassification or
otherwise than by payment of a dividend in shares of common stock) into a
greater or lesser number of shares of common stock, then in each such case the
Vote Multiple thereafter applicable to the determination of the number of votes
per share to which holders of shares of Series A Preferred Stock shall be
entitled shall be the Vote Multiple immediately prior to such event multiplied
by a fraction, the
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numerator of which is the number of shares of common stock outstanding
immediately after such event and the denominator of which is the number of
shares of common stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of common stock and
the holders of shares of any other capital stock of this corporation having
general voting rights, shall vote together as one class on all matters submitted
to a vote of stockholders of the corporation.
(C) Except as otherwise required by applicable law or as set forth
herein, holders of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are entitled
to vote with holders of common stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in full, the
corporation shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration
any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on parity (either as to dividends
or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then
entitled;
(iii) except as permitted in subsection 4(A)(iv) below, redeem,
purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred Stock, provided that the corporation may at any time
redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the
corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
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(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of any stock ranking
on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(B) The corporation shall not permit any subsidiary of the corporation
to purchase or otherwise acquire for consideration any shares of stock of the
corporation unless the corporation could, under subsection (A) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
preferred stock and may be reissued as part of a new series of preferred stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the corporation, no
distribution shall be made (x) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of Series
A Preferred Stock shall have received an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (1) $10,000.00 per share or
(2) an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 10,000 times the aggregate amount to be
distributed per share to holders of common stock, or (y) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made ratably
on the Series A Preferred Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the corporation shall at
any time after the Rights Declaration Date (i) declare or pay any dividend on
common stock payable in shares of common stock, or (ii) effect a subdivision or
combination or consolidation of the outstanding shares of common stock (by
reclassification or otherwise than by payment of a dividend in shares of common
stock) into a greater or lesser number of shares of common stock, then in each
such case the aggregate amount per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under clause (x)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of common stock
outstanding immediately after such event and the denominator of which is the
number of shares of common stock that were outstanding immediately prior to such
event.
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Neither the consolidation of nor merging of the corporation with or
into any other corporation or corporations, nor the sale or other transfer of
all or substantially all of the assets of the corporation, shall be deemed to be
a liquidation, dissolution or winding up of the corporation within the meaning
of this Section 6.
Section 7. Consolidation, Merger etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of common stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 10,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of common stock is changed or exchanged,
plus accrued and unpaid dividends, if any, payable with respect to the Series A
Preferred Stock. In the event the corporation shall at any time after the Rights
Declaration Date (i) declare or pay any dividend on common stock payable in
shares of common stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of common stock (by reclassification or
otherwise than by payment of a dividend in shares of common stock) into a
greater or lesser number of shares of common stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
common stock outstanding immediately after such event and the denominator of
which is the number of shares of common stock that were outstanding immediately
prior to such event.
Section 8. Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Ranking. Unless otherwise provided in the Articles or a
Certificate of Vote of Directors Establishing a Class of Stock relating to a
subsequently-designated series of preferred stock of the corporation, the Series
A Preferred Stock shall rank junior to any other series of the corporation's
preferred stock subsequently issued, as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up and shall rank
senior to the common stock.
Section 10. Amendment. The Articles and this Certificate of Vote of
Directors Establishing a Class of Stock shall not be amended in any manner which
would materially alter or change the powers, preferences or special rights of
the Series A Preferred Stock so as to affect them adversely (within the meaning
of Section 77 of Chapter 156B of the Massachusetts General Laws) without the
affirmative vote of the holders of two-thirds or more of the outstanding shares
of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued
in whole shares or in any fraction of a share that is one ten-thousandth
(1/10,000th) of a share or any integral multiple of such fraction, which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock. In
lieu of fractional shares, the corporation may
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elect to make a cash payment as provided in the Rights Agreement for fractions
of a share other than one ten-thousandth (1/10,000th) of a share or any integral
multiple thereof.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None.
ARTICLE VI
Other lawful provisions if any, for the conduct and regulation of
business and affairs of this corporation for its voluntary dissolution, or for
limiting, defining, or regulating the powers of this corporation, or of its
directors or stockholders, or of any class of stockholders:
1. Meetings of the stockholders of this corporation may be held at any
place within the United States.
2. The Directors may make, amend or repeal the by-laws in whole or in
part, except with respect to any provision thereof which by law, these Articles
of Organization or the by-laws requires action by the stockholders.
3. The Board of Directors shall be divided into three classes: Class 1,
Class 2 and Class 3, which shall be as nearly equal in number as possible. Each
Director shall serve for a term ending on the date of the third Annual Meeting
of Stockholders following the date on which such Director became a Director;
provided, however, that each initial Director in Class 1 shall hold office until
the Annual Meeting of Stockholders in 1985; each initial Director in Class 2
shall hold office until the Annual Meeting of Stockholders in 1986; and each
initial Director in Class 3 shall hold office until the Annual Meeting of
Stockholders in 1987.
4. Any vacancy in the Board of Directors (other than a vacancy caused
by the death, resignation or removal of a Director elected by the holders of
preferred stock of this corporation) including a vacancy resulting from the
enlargement of the Board unless and until filled by the stockholders, may be
filled by a majority of the Directors present at any meeting of the Directors at
which a quorum is present.
5. (a) Neither this corporation nor any of its subsidiaries shall be a
party to any of the transactions specified in this Section 5(a) (a "Subject
Transaction") or enter into any agreement providing for any Subject Transaction
unless one or more of the conditions specified in Section 5(b) below shall have
been satisfied:
(i) any merger or consolidation (whether in a single
transaction or a series of related transactions) other than a
merger or consolidation of this corporation and any of its subsidiaries
or a merger or consolidation of any subsidiaries of this corporation;
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(ii) any sale, lease, exchange, transfer or distribution of
all or substantially all or a substantial portion of the property or
assets of this corporation or any of its subsidiaries, including its
goodwill;
(iii) the issuance of any securities, or of any rights,
warrants or options to acquire any securities of this corporation or
any of its subsidiaries, to any stockholder other than by stock
dividend declared and paid to all stockholders of this corporation or
pursuant to an employee stock ownership plan or an employee stock
option plan established by this corporation;
(iv) any reclassification of the stock of this corporation or
any of its subsidiaries or any recapitalization or other transaction
(other than a redemption of stock) which has the effect, directly or
indirectly, of increasing the proportionate share of stock of this
corporation or any of its subsidiaries held by any person;
(v) the dissolution of this corporation or any subsidiary
thereof or any partial or complete liquidation of this corporation or
any subsidiary thereof.
(b) This corporation or any of its subsidiaries may enter into
any Subject Transaction if one or more of the following conditions shall have
been satisfied and any additional approval or consent required by law shall have
been obtained:
(i) the Subject Transaction shall have been approved by the
holders of a least 75% of the shares of each class of the stock of this
corporation outstanding and entitled to vote on the matter, and by at
least a majority of the shares of each class of the stock of this
corporation outstanding and entitled to vote on the matter which are
not owned, directly or indirectly, by the entity, other than this
corporation, which is a party to the proposed merger or consolidation,
to which the assets of this corporation are proposed to be sold,
leased, exchanged, transferred or distributed, or to which securities
of this corporation or any of its subsidiaries are proposed to be
issued or whose ownership share of this corporation or any of its
subsidiaries is proposed to be increased, or to which the assets of
this corporation are proposed to be distributed on any dissolution or
liquidation (such entity together with any subsidiary or affiliate
being referred to as the "Receiving Entity");
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(ii) the Subject Transaction shall have been approved by at
least 75% of the Directors of this corporation not affiliated with, or
owners, either directly or indirectly, of shares of the Receiving
Entity (the "Unaffiliated Directors"); or
(iii) the Subject Transaction shall have been approved by a
majority of Unaffiliated Directors prior to the date on which the
Receiving Entity first acquired any share of stock of this corporation.
(c) Notwithstanding the foregoing, a Subject Transaction shall
not be subject to the requirements of Section 5(b) if:
(i) the Subject Transaction is approved by the holders of at
least a majority of the shares of each class of the stock of this
corporation outstanding and entitled to vote on the matter, and by the
holders of at least a majority of the shares of each class of the stock
of this corporation outstanding and entitled to vote on the matter not
owned, directly indirectly, by the Receiving Entity; and
(ii) the aggregate of the cash and fair market value of all
consideration to be paid per share to the holders of the Common stock
of this corporation in connection with the Subject Transaction (when
adjusted for stock splits, stock dividends, reclassification of shares
or otherwise) shall be equal to the greater of: (a) the highest price
per share paid by the Receiving Entity in acquiring any of this
corporation's Common Stock; or (b) an amount which is at least three
times the per share book value of this corporation's Common Stock as of
the last day of the most recent fiscal quarterly period of this
corporation preceding the date of the vote of stockholders approving
the Subject Transaction, provided, however, that the consideration to
be paid to the holders of the Common Stock of this corporation shall be
in the same form as that paid by the Receiving Entity in acquiring the
shares of the common stock held by it except to the extent that any
stockholder of this corporation shall otherwise agree.
6. In connection with the exercise of the judgment of the
Directors of this corporation in determining what is in the best interest of
this corporation and its stockholders when evaluating: (a) a Subject Transaction
or a proposal by a Receiving Entity or any other person or persons to make a
Subject Transaction, or (b) a tender or exchange offer or a proposal by a
Receiving Entity or other person or persons to make a tender or exchange offer,
the Directors shall, in addition to considering the adequacy of the amount to be
paid in connection with any such transaction, consider all of the following
factors and any other factors which they deem relevant: (i) the social and
economic effects of the transaction on this corporation and its subsidiaries,
employees, depositors, loan and other customers, creditors and other elements of
the communities in which this corporation and its subsidiaries operate or are
located; (ii) the business and financial conditions and earnings prospects of
such Receiving Entity or other person or persons, including, but not limited to,
debt service and other existing or likely financial obligations of such
Receiving Entity or other person or persons, and the possible effects of such
conditions upon this corporation and its subsidiaries and the other elements of
the communities
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in which this corporation and its subsidiaries operate or are located; and (iii)
the competence, experience, and integrity of such Receiving Entity or other
person or persons and its or their management.
7. Sections 3, 4, 5 and 6 of this Article 6 and this Section 7 may not
be amended or repealed except by the affirmative vote of at least 75% of the
shares of each class of the stock of this corporation outstanding and entitled
to vote.
8. Notwithstanding any provisions of law imposing such liability, no
Director of the corporation shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty by such Director
as a Director; provided, however, that this Section 8 shall not eliminate or
limit the 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 sections sixty-one or sixty-two of chapter 156B of the
Massachusetts General Laws, or (iv) for any transaction from which the Director
derived an improper personal benefit. No amendment to or repeal of this Section
8 shall apply to or have any effect on the liability or alleged liability of any
Director of the corporation for or with respect to any acts or omissions of such
Director occurring prior to such amendment or repeal.
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