| Exhibit 3.1
|
| The Commonwealth of Massachusetts
- ----------| William Francis Galvin
Examiner | Secretary of the Commonwealth
| One Ashburton Place, Boston, Massachusetts 02108-1512
|
| ARTICLES OF ORGANIZATION
| (General Laws, Chapter 156B)
|
- ----------|
Name | ARTICLE I
Approved | The exact name of the corporation is:
|
| Ipswich Bancshares, Inc.
|
| ARTICLE II
|
| The purpose of the corporation is to engage
| in the following business activities:
|
| To buy, sell, deal in, or hold securities of
| every kind and description; and in general to carry on
| any business permitted to corporations organized under
| Chapter 156B of the Massachusetts General Laws as now in
| force or hereafter amended.
|
|
|
|
|
|
|
| Note: If the space provided under any article or item on
| this form is insufficient, additions shall be set forth
| on one side only of separate 8 1/2 x 11 sheets of paper
| with a left margin of at least 1 inch. Additions to more
| than one article may be made on a single sheet so long
| as each article requiring each addition is clearly
| indicated.
|
|
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: | | Common: | 12,000,000 | $.10 |
|-------------|--------------------|--------------|----------------------|-------------|
| | | | | |
|-------------|--------------------|--------------|----------------------|-------------|
|Preferred | | Preferred: | 1,000,000 | $.10 |
|-------------|--------------------|--------------|----------------------|-------------|
| | | | | |
- ----------------------------------------------------------------------------------------
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.
See Exhibit A.
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
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:
See Exhibit B.
***If there are no provisions state "None"
Note: The preceding six (6) articals are considered to be permanent and may ONLY
be changed by filing appropriate Articals of Amendment.
EXHIBITS TO THE
ARTICLES OF ORGANIZATION
OF
IPSWICH BANCSHARES, INC.
- ------------------------------------------------------------------------------
Exhibit A
Article IV. Capital Stock
The total number of shares of all classes of capital stock which the
Corporation is authorized to issue is 13 million (13,000,000) shares, of which
12 million (12,000,000) shares shall be common stock, $0.10 par value per share,
and one million (1,000,000) shares shall be preferred stock, $0.10 par value per
share. Upon payment of lawful consideration, such shares shall be deemed to be
fully paid and nonassessable. In the case of a stock dividend, that part of the
surplus of the Corporation which is transferred to stated capital upon the
issuance of shares as a stock dividend shall be deemed to be the consideration
for their issuance.
A description of the different classes and series of the Corporation's
capital stock and a statement of the designations and the relative rights,
preferences and limitations of the shares of each class and series of capital
stock are as follows:
A. Common Stock. Except as provided by law or in this Article IV (or in
any supplementary sections hereto or in any certificate of establishment of any
series of preferred stock), the holders of the common stock shall exclusively
possess all voting power. Each holder of shares of common stock shall be
entitled to one vote on all matters for each share held by such holder. There
shall be no cumulative voting rights in the election of Directors.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and of a sinking fund or a retirement fund or other retirement
payments, if any, to which such holders are respectively entitled in preference
to the common stock, then dividends may be paid on the common stock and on any
class or series of stock entitled to participate therewith as to dividends, out
of any assets legally available for the payment of dividends; but only when and
as declared by the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid to or set aside for the holders of
any class having preference over the common stock in the event of liquidation,
dissolution or winding up of the Corporation the full preferential amounts to
which they are respectively entitled, the holders of the common stock, and of
any class or series of stock entitled to participate in whole or in part
therewith as to distribution of assets, shall be entitled, after payment or
provision for payment of all debts and liabilities of the Corporation, to
receive the remaining assets of the Corporation available for distribution, in
cash or in kind, in proportion to their holdings.
B. Preferred Stock. Subject to any limitations prescribed by law, the
Board of Directors of the Corporation is authorized by vote or votes, from time
to time adopted, to provide for the issuance of preferred stock in one or more
series and to fix and state the voting powers, designations, preferences and
relative participating, optional or other special rights of the shares of each
series and the qualifications, limitations and restrictions thereof, including,
but not limited to, determination of one or more of the following:
(1) The distinctive serial designation and the number of shares
constituting such series;
(2) The dividend rates or the amount of dividends to be paid on
the shares of such series, whether dividends shall be cumulative and, if
so, from which date or dates, the payment date or dates for dividends
and the participating or other special rights, if any, with respect to
dividends;
(3) The voting powers, if any, of shares of such series;
(4) Whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(5) The amount or amounts payable upon the shares of such series
in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(6) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund
and the manner of its application, including the price or prices at
which such shares may be redeemed or purchased through the application
of such fund;
(7) Whether the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or of any
other series of the same or any other class or classes of stock of the
Corporation, and if so convertible or exchangeable, the conversion price
or prices, or the rate or rates of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be made, and
any other terms and conditions of such conversion or exchange;
(8) The price or other consideration for which the shares of such
series shall be issued;
(9) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of
preferred stock and whether such shares may be reissued as shares of the
same or any other series of stock; and
(10) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as are permitted by law and as the
Board of Directors of the Corporation may deem advisable.
Any such vote shall become effective when the Corporation files with
the Secretary of State of The Commonwealth of Massachusetts a
certificate of establishment of one or more series of preferred stock
signed by the President or any Vice President and by the Clerk or
Assistant Clerk of the Corporation, setting forth a copy of the vote of
the Board of Directors establishing and designating the series and
fixing and determining the relative rights and preferences thereof, the
date of adoption of such vote and a certification that such vote was
duly adopted by the Board of Directors.
Exhibit B
Article VI. Other Lawful Provisions.
Section 1. Certain Business Combinations.
A. Required Vote for Certain Business Combinations. In addition to any
affirmative vote required by the Massachusetts General Laws or by these
Articles, and except as otherwise expressly provided in Section 2 of this
Article VI:
(1) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation or entity
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder;
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $1,000,000 or
more;
(3) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of
the Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair
Market Value of $1,000,000 or more;
(4) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate of any Interested Stockholder;
or
(5) any reclassification of securities (including any reverse
stock split), any recapitalization of the Corporation, any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportion of the outstanding shares of
any class of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder;
shall require (subject to Section 2 of this Article VI) the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law.
B. Definition of "Business Combination." The term "Business Combination"
as used in this Article VI shall mean any transaction which is referred to in
any one or more of clauses (1) through (5) of Paragraph A of this Section 1.
Section 2. When Higher Vote Is Not Required.
The provisions of Section 1 of this Article VI shall not be applicable
to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other provision
of these Articles, if all of the conditions specified in either of the following
paragraphs A or B are met:
A. Approval by Continuing Directors. The Business Combination shall have
been approved or ratified by a majority of the Continuing Directors (as
hereinafter defined) then in office; or
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(1) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination (the
"Consummation Date") of any consideration other than cash to be received
per share by holders of common stock in such Business Combination shall
be at least equal to the highest of the following:
(a) if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of common stock
acquired by it (i) within the two-year period immediately prior to and
including the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (ii) in the transaction in
which it became an Interested Stockholder, whichever is higher;
(b) the highest Fair Market Value per share of common
stock on any date during the one-year period prior to and including the
Announcement Date; and
(c) if applicable) the price per share equal to the
product of (i) the Fair Market Value per share of common stock on the
Announcement Date or on the date on which the Interested Stockholder
became an Interested Stockholder (such later date is referred to in this
Article VI as the "Determination Date"), whichever is higher, multiplied
by (ii) a fraction, (x) the numerator of which is the highest per share
price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder for any
shares of common stock acquired by it within the two-year period
immediately prior to and including the Announcement Date, and (y) the
denominator of which is the Fair Market value per share of common stock
on the first day in such two-year period upon which the Interested
Stockholder acquired any shares of common stock.
(2) The aggregate amount of the cash and the Fair Market Value as
of the Consummation Date of the Business Combination of consideration
other than cash to be received per share by holders of shares of any
other class of outstanding Voting Stock shall be at least equal to the
highest of the following (it being intended that the requirements of
this paragraph B(2) shall be required to be met with respect to every
other class of outstanding Voting Stock, whether or not the Interested
Stockholder has previously acquired any shares of a particular class of
Voting Stock):
(a) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of such class of
Voting Stock acquired by it (i) within the two-year period immediately
prior to and including the Announcement Date or (ii) in the transaction
in which it became an Interested Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per
share which the holders of shares of such class of Voting Stock are
entitled to receive from the Corporation in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation;
(c) the highest Fair Market Value per share of such class
of Voting Stock on any date during the one-year period prior to and
including the Announcement Date; and
(d) (if applicable) the price per share equal to the
product of (i) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date, whichever
is higher, multiplied by (ii) a fraction, (x) the numerator of which is
the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested
Stockholder for any shares of such class of Voting Stock acquired by it
within the two-year period immediately prior to and including the
Announcement Date, and (y) the denominator of which is the Fair Market
Value per share of such class of Voting Stock on the first day in such
two-year period upon which the Interested Stockholder acquired any
shares of such class of Voting Stock.
(3) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including common stock) shall be in
cash or in the same form as the Interested Stockholder has previously
paid for shares of such class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such class
of Voting Stock shall be either cash or the form used to acquire the
largest number of shares of such class of Voting Stock previously
acquired by it.
(4) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of any such Business
Combination: (a) there shall have been (i) no failure to declare and pay
at regular dates therefor the full amount of any dividends (whether or
not cumulative) payable on any class or series having a preference over
the common stock of the Corporation as to dividends or upon liquidation,
except as approved by a majority of the Continuing Directors; (ii) no
reduction in the annual rate of dividends paid on the common stock
(except as necessary to reflect any subdivision of the common stock),
except as approved by a majority of the Continuing Directors; and (iii)
an increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of
reducing the number of outstanding shares of the common stock, unless
the failure so to increase such annual rate is approved by a majority of
the Continuing Directors; and (b) such Interested Stockholder shall have
not become the beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such Interested
Stockholder's becoming an Interested Stockholder.
(5) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided
by the Corporation, whether in anticipation or in connection with such
Business Combination or otherwise, unless such transaction shall have
been approved or ratified by a majority of the Continuing Directors
after such Person shall have become an Interested Stockholder.
(6) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to public stockholders of the Corporation at least 20
days prior to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions).
Section 3. Certain Definitions.
For the purposes of these Articles:
A. A "Person" shall mean an individual, a group acting in concert, a
corporation, a partnership, a joint venture, an association, a joint stock
company, a trust, a business trust, a government or political subdivision, any
unincorporated organization and any other similar association or entity.
B. "Interested Stockholder" shall mean any Person (other than the
Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly, of
more than ten percent (10%) of the voting power of the then outstanding
shares of Voting Stock;
(2) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to and including the date in question
was the beneficial owner, directly or indirectly, of more than ten
percent (10%) of the voting power of the then outstanding shares of
Voting Stock; or
(3) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at any
time within the two-year period immediately prior to and including the
date in question beneficially owned by any Interested Stockholder, if
such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933 and such assignment or
succession was not approved by a majority of the Continuing Directors.
C. A Person shall be a "Beneficial Owner" of any shares of Voting Stock:
(1) which such Person or any of its Affiliates or Associates,
directly or indirectly, has or shares with respect to Voting Stock (a)
the right to acquire or direct acquisition of (whether such right is
exercisable immediately or only after the passage of time or in the
satisfaction of any conditions or both), pursuant to any agreement,
arrangement or understanding or upon the exercise of any conversion
rights, warrants, or options or otherwise; (b) the right to vote, or
direct the voting of, pursuant to any agreement, arrangement or
understanding or otherwise; or (c) the right to dispose of or transfer
or direct the disposition or transfer of pursuant to any agreement,
arrangement, understanding or otherwise; or
(2) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
D. For the purposes of determining whether a Person is an Interested
Stockholder pursuant to Paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned by such
Person through application of paragraph C of this Section 3 but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended.
F. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of Directors of
the Corporation (the "Board") who is not an Affiliate or Associate of the
Interested Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor of a
Continuing Director who is not an Affiliate or Associate or the Interested
Stockholder and is recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the Board.
H. "Fair Market Value" means:
(1) in the case of stock, the highest closing sale price during
the 30-day period immediately preceding the date in question of a share of such
stock on the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers Automated Quotation
System or any comparable system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by at least a majority of the Continuing Directors of the
Board in good faith; and
(2) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by at least
a majority of the Continuing Directors of the Board in good faith.
I. "Group Acting In Concert" means (a) knowing participation by Persons
in a joint activity or interdependent conscious parallel action by Persons
towards a common goal, whether or not pursuant to an express agreement; (b) a
combination or pooling of voting or other interests in the securities of an
issuer by Persons for a common purpose pursuant to any contract, understanding,
relationship, agreement or other arrangement, whether written or otherwise; (c)
a Person or company which acts in concert with another Person or company ("Other
Party") shall also be deemed to be Acting in Concert with any Person or company
who is also Acting in concert with that Other Party; or (d) a group who would be
deemed to be acting as a group or syndicate within the meaning of Section 13(d)
of the Securities Exchange Act of 1934. In addition, any Persons who are
beneficial owners of the same securities are deemed to be members of a "Group
Acting In Concert." When Persons act together for any such purpose, the group of
which they are members is deemed to have acquired their stock.
J. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in Paragraphs
B(l) and (2) of Section 2 of this Article VI shall include the shares of common
stock and/or the shares of any other class of outstanding Voting Stock retained
by the holders of such shares.
Section 4. Powers of the Board of Directors.
A majority of the Directors of the Corporation (or, if there is an
Interested Stockholder, a majority of the Continuing Directors then in office)
shall have the power to determine for the purposes of this Article VI, on the
basis of information known to them after reasonable inquiry, (A) whether a
Person is an Interested Stockholder, (B) the number or percentage of any class
of securities beneficially owned by any Person, (C) whether a Person is an
Affiliate or Associate of or is affiliated or associated with another, (D)
whether the requirements of Section 2 of this Article VI have been met with
respect to any Business Combination, (E) whether the assets which are the
subject of any Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation or any Subsidiary
in any Business Combination has, an aggregate Fair Market Value of $1,000,000 or
more, and (F) any other matters of interpretation arising under this Article VI.
The good faith determination of a majority of the Directors (or, if there is an
Interested Stockholder, a majority of the Continuing Directors then in office)
on such matters shall be conclusive and binding for all purposes of this Article
VI.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders
Nothing contained in this Article VI shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Section 6. Standards for Board of Directors' Evaluation of Offers. The
Board of Directors of the Corporation, when evaluating any offer of another
Person (as defined in Article VI hereof) to (A) make a tender or exchange offer
for any equity security of the Corporation, (B) merge or consolidate the
Corporation with another institution or (C) purchase or otherwise acquire all or
substantially all of the properties and assets of the Corporation, may, in
connection with the exercise of its judgment in determining what is in the best
interests of the Corporation and its stockholders, consider the interests of the
Corporation's employees, suppliers, creditors and customers, the economy of the
state, region and nation, community and societal considerations, and the
long-term and short-term interests of the Corporation and its stockholders,
including the possibility that these interests may be best served by the
continued independence of the Corporation.
Section 7. Pre-emptive Rights. Holders of the capital stock of the
Corporation shall not be entitled to preemptive rights with respect to any
shares of the capital stock of the Corporation which may be issued.
Section 8. Directors.
An increase in the number of Directors shall require the affirmative
vote of two-thirds of the members of the Board of Directors then in office,
unless at the time of such increase there shall be an Interested Stockholder, in
which case the affirmative vote of not less than a majority of the Continuing
Directors then in office shall instead be required. The Directors, other than
those who may be elected by the holders of any series of preferred stock of the
Corporation, shall be classified, with respect to the term for which they
severally hold office, into three classes, as nearly equal in number as
possible, with one class to be elected annually. The initial Directors of the
Corporation shall hold office as follows: the first class of Directors shall
hold office initially for a term expiring at the annual meeting of stockholders
to be held in 2000, the second class of Directors shall hold office initially
for a term expiring at the annual meeting of stockholders to be held in 2001,
and the third class of Directors shall hold office initially for a term expiring
at the annual meeting of stockholders to be held in 2002. At each succeeding
annual meeting of stockholders, the successors of the class of Directors whose
term expires at that meeting shall be elected by a plurality vote of all votes
cast at such meeting to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election.
Members of each class shall hold office until their successors are duly elected
and qualified or until their earlier resignation or removal.
Any Director (including Persons elected by Directors to fill vacancies
in the Board of Directors) may be removed from office, with or without cause, by
an affirmative vote of not less than (i) two-thirds of the total votes eligible
to be cast by stockholders at a duly constituted meeting of stockholders called
expressly for such purpose, or (ii) two-thirds of the members of the Board of
Directors then in office, unless at the time of such removal there shall be an
Interested Stockholder, in which case the affirmative vote of not less than a
majority of the Continuing Directors then in office shall instead be required
for removal by vote of the Board of Directors. At least thirty days prior to
such meeting of the stockholders, written notice shall be sent to the Director
whose removal will be considered at the meeting. If removal is for cause, the
Director will be provided an opportunity to be heard before the stockholders or
the Board of Directors, as the case may be.
No 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 Article shall not eliminate or limit any 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 61 or 62 of Chapter 156B of the General Laws of The Commonwealth of
Massachusetts, or (iv) with respect to any transaction from which the Director
derived an improper personal benefit.
No amendment or repeal of this Article shall adversely affect the rights
and protection afforded to a Director of this Corporation under this Article for
acts or omissions occurring prior to such amendment or repeal. If the
Massachusetts Business Corporation Law is hereafter amended to further eliminate
or limit the personal liability of Directors or to authorize corporate action to
further eliminate or limit such liability, then the liability of the Directors
of this Corporation shall be eliminated or limited to the fullest extent
permitted by the Massachusetts Business Corporation Law as so amended.
Section 9. Transactions with Interested Persons.
Unless entered into in bad faith or in violation of any provision of
these Articles, no contract or transaction by the Corporation shall be void,
voidable or in any way affected by reason of the fact that it is with an
Interested Person.
For the purposes of this Section 9, "Interested Person" means any Person
in any way interested in the Corporation whether as a director, officer,
stockholder, employee or otherwise, and any other entity in which any such
Person is in any way interested.
Unless such contract or transaction was entered into in bad faith or in
violation of any provision of these Articles, no Interested Person, because of
such interest, shall be liable to the Corporation or to any other Person for any
loss or expense incurred by reason of such contract or transaction or shall be
accountable for any gain or profit realized from such contract or transaction.
The provisions of this Section 9 shall be operative notwithstanding the
fact that the presence of an Interested Person was necessary to constitute a
quorum at a meeting of Directors or stockholders of the Corporation at which
such contract or transaction was authorized or that the vote of an Interested
Person was necessary for the authorization of such contract or transaction.
Section 10. Acting as a Partner. The Corporation may be a partner in any
business enterprise which it would have power to conduct by itself.
Section 11. Stockholders Meetings. Meetings of stockholders may be held
at such place in the Commonwealth of Massachusetts or, if permitted by
applicable law, elsewhere in the United States as the Board of Directors may
determine.
Section 12. Call of Special Meetings. Special meetings of the
stockholders for any purpose or purposes may be called at any time by the
President, and if not by the President by the Chairman of the Board, if one is
elected, or by the affirmative vote of a majority of the Directors then in
office or, if there is an Interested Stockholder, by the affirmative vote of a
majority of the Continuing Directors then in office. Special meetings shall be
called by the Clerk or in the case of the death, absence, incapacity or refusal
of the Clerk, by any other officer, upon written application of one or more
stockholders who hold at least (i) 66-2/3% in interest of the capital stock
entitled to vote at such meeting or (ii) such lesser percentage, if any, (but
not less than 40%) as shall be determined to be the maximum percentage which the
Corporation is permitted by applicable law to establish for the call of such a
meeting. Application to a court pursuant to Section 34(b) of Chapter 156B of the
General Laws of The Commonwealth of Massachusetts requesting the call of a
special meeting of stockholders because none of the officers is able and willing
to call such a meeting may be made only by stockholders who hold at least (i)
66-2/3% in interest of the capital stock entitled to vote at such meeting or
(ii) such lesser percentage, if any, (but not less than 40%) as shall be
determined to be the maximum percentage which the Corporation is permitted by
applicable law to establish for the call of such a meeting. The hour, date and
place of any special meeting and the record date for determining the
stockholders having the right to notice of and to vote at such meeting shall be
determined by the Board of Directors or the President. Only those matters set
forth in the call of the special meeting may be considered or acted upon at such
special meeting, unless otherwise provided by law.
Section 13. Amendment of By-Laws. The By-Laws of the Corporation may be
adopted, altered, amended, changed or repealed by the Board of Directors or the
stockholders of the Corporation. Such action by the Board of Directors shall
require the affirmative vote of at least two-thirds of the Directors then in
office at a duly constituted meeting of the Board of Directors, unless at the
time of such action there shall be an Interested Stockholder, in which case such
action shall also require the affirmative vote of at least a majority of the
Continuing Directors then in office, at such a meeting. Such action by the
stockholders shall require (i) approval by the affirmative vote of a majority of
the Board of Directors of the Corporation then in office at a duly constituted
meeting of the Board of Directors, unless at the time of such action there shall
be an Interested Stockholder, in which case such action shall also require the
affirmative vote of at least a majority of the Continuing Directors then in
office, at such meeting, (ii) unless waived by the affirmative vote of the Board
of Directors (and, if applicable, Continuing Directors) specified in the
preceding sentence, the submission by the stockholders of written proposals for
adopting, altering, amending, changing or repealing the By-Laws at least sixty
days prior to the meeting at which they are to be considered and (iii) the
affirmative vote of at least two-thirds of the total votes eligible to be cast
by stockholders at a duly constituted meeting of stockholders called expressly
for such purpose, provided, however, that provisions that provide for a greater
than two-thirds vote of the stockholders may only be amended by such greater
vote.
Section 14. Amendment of Articles of Organization. No amendment,
addition, alteration, change or repeal of these Articles shall be made, unless
the same is first approved by the affirmative vote of a majority of the Board of
Directors of the Corporation then in office, and thereafter approved by the
stockholders by not less than two-thirds of the total votes eligible to be cast
at a duly constituted meeting, or, in the case of Articles I, II and III of
these Articles, by not less than a majority of the total votes eligible to be
cast at a duly constituted meeting; provided, however, that if, at any time
within the sixty-day period immediately preceding the meeting at which the
stockholder vote is to be taken, there is an Interested Stockholder, such
amendment, addition, alteration, change or repeal shall also require the
affirmative vote of not less than a majority of the Continuing Directors then in
office prior to approval by the stockholders, and further provided that
provisions that provide for a greater than two-thirds vote of the stockholders
may only be amended by such greater vote. Unless otherwise provided by law, any
amendment, addition, alteration, change or repeal so acted upon shall be
effective on the date it is filed with the Secretary of State of The
Commonwealth of Massachusetts or on such other date as specified in such
amendment, addition, alteration, change or repeal or as the Secretary of State
may specify.
Exhibit C
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President: David L. Grey
Treasurer: Francis Kenney
Clerk: Mariell Lyons
Directors: William M. Craft [Address Deliberately Omitted]
Thomas A. Ellsworth
William E. George
David L. Grey
Mark L. Klaman
John H. Morrow
Lawrence J. Pszenny
William J. Tinti
ARTICLE VII
The effective date of organization of the corporation shall be the date approved
and filed by the Secretary of the Commonwealth. If a later effective date is
desired, specify such date which shall not be more than thirty days after the
date of filing.
ARTICLE VIII
The information contained in Article VIII is not a permanent part of the
Articles of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is:
23 Market Street, Ipswich, Massachusetts 01938
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President:
Treasurer:
See Exhibit C.
Clerk:
Directors:
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of: October
d. The name and business address of the resident agent, if any, of the
corporation is: None
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/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business or
residential address(es) are clearly typed or printed beneath each 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 12 day of February , 1999
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Deborah Drosnin, Esq.
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c/o Foley, Hoag & Eliot llp
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One Post Office Square, Boston, MA 02109-2170
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Note: If an existing corporation is acting as incorporator, type in the exact
name of the corporation, the state or other jurisdiction where it was
incorporated, the name of the person signing on behalf of said corporation and
the title he/she holds or other authority by which such action is taken.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
================================================
I hereby certify that, upon examination of these
Articles of Organization, duly submitted to me,
it appears that the provisions of the General
Laws relative to the organization of
corporations have been complied with, and I
hereby approve said articles; and the filing fee
in the amount of $13,000 having been paid, said
articles are deemed to have been filed with me
this 12th day of February 1999.
Effective date:
---------------------------------
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
FILING FEE: One tenth of one percent of the
total authorized capital stock, but not less
than $200.00. For the purpose of filing, shares
of stock with a par value less than $1.00, or no
par stock, shall be deemed to have a par value
of $1.00 per share.
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Deborah Drosnin
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Foley, Hoag & Eliot llp
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One Post Office Square, Boston, MA 02109
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Telephone: (617) 832-1000
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