EXHIBIT 3.2
CCBT BANCORP, INC. (THE "COMPANY")
BY-LAWS
ARTICLE I
PRINCIPAL OFFICE
The Company shall have its principal office in the County of Barnstable,
Massachusetts, and may have branch offices at such place or places as are
permitted by law and authorized by the Board of Directors.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders shall
be held on the fourth Thursday of April of each year at such time and place in
the County of Barnstable, Massachusetts, as shall be determined by the Board of
Directors and specified in the notice of the meeting, for the election of a
Clerk and a Board of Directors and the transaction of such other business as may
properly come before the meeting.
If, for any cause, the annual meeting shall not be called and held as
hereinabove prescribed, a special meeting shall be called in the manner
hereinbelow provided in lieu of the annual meeting and for the purposes thereof
and for such additional purposes as shall be specified in the notice of said
special meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders shall
be called by the Clerk as directed by vote of the Board of Directors or at the
written request of the President, five Directors, or one or more stockholders of
record holding at least thirty percent of the capital stock issued and
outstanding and entitled to vote, and at such time and place in the County of
Barnstable, Massachusetts, and for such purposes as shall be stated in such vote
or request consistent with these By-laws, the Articles of Organization, and
applicable provisions of law.
SECTION 3. NOTICE. The Clerk shall give notice of every meeting of the
stockholders by mailing, postage prepaid, a written notice thereof at least
seven days before the time fixed for the meeting to each stockholder of record
entitled to vote thereat addressed to him at his address as appearing upon the
books of the Company. The notice of each meeting shall set forth the time,
place, and purposes thereof.
In the event of the absence, incapacity or refusal of the Clerk to call
or give notice of any annual meeting or any special meeting, such meeting may be
called by the President or by any other person designated for the purpose by the
Board of Directors, in the manner hereinabove prescribed.
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SECTION 4. METHOD OF VOTING. Each holder of record of stock outstanding
and entitled to vote at a meeting, if present in person or represented by valid
proxy thereat, shall have one vote at such meeting for each share of stock
outstanding and entitled to vote thereat held of record by such holder. A proxy
may be appointed by an instrument in writing signed by the stockholder or his
duly authorized attorney or legal representative but no proxy instrument which
is dated more than six months before the meeting named therein shall be accepted
and no such proxy instrument shall be valid after the final adjournment of such
meeting. All proxy instruments shall be filed with and verified by the Clerk of
the meeting before being voted.
Election of Directors and Clerk shall be by ballot, and upon request of
any stockholder at any meeting, the vote upon any question properly brought
before the meeting shall be by ballot.
SECTION 5. QUORUM. At any stockholders' meeting a majority in interest
of the shares of stock of the Company outstanding and entitled to vote,
represented at the meeting by stockholders of record in person or by proxy,
shall constitute a quorum for the transaction of business at any meeting. When a
quorum is present at any meeting, a majority of the stock represented thereat
and entitled to vote shall decide any question brought up at such meeting,
except where a larger vote is required by express provision of law or by these
By-laws or the Articles of Organization.
SECTION 6. ADJOURNMENTS. By vote of the holders of record of a majority
of the stock outstanding and entitled to vote at a meeting and present in person
or by proxy thereat, whether or not a quorum is present, such meeting may be
adjourned finally or to reconvene to the same place or at such other place in
Barnstable County and at such other time as shall be specified in such vote. No
notice of any such adjournment shall be required other than announcement of such
adjournment at the meeting or at any adjournment thereof at which such
adjournment is voted, whether the adjournment is by vote of a quorum or of less
than a quorum.
At any such reconvened meeting, whether the adjournment has been by vote
of a quorum or of less than a quorum, at which a quorum shall be present in
person or by proxy, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 7. ADDRESSES OF STOCKHOLDERS. Every stockholder, if and when
requested by the Clerk, shall file with the Clerk an address at or to which all
notices may be served upon or mailed to such stockholder and, if no such address
is furnished, notices may be addressed to such stockholder at any other address
of the stockholder appearing upon the books of the Company as determined by the
Secretary.
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ARTICLE III
DIRECTORS, OFFICERS AND COMMITTEES
SECTION 1. DIRECTORS. The Board of Directors of the Company shall
consist of not less than six nor more than sixteen Directors as fixed by the
stockholders pursuant to these By-laws.
At least three-fourths of the Directors shall be citizens of the
Commonwealth and resident therein.
SECTION 2. OFFICERS. The officers of the Company shall be a President,
a Treasurer, one or more Vice Presidents, one or more Assistant Treasurers, a
Clerk, and a Secretary of the Board of Directors, and if the Board of Directors
so determines, a Chairman of the Board of Directors, and such other officers as
shall be elected by the Board of Directors.
The Clerk shall be a resident of the Commonwealth. One person may be
elected to and serve in more than one office except that the President may not
be either the Treasurer or the Clerk.
SECTION 3. COMMITTEES. There shall be an Executive Committee, as
hereinafter provided for, and such additional committees as the Board of
Directors shall from time to time appoint.
SECTION 4. OATH OF OFFICE. The Directors and officers shall be sworn to
the faithful performance of their duties as prescribed by law and the Directors
shall take such additional oath as shall be required by law.
ARTICLE IV
ELECTIONS
SECTION 1. DIRECTORS. Except as hereinbelow provided, approximately
one-third of the Directors shall be chosen by ballot at each annual meeting of
the stockholders or special meeting of the stockholders called in lieu of and
for purposes of the annual meeting. They shall serve for a term of three years
and until their successors are elected and have qualified, providing, however,
that a term of one or two years shall be substituted when necessary to insure
that no person serve as a Director after the annual meeting following such
person's 72nd birthday.
There shall be three classes of directors. The initial Class I Directors
shall serve for a term expiring at the annual meeting of stockholders to be held
in 1999, the initial Class II Directors shall serve for a term expiring at the
annual meeting of stockholders to be held in 2000, and the initial Class III
Directors shall serve for a term expiring at the annual meeting of stockholders
to be held in 2001. Those standing for re-election shall be elected for a term
of three years.
The number of Directors shall be fixed within the limits above specified
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at each annual meeting of the stockholders or special meeting of the
stockholders called in lieu of and for the purposes of the annual meeting.
However, within the above limits additional Directors may be elected between
annual meetings of the stockholders at any special meeting of the stockholders
called for the purpose of increasing the number of Directors and of electing
additional Directors accordingly and any Directors so elected shall serve until
the date herein fixed for the next annual meeting of the stockholders and until
their successors are elected and have qualified. If proposed for re-election,
they shall be elected for a term of one, two, or three years which will maintain
a Board of Directors whose terms will expire one-third each year as nearly as
possible.
At the annual meeting, or a special meeting in lieu of the annual
meeting, or a special meeting called for the purpose, the stockholders may
change and fix the number of Directors within the limits above specified and may
leave open a maximum of two directorships for election by the Board of
Directors, and in such event the Board of Directors, in its discretion from time
to time, by vote of a majority of the Directors at the time in office may elect
not more than two additional Directors to serve until the next annual meeting.
SECTION 2. OFFICERS. The President, who shall be a member of the Board
of Directors, the Treasurer, the Secretary of the Board of Directors, and at
least one Vice President and one Assistant Treasurer shall be elected by the
Board of Directors at its organizational meeting held after each annual meeting
of the stockholders or special meeting of the stockholders called in lieu of and
for the purposes of the annual meeting. The Board of Directors shall also have
power to elect such additional Vice Presidents, Assistant Treasurers and other
officers and agents (other than the Clerk except in the event of a vacancy) and
a Chairman of the Board as the Board of Directors shall from time to time
determine and to confer upon any such other officers and agents such titles as
the Board of Directors sees fit. All officers and agents elected and appointed
by the Board of Directors shall hold their respective offices during the
pleasure of the Board of Directors.
The Clerk shall be elected by ballot at each annual meeting of the
stockholders or special meeting of the stockholders called in lieu of and for
the purposes of the annual meeting. He shall serve until the next annual meeting
of the stockholders and until his successor is elected and has qualified.
SECTION 3. RESIGNATIONS AND VACANCIES. Any Director or officer may
resign by giving written notice to the President, the Clerk or the Board of
Directors, and such resignation shall take effect as specified in the notice or
sooner at the pleasure of the Board of Directors.
Vacancies in the Board of Directors or in any office may be filled by
the Board of Directors and in the event of a vacancy in the Board of Directors,
such vacancy may be filled by the remaining members of the Board then in office.
The person chosen to fill any vacancy in the Board of Directors or in the office
of Clerk shall hold office for the unexpired portion of the term for which his
predecessor was chosen and the person chosen to fill any other office shall hold
office during the pleasure of the Board of Directors.
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ARTICLE V
POWERS AND DUTIES OF BOARD OF DIRECTORS
SECTION 1. REGULAR MEETINGS. The Board of Directors shall hold regular
meetings at least once in each fiscal quarter, and at such other times as the
Board shall from time to time determine, upon such day, at such time, and at
such place as the Board shall from time to time determine. No notice of any
regular meeting shall be necessary.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held whenever called by the Clerk, or other officer designated for the
purpose by the Board, at the request of the President or two Directors, and at
such time and place and for such purposes as shall be stated in such request
consistently with these and applicable provisions of law. An organizational
meeting of the Board of Directors may be held immediately after the annual
meeting of stockholders.
Notice of the time and place of any special meeting shall be given by
the Clerk or other officer calling the meeting orally or in writing at least 24
hours before the time fixed for the meeting. Except as otherwise provided below
in this Section 2, notice mailed to a Director at his usual place of business or
residence at least 24 hours before the time fixed for the meeting shall be
sufficient. Any notice received by a Director in time to enable him to attend
the meeting concerning which notice is given shall be likewise sufficient as to
that meeting. Any meeting shall be legal without notice if each Director waives
such notice by a writing filed with the records of the meeting either before or
after the holding thereof. Except as may be otherwise prescribed by law, any
business whatsoever may be transacted at a meeting of the Board although it may
not have been specified in the notice of the meeting.
SECTION 3. QUORUM. A majority of the Directors at the time in office
shall constitute a quorum for the transaction of business at any meeting. The
vote of a majority of the Directors present at any meeting when a quorum is
present shall be sufficient for action at such meeting.
A majority of the Directors present at any meeting, although less than a
quorum, may adjourn the meeting finally or from time to time. No notice of such
adjournment other than announcement at the meeting or at an adjournment at which
such adjournment is voted shall be necessary.
SECTION 4. POWERS. The Board of Directors shall have the general
management and direction of the property, business and affairs of the Company
and all its trusts and undertakings and may exercise all powers of the Company
except such as are expressly reserved to the stockholders by applicable
provisions of law, the Articles of Organization, or these By-laws.
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Without limiting the generality of the foregoing, the Board of Directors
shall have full power to make or authorize all investments or reinvestments, to
authorize the sale, mortgage, pledge, or transfer of any real estate or personal
property belonging to the Company in any capacity, to prescribe the duties of
the officers, employees and agents of the Company consistently with applicable
provisions of law, the Articles of Organization, as amended, and these By-laws,
to fix the compensation of all officers, employees, and agents, including their
own fees for services as Directors or members of committees, and subject to
approval by the Board of Directors, in such instances as the Board of Directors
determines, to authorize any committee or any officer to fix the compensation of
such officers, employees and agents, or classifications thereof, as the Board of
Directors designates, to declare all dividends, to determine upon the form of
certificate of stock, and upon transfers thereof, and upon a corporate seal, to
fix the amount of the bond or bonds for officers, employees, and agents,
including the amount and terms and conditions of blanket or schedule bonds, to
issue from time to time any part of the previously authorized capital of the
Company, subject to applicable regulatory approval, and generally to take or
cause to be taken any action and do any and all things not repugnant to the
Articles of Organization, these By-laws and applicable provisions of law, which
the Board of Directors shall deem fit and proper to take, cause to be taken, or
to use and carry into effect the powers of the Company.
SECTION 5. CLASSIFICATION OF DIRECTORS. The provisions of Section 50A of
Chapter 156B of the General Laws of the Commonwealth of Massachusetts ("Section
50A"), as it may be amended from time to time, shall not apply to the
classification of directors of the Company within the meaning of Section 50A.
ARTICLE VI
POWERS AND DUTIES OF OFFICERS
SECTION 1. GENERAL. All officers shall perform such duties and have such
powers as shall be prescribed by law, by these By-laws, the Articles of
Organization, or the Board of Directors, or consistently with the foregoing
provision of this Section 1, as shall be designated by the President in the case
of any of said officers other than the Chairman of the Board, the Clerk, and
Secretary of the Board. Without limiting the generality of the foregoing and
subject, or in addition, to specific provisions of other Articles, certain
officers shall have specific duties and/or powers as stated in the following
sections of this Article.
SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
shall be elected by the Board of Directors, shall preside at all meetings of the
Board of Directors at which he shall be present.
SECTION 3. PRESIDENT. The President shall be the chief executive officer
of the Company. He shall preside at all meetings of the stockholders and, unless
there shall be a Chairman of the Board and such Chairman shall be present and
preside, at all meetings of the Board of Directors. He shall be ex officio a
member of all standing committees except any Auditing Committee and he shall
have the general management and direction of the Company's business in all
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departments and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
SECTION 4. VICE PRESIDENT. The Board of Directors may, in its
discretion, designate any one or more Vice Presidents as Executive Vice
President and any one or more of the Vice Presidents as Senior Vice President,
with such duties, powers and authorities, consistent with these By-laws, the
Articles of Organization, and applicable provisions of law, as the Board of
Directors shall from time to time determine.
A Director or Executive Vice President chosen by the Board of Directors,
shall have the duty of presiding at meetings of the stockholders when the
President is absent and at meetings of the Board of Directors when neither the
President nor the Chairman of the Board (if there shall be one) is present. The
Director or Executive Vice President chosen by the Board of Directors shall
perform the duties and have the powers and authorities of the President during
his absence or disability, except any duties, powers, and authorities which by
law only the President is permitted to perform or have.
SECTION 5. TREASURER. The Treasurer shall have custody of the corporate
seal. Subject to the general supervision of the Board of Directors and of the
President, the Treasurer shall be charged with and be responsible for the
keeping of adequate and accurate books of account in all departments of the
Company's business and with the preparation of reports therefrom as may be
required from time to time by the Board of Directors or by law.
SECTION 6. ASSISTANT TREASURERS. The Assistant Treasurers in such order
as the Board of Directors shall from time to time determine shall perform the
duties and have the powers and authorities of the Treasurer during his absence
or disability, except any duties, powers, and authorities which by law only the
Treasurer is permitted to perform or have.
SECTION 7. CLERK. The Clerk shall have custody of the books of record of
the meetings of the stockholders. He shall give due notice of and attend all
meetings of the stockholders and shall record the votes of the stockholders in
books kept for the purpose. In the absence of the President and a Vice President
at any meeting of stockholders, he shall call the meeting to order until a
temporary Chairman is chosen. In the absence of the Clerk at any meeting of the
stockholders, a temporary Clerk for such meeting shall be chosen who shall be
sworn to the faithful performance of his duties.
SECTION 8. SECRETARY OF THE BOARD. The Secretary of the Board shall
attend all meetings of the Board and shall keep the records thereof under the
supervision of the Board, except as the Board shall otherwise order. In the
absence of the Secretary of the Board at any meeting of the Board, a temporary
Secretary of the Board for such meeting shall be chosen who shall be sworn to
the faithful performance of his duties.
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ARTICLE VII
EXECUTIVE COMMITTEE
SECTION 1. COMPOSITION AND ELECTION. The Executive Committee shall
consist of the President, ex officio, and not less than 4 nor more than 6 other
members, who shall be elected by and from the Board of Directors and shall hold
office during the pleasure of the Board. The Board of Directors shall elect
members of the Executive Committee at or after the first meeting of the Board of
Directors held after each annual meeting of the stockholders or special meeting
of the stockholders called in lieu of and for the purposes of the annual
meeting. The Board of Directors may elect additional members of the Executive
Committee within the foregoing limits or fill vacancies in the Executive
Committee at any regular or special meeting of the Board of Directors.
The President shall be, ex officio, Chairman of the Executive Committee.
SECTION 2. POWERS. The Executive Committee shall supervise the business
affairs of the Company and shall have authority, except as otherwise prescribed
by the Board of Directors, when the Board of Directors is not in session, to
transact such business for and on behalf of the Company as the Board of
Directors might transact including the power to give such directions to the
officers regarding the Company and its affairs as the Committee determines and
the power to authorize any of the officers in the name and behalf of the Company
to sign, affix the corporate seal to, and deliver contracts, deeds, releases,
assignments or other instruments in writing.
SECTION 3. MEETINGS. Meetings of the Executive Committee shall be held
at such times and places as the Committee from time to time determines. Special
meetings of the Committee may be called at any time by the President, or in his
absence or disability, by any Vice President. No notice shall be necessary to
the validity of such meetings.
The Committee shall keep minutes of each of its meetings and the minutes
of each meeting, not previously submitted to the Board of Directors, shall be
submitted to the regular meeting of the Board of Directors next following such
meeting except as otherwise ordered by the Board.
SECTION 4. QUORUM. A majority of the Executive Committee at the time in
office shall constitute a quorum for the transaction of business and when a
quorum is present at any meeting the vote of a majority of those present shall
be sufficient for action at such meetings.
ARTICLE VIII
CERTIFICATES OF STOCK AND TRANSFERS THEREOF
SECTION 1. FORM - EXECUTION. Certificates of stock of the Company shall
be in such form permitted by law as the Board of Directors may from time to time
determine, and shall be signed by the President or a Vice President and by the
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Treasurer or an Assistant Treasurer and sealed with the corporate seal.
SECTION 2. TRANSFER. Shares of the stock of the Company shall be
transferable only on the books of the Company by assignment in writing by the
holder of record thereof, or his legal representative, in person or by duly
authorized attorney, upon surrender of the certificate thereof
The Company shall not be bound to take notice of or recognize any trust,
express, implied or constructive, or any charge or equity affecting any shares
of the capital stock or to ascertain or inquire whether any sale or transfer of
any such shares by any holder of record thereof, his attorney legally
constituted, or his legal representative, is authorized by such trust, charge or
equity or to recognize any person as having any interest therein, except the
holder of record thereof for the time being.
SECTION 3. LOSS, DESTRUCTION, MUTILATION. In case of the loss,
destruction or mutilation of a certificate of stock, a new certificate, to
replace the certificate so lost, destroyed, or mutilated, may be issued by order
of the Board of Directors upon reasonable evidence of such loss, destruction or
mutilation and the filing by the holder of record, or his legal representative,
of a bond of indemnity in such form, in such amount and with such surety or
sureties as the Board of Directors may approve.
SECTION 4. RECORD DATE. The Board of Directors may fix in advance a time
not more than sixty (60) days before the date of any meeting of the stockholders
or the date for the payment of any dividend or the making of any distribution to
stockholders or the last day on which the consent or dissent of stockholders may
be effectively expressed for any purpose as the record date for determining the
stockholders having the right to notice of and to vote at such meeting and any
adjournment thereof, or the right to receive such dividend or distribution, or
the right to give such consent or dissent, and in such case, only stockholders
of record on such record date shall have such right notwithstanding any transfer
of stock on the books of the corporation after the record date. In lieu of
fixing such date, the Board of Directors may for any of such purposes close the
stock transfer books of the Company for all or any portion of said sixty (60)
day period.
SECTION 5. ISSUANCE OF CAPITAL STOCK. The Board of Directors shall have
the authority to issue or reserve for issue from time to time the whole or any
part of the capital stock of the Company which may be authorized from time to
time, to such persons or organizations, for such consideration, whether cash,
property, services or expenses, and on such terms as the Board of Directors may
determine, including without limitation the granting of options, warrants, or
conversion or other rights to subscribe to said capital stock. The Board of
Directors may delegate some or all of its authority under this Section 5 to one
or more committees of Directors.
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ARTICLE IX
EXECUTION OF INSTRUMENTS
Checks, conveyances, deeds, assignments, discharges of mortgages and
other instruments, whether connected with the exercise by the Company of its
powers in any fiduciary capacity, or otherwise, shall be executed in the name
and behalf of the Company by such officer or officers or other individual or
individuals and in such manner as shall be prescribed or authorized from time to
time by the Board of Directors or the Executive Committee. Any such instrument
so executed by prescription or authority of the Executive Committee shall have
the same validity as if expressly authorized by vote of the Board of Directors.
ARTICLE X
CONTRIBUTIONS
The Board of Directors shall have power and authority to make
contributions, in such amounts as the Board of Directors may determine to be
reasonable, to corporations, trusts, funds or foundations, organized and
operated exclusively for charitable, scientific or educational purposes, no part
of the net earnings of which enures to the benefit of any private shareholder or
individual; provided that such contributions in any fiscal year shall not in the
aggregate exceed one-half of one percent of the capital and surplus of the
Company as of the end of the preceding fiscal year, unless contributions in
excess of one-half of one percent of such capital and surplus shall be
authorized by the stockholders at a regular or special meeting. Nothing in this
Article shall be construed as directly or indirectly restricting or otherwise
affecting, except as herein provided, the rights and powers of the Company with
reference to payments of the nature above specified.
ARTICLE XI
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors shall
from time to time determine. Unless and until otherwise determined by the Board
of Directors, the corporate seal shall be circular and shall have thereon the
name of the Company and the year and state of its incorporation.
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ARTICLE XII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who is a Director or officer of the Company shall be
entitled, without prejudice to any other rights he may have, to be reimbursed by
the Company for, and indemnified by the Company against, all costs and expenses
reasonably incurred by him in connection with or arising out of any claim made,
or any action, suit or proceeding of whatever nature threatened or brought
against him or in which he may be involved as a party or otherwise by reason of
his having served as a Director or officer of the Company or by reason of any
action alleged to have been taken or omitted by him as such Director or officer,
whether or not he continues to be such Director or officer at the time of
incurring such costs and expenses, including amounts paid or incurred by him in
connection with reasonable settlements (other than amounts paid to the Company
itself) of any such claim, action, suit or proceeding. No such reimbursement or
indemnity shall be paid or made for any cost or expense incurred or settlement
made by such Director or officer in connection with any matter as to which he
shall be finally adjudged in any such action, suit, or proceeding to have been
derelict in the performance of his duty as such Director or officer, nor shall
anything herein contained be construed so as to permit or to authorize the
Company to indemnify any such Director or officer against any costs or expenses
arising out of or resulting from his own negligence or willful misconduct. No
Director or officer of the Company shall be liable to anyone for making any
determination as to the existence or absence of liability of the Company
hereunder or for making or refusing to make any payment hereunder or for taking
or omitting to take any other action hereunder, in reliance upon the advice of
counsel. Each person elected or appointed a Director or officer of the Company
shall, upon and by reason of such election or appointment, have the right to be
reimbursed and indemnified by the Company, as above set forth, with the same
force and effect as if the Company, to induce him to accept such election or
appointment, specifically agreed in writing to reimburse and indemnify him in
accordance with the foregoing provisions of this Article XII. Nothing herein
contained shall be construed as a limitation of any right to indemnification to
which any person would otherwise be entitled or as a limitation on the powers of
this Company or its Directors.
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ARTICLE XIII
FAIR PRICE PROVISION
The stockholder vote required to approve Business Combinations
(hereinafter defined) shall be as set forth in this Article XIII.
SECTION 1. HIGHER VOTE FOR BUSINESS COMBINATIONS. In addition to any
affirmative vote required by applicable provisions of law, the Articles of
Organization or these By-laws, and except as otherwise expressly provided in
Section 3 of this Article XIII:
(a) Any merger or consolidation of the Company or any
Subsidiary with (i) any Interested Stockholder or (ii) any
other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an
Interested Stockholder; or
(b) 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 or Associate of any Interested Stockholder of
any assets of the Company or any Subsidiary thereof having
an aggregate Fair Market Value of $5,000,000 or more; or
(c) The issuance, exchange or transfer by the Company or any
Subsidiary (in one transaction or a series of
transactions) of any securities of the Company or any
Subsidiary to any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder in exchange for
cash, securities or other consideration (or a combination
thereof) having an aggregate Fair Market Value of
$5,000,000 or more; or
(d) The adoption of any plan or proposal for the liquidation
or dissolution of the Company proposed by or on behalf of
an Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder; or
(e) Any reclassification of securities (including any reverse
stock split), or recapitalization of the Company, or any
merger or consolidation of the Company with any of its
Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of
the Company or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
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(f) Any agreement, contract or other arrangement with an
Interested Stockholder (or in which the Interested
Stockholder has an interest other than proportionately as
a stockholder) providing for any one or more of the
actions specified in subsections (a) to (e) of this
Section 1, shall require the affirmative vote of the
holders of at least eighty percent (80%) of the votes
which all stockholders would be entitled to cast at any
annual election of Directors or class of Directors (the
"Voting Stock"). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or
that a lesser percentage may be specified by applicable
provisions of law or in any agreement with any national
securities exchange or otherwise.
SECTION 2. DEFINITION OF "BUSINESS COMBINATION." The term "Business
Combination" as used in this Article XIII shall mean any transaction which is
referred to in any one or more of subsections (a) through (f) of Section 1.
SECTION 3. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section I
of this Article XIII shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote, if any, as is required by applicable provisions of law, the Agreement of
Association, as amended, or these Bylaws, if the condition specified in either
of the following subsections (a) or (b) are met:
(a) Approval by Disinterested Directors. The Business
Combination shall have been approved by two-thirds of the
Disinterested Directors.
(b) Price and Procedure Requirements. All of the following
seven conditions shall have been met:
(c) The transaction constituting the Business Combination
shall provide that the holders of Common Stock receive, in
exchange for their stock, per share consideration
(consisting of the cash and the Fair Market Value, as of
the date of the consummation of the Business Combination,
of consideration other than cash) 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 or on behalf of the Interested
Stockholder for any share of Common Stock in
connection with the acquisition by the
Interested Stockholder of shares of Common
Stock which were acquired (1) within the
two-year period immediately prior to the
initial day in which public trading of the
Common Stock occurs following the first
public announcement of the proposed
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Interested Stockholder (the "Announcement
Date") or (2) in the transaction in which it
became an Interested Stockholder, whichever
is higher;
B. 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 (the
"Determination Date," whichever is higher;
and
C. If applicable, the price per share equal to
the Fair Market Value per share of Common
Stock determined pursuant to subsection
3(b)(i)(B) immediately preceding, multiplied
by the ratio of (1) the per share price
determined pursuant to subsection 3(b)(i)(A)
above to (2) the Fair Market Value per share
of Common Stock on the first date in the
two-year period immediately prior to the
Announcement Date on which the Interested
Stockholder beneficially owned any shares of
Common Stock.
All per share prices shall be adjusted to reflect fairly any
intervening stock split, stock dividend, reverse stock split,
recapitalization, reorganization or similar event affecting the
number of shares of Common Stock outstanding and the market price
per share of outstanding shares of Common Stock.
(i) If the transaction constituting the Business
Combination shall also provide that the holders of
any class of outstanding Voting Stock, other than
Common Stock, if any, are to receive consideration
in exchange for their stock, the per share
consideration (consisting of the cash and the Fair
Market Value, as of the date of the consummation of
the Business Combination, of consideration other
than cash) shall be at least equal to the highest
of the following (it being intended that the
requirements of this subsection 3(b)(ii) shall be
required to be met with respect to every class of
outstanding Voting Stock, whether or not the
Interested Stockholder beneficially owns 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 or on behalf of the Interested
Stockholder for any share of such class of
Voting Stock in connection with the
acquisition by the Interested Stockholder of
beneficial ownership of such share which was
acquired (1) within the two-year period
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immediately prior to the Announcement Date
or (2) in the transaction in which it became
an Interested Stockholder, whichever is
higher;
B. If applicable, the highest preferential
amount per share to which the holders of
shares of such class of Voting Stock are
entitled in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Company, regardless of
whether the Business Combination to be
consummated constitutes such an event;
C. The Fair Market Value per share of such
class of Voting Stock on the Announcement
Date or on the Determination Date, whichever
is higher; and
D. If applicable, the price per share equal to
the Fair Market Value per share of such
class of Voting Stock determined pursuant to
subsection 3(b)(ii)(c) immediately
preceding, multiplied by the ratio of (1)
the per share price determined pursuant to
subsection 3(b)(ii)(A) above to (2) the Fair
Market Value per share of such class of
Voting Stock on the first day in the two-
year period immediately prior to the
Announcement Date on which the Interested
Stockholder beneficially owned any shares of
such class of Voting Stock.
All per share prices shall be adjusted to reflect fairly any
intervening stock split, stock dividend, reverse stock split,
recapitalization, reorganization or similar event affecting the
number of shares of such Voting Stock outstanding and the market
price per share of outstanding shares of such Voting Stock.
(ii) 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 was previously paid by or on behalf of
the Interested Stockholder in connection with its
direct or indirect acquisition of beneficial
ownership of shares of such class of Voting Stock.
If the Interested Stockholder beneficially owns
shares of any class of Voting Stock which were
acquired with varying forms of consideration, the
form of consideration to be received by holders of
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 beneficially
owned by it.
(iii) After such Interested Stockholder has become an
Interested
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Stockholder and prior to the consummation of such
Business Combination: (A) except as approved by
two-thirds of the Disinterested Directors, there
shall have been no failure to declare and pay at
the regular date therefor any full quarterly
dividends (whether or not cumulative) on any
outstanding preferred stock; (B) there shall have
been (1) 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 two-thirds of the
Disinterested Directors, and (2) an increase in
such annual rate of dividends (as necessary to
prevent any such reduction) in the event of 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 two-thirds of the
Disinterested Directors; and (c) such Interested
Stockholder shall not have become the beneficial
owner of any shares of Voting Stock except as part
of the transaction in which it became an Interested
Stockholder and except in a transaction which after
giving effect thereto, would not result in any
increase in the Interested Stockholder's percentage
beneficial ownership of any class of Voting
Securities.
(iv) 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
Company, whether in anticipation of or in
connection with such Business Combination or
otherwise.
(v) 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 by the Interested
Stockholder to all stockholders of the Company at
least 30 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).
(vi) Such Interested Stockholder shall not have made any
major change in the Company's business or equity
capital structure without the approval of two-
thirds of the Disinterested Directors.
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SECTION 4. CERTAIN DEFINITIONS. For the purposes of this Article XIII:
(a) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group
comprised of any person and any other person with whom
such person or any Affiliate or Associate of such person
has any agreement, arrangement or understanding, directly
or indirectly, for the purpose of acquiring, holding,
voting or disposing of Voting Stock of the Company.
(b) The term "Interested Stockholder" shall mean any person
(other than the Company or any Subsidiary and other than
any profitsharing, employee stock ownership or other
employee benefit plan of the Company or any Subsidiary or
any trustee of or fiduciary with respect to any such plan
when acting in such capacity) who or which:
(i) Is at such time the beneficial owner, directly or
indirectly, of shares of the Company having more
than ten percent (10%) of the voting power of the
then outstanding Voting Stock (unless all such
shares were received by such beneficial owner in
exchange for shares of common stock of Cape Cod
Bank & Trust Company acquired by such beneficial
owner on or before April 1, 1987 (the "Predecessor
Shares")); or
(ii) At any time within the two-year period immediately
prior to such time was the beneficial owner,
directly or indirectly, of shares of the Company
having more than ten percent (10%) of the voting
power of the then outstanding Voting Stock (unless
all such shares are Predecessor Shares), or
(iii) Is at any time 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 such time
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.
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(c) A person shall be a "beneficial owner" of any shares of
Voting Stock:
(i) Which are beneficially owned, directly or
indirectly, by such person or any of its Affiliates
or Associates;
(ii) Which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether or
not such right is exercisable immediately) pursuant
to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange
rights, warrants or options or otherwise or (b) the
right to vote pursuant to any agreement,
arrangement or understanding; or
(iii) 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 subsection 4(b), the
number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned by an Interested
Stockholder through application of subsection 4(c) but
shall not include any other shares of Voting Stock which
may be issuable pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, warrants or options or otherwise.
(e) "Affiliate" and "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 in effect on January 1, 1999 (the
term registrant in said Rule 12b-2 meaning, in this case,
the Company).
(f) "Beneficially owned" shall have the meaning ascribed to
such term in Rule 13d3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as
in effect on January 1, 1999.
(g) "Disinterested Director" means any member of the Board of
Directors of the Company who is not an Interested
Stockholder, who is unaffiliated with, and not a
representative of, the Interested Stockholder and was a
member of the Board of Directors the date of incorporation
of the Company, or prior to the time that the Interested
Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director who is not an
Interested Stockholder, who is unaffiliated with, and not
a representative of, the Interested Stockholder and is
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recommended or elected to succeed a Disinterested Director
by a majority of the Disinterested Directors then on the
Board of Directors.
(h) "Fair Market Value" means: (i) 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 Composite Tape for New York Stock
Exchange Listed Stocks or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange or, if
such stock is not listed on such Exchange, 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 sale price or the
highest closing bid quotation, respectively, with respect
to a share of such stock during the 30-day period
preceding the date in question on the National Market
System or on the National Association of Securities
Dealers, Inc. Automated Quotations System, as the case may
be, or any 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 a
majority of the Disinterested Directors in good faith; and
(ii) 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 the Board of Directors in good faith.
(i) In the event of any Business Combination in which the
Company survives, the phrase "consideration other than
cash to be received" as used in subsection 3(b) of this
Article XIII 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. "Subsidiary"
means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the
Company.
SECTION 5. The Disinterested Directors shall have the power and duty to
determine for purposes of this Article XIII, on the basis of information known
to them after reasonable inquiry, all facts necessary to determine compliance
with this Article XIII, including, without limitation, (a) whether a person is
an interested Stockholder, (b) the number of shares of Voting Stock beneficially
owned by any person, (c) whether a person is an Affiliate or Associate of
another, (d) whether the requirements of subsection 3(b) have been met with
respect to any Business Combination and (e) whether the assets which are the
subject of any Business Combination have, or whether the consideration to be
received from the issuance or transfer of securities by the Company or any
Subsidiary in any Business Combination has an aggregate Fair Market Value of
$5,000,000 or more. Any such determination made in good faith shall be binding
and conclusive.
SECTION 6. Nothing contained in this Article XIII shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
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SECTION 7. Consideration for shares to be paid to any stockholder
pursuant to this Article XIII shall be the minimum consideration payable to the
stockholder and shall not limit a stockholder's right under any provision of law
or otherwise to receive greater consideration for any shares of the Company.
SECTION 8. The fact that any Business Combination complies with the
provisions of Section 3 of this Article XIII shall not be construed to impose
any fiduciary duty, obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or recommend its
adoption or approval to the stockholders of the Company, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the Board of
Directors or any member thereof with respect to evaluations of or actions and
responses taken with respect to such Business Combination.
SECTION 9. AMENDMENTS TO ARTICLE. Notwithstanding any other applicable
provisions of law, the Articles of Organization, or these By-laws, and
notwithstanding that a lesser percentage may be specified by law, the
affirmative vote of the holders of at least eighty percent (80%) of the votes
which all the stockholders would be entitled to cast at any annual election of
Directors or class of Directors shall be required to amend or repeal, or to
adopt any provision inconsistent with this Article XIII.
ARTICLE XIV
AMENDMENTS - REPEAL
Except as otherwise provided herein, these By-laws may be altered,
amended, added to or repealed in whole or in part at any annual or special
meeting of the stockholders by vote of the holders of a majority of the capital
stock of the Company outstanding and entitled to vote, provided that notice of
such proposed alteration, amendment, addition or repeal is given in the notice
of the meeting at which such alteration, amendment, addition or repeal is to be
acted upon.
ARTICLE XV
CONTROL SHARE ACQUISITION
The provisions of Chapter 110D of the General Laws of the Commonwealth
of Massachusetts ("Chapter 110D"), as it may be amended from time to time, shall
not apply to "control share acquisitions" of the Corporation within the meaning
of Chapter 110D.
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