EXHIBIT 3.1
ARTICLES OF ORGANIZATION
OF
BENJAMIN FRANKLIN BANCORP, INC.
.
.
.
TABLE OF CONTENTS
ARTICLE I. NAME........................................................ 1
ARTICLE II. PURPOSE.................................................... 1
ARTICLE III. AUTHORIZED CAPITAL SHARES................................. 1
ARTICLE IV. CAPITAL SHARES............................................. 1
4.1. RIGHTS AND PREFERENCES; RECLASSIFICATION....................... 1
4.2. COMMON SHARES.................................................. 2
ARTICLE V. RESTRICTIONS ON TRANSFER.................................... 2
ARTICLE VI. OTHER LAWFUL PROVISIONS.................................... 2
6.1. CERTAIN BUSINESS COMBINATIONS.................................. 2
6.2. STANDARDS FOR BOARD OF DIRECTORS' ACTIONS...................... 10
6.3. SHAREHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS............. 10
6.4. PREEMPTIVE RIGHTS.............................................. 10
6.5. DIRECTORS...................................................... 11
6.6. CALL OF SPECIAL MEETINGS....................................... 12
6.7. QUORUM; VOTING................................................. 12
6.8. ACTION BY WRITTEN CONSENT...................................... 12
6.9. AMENDMENT OF BY-LAWS........................................... 13
6.10. AMENDMENT OF ARTICLES OF ORGANIZATION......................... 13
6.11. BENEFICIAL OWNERSHIP LIMITATION............................... 13
6.12. INTERPRETATION................................................ 15
6.13. CERTAIN STATUTE............................................... 16
- i -
ARTICLES OF ORGANIZATION
OF
BENJAMIN FRANKLIN BANCORP, INC.
ARTICLE I.
NAME
The exact name of the corporation is: Benjamin Franklin Bancorp, Inc.
ARTICLE II.
PURPOSE
The purpose of the corporation is to engage in any lawful business.
ARTICLE III.
AUTHORIZED CAPITAL SHARES
The total number of shares and par value of each class of shares that the
Corporation is authorized to issue is as follows:
WITHOUT PAR VALUE WITH PAR VALUE
- ---------------------------- ---------------------------------
NUMBER OF NUMBER OF
TYPE SHARES TYPE SHARES PAR VALUE
- ------ ---------- ---- --------- ---------
Common 75,000,000
ARTICLE IV.
CAPITAL SHARES
4.1. RIGHTS AND PREFERENCES; RECLASSIFICATION. The Board of Directors (or,
if permitted by law, any authorized committee thereof) is expressly authorized,
without shareholder action and to the fullest extent permitted by law, to
provide for the issuance of the shares of capital stock of the Corporation in
one or more classes or series of such stock and to fix the designations, powers,
including voting powers, full or limited, or no voting powers, preferences and
the relative, participating, optional or other special rights of the shares of
each class or series and any qualifications, limitations and restrictions
thereof. The number of authorized shares of any class or series, the
distinguishing designation thereof and the preferences, limitations and relative
rights applicable thereto shall be set forth in these Articles or any amendment
(an "AMENDMENT OF DESIGNATION") thereto approved by the shareholders or by the
Board of Directors without shareholder action, provided that the Board of
Directors may not approve an aggregate number of authorized shares of all
classes and series which exceeds the total number of authorized shares approved
by the shareholders and specified in these Articles of Organization, as amended
from time to time (these "ARTICLES"). Any such action with respect to any class
or series may be amended or rescinded by the shareholders or by the Board of
Directors at any time prior to the initial issuance of shares of such class or
series. At any time after the initial issuance of shares of any class or series
the Board of Directors may reclassify any unissued shares of such class or
series into one or more existing or new classes or series. Shares of any class
or series may be issued as a share dividend in respect of shares of another
class or series. If authorized by the Board of Directors, shares of a class or
series having preference over another class or series with respect to
distributions, including dividends and distributions upon the dissolution of the
corporation, may be issued as a share dividend in respect of shares of such
other class or series whether or not there are at the time any outstanding
shares of any third class or series as to which the shares then to be issued
have a right with respect to distribution which is prior, superior or
substantially equal.
4.2. COMMON SHARES. The authorized shares of this Corporation have been
designated as Common Shares, subject to the right of the Board of Directors to
reclassify any unissued Common Shares into one or more existing or new classes
or series. The holders of the Common Shares shall have the exclusive right to
vote for the election of directors of the Corporation and on all other matters
requiring shareholder action (with each outstanding share entitling the holder
thereof to one vote on each matter properly submitted to the shareholders of the
Corporation for their vote); provided, however, that, except as otherwise
required by law, holders of Common Shares shall not be entitled to vote (in
their capacity as holders of Common Shares) on any amendment to these Articles
that alters or changes the preferences, limitations or relative rights of one or
more other class or series of outstanding stock if the holders of such affected
class or series are entitled to vote, either separately or together with the
holders of one or more other such other class or series, on such amendment
pursuant to these or pursuant to the Massachusetts Business Corporation Act (the
"ACT"). The holders of the Common Shares shall be entitled to such dividends as
may from time to time be declared by the Board of Directors out of any funds
legally available for the declaration of dividends, subject to any applicable
provisions of the Act, other applicable law or these Articles, and subject to
the relative rights and preferences of any shares of any other class or series
authorized and issued in accordance with these Articles. Subject to the relative
rights and preferences of any other class or series authorized and issued
hereunder, upon the dissolution or liquidation of the Corporation, whether
voluntary or involuntary, the holders of Common Shares shall be entitled to
receive pro rata all assets of the Corporation available for distribution to its
shareholders.
ARTICLE V.
RESTRICTIONS ON TRANSFER
The restrictions, if any, imposed by these Articles upon the transfer of
shares of any class or series of shares are: None.
ARTICLE VI.
OTHER LAWFUL PROVISIONS
6.1. CERTAIN BUSINESS COMBINATIONS.
6.1.1 VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS. In addition
to any affirmative vote required by the Act or these Articles, and except as
otherwise expressly provided in Section 6.1.3 of these Articles, any Business
Combination (as defined in
- 2 -
Section 6.1.2) shall require the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of all of the then-outstanding
shares of capital shares of the Corporation entitled to vote generally in the
election of directors (the "VOTING SHARES"), voting together as a single voting
group (it being understood that for purposes of this Section 6.1, each of the
Voting Shares shall have one vote or such other number of votes as may be
granted to it pursuant to Article IV of these Articles). 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 or by any other provisions of these
Articles (other than Section 6.1.3) or any Amendment of Designation (as defined
in Section 4.1) or in any agreement with any national securities exchange or
otherwise.
6.1.2 BUSINESS COMBINATION DEFINED. The term "BUSINESS COMBINATION"
as used in this Article VI shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as defined in Section 6.1.4(j)) with (a) any Interested
Shareholder (as defined in Section 6.1.4(h)) or (b) any other corporation
(whether or not itself an Interested Shareholder) which is, or after such
merger or consolidation would be, an Interested Shareholder or an
Affiliate (as defined in Section 6.1.4(a)) of an Interested Shareholder;
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 Shareholder or any Affiliate of any Interested
Shareholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as defined in Section 6.1.4(f)) equal to or
greater than ten percent (10%) of the combined assets of the Corporation
and its Subsidiaries; or
(c) 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
Shareholder or any Affiliate of any Interested Shareholder in exchange for
cash, securities or other property (or a combination thereof) having an
aggregate Fair Market Value equal to or greater than ten percent (10%) of
the combined assets of the Corporation and its Subsidiaries, except for
any issuance or transfer pursuant to an employee benefit plan of the
Corporation or any Subsidiary thereof (established with the approval of a
majority of the Independent Directors (as defined in Section 6.1.4(e)); or
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested Shareholder; or
(e) any reclassification of securities (including any reverse
share split) or recapitalization of the Corporation or 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 Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
or
- 3 -
series of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder.
6.1.3 WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of Section
6.1.1 shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote, if any, as may be
required by law or by any other provision of these Articles, if either (x) the
condition specified in Section 6.1.3(a) is met or (y) all of the conditions
specified in Section 6.1.3(b) are met:
(a) APPROVAL BY INDEPENDENT DIRECTORS. The Business
Combination shall have been approved by two-thirds (2/3) of the
Independent Directors then in office, it being understood that this
condition shall not be capable of satisfaction unless there is at least
one Independent Director.
(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 of consideration other than cash, determined as of the date of
the consummation of the Business Combination, to be received per
share by holders of Common Shares in such Business Combination shall
be at least equal to the higher 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 Shareholder
or any of its Affiliates for any Common Shares acquired by it
(1) within the two-year period immediately prior to the first
public announcement of the proposal of the Business
Combination (the "ANNOUNCEMENT DATE," determined in accordance
with Section 6.1.4(b)) or (2) in the transaction in which it
became an Interested Shareholder, whichever is higher;
(B) the Fair Market Value per share of Common
Shares of the Corporation on the Announcement Date or on the
date on which the Interested Shareholder became an Interested
Shareholder (the "DETERMINATION DATE"), whichever is higher.
(2) The aggregate amount of the cash and the Fair Market
Value of consideration other than cash, determined as of the date of
the consummation of the Business Combination, to be received per
share by holders of shares of any class of outstanding Voting Shares
other than the Common Shares shall be at least equal to the highest
of the following (it being intended that the requirements of this
Section 6.1.3(b)(2) shall be required to be met with respect to each
such other class of outstanding Voting Shares, whether or not the
Interested Shareholder has previously acquired any shares of a
particular class of Voting Shares):
(A) (if applicable) the highest per share price
(including
- 4 -
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Shareholder or any of
its Affiliates for any shares of such class of Voting Shares
acquired by it (1) within the two-year period immediately
prior to the Announcement Date or (2) in the transaction in
which it became an Interested Shareholder, whichever is
higher; or
(B) (if applicable) the highest preferential
amount per share to which the holders of shares of such class
of Voting Shares are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation; or
(C) the Fair Market Value per share of such class
of Voting Shares on the Announcement Date or on the
Determination Date, whichever is higher.
(3) The holders of all outstanding Voting Shares not
beneficially owned by the Interested Shareholder immediately prior
to the consummation of any Business Combination shall be entitled to
receive in such Business Combination cash or other consideration for
their shares meeting all of the terms and conditions of this Section
6.1.3(b); provided, however, that the failure of any shareholders
who are exercising their statutory rights to dissent from such
Business Combination and receive payment of the fair value of their
shares to exchange their shares in such Business Combination shall
not be deemed to have prevented the condition set forth in this
Section 6.1.3(b)(3) from being satisfied.
(4) The consideration to be received by holders of any
particular class or, if outstanding, any particular series of
outstanding Voting Shares (including Common Shares) shall be in cash
or in the same form as the Interested Shareholder or any of its
Affiliates has previously paid for shares of such class or series of
Voting Shares. If the Interested Shareholder or any of its
Affiliates has paid for shares of any class or any series of Voting
Shares with varying forms of consideration, the form of
consideration to be received per share by holders of such class or
series of Voting Shares shall be either cash or the form used to
acquire the largest number of shares of such class or series of
Voting Shares previously acquired by the Interested Shareholder or
any of its Affiliates.
(5) The prices determined in accordance with Section
6.1.3(b) shall be subject to appropriate adjustment in the event of
any share dividend, shares split, combination of shares or similar
event.
(6) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of any such
Business Combination: (a) except as shall have been approved by
two-thirds (2/3) of the Independent 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
shares having preference over the Common Shares as to dividends or
liquidation; (b) there shall have been (1) no reduction in the
annual rate of
- 5 -
dividends paid on the Common Shares (except as necessary to reflect
any subdivision of the Common Shares), except as approved by
two-thirds (2/3) of the Independent Directors, and (2) an increase
in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse shares split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the
Common Shares, unless the failure so to increase such annual rate is
approved by two-thirds (2/3) of the Independent Directors; and (c)
neither such Interested Shareholder nor any of its Affiliates shall
have become the beneficial owner (as such term is defined in Section
6.1.4(c)) of any additional Voting Shares except as part of the
transaction which results in such Interested Shareholder becoming an
Interested Shareholder.
(7) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not have
received the benefit, directly or indirectly (except proportionately
as a shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided, directly or indirectly, by the Corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
(8) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed
to shareholders of the Corporation 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). Such proxy or information statement
shall contain, if a majority of the Independent Directors so
requests, an opinion of a reputable investment banking firm which
shall be selected by a majority of the Independent Directors,
furnished with all information such investment banking firm
reasonably requests and paid a reasonable fee for its services by
the Corporation upon the Corporation's receipt of such opinion, as
to the fairness (or lack of fairness) of the terms of the proposed
Business Combination from the point of view of the holders of Voting
Shares (other than the Interested Shareholder).
6.1.4 CERTAIN DEFINITIONS. For the purpose of these Articles:
(a) "AFFILIATE" or "ASSOCIATE" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act as in effect on the date of filing of
these Articles.
(b) ANNOUNCEMENT DATE. For the purposes of determining the
"ANNOUNCEMENT DATE," in the event that the first public announcement of
the proposal of the Business Combination is made after the close on such
date of any securities exchange registered under the Exchange Act on which
any shares of the Voting Shares of the Corporation are traded, or of any
automated quotation system maintained by the Nasdaq Stock Market, Inc. or
any other system on which any shares of the Voting Shares
- 6 -
of the Corporation are listed, then the Announcement Date shall be deemed
to be the next day on which such exchange or quotation system is open.
(c) "BENEFICIAL OWNERSHIP" shall be determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Exchange Act (or
any successor rule or statutory provision), or, if said Rule 13d-3 shall
be rescinded and there shall be no successor rule or statutory provision
thereto, pursuant to said Rule 13d-3 as in effect on the date of filing of
these Articles; provided, however, that a person shall, in any event, also
be deemed to be a "BENEFICIAL OWNER" of any Voting Shares:
(1) which such person or any of its Affiliates or
Associates (as herein defined) beneficially owns, directly or
indirectly, within the meaning of Rule 13d-3 of the Exchange Act, as
in effect on the date of filing of these Articles; or
(2) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant
to any agreement, arrangement or understanding (but shall not be
deemed to be the beneficial owner of any voting shares solely by
reason of an agreement, contract, or other arrangement with this
Corporation to effect any transaction which is described in Section
6.1.2) or upon the exercise of conversion rights, exchange rights,
warrants, or options, or otherwise, (b) sole or shared voting or
investment power with respect thereto pursuant to any agreement,
arrangement, understanding, relationship or otherwise (but shall not
be deemed to be the beneficial owner of any voting shares solely by
reason of a revocable proxy granted for a particular meeting of
shareholders, pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such person nor any
such Affiliate is otherwise deemed the beneficial owner), or (c) the
right to dispose of or transfer; or
(3) which are beneficially owned, directly or
indirectly, by any other person with which such first-mentioned
person or any of its Affiliates or Associates has any agreements,
arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital shares of the
Corporation;
and provided further, however, that (1) no Director or Officer of this
Corporation (and no Affiliate of any such Director or Officer) shall,
solely by reason of any or all of such Director's or Officer's acting in
his or her capacities as such, be deemed, for any purposes hereof, to
beneficially own any Voting Shares beneficially owned by another such
Director or Officer (or any Affiliate thereof), and (2) neither any
employee shares ownership plan or similar plan of the Corporation or any
Subsidiary, nor any trustee with respect thereto or any Affiliate of such
trustee (solely by reason of its capacity as such trustee), shall be
deemed, for any purposes hereof, to beneficially own any Voting Shares
held under any such plan.
For purposes of computing the percentage beneficial ownership of Voting
Shares of a
- 7 -
person, the outstanding Voting Shares shall include shares deemed owned by
such person through application of Section 6.1.4(c), but shall not include
any other Voting Shares which may be issuable by this Corporation pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(d) CONSIDERATION OTHER THAN CASH. In the event of any
Business Combination in which the Corporation survives, the phrase
"CONSIDERATION OTHER THAN CASH" as used in Section 6.1.3(b)(1) and Section
6.1.3(b)(2) hereof shall include the Common Shares and/or the shares of
any other class of outstanding Voting Shares retained by the holders of
such shares.
(e) "INDEPENDENT DIRECTOR" means
(1) at any time when there is no Interested Shareholder,
any member of the Board of Directors, and
(2) at any time when there is an Interested Shareholder,
any member of the Board of Directors who (i) is not, and was not at
any time during the two-year period immediately prior to the date in
question, an Affiliate or Associate of the Interested Shareholder,
and (ii) is not an employee of the Corporation or any Affiliate of
the Corporation.
(f) "FAIR MARKET VALUE" means:
(1) in the case of shares, the highest closing sales
price of the shares during the 30-day period immediately preceding
the date in question of such a share on the National Association of
Securities Dealers Automated Quotation System or any system then in
use, or, if such shares are admitted to trading on a principal
United States securities exchange registered under the Exchange Act,
Fair Market Value shall be the highest sale price reported during
the 30-day period preceding the date in question, or, if no such
quotations are available, the Fair Market Value on the date in
question of such a share as determined by the Board of Directors in
good faith; and
(2) in the case of property other than cash or shares,
the fair market value of such property on the date in question as
determined in good faith by a majority of the Independent Directors.
All references to prices and values, including references to "FAIR MARKET
VALUE" and "HIGHEST PER SHARE PRICE" shall in each case be adjusted to the
extent necessary to reflect an appropriate adjustment for any dividend or
distribution in such shares or any share split or reclassification of
outstanding shares into a greater number of shares or any combination or
reclassification of outstanding shares into a smaller number of shares.
(g) "GROUP ACTING IN CONCERT" shall mean persons seeking to
combine or pool their voting or other interests in the securities of the
Corporation for a common purpose, pursuant to any contract, understanding,
relationship, agreement or other arrangement, whether written, oral or
otherwise, or persons acting with conscious parallel
- 8 -
behavior, or any "GROUP OF PERSONS" as defined under Section 13(d) of the
Exchange Act. When persons act together for such purpose, their group is
deemed to have acquired their shares.
(h) "INTERESTED SHAREHOLDER" shall mean any person (other than
the Corporation, any Subsidiary or any employee shares ownership plan
formed by the Corporation) who or which:
(1) is the beneficial owner, directly or indirectly, of
ten percent (10%) or more of the voting power of the outstanding
Voting Shares; or
(2) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of ten percent
(10%) or more of the voting power of the then outstanding Voting
Shares; or
(3) is an assignee of or has otherwise succeeded to any
Voting Shares which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Shareholder, 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, as amended, and such assignment or succession was not
approved by two-thirds (2/3) of the Independent Directors.
(i) A "PERSON" shall include any individual, group acting in
concert, corporation, partnership, limited liability company, limited
liability partnership, association, joint venture, partnership, pool,
joint shares company, trust, unincorporated organization or similar
company, syndicate, or any group formed for the purpose of acquiring,
holding or disposing of securities.
(j) "SUBSIDIARY" means any corporation of which at least a
majority of any class of equity security is owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes of the
exclusion from the definition of Interested Shareholder set forth in
Section 6.1.4(h), 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.
6.1.5 POWERS OF THE BOARD OF DIRECTORS. A majority of the
Independent Directors of the Corporation then in office shall have the power and
duty to determine for the purposes of this Section 6.1, on the basis of
information known to them after reasonable inquiry, (A) whether a person is an
Interested Shareholder, (B) the number or percentage of Voting Shares
beneficially owned by any person, (C) whether a person is an Affiliate or
Associate of another, (D) 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 equal to or greater than ten
percent (10%) of the combined assets of the Corporation and its Subsidiaries,
(E) whether the requirements of Section 6.1.3 have been met with respect to any
Business
- 9 -
Combination, and (F) any other matters of interpretation arising under this
Section 6.1. The good faith determination of a majority of the Independent
Directors on such matters shall be conclusive and binding for all purposes of
this Section 6.1.
6.1.6 NO EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED SHAREHOLDERS.
Nothing contained in this Section 6.1 shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
6.1.7 AMENDMENT, REPEAL, ETC. Notwithstanding any other provisions
of these Articles or the By-Laws of the Corporation (and notwithstanding the
fact that a lesser percentage or no vote may be specified by law, these Articles
or the By-Laws of the Corporation), and in addition to any affirmative vote of
the holders of or any other class or series of capital shares of the Corporation
or any series of the foregoing then outstanding which is required by law or by
or pursuant to these Articles, the affirmative vote of the holders of
seventy-five percent (75%) or more of the outstanding Voting Shares, voting
together as a single voting group, shall be required to amend, repeal, or adopt
any provisions inconsistent with, this Section 6.1.
6.2. STANDARDS FOR BOARD OF DIRECTORS' ACTIONS. Members of the Board of
Directors of the Corporation, in considering what they reasonably believe to be
in the best interests of the Corporation, may consider the interests of the
Corporation's employees, suppliers, creditors and customers, the economy of the
state, the region and the nation, community and societal considerations, and the
long-term and short-term interests of the Corporation and its shareholders,
including the possibility that these interests may be best served by the
continued independence of the Corporation.
6.3. SHAREHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS. Subject to the
provisions of Section 6.1, any (i) sale, lease or exchange of all or
substantially all of the property or assets, including goodwill, of the
Corporation, or (ii) merger, share exchange or consolidation of the Corporation
with or into any other entity, shall, to the extent approval by the
Corporation's shareholders is required by applicable law or by these Articles,
require the affirmative vote of at least two-thirds of the total number of votes
eligible to be cast by shareholders on such sale, lease or exchange, or merger,
share exchange or consolidation, voting together as a single voting group, at a
duly constituted meeting of shareholders called expressly for such purpose. The
two-thirds vote requirement set forth in the previous sentence shall not apply,
and only the affirmative vote of a majority of the total number of votes
eligible to be cast by shareholders on such matter, voting together as a single
voting group, shall be required if the Board of Directors recommends, by the
affirmative vote of two-thirds (2/3) 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 Shareholder, in which case such action shall also
require the affirmative vote of a majority of the Independent Directors then in
office at such meeting), that the shareholders approve such transaction by the
affirmative vote of a majority of the total votes eligible to be cast by
shareholders on such transaction, voting together as a single voting group. The
provisions of this Section 6.3 shall not apply to the extent that a higher
percentage vote shall be required by law or the provisions of Section 6.1 of
these Articles.
6.4. PREEMPTIVE RIGHTS. Holders of the capital shares of the Corporation
shall not be entitled to preemptive rights with respect to any capital shares of
the Corporation which may be
- 10 -
issued.
6.5. DIRECTORS.
6.5.1 CLASSIFICATION OF DIRECTORS. The number of Directors and their
respective classifications shall be fixed from time to time by the Board of
Directors; provided, however, that if at the time of such action there is an
Interested Shareholder, such action shall in addition require the affirmative
vote of a majority of the Independent Directors then in office. The Directors,
other than those who may be elected by the holders of any other class or series
of shares of the Corporation with a separate right to elect Directors, 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 first Annual Meeting of shareholders following the Conversion
Effective Date (as defined below), the second class of Directors shall hold
office initially for a term expiring at the second Annual Meeting of
shareholders following the Conversion Effective Date, and the third class of
Directors shall hold office initially for a term expiring at the third Annual
Meeting of shareholders following the Conversion Effective Date. At each
succeeding Annual Meeting of shareholders, 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 shareholders held in the third year following the year of
their election. Members of each class shall hold office until the Annual Meeting
occurring at the end of their respective terms, or until such Director sooner
dies, resigns, is removed or becomes disqualified. Despite the expiration of a
Director's term, such Director shall continue to serve until his or her
successor is duly elected and qualified or until the number of Directors has
been reduced. A decrease in the number of Directors shall not shorten any
incumbent Director's term. For the purpose of this Section 6.5, the "CONVERSION
EFFECTIVE DATE" shall mean the effective date of this Corporation's conversion
from mutual holding company to stock form in accordance with the provisions of
Chapter 167H of the Massachusetts General Laws. Notwithstanding the foregoing,
whenever, pursuant to the provisions of Article IV of these Articles, any voting
group shall have the right to elect Directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of these Articles
and any Amendment of Designations applicable thereto.
6.5.2 REMOVAL OF DIRECTORS. Subject to the rights of any voting
group with a separate right to elect Directors, any Director (including persons
elected by Directors to fill vacancies in the Board of Directors) may be removed
from office, only for cause and only by an affirmative vote of not less than
two-thirds (2/3) of the total votes eligible to be cast by shareholders, voting
together as a single class, at a duly constituted meeting of shareholders called
expressly for the purpose of removing such Director, and the meeting notice must
state that the purpose, or one of the purposes, of the meeting is removal of the
Director.
6.5.3 VACANCIES. Any vacancy in the Board of Directors, including a
vacancy resulting from the enlargement of the Board, may be filled only by the
affirmative vote of the majority of the remaining Directors then in office,
though less than a quorum of the number constituting the full board as fixed by
the Board of Directors; provided, however, that if at the time of such vacancy
there is an Interested Shareholder, such vacancy may be filled only by the
- 11 -
affirmative vote of a majority of the Independent Directors then in office. A
Director elected to fill such a vacancy shall be elected to serve for the
remainder of the full term of the class of Directors in which the vacancy
occurred or the new directorship was created and until such Director's successor
has been duly elected and qualified, or until such Director sooner dies,
resigns, is removed or becomes disqualified. If the vacant office was held by a
Director elected by a voting group of shareholders, only the shareholders of
that voting group or Directors elected by that voting group are entitled to fill
the vacancy.
6.5.4 LIMITATION OF LIABILITY OF DIRECTORS. To the maximum extent
permitted by the Act, as the same exists or may hereafter be amended, 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. No amendment to or
repeal of the provisions of this paragraph shall apply to or have any effect on
the liability or alleged liability of any director of the Corporation for or
with respect to any act or failure to act of such director occurring prior to
such amendment or repeal. If the Act 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 Act as so amended.
6.6. CALL OF SPECIAL MEETINGS. Special meetings of shareholders may be
called by a majority of the Directors then in office (provided, however, that if
there is an Interested Shareholder, any such call by the Board of Directors
shall also require the affirmative vote of a majority of the Independent
Directors then in office). Special meetings shall be called by the Secretary or
in case of the death, absence, incapacity or refusal of the Secretary, by any
other officer, upon written application of one or more stockholders who hold at
least (i) 80% 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
shareholders having the right to notice of and to vote at such meeting shall be
determined by the Board of Directors or the President. At a special meeting of
shareholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been properly brought before the meeting in
accordance with the procedures set forth in the By-Laws of the Corporation.
6.7. QUORUM; VOTING. Except as otherwise provided by law or expressly
provided in Section 6.11, the presence, in person or by proxy, of the holders of
record of capital shares of the Corporation entitling the holders thereof to
cast a majority of the total number of votes entitled to be cast on a matter by
a voting group shall constitute a quorum of that voting group for action on that
matter at a meeting of the shareholders. Every reference in these Articles to a
majority or other proportion of capital shares (or the holders thereof) for
purposes of determining any quorum requirement or any requirement for
shareholder consent or approval shall be deemed to refer to such majority or
other proportion of the votes (or the holders thereof) then entitled to be cast
in respect of such capital shares after giving effect to the provisions of
Section 6.11.
6.8. ACTION BY WRITTEN CONSENT. Any action to be taken at any Annual
Meeting or special meeting of shareholders may be taken without a meeting if all
shareholders entitled to
- 12 -
vote on the matter consent to the action in writing and the written consents are
filed with the records of the meetings of shareholders within 60 days of the
earliest dated consent delivered to the Corporation as required by this Section
6.8. Such consents shall be treated for all purposes as a vote at a meeting.
6.9. AMENDMENT OF BY-LAWS.
6.9.1 AMENDMENT BY DIRECTORS. Except as otherwise required by law,
the Board of Directors may adopt, amend or repeal the By-Laws of this
Corporation in whole or in part, acting by the affirmative vote of a majority 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
Shareholder, in which case such action shall also require the affirmative vote
of two-thirds (2/3) of the Independent Directors then in office at such
meeting). Not later than the time of giving notice of the annual meeting of
shareholders next following the adoption, amendment or repeal by the Directors
of any By-Law, notice thereof stating the substance of such action shall be
given to all shareholders entitled to vote on amending the By-Laws.
6.9.2 AMENDMENT BY SHAREHOLDERS. The By-Laws of the Corporation may
be amended at a duly constituted meeting of shareholders, called expressly for
such purpose, by the affirmative vote of at least seventy-five percent (75%) of
the total votes eligible to be cast by shareholders on such amendment, voting
together as a single voting group; provided, however, that if the Board of
Directors recommends, by the affirmative vote of two-thirds (2/3) of the
Independent Directors then in office at a duly constituted meeting of the Board
of Directors, that shareholders approve such amendment at such meeting of
shareholders, such amendment shall only require the affirmative vote of a
majority of the total votes eligible to be cast by shareholders on such
amendment, voting together as a single voting group.
6.10. AMENDMENT OF ARTICLES OF ORGANIZATION. These Articles may be amended
by the Board of Directors without shareholder action to the fullest extent
permitted by the Act. Except as otherwise expressly required by law with respect
to the right of any voting group to vote separately on an amendment to these
Articles, these Articles may also be amended, at a duly constituted meeting of
shareholders called expressly for such purpose, by the affirmative vote of at
least seventy-five percent (75%) of the total votes eligible to be cast by
shareholders on such amendment, voting together as a single voting group;
provided, however, that if the Board of Directors recommends, by the affirmative
vote of at least two-thirds (2/3) of the Independent Directors then in office at
a duly constituted meeting of the Board of Directors, that shareholders approve
such amendment at such meeting of shareholders, such amendment shall only
require the affirmative vote of a majority of the total votes eligible to be
cast by shareholders on such amendment, voting together as a single voting
group. Notwithstanding the foregoing, to the extent that any provision of these
Articles provides for shareholder approval by a vote of more than a majority of
the total votes eligible to be cast, such provision may only be amended,
altered, changed or repealed after approval by the same percentage vote as is
provided for in such provision.
6.11. BENEFICIAL OWNERSHIP LIMITATION.
6.11.1 For a period of five (5) years from the Conversion Effective
Date, no
- 13 -
person shall directly or indirectly offer to acquire or acquire the beneficial
ownership of more than ten percent (10%) of the issued and outstanding Voting
Shares (including any securities convertible into, or exercisable for, Voting
Shares) if, after conversion or exercise by such person of all such convertible
or exercisable securities of which such person is the beneficial owner, such
person would be the beneficial owner of more than ten percent (10%) of the
then-outstanding Voting Shares (the "10% LIMIT").
6.11.2 This limitation shall not apply to (i) the Corporation, any
Subsidiary or any pension, profit-sharing, stock bonus or other compensation
plan maintained by the Corporation or by a member of a controlled group of
corporations or trades or businesses of which the Corporation is a member for
the benefit of the employees of the Corporation or any Subsidiary, or any trust
or custodial arrangement established in connection with any such plan; (ii) any
offer with a view toward public resale made exclusively to the Corporation by
underwriters or a selling group acting on its behalf, (iii) to a corporate
reorganization which does not result in any change in the respective beneficial
ownership interests of the Corporation's shareholders other than pursuant to the
exercise of any dissenters' appraisal rights, or (iv) to any offer or
acquisition of Voting Shares which has been expressly approved in advance by an
affirmative vote of not less than two-thirds (2/3) of the Directors then in
office (unless at the time of such action there shall be an Interested
Shareholder, in which case such action shall also require the affirmative vote
of two-thirds (2/3) of the Independent Directors then in office at such
meeting).
6.11.3 Notwithstanding any other provision of these Articles, in no
event shall any record owner of any outstanding Voting Shares which is
beneficially owned, directly or indirectly, by a person who, as of any record
date for the determination of shareholders entitled to vote on any matter,
beneficially owns in excess of the 10% Limit in contravention of the provisions
of this Section 6.11, be entitled to any vote or be permitted to vote in respect
of the shares held in excess of the 10% Limit. The number of votes which may be
cast by any record owner by virtue of the provisions hereof in respect of Voting
Shares beneficially owned by such person beneficially owning shares in excess of
the 10% Limit shall be a number equal to the total number of votes which a
single record owner of all Voting Shares beneficially owned by such person would
be entitled to cast (as determined in accordance with this Section 6.11)
multiplied by a fraction, the numerator of which is the number of shares of such
class or series which are both beneficially owned by such person and owned of
record by such record owner and the denominator of which is the total number of
shares of Voting Shares beneficially owned by such person. In the event that
shares are acquired in violation of this Section 6.11, the Corporation is
authorized to refuse to recognize a transfer or attempted transfer of any shares
of Voting Shares to any person who is the beneficial owner, or as the result of
such transfer would become the beneficial owner, of shares in excess of the 10%
Limit, and (ii) the Board of Directors may cause such shares in excess of the
10% Limit to be transferred to an independent trustee for sale on the open
market or otherwise, with the expenses of such trustee to be paid out of the
proceeds of the sale.
6.11.4 The following definitions shall apply to this Section 6.11:
(a) "ACQUIRE" shall include every type of acquisition, whether
effected by purchase, exchange, operation of law, or otherwise.
- 14 -
(b) "AFFILIATE" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended, as in effect on the date of filing of these
Articles.
(c) The "10% LIMIT" shall have the meaning set forth in
Section 6.11.1.
(d) A "PERSON" shall include an individual, a firm, a group
acting in concert, a corporation, a partnership, an association, a joint
venture, a pool, a joint stock company, a trust, an unincorporated
organization or similar company, a syndicate or any other group formed for
the purpose of acquiring, holding or disposing of securities or any other
entity.
6.11.5 The Board of Directors shall have the power to construe and
apply the provisions of this Section 6.11 and to make all determinations
necessary or desirable to implement such provisions, including but not limited
to matters with respect to: (i) the number of Voting Shares beneficially owned
by any person; (ii) whether a person is an Affiliate of another; (iii) whether a
person has an agreement, arrangement, or understanding with another as to the
matters referred to in the definition of beneficial ownership; (iv) the
application of any other definition or operative provision of this Section 6.11
to the given facts; or (v) any other matter relating to the applicability or
effect of this Section 6.11.
6.11.6 The Board of Directors shall have the right to demand that
any person who is reasonably believed to beneficially own Voting Shares in
excess of the 10% Limit (or holds of record Voting Shares beneficially owned by
any person in excess of the 10% Limit) supply the Corporation with complete
information as to: (i) the record owner(s) of all shares beneficially owned by
such person who is reasonably believed to own shares in excess of the 10% Limit;
and (ii) any other factual matter relating to the applicability or effect of
this Section 6.11 as may reasonably be requested of such person.
6.11.7 Any constructions, applications, or determinations made by
the Board of Directors pursuant to this Section 6.11 in good faith and on the
basis of such information and assistance as was then reasonably available for
such purpose shall be conclusive and binding upon the Corporation and its
shareholders.
6.11.8 In the event any provision (or portion thereof) of this
Section 6.11 shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions (or portions thereof) of this Section 6.11
shall remain in full force and effect, and shall be construed as if such
invalid, prohibited or unenforceable provision had been stricken herefrom or
otherwise rendered inapplicable, it being the intent of this Corporation and its
shareholders that each such remaining provision (or portion thereof) of this
Section 6.11 remain, to the fullest extent permitted by law, applicable and
enforceable as to all shareholders, including shareholders owning an amount of
Voting Shares in excess of the 10% Limit, notwithstanding any such finding.
6.12. INTERPRETATION. When a reference is made in these Articles to a
Section, such reference shall include subsections, which are part of the related
Section (e.g., a section numbered "Section 5.5.1" would be part of "Section 5.5"
and references to "Section 5.5" would
- 15 -
also refer to material contained in the subsection described as "Section
5.5.1"). The headings contained in these Articles are for reference purposes
only and shall not affect in any way the meaning or interpretation of these
Articles.
6.13. CERTAIN STATUTE. The provisions of Chapter 110D of the Massachusetts
General Laws shall not apply to the Corporation.
- 16 -
ARTICLE VII
Unless otherwise provided in the articles of organization, the effective date of
organization of the corporation is the date and time the articles were received
for filing if the articles are not rejected within the time prescribed by law.
If a later effective date is desired, specify such date, which may not be later
than the 90th day after the articles are received for filing:
N/A.
- 17 -
ARTICLE VIII
The information contained in this article is not a permanent part of
the articles of organization.
a. The street address of the initial registered office of the corporation
in the commonwealth:
b. The name of its initial registered agent at its registered office:
c The names and addresses of the individuals who will serve as the
initial directors, president, treasurer and secretary of the
corporation:
President:
Treasurer:
Secretary:
Director(s):
d. The fiscal year end of the corporation:
e. A brief description of the business in which the corporation will
engage:
f. The street address of the principal office of the corporation is:
g. The records of the corporation required to be kept in the commonwealth
will be kept at:
___________________________________________________________________,
which is the street address of its principal office; or an office of
its transfer agent, its secretary/assistant secretary, or its
registered agent.
Signed this__________day of___________________________ _____________by the
incorporators whose name and address are listed below:
Name:
Signature:_________________________________________
Address:___________________________________________
- 18 -
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156D)
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 $______having been paid, said
articles are deemed to have been filed with me this ______ day of ___________,
2005 at __________ am/pm.
Effective date:_________________________________________
(must be within 90 days of date submitted)
WILLIAM FRANCIS GALVIN Secretary of the Commonwealth
Filing fee: $275.00 for up to 275,000 shares plus $100 for each additional
100,000 shares or any fraction thereof.
TO BE FILLED IN BY CORPORATION
CONTACT INFORMATION:
_____________________________________________________
_____________________________________________________
_____________________________________________________
TELEPHONE:
EMAIL:
A copy of this filing will be available on-line at WWW.STATE.MA.US/SEC/COR after
7:00 p.m. on the date the document is filed.
- 19 -