Minimum Fee $80 (See ss. 1401 sub-ss. 16)
DOMESTIC -----------------------------------------
BUSINESS CORPORATION
STATE OF MAINE
RESTATED
ARTICLES OF INCORPORATION
(Shareholders Voting as One Class) ------------------------------
Deputy Secretary of State
-----------------------------------------
Merrill Merchants Bancshares, Inc.
- ---------------------------------- A True Copy When Attested By
(Name of Corporation) Signature
---------------------------
Deputy Secretary of State
-----------------------------------------
Pursuant to 13-A MRSA ss. 809, the undersigned corporation adopts these Restated
Articles of Incorporation:
FIRST: All outstanding shares were entitled to vote on the following
restatement as one class.
SECOND: The restatement set out in Exhibit A attached contains the same
information and provisions as are required for original articles.
Statements as to the incorporator or incorporators and the initial
directors may be omitted. This restatement was adopted by the
shareholders on (date) June 18, 1998 ("X" one box only)
[X] at a meeting legally OR [ ] by unanimous written consent
called and held
THIRD: Shares outstanding and entitled to vote and shares voted for and
against said restatement were:
Number of Shares Outstanding NUMBER NUMBER
and Entitled to Vote Voted For Voted Against
-------------------- --------- -------------
185,060
FOURTH: If such restatement provides for exchange, reclassification or
cancellation of issued shares, the manner in which this shall be
effected is contained in Exhibit B attached if it is not set forth in
the restatement itself.
FIFTH: If the restatement changes the number or par values of authorized
shares, the number of shares the corporation has authority to issue
thereafter is as follows:
Class Series (If Any) Number of Shares Par Value (If Any)
----- --------------- ---------------- ------------------
The aggregate par value of all such shares (of all classes and series)
having par value is $______________
The total number of all such shares (of all classes and series) without
par value is _____________ shares
P.O. Box 917, 23 Water Street, Bangor, Maine, 04402-0917
--------------------------------------------------------
(street, city, state and zip code)
DATED ________________________________ *By ________________________________
(signature)
Norman Minsky, Clerk
________________________________
(type or print name and capacity)
*By _______________________________
(signature)
*By _______________________________
(type or print name and capacity)
______________________________________________________________
MUST BE COMPLETED FOR VOTE
OF SHAREHOLDERS
______________________________________________________________
I certify that I have custody of the minutes showing
the above action by the shareholders.
______________________________________________________________
(signature of clerk, secretary or asst. secretary)
NOTE: This form should not be used if any class of shares is entitled to vote
as a separate class for any of the reasons set out in ss. 806, or
because the articles so provide. For vote necessary for adoption see
ss. 805.
- --------------------------------------------------------------------------------
*This document MUST be signed by (1) the Clerk OR (2) the President or a
vice-president and the Secretary or an assistant secretary, or such other
officer as the bylaws may designate as a 2nd certifying officer OR (3) if there
are no such officers, then a majority of the Directors or such directors as may
be designated by a majority of directors then in office OR (4) if there are no
such directors, then the Holders, or such of them as may be designated by the
holders, of record of a majority of all outstanding shares entitled to vote
thereon OR (5) the Holders of all of the outstanding shares of the corporation.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE,
101 STATE HOUSE STATION, AUGUSTA, ME 04333-0101
TEL. (207) 287-4195
M NO. MBCA-6A Rev. 96
EXHIBIT A
TO
RESTATED ARTICLES OF INCORPORATION
OF
MERRILL MERCHANTS BANCSHARES, INC.
I. Name of Corporation. The name of the Corporation is Merrill Merchants
Bancshares, Inc. and its principal business location in Maine is 201 Main
Street, Bangor, Maine 04401.
II. Clerk. The name of its Clerk, who must be a Maine resident, and the
registered office shall be Norman Minsky, 23 Water Street, P.O. Box 917, Bangor,
Maine 04402-0917.
III. Directors. There shall be nine (9) directors. The directors may increase or
decrease the number of directors by the affirmative vote of at least sixty-seven
percent (67%) of the directors in office at the time of such vote. The Board of
Directors is authorized to increase or decrease the number of directors. The
minimum number shall be three (3) directors, and the maximum number shall be
twenty-five (25) directors. The Board of Directors shall be divided into three
classes of directors as specified in Article VI below.
IV. Capital Stock Provisions. The total number of shares of stock which the
Corporation shall be authorized to issue is 5,000,000 shares, consisting of (i)
50,000 shares of Series A Preferred Stock with a par value of one dollar ($1.00)
per share (the "Series A Preferred Stock"), 950,000 shares of Serial Preferred
Stock with a par value of one cent ($0.01) per share, issuable in series as
hereinafter provided for (hereinafter the "Serial Preferred Stock"), and (ii)
4,000,000 shares of common stock (herein called the "Common Stock") with a par
value of one dollar ($1.00) per share.
The preferences and voting powers of the Series A Preferred Stock, the
Serial Preferred Stock and the Common Stock, the restrictions and qualifications
thereof and the limits (if any) of the variations in each series of the Serial
Preferred Stock are set forth below. For the purposes of this Article, the term
"junior stock" shall mean Common Stock and shares of stock of the Corporation of
any other class ranking junior to shares of Series A Preferred Stock and Serial
Preferred Stock either in respect of the payment of dividends or in respect of
any payment upon liquidation, dissolution or winding up of the Corporation.
A. Series A Preferred Stock
(1) Cumulative Dividend Rate. The shares of Series A Preferred Stock,
of which 19,566 shares having a stated value of $46.00 per share were authorized
for issuance by resolution of the Board of Directors on September 30, 1992 as
evidenced by a Statement of Resolution Establishing Series of Shares of the
Corporation filed with the Secretary of State of the State of Maine on October
29, 1992, shall be entitled to receive, when and if declared by the Board of
Directors of the Corporation out of assets of the Corporation legally available
for payment thereof, cumulative cash dividends on the stated value of the Series
A Preferred Stock at the per annum rate, computed on the basis of a 365-day
year, equal to the prime lending rate of BankBoston, N.A., as the same may
change from time to time as hereinafter provided for. The dividend rate shall
initially be determined a of October 1, 1992 and shall be adjusted on the same
day of each month thereafter (each such day hereinafter referred to as an
"Adjustment Date"). All such adjustments to said dividend rate shall be made and
shall become effective on the corresponding Adjustment Date and said dividend
rate as adjusted shall remain in effect until the next Adjustment Date.
(2) Dividend Payments. Dividends shall be payable quarterly on March
31, June 30, September 30 and December 31 of each year. Dividends shall be
payable to holders of record of the Series A Preferred Stock as they appear on
the Corporation's shareholder records on such payment dates. Dividends payable
for the initial dividend period shall be based on the amount of dividends
accrued since the date of issuance of the Series A Preferred Stock.
(3) Dividend Priorities. No dividend payment shall be paid or declared
and set apart for payment on any other shares of stock of the Corporation,
whether common or preferred, for any period unless cumulative dividends have
been paid or contemporaneously are declared or paid or set apart for payment on
the Series A Preferred Stock for such period. Holders of Series A Preferred
Stock shall not be entitled to any dividends, whether payable in cash, property
or stock, in excess of full dividends for any period. No interest or sum of
money in lieu of interest shall be payable in respect of a dividend payment or
payments which may be in arrears.
(4) Voting Rights. The Series A Preferred Stock shall be non-voting.
(5) Conversion Feature.
(a) Timing. At the option of the holders, on or prior to September
30, 2002, each share of Series A Preferred Stock may be converted into
shares of the voting common stock of the Corporation (the "Common
Stock").
(b) Conversion Ratio. The number of shares of Common Stock to
be received for each share of Series A Preferred Stock shall be equal
to the quotient resulting from dividing the $46.00 stated value of the
Series A Preferred Stock by $46.00 (the per share price at which the
Common Stock is to be sold pursuant to its 1992 private placement). The
conversion ratio shall be adjusted as appropriate to account for any
subdivision or combination of the outstanding shares of Common Stock
occurring after closing on the 1992 private placement, whether
resulting from a recapitalization, stock dividend, stock split or
otherwise. For example, if the Corporation effected a two-for-one split
of its Common Stock, rather than receiving one share of Common Stock
for each share of Series A Preferred Stock converted, a holder would
receive two shares of Common Stock for each share of Series A Preferred
Stock converted.
2
(c) Conversion Exercise. To exercise conversion rights, a
holder of Series A Preferred Stock must provide the Corporation with
written notice specifying (i) the intent by the holder to exercise its
conversion rights, (ii) the number of shares of Series A Preferred
Stock to be converted and a calculation of the number of shares of
Common Stock to be received and (iii) the effective date of such
conversion, to be not less than ten (10) days nor greater than sixty
(60) days from the date of such notice (the "Conversion Date").
(d) Payment of Dividends. Cumulative dividends accrued but unpaid
on the Series A Preferred Stock to be converted as provided above
shall be paid by the Corporation to the holder as paid to other
holders of the Series A Preferred Stock, with the payment priority
specified in Paragraph 3 above, it being understood that the
Corporation shall be under no obligation to pay any such accrued
dividends on or prior to the Conversion Date.
(e) Shareholder Agreement. As a condition to any conversion of
Series A Preferred Stock as set forth above, the holder must agree in
writing that the Common Stock to be received upon conversion and the
holder's rights therein shall be subject to the terms, conditions,
rights and obligations as set forth in that certain shareholder
agreement, dated October 30, 1992 (the "Shareholder Agreement), a copy
of which is available for review and inspection at the registered
office of the corporation.
(6) Redemption. Shares of the Series A Preferred Stock may be redeemed,
in whole or in part, by the Corporation at any time on or after October 1, 2002,
at a redemption price equal to the stated value of the shares to be redeemed,
plus accrued and unpaid dividends thereon, if any. Notwithstanding the
foregoing: (i) any such redemption of the Series A Preferred Stock must be
pre-approved by the Federal Reserve Bank of Boston; and (ii) these redemption
rights shall not apply to any shares of Common Stock received upon conversion of
the Series A Preferred Stock as set forth above.
(7) Merger or Stock Sale. If the Corporation proposes to engage in a
transaction whereby its Common Stock is to be transferred or exchanged for
stock or securities of another entity or assets other than securities, whether
pursuant to merger, consolidation or otherwise, or if there is a proposed sale
of a majority of the then outstanding shares of Common Stock, the Corporation
shall provide each holder of Series A Preferred Stock with at least thirty (30)
days written notice of such transaction Such notice shall include a summary of
all materials terms and conditions of the proposed transaction as relevant to
holders of the Series A Preferred Stock.
(a) Conversion Option. If such transaction occurs on or prior to
September 30, 2002, each holder may convert its Series A Preferred
Stock into Common Stock as provided above, subject to the following:
(i) Conversion notice must be given to the Corporation
within fifteen (15) days of the date of the notice received
from the Corporation.
3
(ii) If the transaction involves a merger, consolidation or
similar transaction or the sale of all of the Common Stock,
shares of Common Stock received by the holder upon
conversion shall participate in such transaction in the same
manner as other shares of Common Stock.
(iii) If the transaction does not involve a merger,
consolidation or similar transaction and does not involve
the sale of all of the Common Stock, shares of Common Stock
received by the holder upon conversion may participate in
such transaction only to the extent and in the manner
provided pursuant to the negotiated terms and conditions for
such transaction, it being expressly understood that the
parties shall be under no obligation to negotiate
participation for the holder.
(iv) The rights and obligations of the holder under the
Shareholder Agreement shall only apply to transactions
subsequent to the merger, consolidation or stock sale. Thus,
for example, holders of Series A Preferred Stock converting
into Common Stock shall have no rights of first refusal
under the Shareholder Agreement with respect to the merger,
consolidation or stock sale.
(v) If the transaction involves a merger, consolidation or
similar transaction whereby the Common Stock is transferred
or exchanged for stock or securities of another entity or
assets other than securities, to the extent the Series A
Preferred Stock is not converted into Common Stock as
provided above, holders shall have no further rights to
convert any remaining shares of Series A Preferred Stock
into Common Stock and all rights to convert the Series A
Preferred Stock into Common stock shall terminate and be
extinguished.
(b) Redemption Option. If the above conversion option is not
or cannot be exercised, the Corporation may redeem all or any part of
the outstanding Series A Preferred Stock at the price and subject to
the other terms and conditions provided in Paragraph 6 above, except
that such redemption may be effected without regard to whether the
transaction occurs before, on or after October 1, 2002. This redemption
option must be exercised by the Corporation prior to consummation of
the merger, consolidation or stock sale and will only be effective
provided such merger, consolidation or stock sale is consummated.
(8) Dissolution and Payment Priority. In the event of any voluntary or
involuntary dissolution, liquidation or winding up of the Corporation, shares of
Series A Preferred Stock are entitled to receive, out of assets of the
Corporation legally available for distribution to shareholders, before any
distribution is made to holders of any other stock of the Corporation, whether
common or preferred, liquidation distribution in the amount of $46.00 per share
plus accrued and unpaid dividends, if any. If the amounts payable with respect
to the Series A Preferred Stock are not paid in full, holders of the Series A
Preferred Stock shall share ratably on a per share basis. Upon payment of a full
amount of the stated value plus accrued and unpaid
4
dividends, holders of the Series A Preferred Stock will not be entitled to any
further participation in any distributions or payments by the Corporation.
(9) Preemptive Rights. Holders of the Series A Preferred Stock will not
have preemptive rights, and the Series A Preferred Stock will be fully paid and
non-assessable.
B. Serial Preferred Stock
(1) General - The shares of Serial Preferred Stock may be divided and
issued in one or more series from time to time as determined by resolution of
the Board of Directors. Each series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes. All shares of
the Serial Preferred Stock, regardless of series, shall be identical except that
the Board of Directors, prior to the issuance of any shares of a particular
series of Serial Preferred Stock, may fix and determine the following relative
rights and preferences as between different series:
(a) The number of shares to constitute such series and the
distinctive serial designation thereof;
(b) The rate or rates of dividend, which may be subject to
adjustment, whether dividends are to be cumulative, and the terms and
conditions thereof;
(c) Whether shares may be redeemed and, if so, the redemption
price or prices and the terms and conditions of redemption;
(d) The amounts payable upon shares in the event of voluntary
and involuntary liquidation;
(e) Sinking fund provisions, if any, for the redemption or
purchase of shares;
(f) The terms and conditions, if any, on which shares may be
converted; and
(g) The voting rights, if any, in addition to those set forth
in Section D of this Article IV.
The Board of Directors may create and issue shares of any series of the
Serial Preferred Stock convertible, exchangeable or redeemable, at the option of
either the Corporation or the holder or upon the happening of a specified event
or events, into or for cash, property or rights, including bonds, debentures,
notes, or other securities of the Corporation or another corporation, at such
time or times, price or prices, or rate or rates, and with such adjustments, as
shall be stated in the resolutio of the Board of Directors for the issue of such
shares. With respect to fixing and determining the relative rights and
preferences as between different series of Serial Preferred Stock, it is the
purpose of these Articles of Incorporation to vest in the Board of
5
Directors the maximum flexibility to fix and determine such rights and
preferences as is permissible under the Maine Business Corporation Act as may be
amended from time to time. In order to effectuate this purpose, subparagraphs
(a) through (g) above shall be broadly construed.
(2) Dividends - The holders of outstanding shares of Serial Preferred
Stock shall be entitled to receive, as and when declared by the Board of
Directors out of any funds legally available for the purpose, dividends at the
dividend rate or rates fixed for the particular series, and no more, payable in
such manner as the Board of Directors may determine for such series.
So long as any shares of Serial Preferred Stock shall be outstanding,
the Corporation shall not declare any dividends on the Common Stock of the
Corporation or any other class of stock of the Corporation ranking as to
dividends or distribution of assets junior to the shares of Serial Preferred
Stock, or make any payment on account of or set apart money for, a sinking or
other analogous fund for the purchase, redemption or other retirement of any
share of a class of junior stock, or make any distribution in respect thereof,
whether in cash or property or in obligations or stock of the Corporation,
unless all senior dividend rights and preferences with respect to dividends for
outstanding shares of Serial Preferred Stock have been fully satisfied.
In addition, as long as any shares of Serial Preferred Stock shall be
outstanding, the Corporation or any of its subsidiaries shall not purchase,
redeem or otherwise acquire any shares of any class of junior stock (except in
connection with a reclassification or exchange of any junior stock or the
purchase, redemption or other acquisition of junior stock with proceeds of a
reasonably contemporaneous sale of junior stock) nor shall any funds be set
aside or made available for any sinking fund for the purchase or redemption of
any share of any class of junior stock unless there shall be no arrearages in
dividends on the shares of Serial Preferred Stock for any past dividend period,
and the Corporation shall not be in default of any of its obligations to redeem
any shares of Serial Preferred Stock.
(3) Liquidation - In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
shares of Serial Preferred Stock shall be entitled to be paid out of the assets
of the Corporation, before any distribution or payment is made to or set apart
for the holders of any shares of any class of junior stock, the amount fixed for
the particular series, plus, in each case, any amount equal to all unpaid
dividends accrued thereon, if any, and that portion of the dividend accrued
thereon, if any, up to the date of final payment or distribution to such
holders. In case the net assets of the Corporation are not sufficient to pay the
holders of all outstanding shares of Serial Preferred Stock the full amounts to
which they are respectively entitled as aforesaid, the entire net assets of the
Corporation shall be distributed ratably to the holders of all the outstanding
shares of Serial Preferred Stock in proportion to the full amounts to which the
are respectively entitled. Neither the merger or consolidation of the
Corporation into or with any one or more other corporations nor the sale,
conveyance, exchange or transfer of all or substantially all of the property or
assets of the Corporation shall be deemed a liquidation, dissolution or winding
up of the Corporation, voluntary or involuntary.
6
C. Common Stock
(1) Dividends - The holders of Common Stock shall be entitled to such
dividends as may be declared from time to time by the Board of Directors,
subject to the restrictions set forth in paragraph (2) of Section A of this
Article IV.
(2) Liquidation - In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, the holders of
Common Stock shall be entitled to participate pro rata in the net assets of the
Corporation remaining after distributions to holders of the Serial Preferred
Stock as provided for in paragraph (3) of Section A hereof.
D. General
(1) Voting Rights - At each meeting of stockholders of the Corporation
each holder of Common Stock shall be entitled to one vote for each share held.
The holders of shares of each series of Serial Preferred Stock
shall have no voting rights, unless otherwise fixed and determined by the Board
of Directors prior to the issuance of any shares of a particular series of
Serial Preferred Stock.
There shall be no cumulative voting in elections for directors.
(2) Preemptive Rights - No holder of any shares of Common Stock and no
holder of any shares of Serial Preferred Stock shall be entitled as such, as a
matter of right, to subscribe for or to purchase any shares of stock of the
Corporation of any class, whether now or hereafter authorized or whether issued
for cash, property or services, or as a dividend or otherwise, or any
obligations, bonds, notes, debentures, stocks, warrants, options or other
securities into shares of stock of the Corporation or carrying or evidencing any
right to purchase shares of stock of any class.
(3) Issuance of Stock - The authorized but unissued shares of capital
stock of the Corporation may be issued from time to time in such amounts and
upon such terms and conditions, not inconsistent with the laws of Maine or this
Article, and for such consideration in cash, property, including stock or
securities of other corporations, or services as the Board of Directors may
determine.
(4) Securities Convertible Into Stock - The Board of Directors may at
any time create and issue bonds, debentures, notes and other securities
convertible into shares of capital stock of the Corporation, and may also create
and issue stock options and warrants entitling the holders thereof to purchase
shares of capital stock of the Corporation on such terms and conditions, but not
inconsistent with the laws of Maine or this Article, as the Board of Directors
may from time to time determine.
V. General Provisions.
7
1. The Board of Directors is authorized and empowered from time to
time, in its discretion, to make, amend or repeal the Bylaws, in part or in
whole, except with respect to any provision thereof which by law, the Articles
of Incorporation or the Bylaws requires action by the stockholders.
2. The Board of Directors shall have full power and authority to
determine the terms and manner of issue, including, but not limited to, the
consideration therefor, (in a manner consistent with applicable law) and to
issue or cause the issue of all shares of capital stock of the Corporation now
or from time to time hereafter authorized.
3. Meetings of stockholders may be held inside or outside the State of
Maine at such location within the United States as the Board of Directors may
determine. The books of this Corporation may be kept (subject to any provision
of Maine law) at such place or places within the State of Maine as may be
designated from time to time by the Board of Directors or in the Bylaws of this
Corporation. Election of directors need not be by ballot unless so requested by
any stockholder entitled to vot thereon.
4. The Board of Directors shall have the power to fix from time to time
their compensation. No person shall be disqualified from holding any office by
reason of any interest. In the absence of fraud, any director, officer or
stockholder of this Corporation individually, or any individual having any
interest in any concern which is a stockholder of this Corporation, or any
concern in which any of such directors, officers, stockholders or individuals
has any interest, may be a party to, or may be pecuniarily or otherwise
interested in, any contract, transaction or other act of this Corporation, and
(1) such contract, transaction or act shall not be in any way
invalidated or otherwise affected by that fact;
(2) no such director, officer, stockholder or individual shall be
liable to account to this Corporation for any profit or benefit
realized through any such contract, transaction or act; and
(3) any such director of this Corporation may be counted in
determining the existence of a quorum at any meeting of the
directors or of any committee thereof which shall authorize any
such contract, transaction or act, and may vote to authorize the
same;
provided, however, that any contract, transaction or act in which any
director or officer of this Corporation is so interested individually
or as a director, officer, trustee or member of any concern which is
not a subsidiary or affiliate of this Corporation, or in which any
directors or officers are so interested as holders, collectively, of a
majority of shares of capital stock or other beneficial interest at the
time outstanding in any concern which is not a subsidiary or affiliate
of this Corporation, shall be duly authorized or ratified by a
8
majority of the directors who are not so interested, to whom the nature
of such interest has been disclosed and who have made any findings
required by law;
the term "interest" as used herein shall include any personal
interest and interest as a director, officer, stockholder,
shareholder, trustee, member or beneficiary of any concern;
the term "concern" as used herein shall mean any Corporation,
association, trust, partnership, limited liability company, firm,
person or other entity other than this Corporation; and
the phrase "subsidiary or affiliate" as used herein shall mean a
concern in which a majority of the directors, trustees, partners
or controlling persons is elected or appointed by the directors
of this Corporation, or is constituted of the directors or
officers of this Corporation.
To the extent permitted by law, the authorizing or ratifying vote of
the holders of a majority of the shares of each class of the capital
stock of this Corporation outstanding and entitled to vote for
directors at any annual meeting or a special meeting duly called for
the purpose (whether such vote is passed before or after judgment
rendered in a suit with respect to such contract, transaction or act)
shall validate any contract, transaction or act of this Corporation, or
of the Board of Directors or any committee thereof, with regard to all
stockholders of this Corporation, whether or not of record at the time
of such vote, and with regard to all creditors and other claimants
under this Corporation; provided, however, that
A. with respect to the authorization or ratification of
contracts, transactions or acts in which any of the
directors, officers or stockholders of this Corporation have
an interest, the nature of such contracts, transactions or
acts and the interest of any director, officer or
stockholder therein shall be summarized in the notice of any
such annual or special meeting, or in a statement or letter
accompanying such notice, and shall be fully disclosed at
any such meeting;
B. the stockholders so voting shall have made any findings
required by law;
C. stockholders so interested may vote at any such meeting
except to the extent otherwise provided by law; and
D. any failure of the stockholders to authorize or ratify such
contract, transaction or act shall not be deemed in any way
to invalidate the same or to deprive this Corporation, its
directors, officers or employees of its or their right to
proceed with such contract, transaction or act.
9
No contract, transaction or act shall be avoided by reason of any provision of
this paragraph 4 which would be valid but for such provision or provisions.
5. Each director or officer of the Corporation shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account of the Corporation, reports made to the Corporation by any of
its officers or employees or by counsel, accountants, appraisers or other
experts or consultants selected by the directors or officers of the Corporation
or upon other records of the Corporation.
6. The Corporation shall have all the powers conferred by the laws of
the State of Maine, provided that no such power shall be exercised in a manner
inconsistent with the Maine Business Corporation Act, the provisions of Title
9-B of the Maine Revised Statutes governing financial institution holding
companies, the United States Bank Holding Company Act of 1956, as amended, or
any other applicable provision of Maine or federal law.
7. Except as may be otherwise provided herein, this Corporation
reserves the right to amend, alter, change or repeal any provision contained in
these Articles of Incorporation in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
8. No stockholder shall have any right to examine any property or any
books, accounts or other writings of the Corporation if there is reasonable
ground for belief that such examination will for any reason be adverse to the
interests of the Corporation, and a vote of the directors refusing permission to
make such examination and setting forth that in the opinion of the directors
such examination would be adverse to the interests of the Corporation shall be
prima facie evidence that such examination would be adverse to the interests of
the Corporation. Every such examination shall be subject to such reasonable
regulations as the directors may establish in regard thereto.
9. The Board of Directors may specify the manner in which the accounts
of the Corporation shall be kept and may determine what constitutes net
earnings, profits and surplus, what amounts, if any, shall be reserved for any
corporate purpose, and what amounts, if any, shall be declared as dividends.
Unless the Board of Directors otherwise specifies, the excess of the
consideration for any share of its capital stock with par value issued by it
over such par value shall be paid-in surplus. The Board of Directors may
allocate to capital stock less than all of the consideration for any share of
its capital stock without par value issued by it, in which case the balance of
such consideration shall be paid-in surplus. All surplus shall be available for
any corporate purpose, including the payment of dividends.
10. The purchase or other acquisition or retention by the Corporation
of shares of its own capital stock shall not be deemed a reduction of its
capital stock. Upon any reduction of capital or capital stock, no stockholder
shall have any right to demand any distribution from the Corporation, except as
and to the extent that the stockholders shall have provided at the time of
authorizing such reduction.
10
11. Subject to the provisions of Title 9-B of the Maine Revised
Statutes governing financial institution holding companies, the United States
Bank Holding Company Act of 1956, as amended, or any other applicable provision
of Maine or federal law, the Corporation may carry on any business operation or
activity through a wholly or partly owned subsidiary and may be a partner in any
business enterprise which it would have power to conduct by itself.
12. Except as otherwise provided in these Articles of Incorporation,
the Articles of Incorporation of this Corporation may be amended at a meeting
duly called for the purpose, by the vote of a majority of each class of stock
outstanding and entitled to vote thereon provided that any provision added to or
changes made in the Articles of Incorporation by such amendment could have been
included in, and any provision deleted thereby could have been omitted from, the
original Articles of Incorporation filed at the time of such meeting.
13. No director 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, except for any
matter in respect of which such director shall be liable under Section 720 of
the Maine Business Corporation Act or any amendment thereto or successor
provision thereto or shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached his duty of
loyalty to the Corporation or its stockholders, (ii) shall not have acted in
good faith or, in failing to act, shall not have acted in good faith, (iii)
shall have acted in a manner involving intentional misconduct or a knowing
violation of law or, in failing to act, shall have acted in a manner involving
intentional misconduct or a knowing violation of law or (iv) shall have derived
an improper personal benefit. Neither the amendment nor repeal of this paragraph
13, nor the adoption of any provision of the Articles of Incorporation
inconsistent with this paragraph 13, shall eliminate or reduce the effect of
this paragraph 13 in respect of any matter occurring, or any cause of action,
suit or claim that, but for this paragraph 13 would accrue or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
VI. Classified Board of Directors.
1. The Board of Directors of the Corporation shall be divided into
three classes, initially consisting of three directors each: Class I, Class II
and Class III. Each class shall consist, as nearly as may be practicable, of
one-third of the whole number of the Board of Directors. If the number of
directors is not evenly divisible by three, the Board of Directors shall
determine the number of directors to be elected initially into each class. The
initial members of Class I shall hold office for a term to expire at the annual
meeting of the stockholders to be held in 1999; the initial members of Class II
shall hold office for a term to expire at the annual meeting of the stockholders
to be held in 2000; and the initial members of Class III shall hold office for a
term to expire at the annual meeting of the stockholders to be held in 2001, and
in the case of each class, until their respective successors are duly elected
and qualified. At each annual election held commencing with the annual election
in 1999, the directors elected to succeed those whose terms expire shall be
identified as being of the same class as the directors they succeed and shall be
elected to hold office for a term to expire at the third annual meeting of the
stockholders after
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their election, and until their respective successors are duly elected and
qualified. If the number of directors changes, any increase or decrease in
directors shall be apportioned among the classes so as to maintain all classes
as equal in number as possible, and any additional director elected to any class
shall hold office for a term which shall coincide with the terms of the other
directors in such class and until his successor is duly elected and qualified.
2. Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the Corporation or the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the Corporation, the affirmative vote of the holders of at least
eighty (80%) percent of the combined voting power of the outstanding stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend, alter, adopt any
provision inconsistent with or to repeal this Article VI.
VII. Indemnification of Officers, Directors, Employees and Agents, Etc.;
Insurance
1. General. The Corporation shall in all cases indemnify any person who
is or was a director or officer of the Corporation, and may (subject to Section
4 of this Article) indemnify any other person, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, partner, fiduciary, employee or agent of
another corporation, partnership, joint venture, trust, pension or other
employee benefit plan or other enterprise, against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement to the extent
actually and reasonably incurred by that person in connection with such action,
suit or proceeding; provided that no indemnification may be provided for any
person with respect to any matter as to which that person shall have been
finally adjudicated:
A. Not to have acted honestly or in the reasonable belief that
such person's action was in or not opposed to the best interests of
the Corporation or its shareholders or, in the case of a person
serving as a fiduciary of an employee benefit plan or trust, in or not
opposed to the best interests of that plan or trust, or its
participants or beneficiaries; or
B. With respect to any criminal action or proceeding, to have
had reasonable cause to believe that such person's conduct was
unlawful.
The termination of any action, suit or proceeding by judgment, order or
conviction adverse to that person, or by settlement or plea of nolo contendere
or its equivalent, shall not of itself create a presumption that such person did
not act honestly or in the reasonable belief that such person's action was in or
not opposed to the best interests of the Corporation or its shareholders or, in
the case of a person serving as a fiduciary of an employee benefit plan or
trust, in or not opposed to the best interests of that plan or trust or its
participants or beneficiaries and, with respect to any
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criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
2. Derivative Actions. Notwithstanding any provision of Section 1 or 4,
the Corporation shall not indemnify any person with respect to any claim, issue
or matter asserted by or in the right of the Corporation as to which that person
is finally adjudicated to be liable to the Corporation unless the court in which
the action, suit or proceeding was brought shall determine that, in view of all
the circumstances of the case, that person is fairly and reasonably entitled to
indemnity for such amounts as the court shall deem reasonable.
3. Special Right to Indemnification in Certain Cases. Any provisions of
Sections 1, 2 or 4 to the contrary notwithstanding, to the extent that a
director, officer, employee or agent of the Corporation, or any other person
whom the Corporation has authority to indemnify under Section 1, has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2, or in defense of any claim, issue or
matter therein, that person shall be indemnified against expenses, including
attorneys' fees, actually and reasonably incurred in connection therewith. The
right to indemnification granted by this section may be enforced by a separate
action against the Corporation, if an order for indemnification is not entered
by a court in the action, suit or proceeding wherein that director, officer,
employee, agent or other person was successful on the merits or otherwise.
4. Mandatory Indemnification for Directors and Officers; Determinations
in Specific Cases for Others. Any indemnification under Section 1, unless
ordered by a court or required by these Articles of Incorporation or the Bylaws
of the Corporation, shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of any employee, agent
or other person is proper in the circumstances and in the best interests of the
Corporation; provided that no such determination shall be required with respect
to any person who is or was a director or officer of the Corporation and
indemnification of any such person under Section 1 shall be required in all
cases, regardless of the capacity in which such director or officer is or was
made or threatened to be made a party to the action, suit or proceeding. Where
such a case specific determination is required, that determination shall be made
by the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to that action, suit or proceeding, or if such a quorum is
not obtainable, or even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or by the
shareholders. Such a determination once made may not be revoked and, upon the
making of that determination, the officer, employee, agent or other person may
enforce the indemnification against the Corporation by a separate action
notwithstanding any attempted or actua subsequent action by the Board of
Directors.
5. Advancement of Expenses. Except in the case of any person who is or
was a director or officer of the Corporation, expenses incurred in defending a
civil, criminal, administrative or investigative action, suit or proceeding may
be authorized and paid by the Corporation in advance of the final disposition of
that action, suit or proceeding upon a determination made in accordance with the
procedure established in Section 4 that, based solely
13
on the facts then known to those making the determination and without further
investigation, the person seeking indemnification satisfied the standard of
conduct prescribed by Section 1, and upon receipt by the Corporation of:
A. A written undertaking by or on behalf of the person to
repay that amount if that person is finally adjudicated:
(1) Not to have acted honestly or in the reasonable belief
that such person's action was in or not opposed to the best
interests of the Corporation or its shareholders or, in the case
of a person serving as a fiduciary of an employee benefit plan or
trust, in or not opposed to the best interests of such plan or
trust or its participants or beneficiaries;
(2) With respect to any criminal action or proceeding, to have
had reasonable cause to believe that the person's conduct was
unlawful; or
(3) With respect to any claim, issue or matter asserted in any
action, suit or proceeding brought by or in the right of the
Corporation, to be liable to the Corporation, unless the court in
which that action, suit or proceeding was brought permits
indemnification in accordance with Section 2; and
B. A written affirmation by the person that such person has met
the standard of conduct necessary for indemnification by the
Corporation as authorized in this Section.
The undertaking required by Paragraph A shall be an unlimited general obligation
of the person seeking the advance, but need not be secured and may be accepted
without reference to financial ability to make the repayment. With respect to
any person who is or was a director or officer of the Corporation, such expenses
shall in all cases be advanced by the Corporation, as reasonably requested from
time to time, upon receipt by the Corporation, at the time of the initial
advance of the undertaking described in clause (A) and the affirmation described
in clause (B) above.
6. Indemnification Rights Not Exclusive; Enforceable by Separate
Action. The indemnification and entitlement to advances of expenses provided by
this Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in that person's
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, agent, trustee, partner or fiduciary and shall inure to the
benefit of the heirs, executors and administrators of such a person. A right to
indemnification required by this Article may be enforced by a separate action
14
against the Corporation, if an order for indemnification has not been entered by
a court in any action, suit or proceeding in respect to which indemnification is
sought.
7. Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, partner, fiduciary, employee or agent of
another corporation, partnership, joint venture, trust, pension or other
employee benefit plan or other enterprise against any liability asserted against
that person and incurred by that person in any such capacity, or arising out of
that person's status as such, whether or not the Corporation would have the
power to indemnify that person against such liability under this Article.
8. Miscellaneous. For purposes of this Article, references to the
"Corporation" shall include, in addition to the surviving corporation or new
corporation, any participating corporation in a consolidation or merger. For
purposes of this Article, the Corporation shall be deemed to have requested a
person to serve an employee benefit plan whenever the performance of such
person's duties to the Corporation also imposes duties on, or otherwise involves
services by, such person to the plan or participants or beneficiaries of the
plan; excise taxes assessed on a person seeking indemnification with respect to
an employee benefit plan in the performance of such person's duties for a
purpose reasonably believed by such person to be in the interests of the
participants or beneficiaries of the plan shall be deemed to be for a purpose
which is in the best interests of the Corporation.
9. Amendment. Any amendment, modification or repeal of this Article VII
shall not deny, diminish or otherwise limit the rights of any person to
indemnification or advance hereunder with respect to any action, suit or
proceeding arising out of any conduct, action or omission occurring or allegedly
occurring at any time prior to the date of such amendment, modification or
repeal.
VIII. Required Vote of Shareholders in Certain Business Combinations
1. Notwithstanding anything to the contrary in these Articles of
Incorporation, the Corporation shall not engage in any business combination for
a period of 5 years following an interested stockholder's stock acquisition date
unless that business combination is:
A. Approved by the board of directors of the Corporation prior to
that interested stockholder's stock acquisition date; or
B. Approved, subsequent to that interested stockholder's stock
acquisition date, by the Board of Directors of the Corporation and
authorized by the affirmative vote, at a meeting called for that
purpose, of at least eighty percent (80%) of the outstanding voting
stock not beneficially owned by that interested stockholder or any
affiliate or associate of that interested stockholder or by persons who
are either directors or officers and also employees of the Corporation.
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2. This Article shall not apply to business combinations involving an
interested stockholder which became an interested stockholder inadvertently if
that interested stockholder:
A. As soon as practicable, divests itself of a sufficient amount
of the voting stock of the Corporation so that the interested
stockholder no longer is the beneficial owner, directly or indirectly,
of 25% or more of the outstanding voting stock of the Corporation; and
B. Has not been at any time within the 5-year period preceding the
announcement date with respect to that business combination, an
interested stockholder of the Corporation but for that inadvertent
acquisition.
3. As used in this Article, unless the context indicates otherwise, the
following terms have the following meanings.
A. "Affiliate" means a person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is
under common control with a specified person.
B. "Announcement date," when used in reference to any business
combination, means the date of the first public announcement of the
final, definitive proposal for that business combination.
C. "Associate," when used to indicate a relationship with any
person means:
(1) Any corporation or organization of which that person is a
director, officer or partner or is, directly or indirectly, the
beneficial owner of 10% or more of any class of voting stock;
(2) Any trust or other estate in which that person has a
substantial beneficial interest or to which that person serves as
trustee or in a similar fiduciary capacity; and
(3) Any relative or spouse of that person, or any relative of
that spouse, who has the same home as that person.
D. "Beneficial owner," when used with respect to any stock, means
a person:
(1) That, individually or with or through any affiliate or
associate, beneficially owns that stock, directly or indirectly;
(2) That, individually or with or through any affiliate or
associate, has the right to acquire that stock, whether that
right is exercisable immediately or only after the passage of
time, pursuant to any agreement, arrangement or
16
understanding, whether or not in writing, or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise; provided that a person is not deemed the beneficial
owner of stock tendered pursuant to a tender or exchange offer
made by that person or any of that person's affiliates or
associates until that tendered stock is accepted for purchase or
exchange; or the right to vote that stock pursuant to any
agreement, arrangement or understanding, whether or not in
writing; provided that a person is not deemed the beneficial
owner of any stock under this subparagraph if the agreement,
arrangement or understanding to vote that stock arises solely
from a revocable proxy given in response to a proxy solicitation
made in accordance with the applicable rules and regulations
under the Exchange Act, and is not then reportable on a Schedule
13D under the Exchange Act, or any comparable or successor
report; or
(3) That has any agreement, arrangement or understanding,
whether or not in writing, for the purpose of acquiring, holding,
voting, except voting pursuant to a revocable proxy as described
in subparagraph (2), or disposing of that stock with any other
person that beneficially owns, or whose affiliates or associates
beneficially own, directly or indirectly, that stock.
E. "Business combination," when used in reference to the
Corporation and any interested stockholder of the Corporation, means:
(1) Any merger or consolidation of the Corporation or any
subsidiary of the Corporation with that interested stockholder,
any other corporation, whether or not it is an interested
stockholder of the Corporation, which is, or after a merger or
consolidation would be, an affiliate or associate of that
interested stockholder, or any other corporation if the merger or
consolidation is caused by that interested stockholder and as a
result of that merger or consolidation this section is not
applicable to the surviving corporation;
(2) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition, in one transaction or a series of
transactions, of assets of the Corporation or any subsidiary of
the Corporation having an aggregate market value equal to 10% or
more of the aggregate market value, or book value determined in
accordance with good accounting practices, of all the assets,
determined on a consolidated basis, of the Corporation, having an
aggregate market value equal to 10% or more of the aggregate
market value of all the outstanding stock of the Corporation, or
representing 10% or more of the earning power or income,
determined on a consolidated basis, of the Corporation proposed
by, on behalf of or pursuant to any agreement, arrangement or
understanding, whether or not in writing, with that interested
stockholder or any affiliate or associate of that interested
stockholder;
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(3) The issuance or transfer by the Corporation or any
subsidiary of the Corporation, in one transaction or a series of
transactions, of any stock of the Corporation or any subsidiary
of the Corporation which has an aggregate market value equal to
5% or more of the aggregate market value of all the outstanding
stock of the Corporation to that interested stockholder or any
affiliate or associate of that interested stockholder, except
pursuant to the exercise of warrants or rights to purchase stock
offered, or a dividend or distribution paid or made, pro rata to
all stockholders of the Corporation;
(4) The adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by, on behalf of or
pursuant to any agreement, arrangement or understanding, whether
or not in writing, with that interested stockholder or any
affiliate or associate of that interested stockholder;
(5) Any reclassification of securities, including, without
limitation, any stock split, stock dividend or other distribution
of stock in respect of stock, or any reverse stock split, or
recapitalization of the Corporation, or any merger or
consolidation of the Corporation, with any subsidiary of the
Corporation, or any other transaction, whether or not with, or
into, or otherwise involving that interested stockholder,
proposed by, on behalf of or pursuant to any agreement,
arrangement or understanding, whether or not in writing, with
that interested stockholder or any affiliate or associate of that
interested stockholder, any of which has the effect, directly or
indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of voting stock or
securities convertible into voting stock of the Corporation or
any subsidiary of the Corporation which is directly or indirectly
owned by that interested stockholder or any affiliat or associate
of that interested stockholder, except as a result of immaterial
changes due to fractional share adjustments; or
(6) Any receipt by that interested stockholder or any
affiliate or associate of that interested stockholder of the
benefit, directly or indirectly, except proportionately as a
stockholder of the Corporation, of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by or through the
Corporation.
F. "Control," including the terms "controlling," "controlled
by" and "under common control with," means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting stock, by contract or otherwise. A person's beneficial ownership
of 10% or more of the outstanding voting stock of a corporation shall
create a presumption that such person has control of that corporation.
Notwithstanding this paragraph, a person is not deemed to have control
of a corporation if that person holds voting power, in good faith and
not for the purpose of circumventing this paragraph, as an agent, bank,
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broker, nominee, custodian or trustee for one or more beneficial owners
who do not individually or as a group have control of that corporation.
G. "Interested stockholder," when used in reference to the
Corporation, means any person, other than this Corporation or any
subsidiary of this Corporation, that:
(1) Is the beneficial owner, directly or indirectly, of 25% or
more of the outstanding voting stock of the Corporation; or
(2) Is an affiliate or associate of this Corporation and at
any time within the 5-year period immediately prior to the date
in question was the beneficial owner, directly or indirectly, of
25% or more of the outstanding voting stock of the Corporation.
For the purpose of determining whether a person is an interested
stockholder pursuant to this paragraph, the number of shares of
voting stock of the Corporation deemed to be outstanding shall
include shares deemed to be beneficially owned by the person
through application of paragraph D, but shall not include any
other unissued shares of voting stock of the Corporation which
may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise; provided that the term "interested
stockholder" does not include any person whose ownership of
voting stock in excess of the 25% limitation set forth in this
section is the result of action taken solely by the Corporation
and not caused directly or indirectly by that person, provided
that such person is an interested stockholder if thereafter that
person acquires additional shares of voting stock of the
Corporation, except as a result of further corporate action not
caused, directly or indirectly, by that person.
H. "Market value," when used in reference to property of the
Corporation, means:
(1) In the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in
question of a share of the stock on the composite tape for New
York Stock Exchange listed stocks, or, if the stock is not quoted
on that composite tape or, if the stock is not listed on that
exchange, on the principal United States Securities Exchange
registered under the Exchange Act on which the stock is listed,
or, if the stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of the stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations
System, 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 the stock as determined in good faith by the Board of
Directors of the Corporation; and
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(2) In the case of property other than cash or stock, the fair
market value of that property on the date in question as
determined in good faith by the Board of Directors of the
Corporation.
I. "Stock" means:
(1) Any of the Corporation's stock or similar security, any
certificate of interest, any participation in any profit-sharing
agreement, any voting trust certificate or any certificate of
deposit for stock; and
(2) Any security convertible of the Corporation, with or
without consideration, into stock or any warrant, call or other
option or privilege of buying stock without being bound to do so,
or any other security of the Corporation carrying any right to
acquire, subscribe to or purchase stock.
J. "Stock acquisition date," with respect to any person and the
Corporation, means the date that such person first becomes an
interested stockholder of the Corporation.
K. "Subsidiary" of the Corporation means any other corporation of
which voting stock having 50% or more of the votes entitled to be cast
is owned, directly or indirectly, by the Corporation.
L. "Voting stock" means shares of stock of a corporation
entitled to vote generally in the election of directors.
4. The requirements of this Article shall be in addition to the
requirements of applicable law, and any additional requirements contained in
these Articles of Incorporation or Bylaws of the Corporation with respect to
business combinations as defined in this Article.
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