Exhibit 3.3
ARTICLES OF ORGANIZATION
OF
THE WESTBOROUGH BANK
ARTICLE I
NAME
The name of this bank shall be "The Westborough Bank" (the "Bank") and may
be changed from time to time by the stockholders of the Bank.
ARTICLE II
MAIN OFFICE
The main office of the Bank shall be located at 100 E. Main Street,
Westborough, Massachusetts, and may be changed from time to time by the Board of
Directors of the Bank, subject to compliance with the provisions of Section 2 of
Chapter 167C of the Massachusetts General Laws, or successor statute.
ARTICLE III
PURPOSE AND POWERS
The Bank is a stock savings bank chartered under Chapters 167H and 168 of
the Massachusetts General Laws and shall have and may exercise all powers and
authority, express and implied, available to it under law.
ARTICLE IV
DURATION
The duration of the Bank is perpetual.
ARTICLE V
CAPITAL STOCK
The total number of shares of all classes of capital stock which is
authorized to issue is six million (6,000,000) shares, of which five million
(5,000,000) shares shall be common stock, $1.00 par value per share and one
million (1,000,000) shares shall be preferred stock, $1.00 par value per share.
Subject to the approval of the Commissioner of Banks of the Commonwealth of
Massachusetts (the "Commissioner of Banks"), if required by law, the shares may
be issued by the
Bank from time to time by a vote of its Board of Directors without the approval
of its stockholders. Upon payment of lawful consideration, such shares shall be
deemed to be fully paid and nonassessable. In the case of a stock dividend, that
part of the surplus of the Bank which is transferred to stated capital upon the
issuance of shares as a stock dividend shall be deemed to be the consideration
for their issuance.
A description of the different classes and series of the Bank's capital
stock and a statement of the designations and the relative rights, preferences
and limitations of the shares of each class and series of capital stock are as
follows:
A. COMMON STOCK. Except as provided by law or in this Article V (or
in any supplementary sections hereto or in any certificate of establishment of
any series of preferred stock), the holders of the common stock shall
exclusively possess all voting power. Each holder of shares of common stock
shall be entitled to one vote on all matters for each share held by such holder.
Stockholders shall not be permitted to cumulate their votes for the election of
directors.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and of a sinking fund or a retirement fund or other retirement
payments, if any, to which such holders are respectively entitled in preference
to the common stock, then dividends may be paid on the common stock and on any
class or series of stock entitled to participate therewith as to dividends, out
of any assets legally available for the payment of dividends; but only when and
as declared by the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Bank, after there shall have been paid to or set aside for the holders of any
class having preference over the common stock in the event of liquidation,
dissolution or winding up of the Bank the full preferential amounts to which
they are respectively entitled, the holders of the common stock, and of any
class or series of stock entitled to participate in whole or in part therewith
as to distribution of assets, shall be entitled, after payment or provision for
payment of all debts and liabilities of the Bank, to receive the remaining
assets of the Bank available for distribution, in cash or in kind, in proportion
to their holdings.
B. PREFERRED STOCK. Subject to the approval of the provisions of any
series of preferred stock by the Commissioner of Banks, if required by law, the
Board of Directors of the Bank is authorized by vote or votes, from time to time
adopted, to provide for the issuance of preferred stock in one or more series
and to fix and state the voting powers, designations, preferences and relative
participating, optional or other special rights of the shares of each series and
the qualifications, limitations and restrictions thereof, including, but not
limited to, determination of one or more of the following:
1. The distinctive serial designation and the number of shares
constituting such series;
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2. The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends and the
participating or other special rights, if any, with respect to dividends;
3. The voting powers, if any, of shares of such series;
4. Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
5. The amount or amounts payable upon the shares of such series in
the event of voluntary or involuntary liquidation, dissolution or winding
up of the Bank;
6. Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and
the manner of its application, including the price or prices at which such
shares may be redeemed or purchased through the application of such fund;
7. Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any other
series the same or any other class or classes of stock of the Bank, and if
so convertible or exchangeable, the conversion price or prices, or the
rate or rates of exchange, and the adjustments thereof, if any, at which
such conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange;
8. The price or other consideration for which the shares of such
series shall be issued; and
9. Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of preferred stock
and whether such shares may be reissued as shares of the same or any other
series of stock.
Unless otherwise provided by law, any such vote shall become effective
when the Bank files with the Secretary of State of the Commonwealth of
Massachusetts a certificate of designation of one or more series of preferred
stock signed by the President or any Vice President and by the Clerk, Assistant
Clerk, Secretary or Assistant Secretary of the Bank, setting forth a copy of the
vote of the Board of Directors establishing and designating the series and
fixing and determining the relative rights and preferences thereof, the date of
adoption of such vote and a certification that such vote was duly adopted by the
Board of Directors.
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ARTICLE VI
NO ACTION BY WRITTEN CONSENT OF STOCKHOLDERS
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in this Charter to elect
additional Directors under specific circumstances or to consent to specific
actions taken by the Bank, any action required or permitted to be taken by the
stockholders of the Bank must be effected at a duly called annual or special
meeting of stockholders of the Bank and may not be effected by any consent in
writing in lieu of a meeting of such stockholders.
ARTICLE VII
CERTAIN BUSINESS COMBINATIONS
Section 1. In addition to any affirmative vote required by law or
this Charter, and except as otherwise expressly provided in this Article VII:
A. any merger or consolidation of the Bank or any Subsidiary (as
defined in Section 3 of this Article VII) with (i) any Interested Stockholder
(as defined in Section 3 of this Article VII), or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or after such merger
or consolidation would be, an Affiliate (as defined in Section 3 of this Article
VII) of an Interested Stockholder; or
B. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, or any Affiliate of any Interested Stockholder, of any
assets of the Bank or any Subsidiary having an aggregate Fair Market Value (as
herein defined in Section 3 of this Article VII) equaling or exceeding 25% or
more of the combined assets of the Bank and its Subsidiaries; or
C. the issuance or transfer by the Bank or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Bank or any
Subsidiary to any Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value equaling or exceeding 25% of the
combined Fair Market Value of the outstanding Common Stock of the Bank and its
Subsidiaries, except for any issuance or transfer pursuant to an employee
benefit plan of the Bank or any Subsidiary thereof (established with the
approval of a majority of the Disinterested Directors then in office); or
D. the adoption of any plan or proposal for the liquidation or
dissolution of the Bank proposed by or on behalf of an Interested Stockholder or
any Affiliate of any Interested Stockholder; or
E. any reclassification of securities (including any reverse stock
split), or recapitalization of the Bank, or any merger or consolidation of the
Bank with any of its Subsidiaries
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or any other transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class of
equity or convertible securities of the Bank or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate of any
Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then-outstanding shares of stock of the Bank entitled to vote in
the election of Directors (the "Voting Stock"), voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified, by law or by
any other provisions of these Articles or any Certificate of Establishment or in
any agreement with any national securities exchange or otherwise.
The term "Business Combination" as used in this Article VII shall mean any
transaction which is referred to in any one or more of paragraphs A through E of
Section 1 of this Article VII.
Section 2. The provisions of Section 1 of this Article VII shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only the affirmative vote of the majority of the
outstanding shares of capital stock entitled to vote, or such vote (if any), as
is required by law or by these Articles, if, in the case of any Business
Combination that does not involve any cash or other consideration being received
by the stockholders of the Bank solely in their capacity as stockholders of the
Bank, the condition specified in the following paragraph 1 is met or, in the
case of any other Business Combination, all of the conditions specified in
either of the following paragraphs 1 or 2 are met:
A. The Business Combination shall have been approved by a majority
of the Disinterested Directors then in office.
B. All of the following conditions shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by the
holders of Common Stock in such Business Combination shall at least
be equal to the higher of the following:
(a) (if applicable) the Highest Per Share Price (as
hereinafter defined), including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the
Interested Stockholder or any of its Affiliates for any shares
of Common Stock acquired by it (i) within the two-year period
immediately prior to the first public announcement of the
proposal of the Business Combination (the "Announcement
Date"), or (ii) in the transaction in which it became an
Interested Stockholder, whichever is higher.
(b) the Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Stockholder
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became an Interested Stockholder (such latter date is referred
to in this Article VII as the "Determination Date"), whichever
is higher.
(ii) The aggregate amount of the cash and the Fair Market
Value as of the date of the consummation of the Business Combination
of consideration other than cash to be received per share by holders
of shares of any class of outstanding Voting Stock other than Common
Stock shall be at least equal to the highest of the following (it
being intended that the requirements of this subparagraph (b) shall
be required to be met with respect to every such class of
outstanding Voting Stock, whether or not the Interested Stockholder
has previously acquired any shares of a particular class of Voting
Stock):
(a) (if applicable) the Highest Per Share Price (as
hereinafter defined), including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the
Interested Stockholder for any shares of such class of Voting
Stock acquired by it (i) within the two-year period
immediately prior to the Announcement Date, or (ii) in the
transaction in which it became an Interested Stockholder,
whichever is higher;
(b) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Bank; and
(c) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(iii) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as the Interested
Stockholder has previously paid for shares of such class of Voting
Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form
of consideration to be received per share by holders of shares of
such class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting Stock
previously acquired by the Interested Stockholder. The price
determined in accordance with subparagraph B of Section 2 of this
Article VII shall be subject to appropriate adjustment in the event
of any stock dividend, stock split, combination of shares or similar
event.
(iv) After such Interested Stockholder has become an
Interested Stockholder and prior to the consummation of such
Business Combination: (1) except as approved by a majority of the
Disinterested Directors then in office, 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
stock having
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preference over the Common Stock as to dividends or liquidation; (2)
there shall have been (i) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors then in office, and (ii) an
increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the
Common Stock, unless the failure to so increase such annual rate is
approved by a majority of the Disinterested Directors then in
office, and (3) neither such Interested Stockholder or any of its
Affiliates shall have become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction which
results in such Interested Stockholder becoming an Interested
Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided, directly or indirectly, by the Bank, whether in
anticipation of or in connection with such Business Combination or
otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, and the rules or regulations thereunder) shall be mailed to
stockholders of the Bank 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).
Section 3. For the purposes of this Article VII and Article XV:
A. A "Person" shall include an individual, 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.
B. "Interested Stockholder" shall mean any person (other than the
Bank or any Holding Company or Subsidiary thereof) who or which:
(i) is the beneficial owner, directly or indirectly, of more
than 5% of the outstanding Voting Stock; or
(ii) is an Affiliate of the Bank and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 5% or more of the
voting power of the then outstanding Voting Stock; or
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(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock which were at any time within the two-year
period immediately prior to the date in question beneficially owned
by any Interested Stockholder, if such assignment or succession
shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of
the Securities Act of 1933, as amended.
C. "Beneficial ownership" shall be determined pursuant to Rule 13d-3
of the General Rules and Regulations under the Securities Exchange Act of 1934
(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 this Charter;
provided, however, that a person shall, in any event, also be deemed the
"beneficial owner" of any Common Stock:
(i) which such person or any of its affiliates beneficially
owns, directly or indirectly; or
(ii) which such person or any of its affiliates has (i) 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 Bank to effect
any transaction which is described in any one or more clauses of
Section 1 of Article VII) or upon the exercise of conversion rights,
exchange rights, warrants, or options or otherwise, or (ii) 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 stockholders, 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
(iii) which are beneficially owned, directly or indirectly, by
any other person with which such first mentioned person or any of
its affiliates acts as a partnership, limited partnership, syndicate
or other group pursuant to any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of this Bank;
and provided further, however, that (1) no Director or Officer of this Bank (or
any affiliate of any such Director or Officer) shall, solely by reason of any or
all of such Directors or Officers acting in their capacities as such, be deemed,
for any purposes hereof, to beneficially own any Common Stock beneficially owned
by another such Director or Officer (or any affiliate thereof, and (2) neither
any employee stock ownership plan or similar plan of this Bank or any subsidiary
of this Bank, nor any trustee with respect thereto or any affiliate of such
trustee (solely by reason of such capacity of such trustee), shall be deemed,
for any purposes hereof, to beneficially own any Common Stock held under any
such plan. For purposes of computing the percentage beneficial ownership of
Common
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Stock of a person, the outstanding Common Stock shall include shares deemed
owned by such person through application of this subsection but shall not
include any other Common Stock which may be issuable by this Bank pursuant to
any agreement, or upon exercise of conversion rights, warrants or options, or
otherwise. For all other purposes, the outstanding Common Stock shall include
only Common Stock then outstanding and shall not include any Common Stock which
may be issuable by this Bank pursuant to any agreement, or upon the exercise of
conversion rights, warrants or options, or otherwise.
D. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in effect on the date of
filing of this Charter.
E. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Bank;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph B of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Bank.
F. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a member
of the Board of Directors prior to the time that the Interested Stockholder
became an Interested Stockholder, and any Director who is thereafter chosen to
fill any vacancy of the Board of Directors or who is elected and who, in either
event, is unaffiliated with the Interested Stockholder and in connection with
his or her initial assumption of office is recommended for appointment or
election by a majority of Disinterested Directors then in office.
E. "Fair Market Value" means:
(i) in the case of stock, the highest closing sales price of
the stock during the 30-day period immediately preceding the date in
question of a share of such stock on the National Association of
Securities Dealers Automated Quotation System or any system then in
use, or, if such stock is admitted to trading on a principal United
States securities exchange registered under the Securities Exchange
Act of 1934, as amended, 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 a share of such stock as determined
by the Board of Directors in good faith, in each case with respect
to any class of stock, appropriately adjusted for any dividend or
distribution in shares of such stock or any stock split or
reclassification of outstanding shares of such stock into a greater
number of shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller
number of shares of such stock, and
(ii) in the case of property other than cash or stock, the
Fair Market Value of such property on the date in question as
determined by the Board of Directors in good faith.
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F. Reference to "Highest Per Share Price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for any dividend
or distribution in shares of such stock or any stock split or reclassification
of outstanding shares of such stock into a greater number of shares of such
stock or any combination or reclassification of outstanding shares of such stock
into a smaller number of shares of such stock.
G. In the event of any Business Combination in which the Bank
survives, the phrase "consideration other than cash to be received" as used in
Subparagraphs (i) and (ii) of Paragraph B of Section 2 of this Article VII shall
include the shares of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such shares.
Section 4. A majority of the Directors of the Bank then in office
(provided, however, that if there is an Interested Stockholder, any such
determination shall also require the affirmative vote of a majority of the
Disinterested Directors then in office) shall have the power and duty to
determine for the purposes of this Article VII, on the basis of information
known to them after reasonable inquiry: (a) whether a person is an Interested
Stockholder; (b) the number of shares of Voting Stock beneficially owned by any
person; (c) whether a person is an Affiliate or Associate of another; and (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 Bank or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value equaling or exceeding 25% of the combined Fair Market Value of the
Common Stock of the Bank and its Subsidiaries. A majority of the Disinterested
Directors then in office shall have the further power to interpret all of the
terms and provisions of this Article VII.
Section 5. Nothing contained in this Article VII shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
Section 6. Notwithstanding any other provisions of this Charter or
any provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any particular class or
series of the Voting Stock required by law, this Article or any Certificate of
Establishment, the affirmative vote of the holders of at least 80% of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class, shall be required to alter, amend or repeal this Article VII.
ARTICLE VIII
STANDARDS FOR BOARD OF DIRECTORS' EVALUATION OF OFFERS
The Board of Directors of the Bank, when evaluating any offer to (A) make
a tender or exchange offer for any equity security of the Bank, (B) merge or
consolidate the Bank with another institution or (C) purchase or otherwise
acquire all or substantially all of the properties and assets of the Bank,
shall, in connection with the exercise of its judgment in determining what is in
the best interests of the Bank and its stockholders, give due consideration to
all relevant factors including, without limitation, the
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interests of the Bank's employees, suppliers, creditors and customers; the
economy of the state, region and nation; community and societal
considerations; and the long-term and short-term interests of the Bank and
its stockholders, including the possibility that these interests may be best
served by the continued independence of the Bank.
ARTICLE IX
PRE-EMPTIVE RIGHTS
Holders of the capital stock of the Bank shall not be entitled to
preemptive rights with respect to any shares of the capital stock of the Bank
which may be issued.
ARTICLE X
DIRECTORS
The Bank shall be under the direction of a Board of Directors. The number
of Directors shall not be fewer than seven nor more than twenty-five. The names
of the original sixteen (16) Directors under this Charter, together with the
year of expiration of their respective terms, are set forth in Appendix A
hereto. The Board of Directors shall be divided into three classes as nearly
equal in number as possible, with one class to be elected each year. Directors
shall continue to serve for the terms specified in Appendix A hereto and until
their successors are elected and qualified, unless they sooner resign, retire,
die or are removed. No person shall be elected or re-elected as a Director for a
term extending beyond his or her 75th birthday.
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in any certificate of
establishment with respect thereto to elect additional Directors under specific
circumstances, any Director may be removed from office at any time, but only for
cause and only by the affirmative vote of (i) two-thirds of the total number of
authorized directorships (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption) (the "Whole Board") or (ii) the holders of at least eighty
percent (80%) of the voting power of the then outstanding shares of the Voting
Stock, voting together as a single class. At least thirty days prior to such
meeting of the Board of Directors or the stockholders, as applicable, written
notice shall be sent to the Director whose removal will be considered at such
meeting.
ARTICLE XI
DIRECTORS' LIABILITY
No Director shall be personally liable to the Bank or its stockholders for
monetary damages for any breach of such Director's fiduciary duty as a Director,
notwithstanding any provision of law imposing such liability; provided, however,
that, to the extent required by applicable law, this provision shall not
eliminate the liability of a Director (i) for any breach of such Director's duty
of loyalty to the Bank or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under provisions of the Massachusetts General Laws imposing
liabilities on Directors in respect of distributions to the stockholders of the
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Bank or loans to officers or Directors of the Bank, or (iv) any transaction from
which such Director derived any improper personal benefit. This provision shall
not eliminate the liability of a Director for any act or omission occurring
prior to the date upon which this provision becomes effective. No amendment to
or repeal of this provision shall apply to or have any effect on the liability
or alleged liability of any Director of the Bank for or with respect to any acts
or omissions of such Director occurring prior to the date of such amendment or
repeal.
ARTICLE XII
TRANSACTIONS WITH INTERESTED PERSONS
Section 1. Unless entered into in bad faith or in violation of any
provision of this Charter, no contract or transaction by the Bank shall be void,
voidable or in any way affected by reason of the fact that it is with an
Interested Person.
Section 2. For the purposes of this Article XIII, "Interested
Person" means any Person in any way interested in the Bank whether as a
director, officer, stockholder, employee or otherwise, and any other entity in
which any such Person is in any way interested.
Section 3. Unless such contract or transaction was entered into in
bad faith or in violation of any provision of this Charter, no Interested
Person, because of such interest, shall be liable to the Bank or to any other
Person for any loss or expense incurred by reason of such contract or
transaction or shall be accountable for any gain or profit realized from such
contract or transaction.
Section 4. The provisions of this Article XII shall be operative
notwithstanding the fact that the presence of an Interested Person was necessary
to constitute a quorum at a meeting of Directors or stockholders of the Bank at
which such contract or transaction was authorized or that the vote of an
Interested Person was necessary for the authorization of such contract or
transaction.
ARTICLE XIII
ACTING AS A PARTNER
To the extent not prohibited by applicable law, the Bank may be a partner
in any business enterprise which it would have power to conduct by itself.
ARTICLE XIV
STOCKHOLDERS MEETINGS
Meetings of stockholders may be held at such place in the Commonwealth of
Massachusetts or, if permitted by applicable law, elsewhere in the United States
as the Board of Directors may determine.
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ARTICLE XV
CALL OF SPECIAL MEETINGS
Special meetings of stockholders of the Bank may be called only by the
Board of Directors pursuant to a resolution adopted by a majority of the Whole
Board, (provided, however, that if there is an Interested Stockholder, any such
call by the Board of Directors shall also require the affirmative vote of a
majority of the Disinterested Directors then in office). Special meetings shall
be called by the Clerk, or in the case of the death, absence, incapacity or
refusal of the Clerk, by any other officer, upon written application of one or
more stockholders who hold at least 80% in interest of the capital stock
entitled to vote at such meeting. Application to a court pursuant to Section
34(b) of Chapter 156B (the "Massachusetts Business Corporation Law") of The
General Laws of The Commonwealth of Massachusetts (or successor provisions)
requesting the call of a special meeting of stockholders because none of the
officers is able and willing to call such a meeting may be made only by
stockholders who hold at least 80% in interest of the capital stock entitled to
vote at such meeting. At a special meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon, as shall have
been stated in the written notice of the special meeting, unless otherwise
provided by law.
ARTICLE XVI
AMENDMENT OF BYLAWS
The Bylaws of the Bank may be adopted, altered, amended, changed or
repealed by the Board of Directors or the stockholders of the Bank. Such action
by the Board of Directors shall require the affirmative vote of at least
two-thirds of the Directors then in office at a duly constituted meeting of the
Board of Directors unless at the time of such action there shall be an
Interested Stockholder, in which case such action shall also require the
affirmative vote of at least a majority of the Continuing Directors then in
office. Such action by the stockholders shall require (i) approval by the
affirmative vote of a majority of Directors then in office, unless at the time
of such action there shall be an Interested Stockholder, in which case such
action shall also require the affirmative vote of at least a majority of the
Continuing Directors then in office, at such meeting, (ii) unless waived by the
affirmative vote of a majority of the Directors then in office (and, if
applicable, Continuing Directors) specified in the preceding sentence, the
submission by the stockholders of written proposals for adopting, altering,
amending, changing or repealing the Bylaws that comply in all respects with the
provisions of the Bylaws governing such submissions and (iii) the affirmative
vote of at least eighty percent (80%) of the voting power of the then
outstanding Voting Stock voting together as a single class at a duly constituted
meeting of stockholders called expressly for such purpose.
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ARTICLE XVII
AMENDMENT OF CHARTER
This Charter may be amended at a duly constituted meeting of
stockholders called expressly for such purpose, by the affirmative vote of at
least 80% of the total votes eligible to be cast by stockholders on such
amendment, voting together as a single class; provided, however, that if the
Board of Directors recommends, by the affirmative vote of at least two-thirds of
the Directors then in office at a duly constituted meeting of the Board of
Directors (unless at any time within the 60 day period immediately preceding the
meeting at which the stockholder vote is to be taken, there shall be an
Interested Stockholder, in which case such action shall also require the
affirmative vote of a majority of the Disinterested Directors then in office),
that stockholders approve such amendment at such meeting of stockholders, such
amendment shall only require the affirmative vote of a majority of the total
votes eligible to be cast by stockholders on such amendment, voting together as
a single class. Unless otherwise provided by law, any amendment, addition,
alteration, change or repeal so acted upon shall be effective on the date it is
filed with the Secretary of State of the Commonwealth of Massachusetts or on
such other date as specified in such amendment, addition, alteration, change or
repeal or as the Secretary of State may specify.
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APPENDIX A
DIRECTORS OF THE WESTBOROUGH BANK
NAME EXPIRATION OF TERM
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Nelson P. Ball 2001
Edward S. Bilzerian 2002
David E. Carlstrom 2000
John L. Casagrande 2000
William W. Cotting, Jr. 2000
Robert G. Daniel 2001
Earl H. Hutt 2001
Walter A. Kinell, Jr. 2000
Robert A. Klugman 2000
Roger B. Leland 2001
Joseph F. MacDonough 2001
Paul F. McGrath 2002
Charlotte C. Spinney 2002
Phyllis A. Stone 2002
James E. Tashjian 2002
Daniel G. Tear 2000
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