SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CFX Corporation
(Exact name of registrant as specified in its charter)
New Hampshire 02-0402421
(State of incorporation (I.R.S. Employer Identification No.)
or organization)
102 Main Street, Keene, New Hampshire 03431
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock 66 2/3 cents par value American Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
None
Not Applicable
--------------
(Title of class)
Item I. Description of Registrant's Securities to be Registered
- ----------------------------------------------------------------
(a) Capital Stock
The following is a summary description of the capital stock of CFX
Corporation ("CFX") and is subject in all respects to the applicable provisions
of the New Hampshire Business Corporation Act ("New Hampshire law") and the CFX
Articles of Incorporation, as amended (the "CFX Articles") and the CFX by-laws,
as amended (the "CFX By-laws").
STOCK SPLIT
The Board of Directors of CFX has declared a three-for-two stock split of
the shares of Common Stock, $1.00 par value per share, to the record holders
thereof as of the close of business on June 23, 1995. The stock split is being
accomplished as follows:
1. All certificates representing issued shares of CFX's Common Stock,
$1.00 par value, (including treasury shares) in existence as of the
close of business on June 23, 1995, shall thereafter, without any
further action being taken, represent the same number of shares of the
Corporation's Common Stock, 66 2/3 cents par value.
2. CFX will issue additional certificates representing one share of
Common Stock, 66 2/3 cents par value, for each two shares of Common
Stock, $1.00 par value, that shareholders hold of record (including
treasury shares) as of the close of business on June 23, 1995.
3. No fractional shares will be issued. Record holders of CFX's Common
Stock, $1.00 par value, as of the effectiveness of the split will
receive cash in lieu of fractional shares in an amount equal to the
product of the fraction and the closing price of such shares on the
American Stock Exchange on June 23, 1995.
The existing CFX Common Stock, $1.00 par value, is traded on the American
Stock Exchange and is registered pursuant to the Securities Exchange Act of 1934
(the "Exchange Act"). This Registration Statement is being filed for the
purpose of effecting registration of the post-split CFX Common Stock, 66 2/3
cents par value, under the Exchange Act. Application is being made for the
continued listing of the CFX Common Stock, 66 2/3 cents par value, on the
American Stock Exchange.
The description below of the capital stock of CFX reflects the stock split
described above.
GENERAL
The CFX Articles authorize the issuance of 3,000,000 shares of preferred
stock, $1.00 par value ("Preferred Stock"), issuable in one or more series from
time to time by action of the Board of Directors, and 22,500,000 shares of
common stock, 66 2/3 cents par value (the "Common Stock").
As of the close of business on June 23, 1995 (following the stock split
described under "Stock Split"), 7,936,756 shares of Common Stock will have been
issued, of which 7,070,859 shares will be outstanding and 865,897 will be held
in CFX's treasury; no shares of Preferred Stock will be outstanding. The
authorized but unissued and unreserved shares and treasury-held shares of Common
Stock are available for general corporate purposes including but not limited to,
possible issuance as stock dividends or stock splits, in future mergers or
acquisitions, under a cash dividend reinvestment and stock purchase plan, in a
future underwritten or other public offering, or under employee stock purchase
plans and stock option plans. The authorized but unissued shares of Preferred
Stock would similarly be available for issuance in future mergers or
acquisitions, in a future public offering or private placement or for other
general corporate purposes. Except as described above or as otherwise required
to approve the transaction in which the additional authorized shares of Common
Stock or authorized shares of Preferred Stock would be issued, no stockholder
approval would be required for the issuance of these shares. Accordingly, the
Board of Directors of CFX, without stockholder approval, may issue Preferred
Stock with voting and conversion rights which would adversely affect the voting
power of the holders of Common Stock.
COMMON STOCK
General. Holders of Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors out of any funds legally available,
and are entitled upon liquidation, after claims of creditors and preferences of
any shares of Preferred Stock at the time outstanding, to receive pro rata the
net assets of CFX.
The holders of Common Stock are entitled to one vote for each share held
and are vested with all of the voting power except as the Board of Directors may
provide, in the future, with respect to any series of Preferred Stock which it
may hereafter authorize. The CFX Articles do not permit cumulative voting in
the election of directors. Accordingly, the holders of a majority of the
outstanding shares entitled to vote for the election of directors can elect all
of the directors then being elected at any annual meeting of CFX's stockholders.
Shares of Common Stock are not redeemable and have no subscription, conversion
or preemptive rights.
The outstanding shares of Common Stock are validly issued, fully paid and
non-assessable and the holders thereof are not, and will not be, subject to any
liability as stockholders.
Dividends. Under New Hampshire law, the Board of Directors has the power
to declare and pay dividends in cash, property or securities of the corporation
unless (a) such corporation is, or would be thereby made, insolvent or (b) the
declaration and payment of such dividend would be contrary to any restrictions
contained in the charter. New Hampshire law further provides that no
distribution may be made (i) if the corporation is or would become unable to pay
its debts as they become due in the usual course of business or (ii) unless the
fair value of the net assets of the corporation remaining after the distribution
is at least equal to the aggregate preferential amount payable to holders of
stock with preferential rights in the event of involuntary liquidation.
CFX is a legal entity separate and distinct from its subsidiaries. The
only funds available to CFX for the payment of dividends are cash and cash
equivalents held at the holding company level, dividends paid by CFX's banking
and other subsidiaries, and borrowings. The declaration of dividends by CFX,
and by CFX's banking subsidiaries to CFX, is subject to regulatory restrictions
of state and federal bank regulatory authorities. The ability of holders of
debt and equity securities of CFX to benefit from the distribution of assets of
a subsidiary upon the liquidation or reorganization of such subsidiary is
subordinate to prior claims of creditors of the subsidiary (including
depositors, in the case of banking subsidiaries) except to the extent that a
claim of CFX as a creditor may be recognized.
Restrictions on Ownership. The Bank Holding Company Act (the "BHCA")
requires any "bank holding company," as such term is defined therein, to obtain
the approval of the Federal Reserve Board prior to the acquisition of 5% or more
of a class of voting stock of CFX. Any person other than a bank holding company
is required to obtain prior approval of the Federal Reserve Board to acquire 10%
or more of the CFX voting stock under the Change in Bank Control Act. Any
holder of 25% or more of the CFX voting stock (or a holder of 5% or more if such
holder otherwise exercises a "controlling influence" over CFX) is subject to
regulation as a bank holding company under the BHCA.
Transfer Agent and Registrar. The Transfer Agent and Registrar for the
Common Stock is Mellon Securities Trust Company, New York.
ANTI-TAKEOVER PROVISIONS
The following discussion is a general summary of certain provisions of the
CFX Articles and CFX By-laws which may be deemed to have "anti-takeover" effects
and is qualified in its entirety by the provisions of the CFX Articles and CFX
By-laws, which are exhibits to this Registration Statement.
Business Combinations Involving CFX. The CFX Articles require the approval
by holders of at least 80% of the outstanding shares of CFX's voting stock for
any merger, consideration, sale of substantially all the assets or similar
business combination, unless the consideration to be received by the
stockholders of CFX is of the same value and form as the highest consideration
paid by the acquiring entity in acquiring stock already owned by it (except to
the extent a stockholder elects a different form of consideration in exchange
for all or part of the shares which he or she owns.)
Assuming the foregoing fair price provisions are complied with, approval by
holders of at least 75% of the outstanding shares of CFX's voting stock is
required to approve a business combination unless the transaction is approved by
at least two-thirds of the directors not affiliated with the acquiring entity.
In the event such director approval is obtained, the business combination would
require only the vote, if any, as required by New Hampshire law. New Hampshire
law generally requires the favorable vote of a majority of the outstanding
shares of stock to authorize a merger or sale of all or substantially all of the
assets not in the regular course of business, unless the particular
corporation's articles of incorporation provide for a greater vote.
The CFX Articles allow the Board of Directors, in evaluating a business
combination or a tender or exchange offer, to consider, in addition to the
adequacy of the amount to be paid in connection with any such transaction,
certain specified factors and any other factors the Board deems relevant. Among
the factors the Board may consider are: the social and economic effects of the
transaction on CFX, its employees, depositors, loan and other customers,
creditors and other elements of the communities in which CFX operates or is
located; the business and financial condition and earnings prospects of the
acquiring party or parties; and the competence, experience, and integrity of the
acquiring party or parties and its or their management.
These provisions were included in the Articles in an effort to maintain the
financial and business integrity of CFX. Banks and bank holding companies
occupy positions of special trust in the communities they serve. They also
provide opportunities for abuse by those who are not of sufficient experience or
competence or financial means to act professionally and responsibly with respect
to management of a financial institution. It is intended that CFX be managed in
the interest of the communities that it serves and that it and its subsidiaries
maintain their integrity as institutions.
CFX's Board of Directors believes that these increased vote and fair price
provisions with respect to business combinations will help increase the
likelihood that any such proposed transaction will be on terms fair to all of
the stockholders of CFX, particularly if the transaction is proposed by a
dominant stockholder who might be able to obtain approval by a simple majority
primarily on the basis of its own holdings, even if the transaction were not in
the best interests of or were opposed by a majority of the remaining
stockholders. On the other hand, the increased vote requirement may in effect
grant a minority of the stockholders a veto over a transaction favored by a
majority of the stockholders, even if it were also favored by all or a majority
of the Board of Directors of CFX.
Classified Board. New Hampshire law permits classification of the Board of
Directors if the corporate charter so provides. The CFX Articles and CFX By-
laws provide for classification of the Board into three classes as nearly equal
in number as possible, with one class being elected annually. The directors in
each class will serve for terms of three years. Each director serves until his
or her successor is elected and qualified.
A classified Board of Directors could make it more difficult for
stockholders, including those holding a majority of the outstanding shares, to
force an immediate change in the composition of a majority of the Board of
Directors, even when the reason for a proposed removal is poor performance.
Since the terms of only one-third of the incumbent directors expire each year,
it requires at lease two annual elections for the stockholders to change a
majority, whereas a majority of a non-classified board may be changed in one
year. In the absence of the provisions of the Articles of Incorporation
classifying the Board, all of the directors would be elected each year.
Staggered terms guarantee that in the ordinary course approximately two-
thirds of the directors, or more, at any one time have had at least one year's
experience as directors of CFX, and moderate the pace of changes in the Board of
Directors by extending the minimum time required to elect a majority of
directors from one to two years.
Removal. Pursuant to the CFX Articles, Directors may be removed without
cause only by a vote of 75% of the outstanding shares of CFX's voting stock or
for cause by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote. "Cause" is defined to mean an adjudication
by a court of competent jurisdiction that the director to be removed (i) is
liable for negligence or misconduct in the performance of his duty, (ii) is
guilty of a felony or (iii) has failed to act or has acted in a manner which is
in derogation of the director's duties. This provision may, under certain
circumstances, impede the removal of a director of CFX.
Additional CFX Anti-takeover Provisions. It should be noted that the
foregoing provisions are not the only provisions having an anti-takeover effect.
For example, CFX's Articles also provide that Preferred Stock may be issued by
the Board of Directors upon terms, including terms relating to voting rights,
determined by the Board. In the event that a hostile acquisition of CFX is
threatened, the Board of Directors could determine to issue voting Preferred
Stock in an effort to thwart a takeover attempt. If voting Preferred Stock were
issued for such a purpose, it could result in or impede a change in control of
CFX, especially if the shares were issued in a private placement to a party or
parties sympathetic to management and opposed to any attempt to gain control of
CFX. The issuance of Preferred Stock with preferential voting rights could
adversely affect the voting rights of the holders of CFX Common Stock.
The CFX Articles provide that the number of directors of CFX shall not be
less than nine nor more than 21. The power to determine the number of directors
within these numerical limitations is vested in CFX's Board of Directors. The
number of directors is currently fixed at 11. Vacancies on CFX's Board of
Directors resulting from any cause, including removal from office, but excluding
vacancies resulting from an increase in the number of directors, are filled by a
majority vote of the directors in office though less than a quorum, and
directors so chosen serve for the remainder of the full term of the class in
which the vacancy occurred rather than until the next annual meeting of the
stockholders. Newly created directorships resulting from any increase in the
authorized number of directors are to be filled by the Board of Directors for a
term of office continuing only until the next election of directors by
stockholders. The overall effect of such provisions may be to prevent a person
or entity from immediately acquiring control of CFX through an increase in the
number of CFX's directors and election of his or its nominees to fill the newly
created vacancies.
The CFX Articles also provide that any stockholder desiring to make a
nomination for the election of directors at a meeting of stockholders must
submit written notice to CFX no less than 30 nor more than 60 days in advance of
the meeting. Management believes that it is in the best interest of CFX and its
stockholders to provide sufficient time to enable management to disclose
information about a dissident slate of nominees for directors. This advance
notice requirement may also give management time to solicit its own proxies in
an attempt to defeat any dissident slate of nominees should management determine
that doing so is in the best interest of stockholders generally.
Generally, the vote of the holders of two-thirds of the outstanding shares
of CFX's stock entitled to vote is required to amend CFX Articles, provided the
notice of such a meeting sets forth the text of any proposed amendments. In
addition, the vote of 80% of all voting shares is required to amend the
provisions in the CFX Articles dealing with business combinations.
The CFX By-laws may be amended by the affirmative vote of a majority of the
entire CFX Board of Directors, subject to repeal, change or adoption of any
contravening or inconsistent provision by vote of the holders of at least two-
thirds of the shares entitled to vote on the merits at a meeting expressly
called for that purpose.
The cumulative effect of the provisions in the CFX Articles and CFX By-laws
described above could discourage an acquisition of CFX, or stock purchases
looking toward an acquisition, and would accordingly, under certain
circumstances, discourage transactions which might otherwise have a favorable
effect on the price of CFX Common Stock. In addition, these provisions might
also make it possible for incumbent officers and directors to retain their
position (at least until their terms expire) even though a majority of
stockholders desires a change.
PREFERRED STOCK
The Board of Directors is authorized to issue Preferred Stock and to fix
and state voting powers, designation(s), preferences or other special rights of
such shares and the qualifications, limitations and restrictions thereof. The
Preferred Stock may rank prior to the Common Stock as to dividend rights,
liquidation preferences, or both, and may have full or limited voting rights.
The Board of Directors, without stockholder approval, can issue Preferred Stock
with voting and conversion rights that could adversely affect the voting power
of the holders of the Common Stock, and which could result in or impede a change
in control.
(b) Debt Securities
No debt securities are being registered.
(c) Warrants and Rights
The securities being registered hereunder are not to be offered
pursuant to warrants or rights.
(d) Other Securities
No securities, other than capital stock, are to be registered hereby.
(e) Market Information for Securities Other than Common Equity
Not applicable.
(f) American Depository Receipts
Not applicable.
Item II. Exhibits
Listed below are all exhibits filed as part of the Registration Statement:
*(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1994.
*(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
*(3) Proxy Statement for the 1995 Annual Meeting of Shareholders.
*(4) The Current Report on Form 8-K filed on June 19, 1995.
(5) Articles of Incorporation and By-Laws, as amended.
*(6) Specimen certificate for common stock to be registered hereby.
*(7) 1994 Annual Report to Shareholders.
*Filed with the American Stock Exchange only.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registration has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
CFX CORPORATION
Dated: By: /s/ Peter J. Baxter
Peter J. Baxter, President
and Chief Executive Officer
STATE OF NEW HAMPSHIRE
Filing fee: $25.00 Form No. 11
+ License fee: $18,500.00 (See Section 136 II) RSA 293-A:54 Total
fees $18,525.00
Use black print or type.
Leave 1" margins both sides.
ARTICLES OF INCORPORATION
OF
CHESHIRE FINANCIAL CORPORATION
THE UNDERSIGNED, ACTING AS INCORPORATOR(S) OF A CORPORATION UNDER THE NEW
HAMPSHIRE BUSINESS CORPORATION ACT, ADOPT(S) THE FOLLOWING ARTICLES OF
INCORPORATION FOR SUCH CORPORATION:
FIRST: The name of the corporation is Cheshire Financial Corporation (Note
1)
SECOND: The period of its duration if such period is other than
perpetual:
THIRD: The corporation is empowered to transact any and all lawful
business for which corporations may be incorporated under RSA 293-A and the
principal purpose or purposes for which the corporation is organized are:
1. Generally conducting the business and carrying on the activities of a
bank holding company, as defined in the Bank Holding Company Act of 1956, as
amended.
2. Acquiring an interest in or control of banks, savings banks, financial
institutions and other corporations or associations of every kind and
description through ownership of stock; acquiring such stock by purchase,
exchange for its own securities or otherwise; exercising all of the rights,
powers and privileges of such stock.
FOURTH: The aggregate number of shares which the corporation shall have
authority to issue is: (Note 2)
Eighteen Million (18,000,000), consisting of
1.Three Million (3,000,000), shares of preferred stock, one dollar
($1.00) par value per share (hereinafter the "Preferred Stock"); and
2. Fifteen Million (15,000,000), shares of common stock, one dollar ($1.00)
par value per share (hereinafter the "Common Stock").
(See also Appendix I)
FIFTH: The capital stock will be sold or offered for sale within the
meaning of RSA 421-B. (New Hampshire Securities Act)(Note 3)
SIXTH: Provisions, if any, for the limitation or denial of preemptive
rights: (Note 4)
None of the shares of the Corporation shall carry any preemptive or
preferential rights of subscription with respect to any shares of any class or
series of stock of the Corporation or any warrants to purchase such shares or
securities convertible into such shares, whether now or hereafter authorized.
SEVENTH: Provisions for the regulation of the internal affairs of the
corporation are: (Note 5)
(See Appendix II)
EIGHTH: The address of the initial registered office of the corporation is
194 West Street, Keene, New Hampshire 03431 and the name of its initial
registered agent at such address is Howard B Lane, Jr., Esq
NINTH: The number of directors constituting the initial board of directors
of the corporation is 12, and the names and addresses of the persons who are to
serve as directors until the first annual meeting of shareholders or until their
successors are elected and shall qualify are:
Name Address
(See Appendix III)
TENTH: The name and address of each incorporator is:
Name Address
Howard B. Lane, Jr. 61 Park Avenue
Keene, New Hampshire 03431
Dated August 26, 1986
HOWARD B. LANE, JR.
Howard B. Lane, Jr.
Incorporator(s)
(Note 6)
Mail fee, DUPLICATE ORIGINALS (ORIGINAL SIGNATURES ON BOTH) AND INSURANCE
COMMISSIONER'S CERTIFICATE (Note 3) to:
Secretary of State, Rm. 204, State House, Concord, NH 03301-4989
APPENDIX I
TO
ARTICLES OF INCORPORATION
OF
CHESHIRE FINANCIAL CORPORATION
FOURTH--SHARES. Shares of Preferred Stock may be issued from time to time
in one or more series as may be determined by the Board of Directors. Each
series is to be distinctly designated to distinguish the shares in the series
from the shares of all other series and classes. The relative rights and
preferences of the Preferred Stock and the variations of rights and preferences
between different series of Preferred Stock may be fixed and determined by the
Board of Directors by resolution or resolutions adopted prior to the issuance of
any shares of a particular series of Preferred Stock. All shares of Preferred
shall be identical except as to the following relative rights and preferences,
as to which there may be variations between different series:
(a) The rate of dividend;
(b) Whether shares may be redeemed and, if so, the redemption price and the
terms and conditions of redemption;
(c) The amount payable upon shares in event of voluntary and
involuntary liquidation;
(d) Sinking fund provisions, if any, for the redemption or purchase of shares;
(e) The terms and conditions, if any, on which shares may be converted; or
(f) Voting rights, if any.
The authorized shares of Common Stock may be issued by the Corporation
from time to time by vote of the Board without the approval of the holders of
the Common Stock. Upon payment of lawful consideration, such shares shall be
deemed to be fully paid and nonassessable. Except as the Board shall have
otherwise specified or except as otherwise provided by law, voting power shall
be vested exclusively in the Common Stock. The holders of the Common Stock shall
be entitled to one vote for each share of Common Stock owned. Dividends, as
declared by the Board out of lawfully available funds, shall be payable on the
Common Stock subject to any rights or preferences of the Preferred Stock. Upon
any liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock are entitled to
receive pro rata the remaining assets of the Corporation after the holders of
Preferred Stock have been paid in full any sums to which they may be entitled.
There shall be no cumulative voting for Directors or otherwise.
APPENDIX II
TO
ARTICLES OF INCORPORATION
OF
CHESHIRE FINANCIAL CORPORATION
SEVENTH--INTERNAL AFFAIRS OF THE CORPORATION
Section 1. (a) Number, Qualifications and Term of Office. Subject to the
provisions hereof relating to the initial Board, the number of directors of the
Corporation shall be no less than 9 and no more than 15. The exact number of
Directors within the minimum and maximum limitations specified in the preceding
sentence shall be fixed from time to time by the Board pursuant to a resolution
adopted by a majority of the entire Board. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director. At the 1987 annual meeting of Shareholders, the Directors shall be
divided into three classes as nearly equal in number as possible with the term
of office of the first class to expire at the 1988 annual meeting of
Shareholders, the term of office of the second class to expire at the 1989
annual meeting of Shareholders and the term of office of the third class to
expire at the 1990 annual meeting of the Shareholders. At each annual meeting of
Shareholders following such initial classification and election, Directors
elected to succeed those Directors whose terms expire shall be elected for a
three year term of office to expire at the third succeeding annual meeting of
Shareholders after their election. Directors need not be Shareholders or
residents of the State of New Hampshire.
(b) Vacancies. Any vacancy in the Board caused by death, resignation,
retirement, disqualification, removal, or other cause, shall be filled by a
majority vote of the remaining Directors, though less than a quorum. A Director
so chosen shall hold office for the unexpired term of their predecessors in
office. Any Directorship to be filled by reason of an increase in the authorized
number of directors may be filled by the Board for a term of office continuing
only until the next election of Directors by the Shareholders.
(c) Removal of Directors. At any meeting of Shareholders called expressly
for the purpose, any Director may be removed from office by the affirmative vote
of the holders of seventy-five percent (75%) of the shares entitled to vote or
if removal is for cause, then by a majority of the shares then entitled to vote.
For "cause" shall mean a final adjudication by a court of competent jurisdiction
that the Director (i) is liable for negligence or misconduct in the performance
of his duty, (ii) guilty of a felony conviction, or (iii) has failed to act or
has acted in a manner which is in derogation of the Director's duties.
(d) Nomination of Directors. In addition to the right of the Board to make
nominations for the election of Directors, nominations for the election
of Directors may be made by any Shareholder entitled to vote for the election of
Directors if that Shareholder complies with all of the following provisions:
a. Advance notice of such proposed nomination shall be received by the Secretary
of the Corporation, not less than thirty (30) days nor more than sixty (60) days
prior to any meeting of the Shareholders called for the election of Directors;
provided, however, that if fewer than fourteen (14) days' notice of the meeting
is given to Shareholders, such written notice of a proposed nomination shall be
received not later than the close of the tenth day following the day on which
the notice of the meeting was mailed to Shareholders.
b. Each notice shall set forth (i) the name, age, business address and, if
known, residence address of each nominee proposed in such notice; (ii) the
principal occupation or employment of each such nominee; and (iii) the number of
shares of stock of the Corporation which are beneficially owned by each such
nominee. In addition, the Shareholder making such nomination shall promptly
provide any other information reasonably requested by the Corporation.
c. The nomination made by a Shareholder may only be made in a meeting of
Shareholders of the Corporation called for the election of Directors at which
such Shareholder is present in person or by proxy, and can only be made by a
Shareholder who has complied with the notice provisions of (a) and (b) above.
d. The Chairman of the meeting may in his discretion determine and declare to
the meeting that a nomination was not made in accordance with the foregoing
procedures, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 2. Voting For Business Combinations
(a) Neither the Corporation nor any subsidiary of which the Corporation
owns at least a majority of the equity securities ordinarily entitled to vote
for the election of Directors, ("Subsidiary") shall be a party to any of the
transactions specified herein (a "Business Combination") or enter into any
agreement providing for any Business Combination unless the conditions specified
in (b), (c) and (d) below shall have been satisfied:
(i) any merger or consolidation (whether in a single transaction or a
series of related transactions) other than a merger or consolidation of the
Corporation and any of its subsidiaries or a merger or consolidation of any
subsidiaries of the Corporation; or
(ii) any sale, lease, exchange, transfer or distribution of all or
substantially all or a substantial portion of the property or assets of the
Corporation or any of its subsidiaries, including its goodwill; or
(iii) the issuance of any securities, or of any rights warrants or
options to acquire any securities of the Corporation or any of its subsidiaries,
to any Shareholders other than by stock dividend declared and paid to all
Shareholders of the Corporation or pursuant to an employee stock ownership plan
or an employee stock option plan established by the Corporation; or
(iv) any reclassification of the stock of the Corporation or any of its
subsidiaries or any recapitalization or other transaction (other than a
redemption of stock) which has the effect, directly or indirectly, of increasing
the proportionate share of stock of the Corporation or any of its subsidiaries
held by any person; or
(v) the dissolution of the Corporation or any subsidiary thereof or
any partial or complete liquidation of the Corporation or any subsidiary
thereof.
(b) The vote of the holders of at least eighty percent (80%) of the
outstanding shares entitled to vote for the election of Directors shall be
required to approve or authorize any Business Combination to which the
Corporation or any Subsidiary is a party unless the aggregate of the cash and
fair market value of the consideration to be paid to all the holders of the
Common Stock of the Corporation in connection with the Business Combination
(when adjusted for stock splits, stock dividends, reclassification of shares or
otherwise) shall be equal to the highest price per share paid by the other party
or parties to the Business Combination (the "Acquiring Party") in acquiring any
of the Corporation's Common Stock; provided, however, that the consideration to
be paid to the holders of the Common Stock of the Corporation shall be in the
same form as that paid by the Acquiring Party in acquiring the shares of the
Common Stock held by it except to the extent that any Stockholder of the
Corporation shall otherwise agree.
(c) Subject to the provisions in (b) above, the vote of the holders of at
least seventy-five percent (75%) of the outstanding shares entitled to vote for
the election of Directors shall be required to approve or authorize any Business
Combination to which the Corporation or any Subsidiary is a party unless the
Business Combination shall have been approved by at least twothirds (2/3) of the
Directors of the Corporation who are not affiliated with, or Shareholders of,
the Acquiring Party.
In connection with the exercise of its judgment in determining what is in
the best interests of the Corporation and of the Shareholders, when evaluating a
Business Combination or a proposal by another person or persons to make a
Business Combination or a tender or exchange offer, the Board may, in addition
to considering the adequacy of the amount to be paid in connection with any such
transaction, consider all of the following factors and any other factors which
it deems relevant: (i) the social and economic effects of the transaction on the
Corporation and its subsidiaries, employees, depositors, loan and other
customers, creditors and other elements of the communities in which the
Corporation and its subsidiaries operate or are located; (ii) the business and
financial condition and earnings prospects of the acquiring person or persons,
including, but not limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition, and other likely financial obligations of the acquiring person or
persons, and the possible effect of such conditions upon the Corporation and its
subsidiaries and the other elements of the communities in which the Corporation
and its subsidiaries operate or are located; and (iii) the competence,
experience and integrity of the acquiring person or persons and its or their
management.
(d) In the event that all of the conditions set forth in (b) and (c)
above are met, the Corporation or any Subsidiary may enter into any Business
Combination under the terms and conditions specified in the New Hampshire
Business Corporation Act.
(e) The affirmative vote of the holders of at least eighty percent (80%)
of all of the shares of the Corporation entitled to vote for the election of
Directors shall be required to amend or repeal, or to adopt any provision in
contravention of or inconsistent with this Section 2, notwithstanding the fact
that a lesser percentage may be specified by law.
Section 3-Special Meetings and Consent Meetings
Special meetings of the Shareholders may be called by the Chairman,
President, the Board, or by the Secretary upon written request of the holders of
not less than ten percent (10%) of all the shares entitled to vote.
Section 4-Acquisition of Stock
(a) Restrictions on Offers and Acquisitions. For a period of five (5)
years from the effective date of the conversion, no person shall directly or
indirectly offer to acquire or acquire the beneficial ownership of (i) more than
ten percent (10%) of the issued and outstanding shares of any class of an equity
security of the Corporation; (ii) more than ten percent (10%) of any class of
securities convertible into, or exercisable for, any class of an equity security
of the Corporation; (iii) any securities convertible into, or exercisable for,
any equity securities of the Corporation if assuming conversion or exercise by
such person of all securities of which such person is the beneficial owner which
are convertible into, or exercisable for, such equity securities (but of no
securities convertible into, or exercisable for, such equity securities of which
such person is not the beneficial owner), such person would be the beneficial
owner of more than ten percent (10%) of any class of an equity security of the
Corporation.
For the same five year period, each share beneficially owned in violation
of the foregoing percentage limitation, as determined by the Board, shall not be
voted by any person or counted as voting shares in connection with any matter
submitted to the shareholders for a vote.
For the purpose of this Section 4:
(i) The term "person" shall mean and include any individual, group
acting in concert, corporation, partnership, or other organization or entity,
together with its affiliates and associates; and
(ii) The term "offer" includes every offer to buy or acquire,
solicitation of an offer to sell, tender offer for, or request or invitation for
tenders of, a security (including, without limitation, shares of any class of
capital stock of the Corporation) or interest in a security for value.
(iii) The term "conversion" shall mean the completed process whereby Cheshire
County Savings Bank will be converted from a New Hampshire-chartered mutual
savings bank to a New Hampshirechartered stock savings bank and Cheshire
Financial Corporation shall become the holding company for Cheshire County
Savings Bank.
(b) Exclusion for Underwriters, Directors, Officers and Employees. The
restriction contained in this Section 4 shall not apply to any offer with a view
toward public resale made exclusively to the Corporation or the underwriters or
a selling group acting in its behalf. In addition, the Directors, Officers and
employees of the Corporation or any subsidiary thereof shall not be deemed to be
a group with respect to their individual acquisition of equity stock of the
Corporation.
(c) Readoption of Restriction by Shareholders. This Section 4 may be
readopted for additional one-year or longer periods by vote of the holders of a
majority of the outstanding voting shares present or represented at a duly
convened annual or special meeting of Shareholders of the Corporation.
(d) Exception in Cases of Advance Approval. This Section 4 shall not
apply to any offer or acquisition referred to in (a) above if such offer or
acquisition was approved in advance of such offer or acquisition by two-thirds
(2/3) of the entire Board utilizing the standard set forth in Section 2(c).
(e) Enforcement of this Section 4. The Corporation may by law or by
resolution of the Directors adopt such provisions or resolutions as are
necessary to provide for the enforcement of this Section 4.
(f) Amendments of this Section 4. Notwithstanding any other provisions of
these Articles of Incorporation or the By-Laws of the Corporation, and
notwithstanding the fact that some lesser percentage may be specified by law,
this Section 4 shall not be amended, altered, changed or repealed without:
a. the affirmative vote of two-thirds (2/3) of the Board; and
b. the affirmative vote by the holders of at least two-thirds (2/3) of the
outstanding shares entitled to vote.
This vote shall be in addition to any vote of the Preferred Stock as may be
required by the provisions of any series thereof or by applicable law.
The readoption of Section 4 for additional one-year or longer periods, as
provided in (c) above, shall not be an amendment, alteration or change for the
purposes of this paragraph.
Section 5-Amendments
(a) Amendments to Articles of Incorporation. Except as otherwise provided
for in the Articles above, the affirmative vote of the holders of at least two-
thirds of all of the shares of the Corporation entitled to vote for the election
of Directors, shall be required to amend or repeal, or to adopt any provision in
contravention of or inconsistent with these Articles notwithstanding the fact
that a lesser percentage may be specified by law.
(b) Amendment to By-Laws. The By-Laws of the Corporation may be amended at
any time by the affirmative vote of a majority of the entire Board, subject to
repeal, change or adoption of any contravening or inconsistent provision only by
vote of the holders of at least two-thirds (2/3) of all the shares entitled to
vote on the matter at a meeting expressly called for that purpose.
APPENDIX III
TO
ARTICLES OF INCORPORATION
OF
CHESHIRE FINANCIAL CORPORATION
NINTH-DIRECTORS.
Section 1. The number of directors constituting the initial board of
directors of the corporation is twelve (12), and the names and addresses of
those persons are:
Name Address
Richard B. Baybutt 664 West Street
Keene, NH 03431
Mario G. Farina 133 School Street
Keene, NH 03431
Calvin L. Frink West Surry Road
Keene, NH 03431
Eugene E. Gaffey 225 Pearl Street
Chairman Keene, NH 03431
Kenneth W. Eazen 15 West Surry Road
Keene, NH 03431
Philip D. Koerner P.O. Box 338
Dublin, NH 03444
Howard B. Lane, Jr., 61 Park Avenue
Vice Chairman Keene, NH 03431
Emerson H. O'Brien Four Seasons
Spofford, NH 03462
Howard A. Roberts 99 Jordan Road
Keene, NH 03431
L. William Slanetz 471 Chapman Road
Keene, NH 03431
David B. Walters 12 Greenbriar Road
Keene, NH 03431
William H. Dennison 23 Shadow Lane
Keene, NH 03431
CHESHIRE COUNTY SAVINGS BANK
Officer's Certificate
I, David B. Walters, do hereby certify that as of this date, I am the duly
appointed and qualified President of Cheshire County Savings Bank ("Cheshire").
I further certify that Cheshire is the registered holder of the tradename
"Cheshire Financial" and that Cheshire does hereby consent to the use of said
tradename by Howard B. Lane, Jr. in the formation of "Cheshire Financial
Corporation."
Dated August 18, 1986.
CHESHIRE COUNTY SAVINGS BANK
DAVID B. WALTERS, PRESIDENT
David B. Walters, President
STATE OF NEW HAMPSHIRE
Filing fee: $15.00 Form No. 10
Use black print or type. RSA 293-A:16
Leave 1" margin both sides.
STATEMENT OF RESOLUTION ESTABLISHING SERIES OF SHARES OF
CHESHIRE FINANCIAL CORPORATION
TO THE SECRETARY OF STATE
OF THE STATE OF NEW HAMPSHIRE
PURSUANT TO THE PROVISIONS OF SECTION 16 OF THE NEW HAMPSHIRE BUSINESS
CORPORATION ACT, THE UNDERSIGNED CORPORATION SUBMITS THE FOLLOWING STATEMENT
FOR THE PURPOSE OF ESTABLISHING AND DESIGNATING A SERIES OF SHARES AND FIXING
AND DETERMINING THE RELATIVE RIGHTS AND PREFERENCES THEREOF:
FIRST: The name of the corporation is Cheshire Financial Corporation:
SECOND: The following resolution establishing and designating a series of
shares and fixing and determining the relative rights and preferences thereof,
was duly adopted by the board of directors of the corporation on March 5, 1990:
(Insert copy of resolution.)
(If more space needed, attach additional sheet)
SEE ATTACHED RESOLUTION.
Dated April 26th, 1990
CHESHIRE FINANCIAL CORPORATION (Note 1)
By Peter Baxter
Its President (Note 2)
and Howard B. Lane, Jr.
Its Secretary
Notes: 1. Exact corporate name of corporation making the statement.
2. Signatures and titles of officers signing for the corporation.
Must be signed by President or Vice President and Secretary or Assistant
Secretary.
Mail duplicate originals with fee to: Secretary of State, Rm. 204, State House,
Concord, NH 03301-4989.
RESOLUTION OF THE BOARD OF DIRECTORS
OF CHESHIRE FINANCIAL CORPORATION
ESTABLISHING THE RIGHTS AND PREFERENCES OF THE
CONVERTIBLE PREFERRED STOCK, SERIES A
WHEREAS, Cheshire Financial Corporation (the "Corporation") has entered
into an Affiliation Agreement dated as of July 26, 1989 by and between The
Valley Bank, a New Hampshire trust company ("VBT") and the Corporation (the
"Acquisition Agreement"), pursuant to which the Corporation will acquire VBT
(the "Acquisition"); and
WHEREAS, the Corporation intends to accomplish the Acquisition in part
through the issuance of preferred stock; and
WHEREAS, the Articles of Incorporation of the Corporation (the "Articles")
authorize the issuance of up to 3,000,000 shares, $1.00 par value per share, of
preferred stock and the Board of Directors of the Corporation has the authority
to issue preferred stock in one or more series and to fix and determine the
relative rights and preferences of the shares of any series of preferred stock
so established, including the rate of dividend, whether shares of such series
may be converted or redeemed, and, if so, the terms and conditions of conversion
or redemption, the amount payable upon shares in event of voluntary and
involuntary liquidation with respect to shares of such series, sinking fund
provisions, if any, for the redemption or purchase of shares of such series,
voting rights, if any, and the number of shares constituting any series without
any further action by shareholders of the Corporation.
NOW, THEREFORE, BE IT RESOLVED THAT a series of preferred stock shall be
established with the following terms, rights and preferences:
1. Designation.
Two Hundred Eighty Thousand (280,000) shares of the preferred stock of
the Corporation are hereby constituted as a series of preferred stock,
designated as Convertible Preferred Stock, Series A (hereinafter called the
"Series A Preferred Stock"). The number of shares of Series A Preferred Stock
may not be increased but may be decreased by a resolution duly adopted by the
Board of Directors, but not below the number of shares of Series A Preferred
Stock then outstanding.
2. Dividends.
Holders of shares of the Series A Preferred Stock shall be entitled to
receive cumulative cash dividends, when, as and if declared by the Board of
Directors of the Corporation out of funds legally available therefor, payable at
a rate equal to seven and one-half percent (7.5%) per annum based on $18.50
value per share. Dividends shall be cumulative and shall be payable quarterly
on the first day of January, April, July and October in each year. The dividend
earned in the period from the issue date to the first quarterly payment date
will be prorated. If the dividend accrued on the Series A Preferred Stock for
any dividend period shall not have been paid or set apart in full for the Series
A Preferred Stock, the aggregate deficiency shall be cumulative and shall be
fully paid or set apart for payment before any dividends shall be paid upon or
set apart for payment on any class of common stock of the Corporation.
Accumulations of dividends on the Series A Preferred Stock shall not bear
interest. No dividends shall be paid upon, or declared or set apart for, any
shares of Series A Preferred Stock if the Board of Directors shall have failed
duly and lawfully to declare and pay in full all accumulated dividends required
to be paid to the holders of the Series A Preferred Stock for all past dividend
periods.
3. Amount Payable on Liquidation.
The amount per share to which the holders of the shares of Series A
Preferred Stock shall be entitled to receive for purposes of paragraph (c) of
the Fourth Article of the Articles is $18.50 per share, plus an amount equal to
all dividends (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution, before any payment and distribution shall be
made to the holders of any class of common stock of the Corporation.
4. Conversion.
(a) At the option of the holder, any share of Series A Preferred Stock (a
"Share") may, at any time, be converted into shares of the Common Stock of the
Corporation (the "Common Stock") as hereinafter provided. In order to exercise
the conversion privilege, the holder of any Share to be converted shall
surrender such Share to the Corporation, together with the conversion notice in
the form provided on the Shares duly executed. As promptly as practicable after
the surrender of such Share for conversion as aforesaid, the Corporation shall
issue and shall deliver to such holder, or on his written order, a certificate
or certificates for the number of full shares of Common Stock issuable upon the
conversion of such Share or portion thereof and a check or cash in respect of
any fraction of a share of Common Stock issuable upon such conversion. Such
conversion shall be deemed to have been effected on the date on which such
notice shall have been received and such Share shall have been surrendered as
aforesaid, and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become on said date the holder or holders of record of
the shares represented thereby; provided however, that any such surrender on any
date when the stock transfer books of the Corporation shall be closed shall
constitute the person or persons in whose name or names the certificates are to
be issued as the record holder or holders thereof for all purposes on the next
succeeding day on which such stock transfer books are open. In the event the
holder of any Share elects to exercise the conversion privilege as any Shares,
he shall be required to exercise such privilege as to the lesser of 100 Shares
or all Shares beneficially owned by such shareholder.
(b) On the fifth anniversary date of the original issuance of the Series A
Preferred Stock, all outstanding Shares shall be converted in Common Stock
without any further action of the Corporation. Not less than 15 days prior to
the date fixed for mandatory conversion of the Series A Preferred Stock, a
notice specifying the time and place thereof shall be given by certified or
registered mail to the holders of record of the shares of Series A Preferred
Stock at their respective addresses as the same shall appear on the stock books
of the Corporation, but no failure to mail such notice or any defect therein or
in the mailing thereof shall affect the validity of the proceedings for
mandatory conversion. Any notice which was mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the holder
receives the notice. Upon such mandatory conversion date, the shares of Series A
Preferred Stock shall cease to represent any interest in or claim against the
Corporation and shall have no voting or other rights with respect to such shares
except as set forth in Section 4(e) and except the right to receive the Common
Stock upon such mandatory conversion from the Corporation or otherwise, upon
surrender (and endorsement, if required by the Corporation) of the certificates,
and the shares represented thereby shall no longer by deemed to be outstanding.
Upon surrender of any certificate representing Series A Preferred Stock for
mandatory conversion, the Corporation shall issue the appropriate number of
shares of Common Stock, plus all dividends accrued and unpaid, to the
shareholder of the record.
(c) The Corporation shall not be required to issue fractions of shares of
Common Stock upon conversion of Shares. If more than one Share shall be
surrendered for conversion at any time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate number of the Shares so surrendered. If any fractional
interest in a share of Common Stock would be deliverable upon the conversion of
any Share or Shares, the Corporation shall make an adjustment therefor in cash
equal to the same fraction of the current market price of the Common Stock (as
defined in Section 4(f)(4)).
(d) The conversion ratio in the case of optional conversion pursuant to
Section 4(a) or mandatory conversion pursuant to Section 4(b) shall be one (1)
share of the Corporation's common stock for one (1) share of the Series A
Preferred Stock.
(e) The Corporation shall at the time of conversion pursuant to Section
4(a) or 4(b) pay the holder of record of any share of Series A Preferred Stock
any dividend accrued and unpaid on the Series A Preferred Stock. No dividends
shall be paid or set apart for payment on any class of Common Stock of the
Corporation or, in the case of optional conversion, on any remaining shares of
Series A Preferred Stock unless all accrued and unpaid dividends due to the
former holders of Series A Preferred Stock have been fully paid or set apart for
payment.
(f) The conversion ratio shall be adjusted from time to time as follows:
(1) In case the Corporation shall (i) pay a dividend in shares of its Common
Stock, (ii) subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its shares of Common Stock any shares of stock of
the Corporation, the conversion privilege and conversion ratio in effect
immediately prior thereto shall be adjusted so that the holder of any Share
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Common Stock which he would have owned or have been entitled to
receive after the happening of any of the events described above, had such Share
been converted immediately prior to the record date for such dividend or the
effective date of such other event, as the case may be.
(2) In case the Corporation shall issue rights or warrants to all
holders of shares of its Common Stock entitling them (for a period expiring
within 45 days of the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in subdivision (4) below) on the record
date mentioned below, the conversion ratio shall be adjusted so that the same
shall equal the ratio determined be multiplying the conversion ratio in effect
immediately prior to the date of issuance of such rights or warrants by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of additional shares of Common Stock offered for subscription or purchase and of
which the denominator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants plus the number of shares of
Common Stock which the aggregate exercise price of the shares of Common Stock
called for by all such rights or warrants, would purchase at such current market
price. Such adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive such rights or
warrants.
(3) In case the Corporation shall distribute to all holders
of shares of its Common Stock evidences of its indebtedness or securities or
assets (excluding cash dividends, or dividends payable in shares of Common
Stock) or rights to subscribe (excluding those referred to in subdivision (2)
above), then in each such case the conversion ratio shall be adjusted so that
the same shall equal the ratio determined by multiplying the conversion ratio in
effect immediately prior to the date of such distribution by a fraction of which
the numerator shall be the current market price per share (determined as
provided in subsection (4) below) of the Common Stock on the record date
mentioned below plus the then current fair market value (as determined by the
Board of Directors of the Corporation, whose determination shall be conclusive)
of the portion of the assets or evidences of indebtedness so distributed or of
such subscription rights applicable to one share of Common Stock, and the
denominator shall be such current market price per share of the Common Stock.
(4) For the purpose of any computation under subdivisions
(2) and (3) above, the current market price per share of Common Stock at any
date shall be deemed to be the average of the closing bid and asked prices as
reported by the National Association of Securities Dealers Automated Quotation
System on the last business day immediately preceding the day in question.
(5) Except as herein otherwise provided, no adjustment in
the conversion ratio shall be made by reason of the issuance, in exchange for
cash, property or services, of shares of Common Stock, or any securities
convertible into or exchangeable for shares of Common Stock, or carrying the
right to purchase any of the foregoing.
(g) In case of any reclassification or change of outstanding shares of
Common Stock (other than a change in par value, or from par value to not par
value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the Corporation with one or
more other corporations (other than a consolidation in which the Corporation is
the continuing corporation and which does not result in any reclassification or
change of outstanding shares of Common Stock), or in case of the merger of the
Corporation into another corporation, or in case of any sale or conveyance to
another corporation of the property of the Corporation as an entirety or
substantially as an entirety, the Corporation, or such successor or purchasing
corporation, as the case may be, the holder of each Share then outstanding shall
have the right to convert such Share into the kind and amount of shares of stock
and other securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock into which such Share might have been converted immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
(h) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares, for the purpose of effecting the conversion
of the Shares, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding Shares.
If any shares of Common Stock reserved or to be reserved for the purpose
of the conversion of Shares hereunder require registration with or approval of
any governmental authority under any federal or state law before such shares may
be validly issued upon conversion, then the Corporation covenants that it will
in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
The Corporation covenants that all shares of Common Stock which may be
issued upon conversion of Shares shall upon issue be fully paid and non-
assessable by the Corporation and free from all taxes, liens and charges with
respect to the issue thereof.
(i) If, and whenever, any event not specified herein occurs which , in the
opinion of the Board of Directors of the Corporation, requires a change in the
conversion ratio of the Shares or in the property deliverable upon conversion of
the Shares, in order to carry out the purposes of these conversion provisions,
said Board of Directors will direct such change in the manner, or as nearly as a
may be in the manner, provided for other changes therein.
5. Shares to be Retired.
All shares of Series A Preferred Stock converted to Common Stock of the
Corporation pursuant to Section 4 herein shall be retired and shall be restored
to the status of authorized but unissued shares of preferred stock, without
designation as to series, and may thereafter be issued, but not as shares of
Series A Preferred Stock.
6. Voting Rights.
(a) Except as hereinafter in this Section 6 expressly provided for and as
otherwise from time to time required by the laws of the State of New Hampshire,
the holders of the outstanding Series A Preferred Stock shall have the right,
voting as a single class with the holders of the Corporation's Common Stock, to
vote on all matters presented for a shareholder vote. Each holder of Series A
Preferred Stock shall be entitled to one vote for each share held.
So long as any shares of Series A Preferred Stock remain outstanding, the
consent of the holders of at least a majority of the shares of Series A
Preferred Stock outstanding at the time (voting separately as a class with all
other affected series of Preferred Stock ranking on a parity with the Series A
Preferred Stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable) given in person or by proxy either in
writing or at any special or annual meeting called for the purpose, shall be
necessary to permit, effect or validate any one or more of the following:
(i) The authorization, creation or issuance of a new class
or series of stock having rights, preferences or privileges prior to the shares
of the Series A Preferred Stock as to dividends or the distribution of assets
upon liquidation, dissolution or winding up, or any increase in the number of
authorized shares of any class or series having rights, preferences or
privileges prior to the shares of Series A Preferred Stock as to dividends or
the distribution of assets upon liquidation, dissolution or winding up; and
(ii) the amendment, alteration or repeal, whether by merger, consolidation
or otherwise, of any of the provisions of the Articles of Incorporation of the
Corporation or of this resolution which would materially and adversely affect
any right, preference, privilege or voting power of the Series A Preferred Stock
or of the holders thereof; provided, however, that any increase in the amount of
authorized common stock or authorized preferred stock or the creation and
issuance of other series of common stock or preferred stock, in each case
ranking on a parity with or junior to the Series A Preferred Stock with respect
to the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely,
affect such rights, preferences, privileges or voting powers.
(b) The foregoing voting provisions regarding voting rights shall not
apply if, at or prior to the time when the act with respect to which such
provisions would otherwise apply to a vote required to effect such act, all
outstanding shares of Series A Preferred Stock shall have been converted and
sufficient funds shall have been deposited in trust to effect such conversion.
(c) For the purposes of this Section, a new class or series of stock shall
not be considered to have rights, preferences or privileges prior to the shares
of the Series A Preferred Stock solely by reason of a difference in the dividend
rate payable on such new class or series.
STATE OF NEW HAMPSHIRE
Filing fee: $35.00 Form No. 14
+ License fee: $ RSA 293-A:61
Total fees $35.00
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION OF
CHESHIRE FINANCIAL CORPORATION
PURSUANT TO THE PROVISIONS OF SECTION 61 OF THE NEW HAMPSHIRE BUSINESS
CORPORATION ACT, THE UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF
AMENDMENT TO ITS ARTICLES OF INCORPORATION:
FIRST: The name of the corporation is Cheshire Financial Corporation
SECOND: The following amendments of the Articles of Incorporation were
adopted by the shareholders of the corporation at a meeting of shareholders held
on April 18, 1990 and at an adjournment of such meeting held on May 24, 1990, in
the manner prescribed by the New Hampshire Business Corporation Act: (Insert
Amendments)
RESOLVED: That the Articles of Incorporation of the Corporation be amended such
that the first sentence of Article SEVENTH, Section 1(a) be deleted in
its entirety and the following sentence be substituted therefor:
Subject to the provisions hereof relating to the initial Board, the
number of directors of the Corporation shall be no less than 9 and no
more than 21.
RESOLVED: That the Articles of Incorporation of the Corporation be amended by
adding a new Section 6 to Article SEVENTH which shall read as follows:
6. Liability Limitations for Officers and Directors. No person who
serves the Corporation as a director, an officer, or both, shall have
any personal liability to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as such director,
officer, or both, except with respect to:
(1) any breach of the director's and/or officer's duty of loyalty
to the Corporation or its shareholders;
(2) acts or omissions which are not in good faith or which
involve intentional misconduct or a knowing violation of law;
(3) actions for which a director may be liable under New
Hampshire RSA 293-A:48, as amended; or
(4) any transaction from which the director, officer, or both,
derived an improper personal benefit.
The foregoing provision shall not be construed to eliminate or limit the
liability of a director, an officer, or both, for any act or omission occurring
prior to the date on which the Articles of Incorporation of the Corporation were
amended to include this Section. Any repeal or modification of this Section by
the shareholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director or
officer of the Corporation for acts or omissions occurring prior to the
effective date of such repeal or modification.
THIRD: The number of shares of the corporation outstanding at the time of
such adoption was 3,561,177; and the number of shares entitled to vote thereon
was 3,561,177
FOURTH: The designation and number of outstanding shares of each class
entitled to vote thereon as a class were as follows:
Number of
Class Shares
Not Applicable
FIFTH: The number of shares voted for such amendment was 2,445,429; and the
number of shares voted against such amendment was 523,504
SIXTH: The number of shares of each class entitled to vote thereon as a
class voted for and against such amendment, respectively, was:
Number of Shares Voted
Class For Against
Not Applicable
SEVENTH: The manner in which any exchange, reclassification, or
cancellation of issued shares provided for in the amendment shall be effected is
as follows:
Not Applicable
EIGHTH: The manner in which such amendment effects a change in the amount
of stated capital, and the amount of stated capital, expressed in dollars, as
changed by such amendment, are as follows:
Not Applicable
Dated May 24, 1990
CHESHIRE FINANCIAL CORPORATION
By PETER J. BAXTER
Peter J. Baxter, President
and HOWARD B. LANE
Howard B. Lane, Secretary
STATE OF NEW HAMPSHIRE
Department of State
CERTIFICATE OF AMENDMENT OF
CHESHIRE FINANCIAL CORPORATION
Now known as:
CFX CORPORATION
The undersigned, as Deputy Secretary of State of the State of New Hampshire,
hereby certifies that Articles of Amendment to the Articles of Incorporation of
CHESHIRE FINANCIAL CORPORATION, duly signed pursuant to the provisions of the
New Hampshire Business Corporation Act, have been received in this office.
ACCORDINGLY the undersigned, as such Deputy Secretary of State, and by virtue of
the authority vested in him by law, hereby issues this Certificate of Amendment
to the Articles of Incorporation of CHESHIRE FINANCIAL CORPORATION and attaches
hereto a copy of the Articles of Amendment.
IN TESTIMONY WHEREOF, I hereto set my hand and
cause to be affixed the Seal of the State of
New Hampshire, this 21st day of April A.D.
1994
ROBERT P. AMBROSE
Robert P. Ambrose Deputy Secretary of State
STATE OF NEW HAMPSHIRE
Filing fee: $35.00 Form No. 14
Use black print or type. RSA 293-A:10.06
Leave 1" margins both sides.
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
PURSUANT TO THE PROVISIONS OF THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, THE
UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF AMENDMENT TO ITS
ARTICLES OF INCORPORATION:
FIRST: The name of the corporation is Cheshire Financial Corporation
SECOND: The text of each amendment adopted is:
RESOLVED: That the Articles of Incorporation of the Corporation be amended such
that Articles FIRST be deleted in its entirety and the following sentence be
substituted therefor:
FIRST: The name of the Corporation is CFX Corporation.
THIRD: If the amendment provides for an exchange, reclassification, or
cancellation of issued shares the provisions for implementing the amendment(s)
if not contained in the above amendment are:
There is no change in the issued shares.
FOURTH: The amendment(s) were adopted on April 20, 1994
[If more space is needed, attach additional sheet(s)]
FIFTH: (Check one)
A. The amendment(s) were adopted by the incorporators or board of
directors without shareholder action and shareholder action was not required.
B. X The amendment(s) were approved by the shareholders.
(Note 1)
<TABLE>
<CAPTION>
Number of
votes
Number of indisputably
Designation Number of votes represented
(class or series) shares entitled at
of voting group outstanding to be cast the meeting
<S> <C> <C> <C>
Common Stock 3,662,290 3,662,290 3,662,290
Series A Preferred 194,074 194,074 194,074
</TABLE>
<TABLE>
<CAPTION>
Designation Total number of
(class or series) Total number of votes cast: OR undisputed
of voting group FOR AGAINST votes cast FOR
<S> <C> <C> <C>
Common Stock 2,679,314 214,585 --
Series A Preferred 143,965 1,808 --
</TABLE>
SIXTH: The number cast for the amendment(s) by each voting group was
sufficient for approval by each voting group.
Dated April 20, 1994
Cheshire Financial Corporation
By PETER J. BAXTER
Signature of its President
Peter J. Baxter
Print or type name
Notes:1. All sections under "B." must be completed. If any voting group is
entitled to vote separately, give respective information for each
voting group. (see RSA 293-A:1.40 for definition of voting group.)
2. Exact corporate name of corporation adopting articles of amendment.
3. Signature and title of person signing for the corporation. Must be
signed by the chairman of the board of directors, president or another
officer; or see RSA 293-A:1.20(f) for alternative signatures.
Mail fee and ORIGINAL and ONE EXACT OR CONFORMED COPY to:
Secretary of State, State House, Room 204, 107 North Main Street, Concord, NH
03301-4989
STATE OF NEW HAMPSHIRE
Filing fee:$15.00 Form No. 9
Use black print or type RSA 293-A:5.02 (a) and 15.08 (a)
Leave 1" margin both sides.
STATEMENT OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT, OR BOTH, BY CORPORATION
TO THE SECRETARY OF STATE OF THE STATE OF NEW HAMPSHIRE
PURSUANT TO THE PROVISIONS OF THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, THE
UNDERSIGNED CORPORATION, ORGANIZED UNDER THE LAWS OF THE STATE OF NEW HAMPSHIRE
SUBMITS THE FOLLOWING STATEMENT FOR THE PURPOSE OF CHANGING ITS REGISTERED
OFFICE OR ITS REGISTERED AGENT, OR BOTH, IN THE STATE OF NEW HAMPSHIRE:
FIRST: The name of the Corporation is: CFX Corporation.
SECOND: The name of its registered agent is recorded as:
Howard Lane, Jr., Esquire
THIRD: The street address of its registered office is recorded as:
194 West Street, Keene, New Hampshire 03431
FOURTH: The name of its new registered agent is:
Christopher Bean
FIFTH: The street address of its new registered office is:
194 West Street, Keene, New Hampshire 03431
SIXTH: The street address of its registered office and the address of the
business office of its registered agent, as changed, will be identical.
SEVENTH: hereby consents to serve as registered agent
for this corporation.
Date June 2, 1994 CHRISTOPHER V. BEAN
Signature of new agent
CFX CORPORATION
By PETER J. BAXTER
Signature of its President
Peter J. Baxter
Print or type name
STATE OF NEW HAMPSHIRE
DEPARTMENT OF STATE
I, William M. Gardner, Secretary of State of the State of New Hampshire, do
hereby certify that CFX CORPORATION (formerly CHESHIRE FINANCIAL CORPORATION), a
New Hampshire corporation formed on August 22, 1986, filed Articles of Amendment
to the Articles of Incorporation on June 23, 1995 effective 10:15 a.m.
TESTIMONY WHEREOF, I hereto
set my hand and cause to be affixed the
Seal of the State of New Hampshire
this 23rd day of June, 1995.
/s/ William M. Gardner
William M. Gardner
Secretary of State
[SEAL]
STATE OF NEW HAMPSHIRE
Filing fee: $ 35.00 Form No. 14
Use black print or type. RSA 293-A:10.06
Leave 1" margins both sides.
ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
of
CFX CORPORATION
PURSUANT TO THE PROVISIONS OF THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, THE
UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF AMENDMENT TO ITS
ARTICLES OF INCORPORATION:
FIRST: The name of the corporation is:
CFX Corporation
SECOND: The text of each amendment adopted is:
RESOLVED: That this Board determines that it is in the best interest of the
Corporation to implement a three-for-two stock split of the
Corporation's common stock $1.00 par value.
RESOLVED: That, in order to effect such stock split, effective as of the
close of business on June 23, 1995, the Corporation's Articles of
Incorporation are amended as follows:
A. The Corporation's authorized common stock shall be increased
from 15,000,000 shares of Common Stock with a par value of
$1.00 per share to 22,500,000 shares of Common Stock with a
par value of 66 2/3 cents, per share so that Article FOURTH
shall read:
"FOURTH: The aggregate number of shares which the
corporation shall have the authority to issue is:
Twenty-Five Million Five Hundred Thousand (25,500,000),
consisting of
1. Three Million (3,000,000), shares of preferred stock,
one dollar ($1.00) par value per share (hereinafter the
"Preferred Stock"); and
2. Twenty-two Million Five Hundred Thousand (22,500,000),
shares of common stock, sixty-six and two thirds cents (66
2/3 cents) par value per share (hereinafter the "Common
Stock"). (See also Appendix I)"
B. Each presently authorized share of the Corporation's Common
Stock, $1.00 par value, that may be in the treasury or
outstanding immediately prior to such increase shall be
changed into one and one half shares of Common Stock, 66 2/3
cents par value, having the same characteristics; provided,
however, that, in lieu of issuing any fractional shares, the
Corporation may pay holders of outstanding shares the value
of such fractional shares in cash.
THIRD: If the amendment provides for an exchange, reclassification, or
cancellation of issued shares the provisions for implementing the amendment(s)
if not contained in the above amendment are as follows:
1. All certificates representing issued shares of
Corporation's Common Stock, $1.00 par value, (including
treasury shares) in existence as of the close of
business on June 23, 1995, shall thereafter, without
any further action being taken, represent the same
number of shares of the Corporation's Common Stock, 66
2/3 cents par value.
2. The appropriate officers of the Corporation are
authorized and directed, as soon as practicable after
the close of business on June 23, 1995, to cause to be
issued and delivered to each shareholder of record as
of the close of business on June 23, 1995 (including
the Treasurer of the Corporation in his capacity as
custodian of treasury shares) additional certificates
representing one share of Common Stock, 66 2/3 cents
par value, for each two shares of Common Stock, $1.00
par value, that such shareholder held of record as of
the close of business on June 23, 1995.
3. For convenience of the Corporation and to avoid the
expense of issuing fractional shares, the Corporation
shall pay to each shareholder who would otherwise be
entitled to receive a fractional share cash equal to
the product of such fraction and the closing price of
the Corporation's Common Stock, $1.00 par value, on the
close of business on June 23, 1995.
FOURTH: The amendment(s) were adopted on June 13, 1995
FIFTH: (Check one)
A. X The amendment(s) were adopted by the board of directors without
-----
shareholder action and shareholder action was not required.
B. The amendment(s) were approved by the shareholders.
-----
(Note 1)
Number of Votes
Number of indisputably
of voting Number of votes entitled represented at
group shares outstanding to be cast the meeting
- --------- ------------------ -------------- -------------
Shareholder approval was not required.
Total number of
of voting Total number of votes cast: OR undisputed
--
group FOR AGAINST votes cast FOR
- ---------------- --- ------- ---------------
Shareholder approval was not required.
SIXTH: The number cast for the amendment(s) by each voting group was
sufficient for approval by each voting group. N/A
Dated June 23, 1995 as of 10:15 a.m.
CFX Corporation
/s/ Peter J. Baxter
-------------------
Signature of its President
Peter J. Baxter
---------------
Print or type name
Notes: 1. All sections under "B." must be completed. If any voting group is
entitled to vote separately, give respective information for each
----------
voting group. (see RSA 293-A:1.40 for definition of voting group.)
2. Exact corporate name of corporation adopting articles of amendment.
3. Signature and title of person signing for the corporation. Must be
signed by the chairman of the board of directors, president or
another officer; or see RSA 293-A:1.20(f) for alternative signatures.
Mail fee and ORIGINAL and ONE EXACT OR CONFORMED COPY to: Secretary of State,
State House, Room 204, 107 North Main Street, Concord, NH 03301-4989
BY-LAWS
OF
CFX CORPORATION
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meeting. All meetings of the Shareholders of the
Corporation shall be held at the principal office of the Corporation in the City
of Keene, State of New Hampshire, or at such other places as may from time to
time be fixed by the Board of Directors or as shall be specified or fixed in the
respective notices or waivers of notice thereof.
Section 2. Annual Meetings. The annual meeting of the Shareholders shall be
held not more than one hundred eighty (180) days after the close of the fiscal
year of the Corporation, on such date and at such hour as may be fixed by the
Board of Directors and stated in the notice of such meeting or on such other
date and at such time as shall be stated in the notice of the meeting or
otherwise specified by the President. The Secretary shall serve personally, or
by mail, a written notice not less than ten (10) nor more than fifty (50) days
before such meeting, addressed to each Shareholder at his address as it appears
on the stock book; but at any meeting at which all Shareholders not present
shall have waived notice in writing, the giving of notice as aboverequired may
be foregone.
Section 3. Special Meetings. A special meeting of the Shareholders for any
purpose or purposes, unless otherwise prescribed by statute, may be called at
any time by the Chairman of the Board, if any, the President, or a Vice
President, or by a majority of the Board of Directors, or upon written
application therefor to the Secretary by the holders of not less than ten
percent (10%) of the shares entitled to vote at the meeting. Written notice of
such meeting, stating the purpose for which it is called, shall be served
personally, or by mail, not less than ten (10) nor more than fifty (50) days
before the date set for such meeting. If mailed, it shall be directed to every
shareholder at his address as it appears on the stock book; but at any meeting
at which all Shareholders shall be present, or of which all Shareholders not
present have waived notice in writing, the giving of notice as above-required
may be foregone. No business other than that specified in the call for the
meeting shall be transacted at any special meeting of the Shareholders.
Section 4. Quorum. At each meeting of the Shareholders, the presence, in
person or by proxy, of the holders of a majority of the issued and outstanding
stock of the corporation entitled to vote at such meeting, shall constitute a
quorum for the transaction of business except where otherwise provided by law or
by the Articles of Incorporation of the Corporation or any amendment thereto. In
the absence of a quorum at any meeting or any adjournment thereof, the
Shareholders of the Corporation present in person or by proxy and entitled to
vote shall have the power to adjourn the meeting from time to time, until
Shareholders holding the requisite amount of stock shall be present or
represented. At any such adjourned meeting at which a quorum is present any
business may be transacted which might have been transacted at the meeting as
originally called. Notice of any adjourned meeting of the Shareholders shall not
be required to be given, except when expressly required by law.
Section 5. Organization. The Chairman of the Board, if any, or, in the
absence of the Chairman of the Board, the President or a Vice President, or a
chairman designated by the Board of Directors or by the Shareholders shall
preside at every meeting of the Shareholders. In the absence of the Secretary,
the presiding officer shall appoint a secretary pro tempore.
Section 6. Voting. (a) Each Shareholder of the corporation having voting
rights shall, except as otherwise provided by law or by the Articles of
Incorporation of the Corporation, at every meeting of the Shareholders be
entitled to one vote in person or by proxy for each share of the stock of the
Corporation registered in his name on the books of the Corporation
(1) on the date fixed pursuant to Section 2 of Article VI of these By-
Laws as the record date for the determination of Shareholders entitled to
vote at such meeting, notwithstanding the sale, or other disposal or
transfer on the books of the Corporation of such share on or after the date
so fixed, or
(2) if no such record date shall have been fixed, then at the date on
which notice of such meeting is mailed.
(b) At any meeting of Shareholders at which a quorum is present, the
holders of a majority in interest of the stock having voting rights
represented thereat in person or by proxy shall decide any question brought
before such meeting unless a larger or different vote or proportion is
required by law or by the Articles of Incorporation of the Corporation or
by these By-Laws.
(c) All voting shall be by voice vote, except that a written ballot
may be used when so requested by a majority of the holders of outstanding
shares present at the meeting. If a written ballot shall be used, each
ballot shall state the name of the Shareholder voting, the number of shares
owned by him, and if such ballot be cast by proxy, the name of the proxy.
Section 7. Shareholders' Action Without Meeting. Any action which, under
any provision of the New Hampshire Business Corporation Act, may be taken at a
meeting of Shareholders, may be taken without such a meeting if consent in
writing, setting forth the action so taken or to be taken, is signed severally
or collectively by the holders of all the issued and outstanding shares of stock
entitled to vote upon such action. The Secretary shall file such consent or
consents with the minutes of the meetings of the Shareholders.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The property, affairs and business of the
Corporation shall be controlled and managed by the Board of Directors. Without
limiting the generality of the foregoing, such control shall include the power
to: hire employees, professional, clerical and secretarial; enter into
employment agreements with employees where deemed advisable; determine levels of
employee compensation, including wages, salaries, bonuses and other fringe
benefits; terminate the employment of an employee; determine condition of
employment, including hours of work, work responsibility, vacation time, and
sick leave; authorize the purchase or rental of property and determine all
policies of the Corporation with regard to the conduct of the business of the
Corporation. The Board of Directors may from time to time delegate particular
responsibilities to specified officers of the Corporation as it shall deem
advisable. They may adopt such rules and regulations for the conduct of their
meeting and the management of the Corporation not inconsistent with these
Bylaws, the Corporation's Articles of Incorporation, or the laws of the State of
New Hampshire as they may deem proper.
Section 2. Number, Qualifications and Term of Office. Subject to the
provisions hereof relating to the initial Board, the number of directors of the
Corporation shall be no less than 9 and no more than 15. The exact number of
Directors within the minimum and maximum limitations specified in the preceding
sentence shall be fixed from time to time by the Board pursuant to a resolution
adopted by a majority of the entire Board. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director. At the 1987 annual meeting of Shareholders, the Directors shall be
divided into three classes as nearly equal in number as possible with the term
of office of the first class to expire at the 1988 annual meeting of
Shareholders, the term of office of the second class to expire at the 1989
annual meeting of Shareholders and the term of office of the third class to
expire at the 1990 annual meeting of the Shareholders. At each annual meeting of
Shareholders following such initial classification and election, Directors
elected to succeed those Directors whose terms expire shall be elected for a
three year term of office to expire at the third succeeding annual meeting of
Shareholders after their election. Directors need not be Shareholders or
residents of the State of New Hampshire.
Section 3. Manner of Election. At the annual meeting of Shareholders, the
persons receiving the largest number of votes cast shall be Directors.
Section 4. Quorum and Manner of Acting. A majority of the total number of
Directors then holding office shall constitute a quorum for the transaction
of business at any meeting except where otherwise provided by statute, the
Corporation's Articles of Incorporation or these by-laws; but less than a quorum
may adjourn the meeting. At all meetings of the Board of Directors, each
Director present is to have one vote. At all meetings of the Board of Directors,
all questions, the manner of deciding which is not specifically regulated by
statute or the Corporation's Articles of Incorporation, shall be determined by a
majority of the Directors present at the meeting.
Section 5. Place of Meeting, etc. The Board of Directors may hold its
meetings and have one or more offices at such places within or without the State
of New Hampshire as the Board from time to time may determine or, in the case of
meetings, as shall be specified or fixed in the respective notices or waivers of
notice thereof.
Section 6. Books and Records. The correct and complete books and records of
account and minutes of the proceedings of Shareholders and the Board of
Directors shall be kept at the registered office of the Corporation.
Section 7. First Meeting. The Board of Directors shall meet for the purpose
of organization, the election of officers and the transaction of other business
as soon as practicable after each annual election of Directors on the same day
and at the same place at which regular meetings of the Board are held or as may
be otherwise provided by resolution of the Board. Notice of such meeting need
not be given. Such meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or in a consent and waiver of notice thereof signed by all
the Directors.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such places and at such times as the Board shall from time to
time by resolution determine. Notice of regular meetings need not be given.
Section 9. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, if any, or
by the President, or by the Secretary at the request of any two Directors at the
time being in office. Notice of each such meeting shall be mailed to each
Director, addressed to him at his residence or usual place of business, at least
two days before the day on which the meeting is to be held, or shall be sent to
him at such place by telegraph, cable, radio or wireless, or be given personally
or by telephone, not later than the day before the day on which the meeting is
to be held. Every such notice shall state the time and place of the meeting but
need not state the purpose thereof. Notice of any meeting of the Board need not
be given to any Director, however, if waived by him in writing or by telegraph,
cable, radio or wireless, whether before or after such meeting be held, or if he
shall be present at such meeting unless his attendance at the meeting is
expressly for the purpose of objecting to the transaction of any business
because the meeting is not lawfully convened; and any meeting of the Board shall
be a legal meeting without any notice thereof having been given, if all of the
Directors shall be present thereat.
Section 10. Resignations. Any Director of the Corporation may resign at any
time by giving written notice to the President or to the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 11. Removal of Directors. At any meeting of Shareholders called
expressly for the purpose, any Director may be removed from office by the
affirmative vote of the holders of seventy-five percent (75%) of the shares
entitled to vote or if removal is for cause, then by a majority of the shares
then entitled to vote. For "cause" shall mean a final adjudication by a court of
competent jurisdiction that the Director (i) is liable for negligence or
misconduct in the performance of his duty, (ii) guilty of a felony conviction,
or (iii) has failed to act or has acted in a manner which is in derogation of
the Director's duties.
Section 12. Vacancies. Any vacancy in the Board caused by death,
resignation, retirement, disqualification, removal, or other cause, shall be
filled by a majority vote of the remaining Directors, though less than a quorum.
A Director so chosen shall hold office for the unexpired term of their
predecessors in office. Any Directorship to be filled by reason of an increase
in the authorized number of directors may be filled by the Board for a term of
office continuing only until the next election of Directors by the Shareholders.
Section 13. Compensation. Directors shall receive such compensation for
attendance at regular or special meetings as the Board of Directors shall from
time to time determine.
Section 14. Directors' Participation in Meeting By Telephone. A Director
may participate in a meeting of the Board of Directors by means of conference
telephone or similar communication equipment enabling all Directors
participating in the meeting to hear one another. Participation in a meeting
pursuant to this section shall constitute presence in person at such meeting.
Section 15. Directors' Action Without Meeting. If all the Directors then
holding office severally or collectively consent in writing to any action taken
or to be taken by the Corporation, such action shall be valid as though it had
been authorized at a meeting of the Board of Directors. The Secretary shall file
such consent or consents with the minutes of the meetings of the Board of
Directors.
ARTICLE III
COMMITTEES
Section 1. Designation; Vacancies. The Board of Directors, by a resolution
passed by a majority of the whole Board, may designate such number of their
members not less than two (2) including the President of the Corporation, as it
may from time to time determine, to constitute an Executive Committee, each
member of which, unless otherwise determined by the Board, shall continue to be
a member thereof until the expiration of his term of office as a Director.
Section 2. Powers. During the intervals between the meetings of the Board
of Directors, the Executive Committee shall have all of the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
except those proscribed by NHRSA 293-A:42, and may exercise such powers in such
manner as the Executive Committee shall deem best for the interests of the
Corporation in all cases in which specific directions shall not have been given
by the Board of Directors.
Section 3. Procedure; Meetings; Quorum. The Executive Committee shall make
its own rules of procedure and shall meet at such times and at such place or
places as may be provided by such rules or by resolution of the Executive
Committee. A majority of the whole number of the members of the Executive
Committee shall constitute a quorum at any meeting thereof, and the act of a
majority of those present at a meeting at which a quorum is present shall be the
act of the Executive Committee. The Board of Directors shall have power at any
time to change the members of the Executive Committee, to fill vacancies, and to
discharge the Executive Committee.
Section 4. Other Committees. The Board of Directors, by resolution passed
by a majority of the whole Board, may designate members of the Board to
constitute other committees, which shall in each case consist of such number of
Directors and shall have and may exercise such powers, as the Board may
determine and specify in the respective resolutions appointing them. Such
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors. The Board of Directors shall
have power at any time to change the members of and such committee, to fill
vacancies, and to discharge any such committee.
Section 5. Compensation. Members of the Executive Committee or of any
other committees of the Board of Directors shall receive such compensation for
their services as members of such committees as the Board of Directors shall
from time to time determine.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation may include a Chairman
of the Board and shall include a President, a Treasurer, and a Secretary who
shall be the registered agent and such other officers as the Board of Directors
may from time to time deem appropriate. One person may hold the offices and
perform the duties of more than one of said officers.
Section 2. Election, Term of Office and Qualifications. The officers
shall be elected annually by the Board of Directors. Each officer shall hold
office until his successor shall have been elected and shall have qualified, or
until his death or until he shall have resigned or shall have been removed in
the manner hereinafter provided.
Section 3. Removal. Any officer may be removed, by the Board of
Directors whenever in its judgment the best interests of the Corporation will be
served by such action.
Section 4. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Such resignation shall take effect at the time specified therein;
and, unless otherwise specified therein and the acceptance of such resignation
shall not be necessary to make it effective.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these By-laws for election or
appointment to such office.
Section 6. The Chairman of the Board. The Chairman of the Board, if
there shall be one, shall be elected from among the Directors and shall, if
present, preside at all meetings of the Shareholders and of the Board of
Directors. Except where by law the signature of the President is required, he
shall possess the same power as the President to sign all certificates,
contracts and other instruments of the Corporation which may be authorized by
the Board of Directors or by the Executive Committee. He shall, in general,
perform all duties incident to the office of Chairman of the Board, subject,
however, to the direction and control of the Board of Directors and of the
Executive Committee, and such other duties as from time to time may be assigned
to him by the Board of Directors or by the Executive Committee.
Section 7. The President. The President shall be the chief executive and
administrative officer of the Corporation and shall have general and active
supervision and direction over the day-to-day business and affairs of the
Corporation and over its several officers, subject, however, to the direction
and control of the Board of Directors and of the Executive Committee. At the
request of the Chairman of the Board, or in case of his absence or inability to
act, the President may act in his place. He shall sign or countersign all
certificates, contracts and other instruments of the Corporation as authorized
by the Board of Directors, and shall perform all such other duties as from time
to time may be assigned to him by the Board of Directors or the Executive
Committee.
Section 8. The Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board of Directors may from time to time
prescribe. At the request of the President, or in case of his absence or
inability to act, any Vice President may act in his place, and when so acting
shall have all the powers and be subject to all the restrictions of the
President.
Section 9. The Secretary. The Secretary, who shall be an inhabitant of the
State of New Hampshire and shall keep his office therein, shall be the
registered agent of the Corporation; shall keep or cause to be kept in books
provided for the purpose the minutes of the meetings of the Shareholders and of
the Board of Directors; shall see that all notices are duly given in accordance
with the provisions of these By-laws and as required by law; shall be the
custodian of the records, stock certificate records and of the seal of the
corporation and see that the seal is affixed to all documents the execution of
which on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these By-laws; and in general, shall perform
all duties incident to the office of Secretary and such other duties as may,
from time to time, be assigned to him by the Board of Directors or by the
President.
Section 10. The Treasurer. The Treasurer shall be the financial officer of
the Corporation; shall have charge and custody of, and be responsible for, all
funds of the Corporation, and deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositories as shall be
selected by the Board of Directors; shall receive, and give receipts for, moneys
due and payable to the Corporation from any source whatsoever; and in general,
shall perform all the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him by the Board of Directors or
by the President.
Section 11. Salaries. The salaries of the Chairman of the Board, President,
Treasurer and Secretary and other officers shall be fixed from time to time by
the Board of Directors. No officer shall be prevented from receiving such salary
by reason of the fact that he is also a Director of the Corporation.
ARTICLE V
CONTRACTS, CHECKS, NOTES, ETC.
Section 1. Execution of Contracts. All contracts and agreements authorized
by the Board of Directors, and all checks, drafts, notes, bonds, bills of
exchange and orders for the payment of money shall, unless otherwise directed by
the Board of Directors, or unless otherwise required by law, be signed by any
two of the following officers: The Chairman of the Board, President, Vice
President, Treasurer, or Secretary. The Board of Directors may, however,
authorize any one of said officers to sign checks, drafts and orders for the
payment of money singly and without necessity of countersignature, and may
designate officers and employees of the Corporation other than those named
above, or different combinations of such officers and employees, who may, in the
name of the Corporation, execute checks, drafts, and orders for the payment of
money on its behalf.
Section 2. Loans. No loans shall be contracted on behalf of the Corporation
and no negotiable paper shall be signed in its name unless authorized by
resolution of the Board of Directors. When authorized by the Board of Directors
so to do, any officer or agent of the Corporation thereunto authorized may
effect loans and advances at any time for the Corporation from any bank, trust
company or other institution, or from any firm, corporation or individual, and
for such loans and advances may make, execute and deliver promissory notes,
bonds or other certificates or evidences of indebtedness of the Corporation and,
when authorized so to do, may pledge, hypothecate or transfer any securities or
other property of the Corporation as security for any such loans or advances.
Such authority may be general or confined to specific instances.
ARTICLE VI
STOCK AND DIVIDENDS
Section 1. Certificates of Stock. Every stockholder shall be entitled to
have a certificate certifying the number of shares owned by him in the
Corporation. The certificates of stock shall be numbered and registered in the
order in which they are issued. They shall be bound in a book and shall be
issued in consecutive order therefrom. In the margin thereof shall be entered
the name of the person owning the shares therein represented with the number of
shares and the date thereof. The certificates shall exhibit the holder's name
and number of shares represented thereby. They shall be signed by the President
and countersigned by the Secretary and may be sealed with the seal of the
Corporation or a facsimile thereof. Such certificates shall be transferable on
the stock books of the Corporation in person or by attorney, but, except as
hereinafter provided in the case of loss, destruction or mutilation of
certificates, no transfer of stock shall be entered until the previous
certificate, if any, given for the same shall have been surrendered and
cancelled.
A record of Shareholders giving the names and addresses of all Shareholders
and the number and class of the shares held by each, shall be kept at the
Corporation's registered office or principal place of business.
The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
The Board of Directors may make such rules and regulations as it may deem
expedient, not inconsistent with these By-laws, concerning the issue, transfer
and registration of certificates for shares of the capital stock of the
Corporation.
Section 2. Closing of Transfer Books or Fixing of Record Date. For the
purpose of determining Shareholders entitled to notice of or to vote at any
meeting of Shareholders or any adjournment thereof, or Shareholders entitled to
receive payment of any dividend, or in order to make a determination of
Shareholders for any other proper purpose, the Board of Directors of the
Corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty (50) days. If the stock
transfer books shall be closed for the purpose of determining Shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten (10) days immediately preceding such meeting. In lieu
of closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of Shareholders, such date in
any case to be not more than fifty (50) days and, in case of a meeting of
Shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of Shareholders, is to be taken.
Section 3. Lost, Destroyed or Mutilated Certificates. In case of loss,
destruction or mutilation of any certificate of stock, another may be issued in
its place upon proof of such loss, destruction or mutilation and upon satisfying
such other requirements as the Board of Directors shall specify, including such
provision for indemnity as may seem advisable to the Board of Directors.
Section 4. Dividends. Subject to the provisions of the Articles of
Incorporation of the Corporation, and to the extent permitted by law, the Board
of Directors may declare dividends on the shares of stock of the Corporation at
such times and in such amounts as, in its opinion, are advisable in view of the
condition of the affairs of the Corporation.
ARTICLE VII
SEAL
The Board of Directors shall provide a corporate seal, which shall be in
the form of a circle and shall bear the name of the Corporation and words and
figures indicating the year and state in which the Corporation was incorporated.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of
Directors.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice is required to be given to any Shareholder or Director
by these Bylaws or the Articles of Incorporation or the laws of the State of New
Hampshire, a waiver of the notice in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein, shall
be deemed equivalent to giving the notice.
ARTICLE X
AMENDMENTS, ETC.
Section 1. Amendments. The By-Laws of the Corporation may be amended at any
time by the affirmative vote of a majority of the entire Board, subject to
repeal, change or adoption of any contravening or inconsistent provision only by
vote of the holders of at least two-thirds (2/3) of all the shares entitled to
vote on the matter at a meeting expressly called for that purpose.
Section 2. Supplemental Resolutions. The Board of Directors by resolution,
adopted by (i) two-thirds of the directors who are not affiliated with any
acquiring or offering person in the case of Sections 2 and 4 of Exhibit B to the
Articles of Incorporation or (ii) a majority of the directors in all other
cases, may supplement, interpret, clarify or enforce the provisions of the
Articles of Incorporation and By-Laws. Such resolution shall be binding and may
be relied upon for all purposes provided that the resolution is not inconsistent
with law, the Articles of Incorporation or these By-Laws.
ARTICLES XI
INDEMNIFICATION
Section 1. Indemnification of Officers and Directors. Any person, or the
heirs, executors, or administrators of any such person, who has been made a
party to any action, suit or proceeding by reason of the fact that such party,
or the person whose legal representative or successor such party is, was or is a
director, officer or employee of the Corporation or of any corporation,
partnership, firm or organization which that person serves or has served in any
such capacity at the request of the Corporation, may be indemnified and
reimbursed by the Corporation for expenses, including attorneys' fees, and for
such amount of any judgment, money decree, fine, penalty or settlement for which
that person may have become liable as the Board of Directors may deem
reasonable, but only to the extent actually incurred by such person in
connection with the defense or the reasonable settlement of any such action,
suit or proceeding, or any appeal therein; provided, however, that no person
shall be so indemnified or reimbursed in relation to any matter as to which such
party, or the person whose legal representative or successor such party is, is
finally adjudged in such action, suit or proceeding not to have acted in good
faith in the reasonable belief that the action or failure to act of that person
was in the best interest of the Corporation; and provided further that no person
shall be so indemnified or reimbursed in respect of any such action, suit or
proceeding which has been made the subject of a compromise settlement except
with the approval of a court of competent jurisdiction or a majority of the
Board of Directors exclusive of those Directors who are parties to the same or
substantially the same action, suit or proceeding. The foregoing right of
indemnification and reimbursement shall not be exclusive of other rights to
which such person, or the heirs, executors or administrators of that person may
