SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ABINGTON BANCORP, INC.
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(Exact name of registrant as specified in its charter)
Massachusetts 04-3334127
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
538 Bedford Street, Abington, MA 02351
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(Address of principal executive offices; zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Class: None
Name of each exchange on which class is being registered: None
Securities to be registered pursuant to Section 12(g) of the Act:
Title of Class: Common Stock, par value of $.10 per share (the
"Common Stock")
Explanatory Note: The shares of Common Stock to be registered will
be issued upon consummation of a corporate reorganization, whereby
Abington Bancorp, Inc. (the "Registrant") will become the holding
company of Abington Savings Bank (the "Bank"). All outstanding
shares of the Bank's common stock will be converted and exchanged
automatically on a one-for-one basis into Common Stock of the
Registrant. The reorganization was approved by more than 2/3 of the
stockholders of the Bank at a meeting held on December 11, 1996. The
Bank prepared a Proxy Statement which was mailed to the stockholders
of the Bank in connection with the meeting.
Item 1: Description of Registrant's Securities to be Registered.
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Dividend Rights. Holders of the Common Stock are entitled to receive and
share equally in dividends when and as declared by the Board of Directors of the
Registrant.
Voting Rights. Holders of the Common Stock are entitled to one vote per
share on all matters subject to stockholder approval, including the election of
directors. The Articles of Organization of the Registrant (the "Articles") do
not provide for cumulative voting in connection with the election of directors
and therefore holders of a majority of the Common Stock will be able to elect
all of the directors eligible for the election in each year, subject to the
rights of any preferred stock that may be issued. The By-Laws of the Registrant
provide that, subject to the rights of the preferred stock, if and when issued,
the number of directors shall be fixed by the Board of Directors unless at the
time there is an Interested Stockholder (as defined in the Articles) in which
case a majority vote of the Continuing Directors (as defined in the Articles)
then in office is also required. Each director will serve for a term of three
years, with approximately one-third of the directors being elected annually on a
staggered basis.
Pre-emptive Rights. Holders of the Common Stock have no pre-emptive rights
as to the purchase of any shares issued in the future. Therefore, the Board of
Directors may issue shares of capital stock without first offering them to the
then existing stockholders of the Registrant.
Assessability. The Common Stock will be non-assessable.
Preferred Stock. The Board of Directors of the Registrant is authorized to
provide for the issuance of one or more classes of preferred stock, to divide
any authorized class of preferred stock into one or more series and to fix the
voting powers, designations, preferences or other special rights of the shares
of each such series and the qualifications, limitations and restrictions
thereon. Such preferred stock may rank prior to the Common Stock as to dividend
rights, liquidation preferences, or both, may have full or limited voting
rights, and may be convertible into shares of Common Stock.
Approval of Certain Business Combinations. The Articles of the Registrant
contain a so-called "fair price" provision pursuant to which any Business
Combination (as defined in the Articles) involving an Interested Stockholder
would require stockholder approval by the affirmative vote of 80% of the
outstanding shares of the Registrant entitled to vote. The fair price provision
provides that the 80% stockholder vote is not required if the Business
Combination is approved by a majority of the Continuing Directors then in office
or if certain procedures and price requirements are met.
Item 2: Exhibits
99.1 Specimen of the Common Stock to be registered hereunder.
The following are instruments and contracts defining, limiting or
qualifying the rights of the holders of Common Stock.
2 Plan of Reorganization and Acquisition dated October 15, 1996.
3(a) Articles of Organization of Abington Bancorp, Inc.
3(b) By-Laws of Abington Bancorp, Inc.
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized, on the 31st day of
December, 1996.
ABINGTON BANCORP, INC.
By: /s/ James P. McDonough
----------------------------------------
James P. McDonough
President and Chief
Executive Officer
EXHIBITS
Exhibit No.
99.1 Specimen of the Common Stock to be registered hereunder.
The following are instruments and contracts defining, limiting or
qualifying the rights of the holders of Common Stock.
2 Plan of Reorganization and Acquisition dated October 15,1996.
3(a) Articles of Organization of Abington Bancorp, Inc.
3(b) By-Laws of Abington Bancorp, Inc.
[SPECIMEN OF STOCK CERTIFICATE]
[FRONT SIDE OF CERTIFICATE]
ABINGTON BANCORP, INC.
INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
[NUMBER] [SHARES]
ABI * XX * * XX *
COMMON STOCK SEE REVERSE FOR CERTAIN RESTRICTIONS
PAR VALUE $0.10 AND DEFINITIONS AND FOR CERTAIN PREFERENCES
WHICH MAY EXIST WITH RESPECT TO THE COMMON STOCK
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| This Certifies that SPECIMEN CUSIP 00350P 10 0 |
| |
| |
| |
| |
| is the owner of NO--------------------- |
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FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
$0.10 PAR VALUE PER SHARE, OF
ABINGTON BANCORP, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this Certificate properly endorsed
or assigned. This Certificate and the shares of common stock represented hereby
are issued and shall be held subject to the laws of the Commonwealth of
Massachusetts and to the Articles of Organization and By- laws of the
Corporation, as in effect and as amended from time to time hereafter. This
Certificate is not valid until countersigned and registered by the Transfer
Agent and Registrar.
IN WITNESS WHEREOF, the Corporation has caused its facsimile corporate
seal and facsimile signatures of its duly authorized officers to be hereunto
affixed.
/s/ SEAL /s/
TREASURER ABINGTON BANCORP, INC. PRESIDENT
COUNTERSIGNED AND REGISTERED:
REGISTRAR AND TRANSFER COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
[BACK SIDE OF CERTIFICATE]
The shares represented by this Certificate are issued subject to all the
provisions of the Articles of Organization and By-laws of the Corporation, as in
effect and as amended from time to time, to all of which the holder by
acceptance hereof assents. The Corporation will furnish to any stockholder, upon
written request and without charge, a copy of the Articles of Organization and
By-laws of the Corporation. Such request may be made to the Clerk of the
Corporation.
The Board of Directors of the corporation is authorized under the Articles
of Organization to provide for the issuance of one or more classes of preferred
stock, to divide any authorized class of preferred stock into one or more series
and to fix and state the voting powers, designations, preferences and relative,
participating optional or other special rights of the shares of any series so
established and the qualifications, limitations and restrictions thereof. A
statement of the preferences, powers, qualifications and rights of the series
and classes of preferred stock will be furnished to the holder of this
Certificate upon written request and without charge.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--.....Custodian.....
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right of under Uniform Gifts
survivorship and not as tenants to Minors Act.......
in common (State)
Additional abbreviations may also be used though not in the above list.
For value received, ________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
________________________________________________________________________ shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ___________________________________________
_____________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _____________________
_________________________________________________
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATIONS OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: _________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17ad-15.
PLAN OF REORGANIZATION AND ACQUISITION
Pursuant to Section 26B of Chapter 172
of the General Laws of Massachusetts
This Plan of Reorganization and Acquisition (the "Plan") is dated as of
October 15, 1996 and made between Abington Savings Bank, a Massachusetts savings
bank (the "Bank"), and Abington Bancorp, Inc., a Massachusetts corporation (the
"Holding Company").
The Bank is a stock savings bank, duly organized and validly existing
under the laws of The Commonwealth of Massachusetts, with its principal office
at 538 Bedford Street, Abington, Massachusetts 02351. The authorized capital
stock of the Bank consists of (1) 7,000,000 shares of common stock, par value
$.10 per share (the "Bank Common Stock"), of which 1,886,738 shares are issued
and outstanding as of the date hereof and 206,262 shares are reserved for
issuance under the Stock Option Plan of the Bank, and (2) 3,000,000 shares of
preferred stock, par value $.10 per share, none of which are issued and
outstanding as of the date hereof.
The Holding Company is a corporation, duly organized and validly existing
under the laws of Massachusetts, with its principal office at 538 Bedford
Street, Abington, Massachusetts 02351. The authorized capital stock of the
Holding Company consists of 12,000,000 shares of common stock, par value $.10
per share (the "Holding Company Common Stock"), of which 100 shares are issued
and outstanding as of the date hereof, all of which are held by the Bank, and
3,000,000 shares of preferred stock, par value $.10 per share, none of which are
issued and outstanding as of the date hereof.
The Bank and the Holding Company have agreed that the Holding Company will
acquire all of the issued and outstanding shares of Bank Common Stock in
exchange for shares of Holding Company Common Stock pursuant to the provisions
of Section 26B of Chapter 172 of the General Laws of Massachusetts and of this
Plan. This Plan has been adopted and approved by a vote of a majority of all of
the members of the Board of Directors of the Bank, and by a vote of a majority
of all the members of the Board of Directors of the Holding Company. The
officers of the Bank and of the Holding Company whose respective signatures
appear below have been duly authorized to execute and deliver this Plan.
NOW, THEREFORE, in consideration of the premises, the Bank and the Holding
Company agree as follows:
SECTION 1. Approval and Filing of Plan
1.1. The Plan shall be submitted for approval by the holders of Bank
Common Stock at a meeting to be called and held in accordance with the
applicable provisions of law. Notice of such meeting shall be published at least
once a week for two successive weeks in a newspaper of general circulation in
the County of Plymouth, Commonwealth of Massachusetts. Both of said publications
of notice of such meeting shall be at least fifteen days prior to the date of
the meeting.
1.2. Upon approval of the Plan by vote of the holders of two-thirds of the
outstanding shares of Bank Common Stock as required by law, the Bank and the
Holding Company shall submit the Plan to the Commissioner of Banks of The
Commonwealth of Massachusetts (the "Bank Commissioner") for his approval and
filing in accordance with the provisions of Section 26B of Chapter 172 of the
General Laws of Massachusetts. The Plan shall be accompanied by such
certificates of the respective officers of the Bank and the Holding Company as
may be required by law and a written request from the Bank that the Plan not be
deemed to be filed with the Bank Commissioner until such future time as the Bank
Commissioner shall have received from the Bank and the Holding Company the
written notice described in Subsection 2.1.
1.3. If the requisite approval of the Plan is obtained at the meeting of
holders of Bank Common Stock referred to in Subsection 1.1, thereafter and until
the Effective Time, as hereafter defined, the Bank shall issue certificates for
Bank Common Stock, whether upon transfer or otherwise, only if such certificates
bear a legend, the form of which shall be approved by the Board of Directors of
the Holding Company, indicating that the Plan has been approved and that shares
of Bank Common Stock evidenced by such certificates are subject to the
acquisition by the Holding Company pursuant to the Plan.
SECTION 2. Definition of Effective Time
2.1. The Plan shall become effective at 12:01 A.M. on the first business
day following the date on which the Bank and the Holding Company file a written
notice with the Bank Commissioner stating (i) that all the conditions precedent
to the Plan becoming effective specified in Section 5 have been satisfied and
(ii) that the Plan has not been abandoned by the Bank or the Holding Company in
accordance with the provisions of Section 6. Such time is hereafter called the
"Effective Time".
SECTION 3. Actions at the Effective Time
3.1. At the Effective Time, the Holding Company shall, without any further
action on its part or on the part of the holders of Bank Common Stock,
automatically and by operation of law acquire and become the owner for all
purposes of all of the then issued and outstanding shares of Bank Common Stock
and shall be entitled to have issued to it by the Bank a certificate or
certificates representing such shares. Thereafter, the Holding Company shall
have full and exclusive power to vote such shares of Bank Common Stock, to
receive dividends thereon and to exercise all rights of an owner thereof.
3.2. At the Effective Time, the shares of Holding Company stock which are
outstanding will be cancelled.
3.3. At the Effective Time, the holders of the then issued and outstanding
shares of Bank Common Stock shall, without any further action on their part or
on the part of the Holding Company, automatically and by operation of law cease
to own such shares and shall instead become owners of one share of Holding
Company Common Stock for each share of Bank Common Stock held by them
immediately prior to the Effective Time. Thereafter, such persons shall have
full and exclusive power to vote such shares of Holding Company Common Stock, to
receive dividends thereon, except as provided herein, and to exercise all rights
of an owner thereof.
3.4. At the Effective Time, all previously issued and outstanding
certificates representing shares of Bank Common Stock (the "Old Certificates")
shall automatically and by operation of law cease to represent shares of Bank
Common Stock or any interest therein and each Old Certificate shall instead
represent the ownership by the holder thereof of an equal number of shares of
Holding Company Common Stock. No holder of an Old Certificate shall be entitled
to vote the shares of Bank Common Stock formerly represented by such
certificate, or to receive dividends thereon, or to exercise any other rights of
ownership in respect thereof.
3.5. Notwithstanding any of the foregoing, any dissenting stockholder, as
defined in Subsection 8.1, shall have such rights as are provided by Subsection
8.2 and by the laws of The Commonwealth of Massachusetts.
SECTION 4. Actions After the Effective Time
As soon as practicable and in any event not more than thirty days after
the Effective Time:
4.1. The Holding Company shall deliver to the transfer agent for the Bank
and the Holding Company (the "Transfer Agent"), as agent for the then holders of
the Old Certificates (other than Old Certificates representing shares of Bank
Common Stock as to which dissenters rights shall have been exercised), a
certificate or certificates for the aggregate number of shares of Holding
Company Common Stock (the "New Certificates") to which said holders shall be
entitled. Each such holder shall surrender his Old Certificate to the Transfer
Agent and receive in exchange therefor a New Certificate for an equal number of
shares of Holding Company Common Stock. Until so surrendered, each Old
Certificate shall be deemed, for all corporate purposes, to evidence the
ownership of the number of shares of common stock of the Holding Company which
the holder thereof would be entitled to receive upon its surrender. Until so
exchanged, each such holder's Old Certificate will continue to represent the
same number of shares of Holding Company Common Stock, and such holder shall be
entitled to all the rights of a holder of a New Certificate.
4.2. The Holding Company shall publish, pursuant to applicable law, a
notice to the holders of all Old Certificates, specifying the Effective Time of
the Plan and notifying such holders to present their Old Certificates to the
Transfer Agent for exchange. Such notice shall likewise be given by mail to such
holders at their addresses on the Bank's records.
SECTION 5. Conditions Precedent
The Plan shall not become effective unless all of the following first
shall have occurred:
5.1. The Plan shall have been approved by a vote of two-thirds of the
outstanding Bank Common Stock at a meeting of the holders of the Bank Common
Stock held for such purpose.
5.2. The Plan shall have been approved by the Bank Commissioner and a copy
of the Plan with his approval endorsed thereon shall have been filed in his
office, all as provided in Section 26B of Chapter 172 of the General Laws of
Massachusetts.
5.3. The acquisition of the Bank by the Holding Company shall have been
reviewed without objection by any appropriate federal agency.
5.4. The Bank shall have received a favorable opinion from its counsel,
satisfactory in form and substance to the Bank, with respect to the federal
income tax consequences of the Plan and the acquisition contemplated thereby.
5.5. The Bank shall have received a favorable letter from its independent
public accountants, satisfactory in form and substance to the Bank, with respect
to the accounting treatment of the transaction.
5.6. The shares of Holding Company Common Stock to be issued to the
holders of Bank Common Stock pursuant to the Plan shall have been registered or
shall be exempt from registration under the Securities Act of 1933, as amended,
and all applicable state securities laws.
5.7. The Bank and the Holding Company shall have obtained all other
consents, permissions, opinions and approvals and taken all actions required by
law or agreement, or deemed necessary by the Bank or the Holding Company, to
enable the Holding Company to have and exercise all rights of ownership with
respect to all of the outstanding shares of Bank Common Stock acquired by it
under the Plan.
SECTION 6. Abandonment of Plan
6.1. The Plan may be abandoned by either the Bank or the Holding Company
at any time before the Effective Time in the event that:
(a) The number of shares of Bank Common Stock owned by Dissenting
Stockholders, as defined in Section 8.1, shall make consummation of the
acquisition contemplated by the Plan inadvisable in the opinion of the
Bank or the Holding Company;
(b) Any action, suit, proceeding or claim has been instituted, made
or threatened relating to the Plan which shall make consummation of the
acquisition contemplated by the Plan inadvisable in the opinion of the
Bank or the Holding Company; or
(c) For any other reason consummation of the acquisition
contemplated by the Plan is inadvisable in the opinion of the Bank or the
Holding Company.
Such abandonment shall be effected by written notice by either the Bank or
the Holding Company to the other of them, and shall be authorized or approved by
the Board of Directors of the party giving such notice. Upon the giving of such
notice, the Plan shall be terminated and there shall be no liability hereunder
or on account of such termination on the party of the Bank or the Holding
Company or the Directors, officers, employees, agents or stockholders of either
of them. In the event of abandonment of the Plan, the Bank shall pay the fees
and expenses incurred by itself and the Holding Company in connection with the
Plan and the proposed acquisition. If either party hereto gives written notice
of termination to the other party pursuant to this section, the party giving
such written notice shall simultaneously furnish a copy thereof to the Bank
Commissioner.
SECTION 7. Amendment of Plan
7.1. The Plan may be amended or modified at any time by mutual agreement
of the Boards of Directors of the Holding Company and the Bank (i) prior to the
approval hereof by the stockholders of the Bank, in any respect, and (ii)
subsequent to such approval, in any respect provided that the Bank Commissioner
shall approve of such amendment or modification.
SECTION 8. Rights of Dissenting Stockholders
8.1. "Dissenting Stockholders" shall mean those holders of Bank Common
Stock who file with the Bank before the taking of the vote on the Plan written
objection to the Plan, pursuant to Chapter 156B of the General Laws of
Massachusetts, stating that they intend to demand payment for their shares of
Bank Common Stock if the Plan is consummated and whose shares are not voted in
favor of the Plan.
8.2. Dissenting Stockholders who comply with the provisions of Sections 86
to 98, inclusive, of Chapter 156B of the General Laws of Massachusetts and all
other applicable provisions of law shall be entitled to receive from the Bank
payment of the fair value of their shares of Bank Common Stock upon surrender by
such holders of the certificates which previously represented shares of Bank
Common Stock. Certificates so obtained by the Bank, upon payment of the fair
value of such shares of provided by law, shall be cancelled. Shares of Holding
Company Common Stock, to which Dissenting Stockholders would have been entitled
had they not dissented, shall be deemed to constitute authorized but unissued
shares of Holding Company Common Stock and may be sold or otherwise disposed of
by the Holding Company at the discretion of, and on such terms as may be fixed
by, its Board of Directors.
SECTION 9. Stock Options
By consummation of the acquisition contemplated by the Plan, the Holding
Company shall have approved its adoption of the existing Stock Option Plan of
the Bank as the Stock Option Plan of the Holding Company and shall have agreed
to issue Holding Company Common Stock in lieu of Bank Common Stock pursuant to
options currently outstanding under the existing Stock Option Plan of the Bank.
As of the Effective Time, the unexercised portion of the options outstanding
under the existing Stock Option Plan of the Bank shall be assumed by the Holding
Company and thereafter shall be exercisable only for shares of Holding Company
Common Stock, with each such option being exercisable for a number of shares of
Holding Company Common Stock equal to the number of shares of Bank Common Stock
that were available thereunder immediately prior to the Effective Time, and with
no change in the option exercise price or any other term or condition of such
option. The Holding Company and the Bank shall make appropriate amendments to
the existing Stock Option Plan to reflect the adoption of the Plan as the Stock
Option Plan of the Holding Company without adverse effect upon the options
outstanding under the existing Stock Option Plan of the Bank.
SECTION 10. Governing Law
The Plan shall take effect as a sealed instrument and shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts.
SECTION 11. Counterparts
The Plan may be executed in several identical counterparts, each of which
when executed and delivered by the parties hereto shall be an original, but all
of which together shall constitute a single instrument. In making proof of the
Plan, it shall not be necessary to produce or account for more than one such
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization and Acquisition to be duly executed as of the date first set
forth above and their corporate seals to be hereunto affixed.
Corporate Seal ABINGTON SAVINGS BANK
Attest:
/s/ Barbara M. Manning By: /s/ James P. McDonough
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Clerk James P. McDonough, President
and Chief Executive Officer
Corporate Seal ABINGTON BANCORP, INC.
Attest:
/s/ Barbara M. Manning By: /s/ James P. McDonough
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Clerk James P. McDonough, President
and Chief Executive Officer
D
|
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Examiner |
|
|
|
| The Commonwealth of Massachusetts
| William Francis Galvin
| Secretary of the Commonwealth
| One Ashburton Place, Boston, Massachusetts 02108-1512
|
|
|
| ARTICLES OF ORGANIZATION (General laws, Chapter 156B)
|
|
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Name |
Approved |
|
|
| [STAMP]
|
| SECRETARY OF
| THE COMMONWEALTH
| 96 OCT 15 PM 12:42
| CORPORATION DIVISION
|
| [END STAMP]
|
|
| ARTICLE I
|
| The exact name of the corporation is:
|
| Abington Bancorp, Inc.
|
|
| ARTICLE II
|
|
| The purpose of the corporation is to engage in the
| following business activities:
|
| A. Subject to paragraph B below, to engage exclusively in
| buying, selling, dealing in or holding, on its own
| behalf, and not as a broker, securities; and, while
| owner thereof, to exercise all rights, powers, and all
| privileges of ownership in such securities.
|
| B. To acquire, invest in or hold stock in any subsidiary
| permitted under the Bank Holding Company Act of 1956 or
| Chapter 167A of the General Laws of The Commonwealth of
| Massachusetts, and to engage in any other activity or
| enterprise permitted to a bank holding company under
| said statutes or other applicable law or regulation.
|
| C. To engage in, transact and carry on any or all of the
| above activities or any other business activity
| necessary or convenient for or incidental to any or all
| of the foregoing which can advantageously be conducted
| in connection therewith. Notwithstanding the foregoing,
| the corporation (i) shall only engage in, transact and
| carry on activities which a corporation classified as a
| security corporation under chapter 63, section 38B of
| the Massachusetts General Laws, may lawfully engage in,
| transact or conduct and (ii) shall not engage in any
| activity which may not be engaged in or performed by a
| corporation organized under Chapter 156B of the
| Massachusetts General Laws.
|
|
|
|
C [ ] |
P [ ] |
M [ ] |
R.A. [ ] |
|
|
|
- - -----------| Note: If the space provided under any article or item on this
P.C. | form is insufficient, additions shall be set forth on one side
| only of separate 8-1/2 X 11 sheets of paper with a left margin
| of at least 1 inch. Additions to more than one article may be
| made on a single sheet so long as each article requiring each
| addition is clearly indicated.
|
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue.
<TABLE>
<CAPTION>
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| WITHOUT PAR VALUE | WITH PAR VALUE |
-------------------------------------------------------------------------------------
| TYPE | NUMBER OF SHARES | TYPE | NUMBER OF SHARES | PAR VALUE |
-------------------------------------------------------------------------------------
| | | | | |
-------------------------------------------------------------------------------------
<C> <C> <S> <C> <C>
| Common: | | Common: | 12,000,000 | $.10 |
-------------------------------------------------------------------------------------
| | | | | |
-------------------------------------------------------------------------------------
| Preferred: | | Preferred: | 3,000,000 | $.l0 |
-------------------------------------------------------------------------------------
| | | | | |
-------------------------------------------------------------------------------------
</TABLE>
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
See Exhibit A.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None.
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Exhibit B.
** If there are no provisions state "None".
Note: The preceding six (6) articles are considered to be permanent and may ONLY
be changed by filing appropriate Articles of Amendment.
EXHIBITS TO THE
ARTICLES OF ORGANIZATION
OF
ABINGTON BANCORP, INC.
- - --------------------------------------------------------------------------------
Exhibit A
ARTICLE IV. CAPITAL STOCK
A description of the different classes and series of the Corporation's
capital stock and a statement of the designations, and the relative rights,
preferences and limitations of the shares of each class and series of capital
stock are as follows:
A. Common Stock. Except as provided by law or in this ARTICLE IV (or in
any certificate of establishment of series of preferred stock), the holders of
the common stock shall exclusively possess all voting power. Each holder of
shares of common stock shall be entitled to one vote on all matters for each
share held by such holder, except as otherwise provided in ARTICLE 10 of this
Charter. There shall be no cumulative voting rights in the election of
Directors.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and of sinking fund, retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock and on any class or
series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends; but only when and as
declared by the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid to or set aside for the holders of
any class having preferences over the common stock in the event of liquidation,
dissolution or winding up of the full preferential amounts of which they are
respectively entitled, the holders of the common stock, and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets, shall be entitled, after payment or provision for
payment of all debts and liabilities of the Corporation, to receive the
remaining assets of the Corporation available for distribution, in cash or in
kind, in proportion to their holdings.
Each share of common stock shall have the same relative rights as, and be
identical in all respects with, all the other shares of common stock.
B. Preferred Stock. Subject to any limitations prescribed by law, the
Board of Directors of the Corporation is authorized, by vote or votes from time
to time adopted, to provide for the issuance of one or more classes of preferred
stock, which shall be separately identified. The Board of Directors shall have
the authority to divide any authorized class of preferred stock of the
Corporation into one or more series, to establish or change from time to time
the number of shares to be included in each such series, and to fix and state
the voting powers, designations, preferences and relative, participating,
optional or other special rights of the shares of any series so established and
the qualifications, limitations and restrictions thereof. Each series shall be
separately designated so as to distinguish the shares thereof from the shares of
all other series and classes. The authority of the Board of Directors with
respect to each series shall include, but not be limited to, determination of
one or more of the following:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if
so, from which date or dates, the payment date or dates for
dividends, and the participating or other special rights, if any,
with respect to dividends;
(c) The voting powers, full or limited, if any, of shares of such
series;
(d) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which,
such shares may be redeemed;
(e) The amount or amounts payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
(f) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such
fund and the manner of its application, including the price or
prices at which such shares may be redeemed or purchased through the
application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or of any
other series of the same or any other class or classes of stock of
the Corporation, and if so convertible or exchangeable, the
conversion price or prices or the rate or rates of exchange, and the
adjustments thereof, if any, at which such conversion or exchange
may be made, and any other terms and conditions of such conversion
or exchange;
(h) The price or other consideration for which the shares of such series
shall be issued;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of preferred
stock and whether such shares may be reissued as shares of the same
or any other series of stock; and
(j) Such other powers, preferences, rights, qualifications, limitations
and restrictions thereof as are permitted by law and as the Board of
Directors of the Corporation may deem advisable.
Any such vote shall become effective when the Corporation files with the
Secretary of State of The Commonwealth of Massachusetts a certificate of
establishment of one or more series of preferred stock signed by the President
or any Vice President and by the Clerk, Assistant Clerk, Secretary or Assistant
Secretary of the Corporation, setting forth a copy of the vote of the Board of
Directors establishing and designating the series and fixing and determining the
relative rights and preferences thereof, the date of adoption of such vote and a
certification that such vote was duly adopted by the Board of Directors.
Each share of each series of preferred stock shall have the same relative
rights as and be identical in all respects with all the other shares of the same
series.
Subject to the authority of the Board of Directors as set forth in
Paragraph (i) above, any shares of Preferred Stock shall, upon reacquisition
thereof by the Corporation, be restored to the status of authorized but unissued
Preferred Stock under this Section B.
Except as specifically provided in these Articles, the holders of
Preferred Stock or Common Stock shall not be entitled to any vote and shall not
have any voting rights concerning the designation or issuance of any shares of
Preferred Stock authorized by and complying with the conditions of these
Articles, and subject to the authority of the Board of Directors or any
authorized committee thereof as set forth above, the right to any such vote is
expressly waived by all present and future holders of the capital stock of the
Corporation.
Exhibit B
ARTICLE VI. OTHER LAWFUL PROVISIONS.
Section 6.1. CERTAIN BUSINESS COMBINATIONS.
6.1.1. Vote Required for Certain Business Combinations. In addition to any
affirmative vote required by the Massachusetts General Laws or by this Charter,
and except as otherwise expressly provided in Section 6.1.2, any Business
Combination (as hereinafter defined) shall require the affirmative vote of the
holders of at least eighty percent (80%) of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), voting together as
a single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law.
The term "Business Combination" as used in this ARTICLE VI shall mean:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder or (b) any
other corporation (whether or not itself an Interested Stockholder) which
is, or after such merger or consolidation would be, an Affiliate of an
Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder
of any assets of the Corporation or any Subsidiary having an aggregate
Fair Market Value of $1,000,000 or more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair
Market Value of $1,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Interested
Stockholder or any Affiliate of any Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split) or recapitalization of the Corporation or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving any
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate of any Interested Stockholder.
6.1.2. When Higher Vote is Not Required. The provisions of Section 6.1
shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote, if any, as is
required by law and any other provision of these ARTICLES, if all of the
conditions specified in either of the following paragraphs A and B are met:
A. Approval by Continuing Directors. The Business Combination shall
have been approved by a majority of the Continuing Directors (as
hereinafter defined) then in office.
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) of consideration other than cash, determined as of
the date of the consummation of the Business Combination, to be received
per share by holders of common stock in such Business Combination shall be
at least equal to the highest of the following:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of common stock
acquired by it (1) within the two-year period immediately prior to
the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the transaction in
which it became an Interested Stockholder, whichever is higher;
(b) the highest Fair Market Value per share of common stock on
any date during the one-year period prior to and including the
Announcement Date; and
(c) (if applicable) the price per share equal to the Fair
Market Value per share of common stock on the Announcement Date or
on the date on which the Interested Stockholder became an Interested
Stockholder (such later date is referred to in this ARTICLE VI as
the "Determination Date"), whichever is higher, multiplied by the
ratio of (1) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Stockholder for any shares of common stock acquired
by it within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market value per share of common
stock on the first day in such two-year period upon which the
Interested Stockholder acquired any shares of common stock.
(ii) The aggregate amount of the cash and the Fair Market Value of
consideration other than cash, determined as of the date of the
consummation of the Business Combination, to be received per share by
holders of shares of any other class of outstanding Voting Stock shall be
at least equal to the highest of the following (it being intended that the
requirements of this paragraph B (ii) shall be required to be met with
respect to every other class of outstanding Voting Stock, whether or not
the Interested Stockholder has previously acquired any shares of a
particular class of Voting Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of such class of
Voting Stock acquired by it (1) within the two-year period
immediately prior to the Announcement Date or (2) in the transaction
in which it became an Interested Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(c) the highest Fair Market Value per share of such class of
Voting Stock on any date during the one-year period prior to and
including the Announcement Date; and
(d) (if applicable) the price per share equal to the Fair
Market Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher,
multiplied by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any shares of
such class of Voting Stock acquired by it within the two-year period
immediately prior to the Announcement Date to (2) the Fair Market
Value per share of such class of Voting Stock on the first day in
such two-year period upon which the Interested Stockholder acquired
any shares of such class of Voting Stock.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including common stock) shall be in
cash or in the same form as the Interested Stockholder has previously paid
for shares of such class of Voting Stock. If the Interested Stockholder
has paid for shares of any class of Voting Stock with varying forms of
consideration, the form of consideration for such class of Voting Stock
shall be either cash or the form used to acquire the largest number of
shares of such class of Voting Stock previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of any such Business
Combination: (a) there shall have been (1) no reduction in the annual rate
of dividends paid on the common stock (except as necessary to reflect any
subdivision of the common stock), except as approved by two-thirds (2/3)
of the Continuing Directors, and (2) an increase in such annual rate of
dividends as necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding
shares of the common stock, unless the failure so to increase such annual
rate is approved by two-thirds (2/3) of the Continuing Directors; and (b)
such Interested Stockholder shall not have become the beneficial owner of
any additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation or in connection with such Business Combination or
otherwise.
(vi) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934 and the rules and regulations thereunder (or any
subsequent provision replacing such Act, rules or regulations) shall be
mailed to public stockholders of the Corporation at least 20 days prior to
the consummation of such Business Combination (whether or not such proxy
or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
6.1.3. Certain Definitions. For the purpose of these Articles:
A. A "person" shall mean an individual, a group acting in concert, a
corporation, a partnership, an association, a joint stock company, a trust, a
business trust and any unincorporated organization or similar association or
entity.
B. "Interested Stockholder" shall mean any person (other than the
Corporation, any Subsidiary or any employee stock ownership plan formed by the
Corporation) who or which:
(i) is the beneficial owner, directly or indirectly, of 10% or more
of the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933 and such
assignment or succession was not approved by two-thirds (2/3) of the
Continuing Directors.
C. A person shall be a "beneficial owner" of any shares of Voting Stock:
(i) which such person or any of its Affiliates or Associates
directly or indirectly, has (a) the right to acquire (whether such right
is exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, warrants or options, or otherwise, (b) the right to
vote pursuant to any agreement, arrangement or understanding, or (c) the
right to dispose of or transfer; or
(ii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates
has any agreements, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Voting Stock.
D. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph B of this Section 6.1.3, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 6.1.3 but shall not include
any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
F. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in paragraph B of this Section 6.1.3, the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board of Directors of the
Corporation (the "Board") who is unaffiliated with the Interested Stockholder
and was a member of the Board prior to the time that the Interested Stockholder
became an Interested Stockholder, and any successor of a Continuing Director who
is unaffiliated with the Interested Stockholder and is recommended to succeed
the Continuing Director by a majority of Continuing Directors then on the Board.
H. "Fair Market Value" means:
(i) in the case of stock, the highest closing sale price during the
30-day period immediately preceding the date in question of a share of
such stock on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is listed,
or, if such stock is not listed on any such exchange, the highest closing
bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers Automated Quotation System or any comparable system
then in use, or if no such quotations are available, the fair market value
on the date in question of a share of such stock as determined by at least
two-thirds (2/3) of the Continuing Directors of the Board in good faith;
and
(ii) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined by at
least two-thirds (2/3) of the Continuing Directors of the Board in good
faith.
I. "Group Acting in Concert" shall mean persons seeking to combine or pool
their voting or other interests in the securities of the Corporation for a
common purpose, pursuant to any contract, understanding, relationship, agreement
or other arrangement, whether written, oral or otherwise, or persons acting with
conscious parallel behavior, or any group of persons" as defined under Section
13(d) of the Securities Exchange Act of 1934, as amended. When persons act
together for such purpose, their group is deemed to have acquired their stock.
J. In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in paragraphs
B(i) and (ii) of Section 6.1.2 hereof shall include the shares of common stock
and/or the shares of any other class of outstanding Voting Stock retained by the
holders of such shares.
6.1.4. Powers of the Board of Directors. A majority of the Directors of
the Corporation (or, if there is an Interested Stockholder, a majority of the
Continuing Directors then in office) shall have the power to determine for the
purposes of this Section 6. 1, on the basis of information known to them after
reasonable inquiry, (A) whether a person is an Interested Stockholder, (B) the
number or percentage of shares of Voting Stock beneficially owned by any person,
(C) whether a person is an Affiliate or Associate of another, (D) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $1,000,000 or more, (E) whether the requirements of Section
6.1.2 have been met with respect to any Business Combination, and (F) any other
matters of interpretation arising under this Article. The good faith
determination of a majority of the Directors (or, if there is an Interested
Stockholder, a majority of the Continuing Directors then in office) on such
matters shall be conclusive and binding for all purposes of this Article.
6.1.5 No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Section 6.1 shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Section 6.2. STANDARDS FOR BOARD OF DIRECTORS' EVALUATION OF OFFERS.
The Board of Directors of the Corporation, in determining whether the
interests of the Corporation and its stockholders will be served by any offer of
another person to (i) make a tender or exchange offer for any equity security of
the Corporation, (ii) merge or consolidate the Corporation with or into another
institution, or (iii) purchase or otherwise acquire all or substantially all of
the properties and assets of the Corporation, may consider the interests of the
Corporation's employees, suppliers, creditors and customers, the economy of the
state, region and nation, community and societal considerations, and the
long-term and short-term interests of the Corporation and its stockholders,
including the possibility that these interests may be best served by the
continued independence of the Corporation.
Section 6.3 STOCKHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS
Subject to the provisions of Section 6.1, any (i) sale, lease or exchange
of all or substantially all of the property or assets, including goodwill, of
the Corporation, or (ii) merger or consolidation of the Corporation with or into
any another corporation, shall be approved by the affirmative vote of at least
two-thirds of the total votes eligible to be cast by stockholders on such sale,
lease or exchange, or merger or consolidation, voting together as a single
class, at a duly constituted meeting of stockholders called expressly for such
purpose; provided, however, that if the Board of Directors recommends, by the
affirmative vote of two thirds of the Directors then in office at a duly
constituted meeting of the Board of Directors (unless at the time of such action
there shall be an Interested Stockholder, in which case such action shall also
require the affirmative vote of a majority of the Continuing Directors then in
office at such meeting), that stockholders approve such sale, lease or exchange,
or merger or consolidation, at such meeting of stockholders, such sale, lease or
exchange, or merger or consolidation, shall be approved by the affirmative vote
of a majority of the total votes eligible to be cast by stockholders on such
transaction, voting together as a single class. This Section 6.3 is intended to
apply to any transaction that would not otherwise constitute a Business
Combination that is subject to the provisions of Section 6.1 above.
Section 6.4 PREEMPTIVE RIGHTS
Holders of the capital stock of the Corporation shall not be entitled to
preemptive rights with respect to any shares of the capital stock of the
Corporation which may be issued.
Section 6.5 DIRECTORS
6.5.1. Classification of Directors.
The Directors, other than those who may be elected by the holders of any
series of preferred stock of the Corporation, shall be classified, with respect
to the term for which they severally hold office, into three classes, as nearly
equal in number as possible, with one class to be elected annually. The initial
Directors of the Corporation shall hold office as follows: the first class of
Directors shall hold office initially for a term expiring at the annual meeting
of stockholders to be held in 1997, the second class of Directors shall hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 1998, and the third class of Directors shall hold office initially for a
term expiring at the annual meeting of stockholders to be held in 1999. At each
succeeding annual meeting of stockholders, the successors of the class of
Directors whose term expires at that meeting shall be elected by a plurality
vote of all votes cast at such meeting to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. Members of each class shall hold office until their successors
are duly elected and qualified or until their earlier resignation or removal.
6.5.2. Removal of Directors. Subject to the rights of the holders of any
Preferred Stock then outstanding, any Director (including persons elected by
Directors to fill vacancies in the Board of Directors) may be removed from
office, with or without cause, by an affirmative vote of not less than
two-thirds (2/3) of the total votes eligible to be cast by stockholders, voting
together as a single class, at a duly constituted meeting of stockholders called
expressly for such purpose. At least 30 days prior to such meeting of
stockholders, written notice shall be sent to the Director whose removal will be
considered at the meeting and, if the removal is for cause, the Director will be
provided an opportunity to be heard before the stockholders.
6.5.3. Limitation of Liability of Directors.
A. No Director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director notwithstanding any provision of law imposing such liability;
provided, however, that this Article shall not eliminate or limit any liability
of a Director (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Sections 61 or 62 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, or (iv) with respect to any transaction from which the Director
derived an improper personal benefit.
B. No amendment or repeal of this Article shall adversely affect the
rights and protection afforded to a Director of this Corporation under this
Article for acts or omissions occurring prior to such amendment or repeal. If
the Massachusetts Business Corporation Law is hereafter amended to further
eliminate or limit the personal liability of Directors or to authorize corporate
action to further eliminate or limit such liability, then the liability of the
Directors of this Corporation shall be eliminated or limited to the fullest
extent permitted by the Massachusetts Business Corporation Law as so amended.
Section 6.6. TRANSACTIONS WITH INTERESTED PERSONS
6.6.1. Unless entered into in bad faith, no contract or transaction by the
Corporation shall be void, voidable or in any way affected by reason of the fact
that it is with an Interested Person.
6.6.2. For the purposes of this Section 6.5, "Interested Person" means any
person or organization in any way interested in the Corporation whether as a
director, officer, stockholder, employee or otherwise, and any other entity in
which any such person or organization of the Corporation is in any way
interested.
6.6.3. Unless such contract or transaction was entered into in bad faith,
no Interested Person, because of such interest, shall be liable to the
Corporation or to any other person or organization for any loss or expense
incurred by reason of such contract or transaction or shall be accountable for
any gain or profit realized from such contract or transaction.
6.6.4. The provisions of this Section 6.5 shall be operative
notwithstanding the fact that the presence of an Interested Person was necessary
to constitute a quorum at a meeting of Directors or stockholders of the
Corporation at which such contract or transaction was authorized or that the
vote of an Interested Person was necessary for the authorization of such
contract or transaction.
Section 6.7. ACTING AS A PARTNER
The Corporation may be a partner in any business enterprise which it would
have power to conduct by itself.
Section 6.8. STOCKHOLDERS' MEETINGS
Meetings of stockholders may be held at such place in The Commonwealth of
Massachusetts or, if permitted by applicable law, elsewhere in the United States
as the Board of Directors may determine.
Section 6.9. CALL OF SPECIAL MEETINGS
Special meetings of stockholders may be called by a majority of the
Directors then in office (provided, however, that if there is an Interested
Stockholder, any such call by the Board of Directors shall also require the
affirmative vote of a majority of the Continuing Directors then in office).
Special meetings shall be called by the Clerk or in the case of the death,
absence, incapacity or refusal of the Clerk, by any other officer, upon written
application of one or more stockholders who hold at least (i) 66-2/3 % in
interest of the capital stock entitled to vote at such meeting or (ii) such
lesser percentage, if any, (but not less than 40%) as shall be determined to be
the maximum percentage which the Corporation is permitted by applicable law to
establish for the call of such a meeting. Application to a court pursuant to
Section 34(b) of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts requesting the call of a special meeting of stockholders because
none of the officers is able and willing to call such a meeting may be made only
by stockholders who hold at least (i) 66-2/3 % in interest of the capital stock
entitled to vote at such meeting or (ii) such lesser percentage, if any, (but
not less than 40 %) as shall be determined to be the maximum percentage which
the Corporation is permitted by applicable law to establish for the call of such
a meeting. The hour, date and place of any special meeting and the record date
for determining the stockholders having the right to notice of and to vote at
such meeting shall be determined by the Board of Directors or the President. At
a special meeting of stockholders, only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been stated in the
written notice of the special meeting, unless otherwise provided by law.
Section 6.10. AMENDMENT OF BY-LAWS
A. Amendment by Directors
Except as otherwise required by law, the By-laws of the Corporation may be
amended or repealed by the affirmative vote of a majority of the Directors then
in office at a duly constituted meeting of the Board of Directors, unless at the
time of such action there shall be an Interested Stockholder, in which case such
action shall also require the affirmative vote of a majority of the Continuing
Directors then in office at such meeting. Not later than the time of giving
notice of the annual meeting of stockholders next following the amending or
repealing by the Directors of any By-law, notice thereof stating the substance
of such change shall be given to all stockholders entitled to vote on amending
the By-laws.
B. Amendment by Stockholders
The By-laws of the Corporation may be amended or repealed at a duly
constituted meeting of stockholders called expressly for such purpose, by the
affirmative vote of at least 80% of the total votes eligible to be cast by
stockholders on such amendment or repeal, voting together as a single class;
provided, however, that if the Board of Directors recommends, by the affirmative
vote of two thirds of the Directors then in office at a duly constituted meeting
of the Board of Directors (unless at the time of such action there shall be an
Interested Stockholder, in which case such action shall also require the
affirmative vote of a majority of the Continuing Directors then in office at
such meeting), that stockholders approve such amendment or repeal at such
meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast by
stockholders on such amendment or repeal, voting together as a single class.
Section 6.11. AMENDMENT OF ARTICLES OF ORGANIZATION
These Articles may be amended at a duly constituted meeting of
stockholders called expressly for such purpose, by the affirmative vote of at
least 80% of the total votes eligible to be cast by stockholders on such
amendment, voting together as a single class; provided, however, that if the
Board of Directors recommends, by the affirmative vote of at least two thirds of
the Directors then in office at a duly constituted meeting of the Board of
Directors (unless at any time within the sixty day period immediately preceding
the meeting at which the stockholder vote is to be taken, there shall be an
Interested Stockholder, in which case such action shall also require the
affirmative vote of a majority of the Continuing Directors then in office), that
stockholders approve such amendment at such meeting of stockholders, such
amendment shall only require the affirmative vote of a majority of the total
votes eligible to be cast by stockholders on such amendment, voting together as
a single class.
Exhibit C
ABINGTON BANCORP, INC.
<TABLE>
<CAPTION>
Residential Post Office
Name Address Address
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<S> <S> <C> <C>
President James P. McDonough Addresses Intentionally Omitted
Treasurer Edward J. Merritt
Clerk Barbara M. Manning
Board of Directors Robert J. Armstrong
Bruce G. Atwood
William F. Borhek
Ralph B. Carver, Jr.
Joel S. Geller
Rodney D. Henrikson
A. Stanley Littlefield
James P. McDonough
Jay Timothy Noonan
Gordon N. Sanderson
James J. Slattery
Wayne P. Smith
</TABLE>
ARTICLE VII
The effective date of organization of the corporation shall be the date approved
and filed by the Secretary of the Commonwealth. If a later effective date is
desired, specify such date which shall not be more than thirty days after the
date of filing.
ARTICLE VIII
The information contained in Article VIII is not a permanent part of the
Articles of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is:
538 Bedford Street, Abington, Massachusetts 02351
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
<TABLE>
<CAPTION>
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
---- ------------------- -------------------
<S> <C> <C> <C>
President:
Treasurer: See Exhibit C.
Clerk:
Directors:
</TABLE>
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of:
December
d. The name and business address of the resident agent, if any, of the
corporation is:
None
ARTICLE IX
By-laws of the corporation have been duly adopted and the president, treasurer,
clerk and directors whose names are set forth above, have been duly elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business or
residential address(es) are clearly typed or printed beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws, Chapter 156B and do hereby sign these Articles of
Organization as incorporator(s) this 11th day of October, 1996,
/s/ CAROL HEMPFLING PRATT
- - --------------------------------------------------------------------------------
Carol Hempfling Pratt, Sole Incorporator
Note: If an existing corporation is acting as incorporator, type in the exact
name of the corporation, the state or other jurisdiction where it was
incorporated, the name of the person signing on behalf of said corporation and
the title he/she holds or other authority by which such action is taken.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
========================================================
I hereby certify that, upon examination of these
Articles of Organization, duly submitted to me, it
appears that the provisions of the General Laws relative
to the organization of corporations have been complied
with, and I hereby approve said articles; and the filing
fee in the amount of $_______ having been paid, said
articles are deemed to have been filed with me this
_______ day of __________ 19____.
Effective date: ________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
FILING FEE: One tenth of one percent of the total
authorized capital stock, but not less than $200.00. For
the purpose of filing, shares of stock with a par value
less than $1.00, or no par stock, shall be deemed to
have a par value of $1.00 per share.
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Carol Hempfling Pratt
Foley, Hoag & Eliot
One Post Office Square, Boston, Massachusetts 02109
Telephone: 617-832-1000
BY-LAWS
OF
ABINGTON BANCORP, INC.
October 15, 1996
BY-LAWS
OF
ABINGTON BANCORP, INC.
<TABLE>
<S> <S> <C>
ARTICLE I
Organization D-1
ARTICLE II
Stockholders D-1
SECTION 2.1 Annual Meeting ................................................. D-1
SECTION 2.2 Special Meetings ............................................... D-1
SECTION 2.3 Matters to be Considered at Annual Meetings .................... D-2
SECTION 2.4 Notice of Meetings ............................................. D-3
SECTION 2.5 Quorum ......................................................... D-3
SECTION 2.6 Voting and Proxies ............................................. D-3
SECTION 2.7 Action at Meeting .............................................. D-4
SECTION 2.8 Action without Meeting ......................................... D-4
SECTION 2.9 Presiding Officer .............................................. D-4
SECTION 2.10 Voting Procedures and Inspectors of Elections .................. D-4
SECTION 2.11 Rescheduling of Meetings; Adjournments ......................... D-5
ARTICLE III
Directors D-5
SECTION 3.1 Powers ......................................................... D-5
SECTION 3.2 Composition and Term ........................................... D-5
SECTION 3.3 Director Nominations ........................................... D-6
SECTION 3.4 Qualifications ................................................. D-7
SECTION 3.5 Resignation .................................................... D-7
SECTION 3.6 Removal ........................................................ D-7
SECTION 3.7 Vacancies ...................................................... D-7
SECTION 3.8 Compensation ................................................... D-8
SECTION 3.9 Regular Meetings ............................................... D-8
SECTION 3.10 Special Meetings ............................................... D-8
SECTION 3.11 Notice of Special Meetings ..................................... D-8
SECTION 3.12 Quorum ......................................................... D-8
SECTION 3.13 Action at Meeting .............................................. D-9
SECTION 3.14 Action by Consent .............................................. D-9
SECTION 3.15 Presumption of Assent .......................................... D-9
SECTION 3.16 Committees ..................................................... D-9
SECTION 3.17 Manner of Participation ........................................ D-9
ARTICLE IV
Officers D-10
SECTION 4.1 Enumeration .................................................... D-10
SECTION 4.2 Election ....................................................... D-10
SECTION 4.3 Qualification .................................................. D-10
SECTION 4.4 Tenure ......................................................... D-10
SECTION 4.5 Removal ........................................................ D-10
SECTION 4.6 Vacancies ...................................................... D-10
SECTION 4.7 Chairman of the Board .......................................... D-11
SECTION 4.8 Chief Executive Officer ........................................ D-11
SECTION 4.9 President and Vice Presidents .................................. D-11
SECTION 4.10 Treasurer, Vice Treasurers, and Assistant Treasurers ........... D-11
SECTION 4.11 Clerk and Assistant Clerks ..................................... D-11
SECTION 4.12 Secretary and Assistant Secretaries ............................ D-11
SECTION 4.13 Other Powers and Duties ........................................ D-11
ARTICLE V
Capital Stock D-12
SECTION 5.1 Certificates of Stock .......................................... D-12
SECTION 5.2 Transfers ...................................................... D-12
SECTION 5.3 Record Holders ................................................. D-12
SECTION 5.4 Record Date .................................................... D-12
SECTION 5.5 Replacement of Certificates .................................... D-13
SECTION 5.6 Issuance of Capital Stock ...................................... D-13
SECTION 5.7 Dividends ...................................................... D-13
ARTICLE VI
Indemnification D-13
SECTION 6.1 Officers ....................................................... D-13
SECTION 6.2 Non-Officer Employees .......................................... D-13
SECTION 6.3 Service at Direction of Board of Directors ..................... D-13
SECTION 6.4 Good Faith ..................................................... D-14
SECTION 6.5 Prior to Final Disposition ..................................... D-14
SECTION 6.6 Notification and Defense of Claim .............................. D-14
SECTION 6.7 Insurance ...................................................... D-15
SECTION 6.8 Definitions .................................................... D-15
SECTION 6.9 Other Indemnification Rights ................................... D-15
SECTION 6.10 Survival of Benefits ........................................... D-15
SECTION 6.11 Subsequent Amendment ........................................... D-15
SECTION 6.12 Merger or Consolidation ........................................ D-16
SECTION 6.13 Subsequent Legislation ......................................... D-16
ARTICLE VII
Miscellaneous Provisions D-16
SECTION 7.1 Fiscal Year .................................................... D-16
SECTION 7.2 Seal ........................................................... D-16
SECTION 7.3 Execution of Instruments ....................................... D-16
SECTION 7.4 Voting of Securities ........................................... D-16
SECTION 7.5 Resident Agent ................................................. D-16
SECTION 7.6 Corporation Records ............................................ D-17
SECTION 7.7 Articles of Organization ....................................... D-17
SECTION 7.8 By-Law Amendments .............................................. D-17
</TABLE>
BY-LAWS
OF
ABINGTON BANCORP, INC.
ARTICLE I
Organization
The name of this Corporation shall be "Abington Bancorp, Inc." The
Corporation shall have and may exercise all the powers, privileges and
authority, express, implied and incidental, now or hereafter conferred by
applicable law and the Corporation's Articles of Organization.
ARTICLE II
Stockholders
SECTION 2.1 Annual Meeting. The annual meeting of the stockholders for
elections and other purposes shall be held on the third Tuesday in May at 10
a.m. (or if that be a legal holiday in the place where the meeting is to be
held, on the next succeeding full business day), at the main office of the
Corporation in Massachusetts, unless a different hour, date or place within or
without the United States is fixed by the Board of Directors, the Chairman of
the Board or the President. If no annual meeting has been held on the date fixed
above, a special meeting in lieu thereof may be held, and such special meeting
shall have for the purposes of these By-Laws or otherwise all the force and
effect of an annual meeting.
SECTION 2.2 Special Meetings. Special meetings of stockholders may be
called by a majority of the Directors then in office (provided, however, that if
there is an Interested Stockholder, any such call by the Board of Directors
shall also require the affirmative vote of a majority of the Continuing
Directors then in office). Special meetings shall be called by the Clerk or in
the case of the death, absence, incapacity or refusal of the Clerk, by any other
officer, upon written application of one or more stockholders who hold at least
(i) 66-2/3% in interest of the capital stock entitled to vote at such meeting or
(ii) such lesser percentage, if any, (but not less than 40%) as shall be
determined to be the maximum percentage which the Corporation is permitted by
applicable law to establish for the call of such a meeting. Application to a
court pursuant to Section 34(b) of Chapter 156B of the General Laws of the
Commonwealth of Massachusetts requesting the call of a special meeting of
stockholders because none of the officers is able and willing to call such a
meeting may be made only by stockholders who hold at least (i) 66-2/3% in
interest of the capital stock entitled to vote at such meeting or (ii) such
lesser percentage, if any, (but not less than 40%) as shall be determined to be
the maximum percentage which the Corporation is permitted by applicable law to
establish for the call of such a meeting.
Any written application for a special meeting by one or more stockholders
shall set forth as to each matter proposed to be brought before the special
meeting (a) a brief description of the proposal desired to be brought before the
special meeting and the reasons for conducting such business at the special
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder(s) proposing such business and any other stockholders known by
such stockholder(s) to be supporting such proposal, (c) the class and number of
shares of the Corporation's capital stock which are beneficially ownthe date of
such stockholder application and by any other stockholders known by such
stockholder(s) to be supporting such proposal on the date of such stockholder
application, and (d) any financial interest of the supporting stockholder(s) in
such proposal.
The hour, date and place of any special meeting and the record date for
determining the stockholders having the right to notice of and to vote at such
meeting shall be determined by the Board of Directors or the President. At a
special meeting of stockholders, only such business shall be conducted, and only
such proposals shall be acted upon, as shall have been stated in the written
notice of the special meeting, unless otherwise provided by law.
SECTION 2.3 Matters to be Considered at Annual Meetings. At an annual
meeting of stockholders, only such new business shall be conducted, and only
such proposals shall be acted upon as shall be proper subjects for stockholder
action pursuant to the Articles of Organization, these By-Laws, or applicable
law and shall have been brought before the annual meeting (a) by, or at the
direction of, the Board of Directors, The Chairman of the Board, or the
President or (b) by any holder of record (both as of the time notice of such
proposal is given by the stockholder as set forth below and as of the record
date for the Annual Meeting in question) of any shares of capital stock of the
Corporation entitled to vote at such Annual Meeting who complies with the
requirements set forth in this Section 2.3.
For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Clerk of the Corporation. To be timely, a stockholder's notice must be
received at the principal executive offices of the Corporation not less than 60
days nor more than 150 days prior to the scheduled annual meeting, regardless of
any postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled annual meeting is given or made, notice by the
stockholder to be timely must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day on
which public disclosure was made. A stockholder's notice to the Clerk shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the proposal desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business and any other stockholders known by such
stockholder to be supporting such proposal, (c) the class and number of shares
of the Corporation's capital stock which are beneficially owned by the
stockholder on the date of such stockholder notice and by any other stockholders
known by such stockholder to be supporting such proposal on the date of such
stockholder notice, and (d) any financial interest of the stockholder in such
proposal.
The Board of Directors, a designated committee thereof or the presiding
officer at the Annual Meeting may reject any stockholder proposal not made in
accordance with the terms of this Section 2.3. If there is an Interested
Stockholder, any determinations to be made by the Board of Directors or a
designated committee thereof pursuant to the provisions of this paragraph shall
also require the concurrence of a majority of the Continuing Directors then in
office.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, Directors, and
committees, but in connection with such reports, no matter shall be acted upon
at such annual meeting unless stated and filed as herein provided.
As used in these By-Laws, the terms "Interested Stockholder" and
"Continuing Director" shall have the same respective meanings assigned to them
in the Corporation's Articles of Organization. Any determination of beneficial
ownership of securities under these By-Laws shall be made in the manner
specified in the Articles of Organization.
Notwithstanding the provisions of this Section 2.3, a stockholder shall
also comply with all applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations thereunder
with respect to the matters set forth in this Section 2.3.
Nothing contained in this Section 2.3 shall require proxy materials
distributed by the management of the Corporation to include any information with
respect to stockholder proposals.
SECTION 2.4 Notice of Meetings. A written notice of all annual and special
meetings of stockholders shall state the place, date, hour, and purposes of such
meetings, and shall be given by the Clerk or an Assistant Clerk (or other person
authorized by these By-Laws or by law) at least seven (7) days before the
meeting to each stockholder entitled to vote at such meeting or to each
stockholder who, under the Articles of Organization, or under these By-laws, is
entitled to such notice, by leaving such notice with him or at his residence or
usual place of business, or by mailing it, postage prepaid, and addressed to
such stockholder at his address as it appears on the stock transfer books of the
Corporation. When any stockholders' meeting, either annual or special, is
adjourned for thirty (30) days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. It shall not be necessary to give
any notice of the time and place of any meeting adjourned for less than thirty
(30) days or of the business to be transacted thereat, other than an
announcement at the meeting at which such adjournment is taken. A written waiver
of notice, executed before or after a meeting by such stockholder or his
attorney thereunto authorized and filed with the records of the meeting, shall
be deemed equivalent to notice of the meeting.
SECTION 2.5 Quorum. The holders of a majority in interest of all stock
issued, outstanding, and entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, but if less than a
quorum is present at a meeting, a majority in interest of the stockholders
present or the presiding officer may adjourn the meeting from time to time and
the meeting may be held as adjourned without further notice, except as provided
in Section 2.4 of this Article II. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. The stockholders present
at a duly constituted meeting may continue to transact business until
adjournment notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 2.6 Voting and Proxies. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the Corporation, unless otherwise provided by law or by the Articles of
Organization. Stockholders of record may vote either in person or by written
proxy dated not more than six (6) months before the meeting named therein,
unless the proxy is coupled with an interest and provides otherwise. Proxies
shall be filed with the Clerk at the meeting, or of any adjournment thereof,
before being voted. Proxies solicited on behalf of the management shall be voted
as directed by the stockholder or, in the absence of such direction, as
determined by a majority of the Board of Directors. Except as otherwise limited
therein, proxies shall entitle the persons authorized thereby to vote at any
adjournment of such meeting, but they shall not be valid after final adjournment
of such meeting. A proxy with respect to stock held in the name of two or more
persons shall be valid if executed by one of them unless at or prior to exercise
of the proxy the Clerk of the Corporation receives a specific written notice to
the contrary from any one of them. Whenever stock is held in the name of two or
more persons, in the absence of specific written notice to the Corporation to
the contrary, at any meeting of the stockholders of the Corporation any one or
more of such stockholders may cast, in person or by proxy, all votes to which
such ownership is entitled. In the event an attempt is made to cast conflicting
votes, in person or by proxy, by the several persons in whose names shares of
stock stand, the vote or votes to which those persons are entitled shall be cast
as directed by a majority of those holding such stock and present in person or
by proxy at such meeting, but no votes shall be cast for such stock if a
majority does not agree. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless successfully challenged at or prior to
its exercise, and the burden of proving invalidity shall rest on the challenger.
SECTION 2.7 Action at Meeting. When a quorum is present, any matter before
the meeting shall be decided by vote of the holders of a majority of the shares
of stock voting on such matter, except where a larger vote is required by law,
by the Articles of Organization, or by these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a larger vote is required by law, by the Articles of Organization, or by these
By-Laws. No ballot shall be required for any election unless requested by a
stockholder entitled to vote in the election. The Corporation shall not directly
or indirectly vote any share of its own stock; provided however, that no
provision of these By-Laws shall be construed to limit the voting rights and
powers relating to shares of stock held pursuant to a plan which is intended to
be an "employee stock ownership plan" as defined in the Internal Revenue Code,
as now or hereafter in effect.
SECTION 2.8 Action without Meeting. Any action to be taken at any annual
or special meeting of stockholders may be taken without a meeting if all
stockholders entitled to vote on the matter consent to the action in writing and
the written consents are filed with the records of the meetings of stockholders.
Such consents shall be treated for all purposes as a vote at a meeting.
SECTION 2.9 Presiding Officer. The Chairman of the Board, if one is
elected, or if not elected or in his absence, the President, shall preside at
all annual or special meetings of stockholders and shall have the power, among
other things, to adjourn such meeting at any time and from time to time, subject
to Sections 2.4 and 2.5. The order of business and all other matters of
procedure at every meeting of the stockholders shall be determined by the
presiding officer.
SECTION 2.10 Voting Procedures and Inspectors of Elections. In advance of
any meeting of stockholders, the presiding officer may appoint one or more
inspectors to act at an annual or special meeting of stockholders and make a
written report thereon. Any inspector may, but need not, be an officer, employee
or agent of the Corporation. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector(s) shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspector(s) may appoint or retain other
persons or entities to assist the inspector(s) in the performance of the duties
of the inspector(s). The presiding officer may review all determinations made by
the inspector(s), and in so doing the presiding officer shall be entitled to
exercise his sole judgment and discretion and he shall not be bound by any
determinations made by the inspector(s). All determinations by the inspector(s)
and, if applicable, presiding officer shall be subject to further review by any
court of competent jurisdiction.
SECTION 2.11 Rescheduling of Meetings; Adjournments. The Board of
Directors or a designated committee thereof may postpone and reschedule any
previously scheduled annual or special meeting of stockholders, and a record
date with respect thereto, regardless of whether any notice or public disclosure
with respect to any such meeting or record date has been sent or made (unless
there is an Interested Stockholder, in which case the affirmative vote of a
majority of the Continuing Directors shall also be required). In no event shall
the public announcement of an adjournment, postponement or rescheduling of any
previously scheduled Annual Meeting of stockholders commence a new time period
for the giving of a stockholder's notice under Section 2.3 and Section 3.3 of
these By-Laws.
ARTICLE III
Directors
SECTION 3.1 Powers. The business and affairs of the Corporation shall be
managed by a Board of Directors who may exercise all the powers of the
Corporation except as otherwise provided by law, by the Articles of Organization
or by these By-Laws. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board until the vacancy is filled.
SECTION 3.2 Composition and Term. The Board of Directors shall be composed
of: (a) those persons elected by the incorporator(s) of the Corporation to serve
as the initial Directors of the Corporation in accordance with Section 12 of
Chapter 156B of the Massachusetts General Laws, such persons to serve as
Directors until the respective expiration dates of their terms as established by
the incorporator(s) and until their successors are elected and qualified; and
(b) as such terms expire, those persons who are elected as Directors from time
to time as provided herein. Subject to the rights of the holders of any series
of Preferred Stock, the number of Directors and their respective classifications
shall be fixed from time to time exclusively by the Board of Directors;
provided, however, that if at the time of such action there is an Interested
Stockholder, such action shall in addition require a majority vote of the
Continuing Directors then in office.
The Directors, other than those who may be elected by the holders of any
series of preferred stock of the Corporation, shall be classified, with respect
to the term for which they severally hold office, into three classes, labelled
Group A, Group B and Group C, respectively, such classes to be as nearly equal
in number as possible. The initial Directors of the Corporation shall hold
office as follows: the first class of Directors shall hold office initially for
a term expiring at the annual meeting of stockholders to be held in 1997, the
second class of Directors shall hold office initially for a term expiring at the
annual meeting of stockholders to be held in 1998, and the third class of
Directors shall hold office initially for a term expiring at the annual meeting
of stockholders to be held in 1999. At each succeeding annual meeting of
stockholders, the successors of the class of Directors whose term expires at
that meeting shall be elected by a plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election. Members of each
class shall hold office until their successors ar duly elected and qualified or
until their earlier resignation or removal.
SECTION 3.3 Director Nominations. Nominations of candidates for election
as Directors at any annual meeting of stockholders may be made (a) by, or at the
direction of, a majority of the Board of Directors or a designated committee
thereof (unless there is an Interested Stockholder, in which case the
affirmative vote of a majority of the Continuing Directors shall also be
required) or (b) by any holder of record (both as of the time notice of such
nomination is given by the stockholder as set forth below and as of the record
date for the Annual Meeting in question) of any shares of capital stock of the
Corporation entitled to vote at such Annual Meeting who complies with the
requirements set forth in this Section 3.3. Only persons nominated in accordance
with the procedures set forth in this Section 3.3 shall be eligible for election
as Directors at an annual meeting.
Nominations, other than those made by, or at the direction of, the Board
of Directors (or by the Continuing Directors, if required), shall be made
pursuant to timely notice in writing to the Clerk of the Corporation as set
forth in this Section 3.3. To be timely, a stockholder's notice shall be
delivered to, or mailed and received, at the principal executive offices of the
Corporation not less than 60 days nor more than 150 days prior to the date of
the scheduled annual meeting, regardless of postponements, deferrals, or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the stockholder to be timely must be
so delivered or received not later than the close of business on the tenth day
following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. Such stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or re-election as a Director
and as to the stockholder giving the notice (i) the name, age, business address
and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of the
Corporation's capital stock which are beneficially owned by such person on the
date of such stockholder notice and (iv) any other information relating to such
person that is required to be disclosed in solicitations of proxies with respect
to nominees for election as Directors, pursuant to the Exchange Act and the
Rules and regulations thereunder, including, but not limited to, the written
consent of such person to serve as a Director if elected; and (b) as to the
stockholder giving the notice (i) the name and address as they appear on the
Corporation's books, of such stockholder and any other stockholders known by
such stockholder to be supporting such nominees and (ii) the class and number of
shares of the Corporation's capital stock which are beneficially owned by such
stockholder on the date of such stockholder notice and by any other stockholders
known by such stockholder to be supporting such nominees on the date of such
stockholder notice. At the request of the Board of Directors, any person
nominated by, or at the direction of, the Board for election as a Director at an
annual or special meeting shall furnish to the Clerk of the Corporation that
information required to be set forth in the stockholder's notice of nomination
which pertains to the nominee.
Nothing contained in this Section 3.3 shall require proxy materials
distributed by the management of the Corporation to include any information with
respect to nominations by stockholders.
No person shall be elected as a Director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 3.3.
Ballots bearing the names of all the persons who have been nominated for
election as Directors at an annual or special meeting in accordance with the
procedures set forth in this Section 3.3 shall be provided for use at such
annual or special meeting.
The Board of Directors, a designated committee thereof, or the presiding
officer may reject any nomination by a stockholder that is not timely made in
accordance with this Section 3.3 or does not satisfy the requirements of this
Section 3.3 in any material respect. If there is an Interested Stockholder, any
determinations to be made by the Board of Directors or a designated committee
thereof pursuant to the provisions of this paragraph shall also require the
concurrence of a majority of the Continuing Directors then in office.
SECTION 3.4 Qualifications. Each Director shall have such qualifications
as are required by applicable law. No person shall be qualified to continue to
serve as a Director after the annual meeting immediately following his or her
seventy-fifth birthday.
SECTION 3.5 Resignation. Any Director may resign at any time by delivering
his written resignation to the main office of the Corporation addressed to the
Chairman of the Board or the President. Such resignation shall be effective upon
receipt thereof by the Chairman of the Board or the President, unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 3.6 Removal. Subject to the rights of the holders of any Preferred
Stock then outstanding, any Director (including persons elected by Directors to
fill vacancies in the Board of Directors) may be removed from office, with or
without cause, by an affirmative vote of not less than two-thirds (2/3) of the
total votes eligible to be cast by stockholders, voting together as a single
class, at a duly constituted meeting of stockholders called expressly for such
purpose. At least 30 days prior to such meeting of stockholders, written notice
shall be sent to the Director whose removal will be considered at the meeting
and, if the removal is for cause, the Director will be provided an opportunity
to be heard before the stockholders.
SECTION 3.7 Vacancies. Subject to the rights of the holders of any series
of Preferred Stock or any other series or class of stock as set forth in the
Articles of Organization, any vacancy occurring on the Board of Directors as a
result of resignation, removal, death or other cause, and newly created
directorships resulting from any increase in the authorized number of Directors,
may be filled only by the affirmative vote of the majority of the remaining
Directors then in office, though less than a quorum of the number constituting
the full board as fixed by the Board of Directors; provided, however, that if at
the time of such vacancy there is an Interested Stockholder, such vacancy may
only be filled by vote of a majority of the Continuing Directors then in office.
A Director elected to fill such a vacancy shall be elected to serve for the full
term of the Class of Directors in which the vacancy occurred or the new
directorship was created and until such Director's successor has been elected
and qualified, or until such Director's earlier resignation or removal.
SECTION 3.8 Compensation. The members of the Board of Directors and the
members of either standing or special committees may be allowed such
compensation for attendance at meetings as the Board of Directors or the
Executive Committee may determine.
SECTION 3.9 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law on the same date and at the
same place as the annual meeting of stockholders, or the special meeting held in
lieu thereof, following such meeting of stockholders. The Board of Directors may
provide by resolution, the time, date and place for the holding of regular
meetings without other notice than such resolution. There shall be regular
meetings of the Board of Directors at a place or places fixed from time to time
by the Board of Directors.
SECTION 3.10 Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the President,
or a majority of the Directors. The persons authorized to call special meetings
of the Board of Directors may fix the time, date and place for holding any
special meeting of the Board of Directors called by such persons.
SECTION 3.11 Notice of Special Meetings. Notice of the time, date and
place of all special meetings of the Board of Directors shall be given to each
Director by the Secretary, or if there be no Secretary, by the Clerk or
Assistant Clerk or in the case of the death, absence, incapacity or refusal of
such persons, by the officer or one of the Directors calling the meeting. Notice
of any special meeting of the Board of Directors shall be given to each Director
in person or by telephone or sent to his business or home address by
telecommunication at least twenty-four (24) hours in advance of the meeting, or
by written notice mailed to his business or home address at least forty-eight
(48) hours in advance of such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the mail so addressed, with postage thereon
prepaid. When any Board of Directors' meeting, either regular or special, is
adjourned for thirty (30) days or more, notice of the adjourned meeting shall be
given as in the case of an original meeting. It shall not be necessary to give
any notice of the time and place of any meeting adjourned for less than thirty
(30) days or of the business to be transacted thereat, other than an
announcement at the meeting at which such adjournment is taken. Any Director may
waive notice of any meeting by a writing executed by him either before or after
the meeting and filed with the records of the meeting. The attendance of a
Director at a meeting shall constitute a waiver of notice of such meeting,
except where the Director protests the lack of notice to him prior to the
meeting or at its commencement. Neither the business to be transacted at, nor
the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 3.12 Quorum. A majority of the number of Directors then in office
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but if less than a quorum is present at a meeting, a
majority of the Directors present may adjourn the meeting from time to time and
the meeting may be held as adjourned without further notice, except as provided
in Section 3.11. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed.
SECTION 3.13 Action at Meeting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless a greater number is prescribed by governing law, by the
Articles of Organization or by these By-Laws.
SECTION 3.14 Action by Consent. Any action required or permitted to be
taken by the Board of Directors at any meeting may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the Directors then in office. Such written consents shall be filed with the
records of the meetings of the Board of Directors and shall be treated for all
purposes as a vote at a meeting of the Board of Directors.
SECTION 3.15 Presumption of Assent. A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any
Corporation matter is taken shall be presumed to have assented to the action
taken unless his dissent or abstention has been entered in the minutes of the
meeting or unless he has filed a written dissent to such action with the person
acting as the Clerk of the meeting before the adjournment thereof or has
forwarded such dissent by registered mail to the Clerk of the Corporation within
five (5) days after the date such dissenting Director receives a copy of the
minutes of the meeting. Such right to dissent shall not apply to a Director who
voted in favor of such action.
SECTION 3.16 Committees. The Board of Directors, by vote of a majority of
all of the Directors then in office, may elect such committees as it deems
appropriate, and may delegate to such committees some or all of its powers
except those which by law, by the Articles of Organization or by these By-Laws
may not be delegated. Except as the Board of Directors may otherwise determine,
any such committee may make rules for the conduct of its business, but unless
otherwise provided by the Board of Directors or in such rules, its business
shall be conducted so far as possible in the same manner as is provided by these
By-Laws for the Board of Directors. All members of such committees shall hold
such offices at the pleasure of the Board of Directors. The Board of Directors
may abolish any such committee at any time, subject to applicable law. Any
committee to which the Board of Directors delegates any of its powers or duties
shall keep records of its meetings and shall report its action to the Board of
Directors. The Board of Directors shall have power to rescind any action of any
committee, but no such rescission shall have retroactive effect. With approval
of the Board of Directors, the Chief Executive Officer may appoint such other
committees consisting of such Directors as the Chief Executive Officer shall
select. Any recommendations of such committees appointed by the Chief Executive
Officer shall be submitted to the Board of Directors.
SECTION 3.17 Manner of Participation. Members of the Board of Directors
may participate in meetings of the Board by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other. Such participation shall constitute presence in
person.
ARTICLE IV
Officers
SECTION 4.1 Enumeration. The officers of the Corporation shall consist of
a President, a Treasurer, a Clerk, and such other officers, including without
limitation a Chairman of the Board, a Secretary, and one or more Vice
Presidents, Vice Treasurers, Assistant Vice Presidents, Assistant Treasurers,
Assistant Clerks or Assistant Secretaries, as the Board of Directors may
determine.
SECTION 4.2 Election. The President, the Treasurer and the Clerk shall be
elected annually by the Board of Directors at their first meeting following the
annual meeting of stockholders. Other officers may be chosen by the Board of
Directors at such first meeting of the Board of Directors or at any other
meeting.
SECTION 4.3 Qualification. Any two or more offices may be held by any
person. The President shall be a Director. The Clerk shall be a resident of
Massachusetts unless the Corporation has a resident agent appointed for the
purpose of service of process. Any officer may be required by the Board of
Directors to give bond for the faithful performance of his duties in such amount
and with such sureties as the Board of Directors may determine. Other than as
required by applicable law or regulation, no officer or Director need be a
stockholder.
SECTION 4.4 Tenure. Except as otherwise provided by law, by the Articles
of Organization or by these By-Laws, the President, Treasurer and Clerk shall
hold office until the first meeting of the Board of Directors following the next
annual meeting of stockholders and until their respective successors are chosen
and qualified. All other officers shall hold office until the first meeting of
the Board of Directors following the next annual meeting of stockholders and
until their successors are chosen and qualified, or for such shorter term as the
Board of Directors may fix at the time such officers are chosen. Any officer may
resign by delivering his written resignation to the Corporation at its main
office addressed to the President, Clerk or Secretary. Such resignation shall be
effective upon receipt thereof by the President, Clerk or Secretary, unless it
is specified to be effective at some other time or upon the happening of some
other event. Election or appointment of an officer, employee or agent shall not
of itself create contract rights to continued employment or otherwise. The Board
of Directors may authorize the Corporation to enter into an employment contract
with any officer in accordance with governing law or regulation, but no such
contract right shall preclude the Board of Directors from exercising right to
remove any officer at any time in accordance with Section 4.5.
SECTION 4.5 Removal. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by a vote of two-thirds
(2/3) of the entire number of Directors then in office; provided, however, that
if at the time of such removal there is an Interested Stockholder, the
affirmative vote of a majority of the Continuing Directors then in office shall
instead be required. An officer may be removed for cause only after reasonable
notice and opportunity to be heard by the Board of Directors.
SECTION 4.6 Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 4.7 Chairman of the Board. The Board of Directors may annually
elect a Chairman of the Board. Unless the Board of Directors otherwise provides,
the Chairman of the Board shall be the Chief Executive Officer of the
Corporation and shall preside, when present, at all meetings of the stockholders
and of the Board of Directors.
SECTION 4.8 Chief Executive Officer. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have general supervision and
control of the Corporation's business.
SECTION 4.9 President and Vice Presidents. The President shall have such
powers and shall perform such duties as the Board of Directors may from time to
time designate and shall serve as the Chief Executive Officer of the Corporation
if there is no Chairman of the Board. Unless otherwise provided by the Board of
Directors, he shall preside, when present, at all meetings of stockholders and
of the Board of Directors if the Chairman of the Board does not attend such
meetings.
Any Vice President or Assistant Vice President shall have such powers and
shall perform such duties as the Board of Directors or the Chief Executive
Officer may from time to time designate.
SECTION 4.10 Treasurer, Vice Treasurers, and Assistant Treasurers. The
Treasurer shall, subject to the direction of the Board of Directors, have
general charge of the financial affairs of the Corporation and shall cause to be
kept accurate books of account. He shall have custody of all funds, securities,
and valuable documents of the Corporation, except as the Board of Directors may
otherwise provide. The Treasurer shall also perform such other duties as the
Board of Directors may from time to time designate.
Any Vice Treasurer and any Assistant Treasurer shall have such powers and
perform such duties as the Board of Directors or the Chief Executive Officer may
from time to time designate.
SECTION 4.11 Clerk and Assistant Clerks. The Clerk shall keep a record of
the meetings of stockholders. In case a Secretary is not elected or is absent,
the Clerk or an Assistant Clerk shall keep a record of the meetings of the Board
of Directors. In the absence of the Clerk from any meeting of the stockholders,
an Assistant Clerk if one be elected, otherwise a Temporary Clerk designated by
the person presiding at the meeting, shall perform the duties of the Clerk.
SECTION 4.12 Secretary and Assistant Secretaries. The Secretary, if one be
elected, shall keep a record of the meetings of the Board of Directors. In the
absence of the Secretary, any Assistant Secretary, the Clerk and any Assistant
Clerk, a Temporary Secretary shall be designated by the person presiding at such
meeting to perform the duties of the Secretary.
SECTION 4.13 Other Powers and Duties. Subject to these By-Laws, each
officer of the Corporation shall have in addition to the duties and powers
specifically set forth in these By-Laws, such duties and powers as are
customarily incident to his office, and such duties and powers as may be
designated from time to time by the Board of Directors.
ARTICLE V
Capital Stock
SECTION 5.1 Certificates of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the President or a Vice President and by the Treasurer or an Assistant
Treasurer, and sealed with the corporate seal or a facsimile thereof. Such
signatures may be facsimile if the certificate is signed by a transfer agent, or
by a registrar, other than a Director, officer or employee of the Corporation.
In case any officer who has signed or whose signature has been placed on such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer at the time of its issue. Each certificate for shares of capital
stock shall be consecutively numbered or otherwise identified. Every certificate
for shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
SECTION 5.2 Transfers. Subject to any restrictions on transfer, shares of
stock may be transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate therefor properly endorsed
or accompanied by a written assignment and power of attorney properly executed,
with transfer stamps (if necessary) affixed, and with such proof of the
authenticity of signature as the Corporation or its transfer agent may
reasonably require.
SECTION 5.3 Record Holders. Except as may be otherwise required by law, by
the Articles of Organization or by these By-Laws, the Corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the Corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the Corporation of his
current post office address.
SECTION 5.4 Record Date. The Board of Directors may fix in advance a time
of not more than sixty (60) days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend or the making of any
distribution to stockholders, or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting, and any adjournment thereof, or the right to receive such dividend
or distribution or the right to give such consent or dissent. In such case only
stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after the
record date. Without fixing such record date the Board of Directors may for any
of such purposes close the transfer books for all or any part of such period.
If no record date is fixed and the transfer books are not closed, (a) the
record date for determining stockholders having the right to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, and (b) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors acts with respect thereto.
SECTION 5.5 Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
SECTION 5.6 Issuance of Capital Stock. The Board of Directors shall have
the authority to issue or reserve for issue from time to time the whole or any
part of the capital stock of the Corporation which may be authorized from time
to time, to such persons or organizations, for such consideration, whether cash,
property, services or expenses, and on such terms as the Board of Directors or a
designated committee thereof may determine, including without limitation the
granting of options, warrants, or conversion or other rights to subscribe to
said capital stock.
SECTION 5.7 Dividends. Subject to applicable law, the Articles of
Organization and these By-Laws, the Board of Directors may from time to time
declare, and the Corporation may pay, dividends on outstanding shares of its
capital stock.
ARTICLE VI
Indemnification
SECTION 6.1 Officers. To the extent permitted by law and except as
provided in Sections 6.3 and 6.4, each Officer of the Corporation (and his heirs
and personal representatives) shall be indemnified by the Corporation against
all Expenses incurred by him in connection with any Proceeding in which he is
involved as a result of (a) his serving or having served as an Officer or
employee of the Corporation, (b) his serving or having served as a Director,
officer or employee of any of its wholly-owned subsidiaries, or (c) his serving
or having served in any capacity with respect to any other corporation,
organization, partnership, joint venture, trust, employee benefit plan or other
entity at the request or direction of the Corporation.
SECTION 6.2 Non-Officer Employees. To the extent permitted by law and
except as provided in Sections 6.3 and 6.4, each non-Officer Employee of the
Corporation (and his heirs and personal representatives) may, in the discretion
of the Board of Directors, be indemnified against any or all Expenses incurred
by him in connection with any Proceeding in which he is involved as a result of
(a) his serving or having served as a non-Officer Employee of the Corporation,
(b) his serving or having served as a Director, officer, or employee of any of
its wholly-owned subsidiaries, or (c) his serving or having served in any
capacity with respect to any other corporation, organization, partnership, joint
venture, trust employee benefit plan or other entity at the request or direction
of the Corporation.
SECTION 6.3 Service at Direction of Board of Directors. No indemnification
shall be provided to an Officer or non-Officer Employee with respect to his
serving or having served in any capacity "at the request or direction of the
Corporation" unless such service was required or directed by vote of the Board
of Directors prior to the occurrence of the event to which the indemnification
relates; provided that the Board of Directors may provide an Officer or
non-Officer Employee with indemnification, as to a specific Proceeding, even
though such Board of Directors vote was not obtained, if in its discretion, the
Board of Directors determines it to be appropriate for the Corporation to do so.
SECTION 6.4 Good Faith. No indemnification shall be provided to an Officer
or to a non-Officer Employee with respect to a matter as to which he shall have
been adjudicated in any Proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the Corporation.
In the event that a Proceeding is compromised or settled so as to impose any
liability or obligation upon an Officer or upon a non-Officer Employee, no
indemnification shall be provided to said Officer or to said non-Officer
Employee with respect to a matter if this Corporation has obtained an opinion of
counsel that with respect to said matter said Officer or said non-Officer
Employee did not act in good faith in the reasonable belief that his action was
in the best interests of the Corporation.
SECTION 6.5 Prior to Final Disposition. In the event that the Corporation
does not assume the defense, or unless and until the Corporation assumes the
defense pursuant to Section 6.6 of any Proceeding of which the Corporation
receives notice under this Article VI, the Corporation shall pay any Expenses
incurred by an Indemnitee in defending a Proceeding or any appeal therefrom in
advance of the final disposition of such Proceeding; provided, however, that if
the Proceeding is initiated by the Continuing Directors (or, if there is no
Interested Stockholder, by the Board of Directors), then the Corporation may,
but need not, pay such Expenses in advance of the final disposition of such
Proceeding.
Notwithstanding the foregoing, Expenses incurred by an Indemnitee in
advance of the final disposition of a Proceeding may be paid only upon the
Corporation's receipt of an undertaking by the Indemnitee to repay such payment
if he shall be adjudicated or determined to be not entitled to indemnification
under Section 6.4. The Corporation may accept such undertaking without reference
to the financial ability of the Indemnitee to make such repayment.
SECTION 6.6 Notification and Defense of Claim. As a condition precedent to
his or her right to be indemnified, the Indemnitee must notify the Corporation
in writing as soon as practicable of any action, suit, proceeding or
investigation involving him or her or with respect to which indemnity will or
could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to the Indemnitee.
After the Corporation notifies the Indemnitee of its election so to assume such
defense, the Corporation shall not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this Section. The Indemnitee shall have
the right to employ his or her own counsel in connection with such claim, but
the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee has been
authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on any
significant issue between the Corporation and the Indemnitee in the conduct of
the defense of such action, or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action. In each such case, the
fees and expenses of Indemnitee's counsel reasonably acceptable to the
Corporation shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article VI. The Corporation shall not be entitled,
without the consent of the Indemnitee, to assume the defense of any claim
brought by or in the right of the Corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above.
SECTION 6.7 Insurance. The Corporation may purchase and maintain insurance
to protect itself and any Indemnitee against any liability of any character
asserted against and incurred by the Corporation or any such Indemnitee, or
arising out of any such status, whether or not the Corporation would have the
power to indemnify such person against such liability by law or under the
provisions of this Article VI or under Chapter 156B of the Massachusetts General
Laws.
SECTION 6.8 Definitions. For the purposes of this Article VI:
(a) "Officer" means (A) any person who serves or has served as a Director
of the Corporation (B) any person who serves or has served in any other office
filled by election or appointment by the Board of Directors, whether or not such
person is an officer of the Corporation within the definition of that term as
contained in Article V hereof, and (C) any other person who serves or has
served, at the request or direction of the Corporation, as a Director or officer
of any of the Corporation's wholly-owned subsidiaries;
(b) "non-Officer Employee" means any person who serves or has served as an
employee or agent of the Corporation but who is not an Officer;
(c) "Indemnitee" means each Officer, and each non-Officer Employee whom
the Board of Directors has determined to indemnify pursuant to Section 6.2;
(c) "Proceeding" means any action, suit or proceeding, civil or criminal,
brought or threatened in or before any court, tribunal, administrative or
legislative body or agency; and
(d) "Expenses" means any liability fixed by a judgment, order, decree or
award in a Proceeding, any amount actually and reasonably paid in settlement of
a Proceeding and any professional fees and other disbursements reasonably
incurred in a Proceeding.
SECTION 6.9 Other Indemnification Rights. The provisions of this Article
VI shall not be construed to be exclusive. The Corporation shall have the power
to indemnify its Officers and any of its agents or employees who are not
Officers and to enter into specific agreements, commitments or arrangements for
indemnification on any terms not prohibited by law which it deems to be
appropriate. Nothing in this Article VI shall limit any lawful rights to
indemnification existing independently of this Article VI.
SECTION 6.10 Survival of Benefits. The provisions of this Article VI shall
be applicable to persons who shall have ceased to be Directors or officers of
the Corporation, and shall inure to the benefit of the heirs, executors and
administrators of persons entitled to be indemnified hereunder. Nothing
hereunder shall be deemed to limit the Corporation's authority to indemnify any
person pursuant to any contract or otherwise.
SECTION 6.11 Subsequent Amendment. No amendment, termination or repeal of
this Article VI or of the relevant provisions of Chapter 156B of the
Massachusetts General Laws or any other applicable laws shall affect or diminish
in any way the rights of any Indemnitee to indemnification under the provisions
hereof with respect to any Proceeding arising out of or relating to any actions,
transactions or facts occurring prior to the final adoption of such amendment,
termination or repeal.
SECTION 6.12 Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving Corporation shall assume the obligations of the
Corporation under this Article VI with respect to any action, suit, proceeding
or investigation arising out of or relating to any actions, transactions or
facts occurring at or prior to the date of such merger or consolidation.
SECTION 6.13 Subsequent Legislation. If the Massachusetts General Laws are
amended after adoption of this Article VI to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such persons to
the fullest extent permitted by the Massachusetts General Laws, as so amended.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.1 Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall be the twelve months ending
December 31st.
SECTION 7.2 Seal. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
SECTION 7.3 Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other instruments and obligations to be entered into
by the Corporation in the ordinary course of its business without Board of
Directors action may be executed on behalf of the Corporation by the Chairman of
the Board, President, any Vice President, Treasurer or any other officer,
employee or agent of the Corporation as the Board of Directors may authorize.
SECTION 7.4 Voting of Securities. Unless otherwise provided by the Board
of Directors, the Chairman of the Board, the President or Treasurer may waive
notice of and act on behalf of the Corporation, or appoint another person or
persons to act as proxy or attorney in fact for the Corporation with or without
discretionary power and/or power of substitution, at any meeting of stockholders
or shareholders of any other organization, any of whose securities are held by
the Corporation; provided, however, that this Section 7.4 shall not authorize
any officer, without specific authority of the Board of Directors, to vote the
shares of the Corporation's primary banking subsidiary in any election of
Directors of such subsidiary or with respect to any merger, sale of stock or
sale of substantially all of the assets of such subsidiary.
SECTION 7.5 Resident Agent. The Board of Directors may appoint a resident
agent upon whom legal process may be served in any action or proceeding against
the Corporation. Said resident agent shall be either an individual who is a
resident of and has a business address in Massachusetts, a corporation organized
under the laws of The Commonwealth of Massachusetts, or a corporation organized
under the laws of any other state of the United States, which has qualified to
do business in, and has an office in, Massachusetts.
SECTION 7.6 Corporation Records. The original, or attested copies, of the
Articles of Organization, By-Laws and record of all meetings of the Directors or
stockholders, and the stock and transfer records, which shall contain the names
of all stockholders and the record address and the amount of stock held by each,
shall be kept in Massachusetts at the main office of the Corporation, or at an
office of its transfer agent, Clerk or resident agent.
SECTION 7.7 Articles of Organization. All references in these By-Laws to
the Articles of Organization shall be deemed to refer to the Articles of
Organization of the Corporation, as amended and in effect from time to time.
SECTION 7.8 By-Law Amendments.
A. Amendment by Directors. Except as otherwise required by law, the
By-laws of the Corporation may be amended or repealed by the affirmative vote of
a majority of the Directors then in office at a duly constituted meeting of the
Board of Directors, unless at the time of such action there shall be an
Interested Stockholder, in which case such action shall also require the
affirmative vote of a majority of the Continuing Directors then in office at
such meeting. Not later than the time of giving notice of the annual meeting of
stockholders next following the amending or repealing by the Directors of any
By-law, notice thereof stating the substance of such change shall be given to
all stockholders entitled to vote on amending the By-laws.
B. Amendment by Stockholders. The By-laws of the Corporation may be
amended or repealed at a duly constituted meeting of stockholders called
expressly for such purpose, by the affirmative vote of at least 80% of the total
voted eligible to be cast by stockholders on such amendment or repeal, voting
together as a single class; provided, however, that if the Board of Directors
recommends, by the affirmative vote of two thirds of the Directors then in
office at a duly constituted meeting of the Board of Directors (unless at the
time of such action there shall be an Interested Stockholder, in which case such
action shall also require the affirmative vote of a majority of the Continuing
Directors then in office at such meeting), that stockholders approve such
amendment or repeal at such meeting of stockholders, such amendment or repeal
shall only require the affirmative vote of a majority of the total votes
eligible to be cast by stockholders on such amendment or repeal, voting together
as a single class.
