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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NSS BANCORP, INC.
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(Exact Name of Registrant as Specified in its Charter)
Connecticut 06-1485317
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(State of Incorporation of Organization) (I.R.S. Employer Identification No.)
48 Wall Street, Norwalk, Connecticut 06852
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(Address of Principal Executive Office) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon filing securities and is to become
pursuant to General Instruction effective simultaneously with the
(A)(C)(1) please check the following effectiveness of a concurrent
box. [_] registration statement under the
Securities Act of 1933 pursuant to
General Information (A)(C)(2)
please check the following box. [_]
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
Securities to be registered pursuant to Section 12(g) of the Act:
Name of Each Exchange on Which
Title of Each Class to be so registered Each Class is to be registered
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Series A Preferred Stock, par value, $0.01 NASDAQ - National Market
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
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a. Capital Stock
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The securities of NSS Bancorp, Inc. (the "Company" or the "Corporation") to
be registered consist of 50,000 shares of serial preferred stock, par value of
$0.01 per share, that have been reserved for issuance ("Series A Preferred
Stock") under the terms of that certain Shareholders' Rights Agreement between
the Company and ChaseMellon Shareholder Services dated May 10, 1996 (the "Rights
Agreement"). Contemporaneous with the filing of this Form 8-A, the Company is
filing a parallel Form 8-A to register 7,000,000 shares of common stock of the
Company, par value $0.01 per share ("Common Stock").
Presently, no shares of Series A Preferred Stock are issued or outstanding
pursuant to the Rights Agreement. Generally, the Rights Agreement is designed to
assure that holders of Common Stock receive fair and equal treatment in the
event of an attempted hostile takeover of the Company and to both preserve and
maximize for Holders of Common Stock, the value and rights of their shares of
Common Stock in such event. Series A Preferred Stock may be issued to holders of
Common Stock, except for a potential hostile takeover person, under certain
circumstances specified in the Rights Agreement.
The following statements are derived from summaries of certain provisions
of the Company's Certificate of Incorporation and Bylaws, the Rights Agreement
and of the Connecticut Business Corporation Act ("CBCA"). They are summaries and
The statements made herein do not purport to be complete and are in all respects
and are qualified in their entirety by reference to the full Certificate of
Incorporation, Bylaws, the Rights Agreement and CBCA, the first three of which
have been filed as Exhibit 3i, Exhibit 3ii and Exhibit 4, respectively, to this
Form 8-A.
(1) Shares of Series A Preferred Stock, in preference to the holders
of Common Stock of the Corporation, and of any other junior stock, are entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash, in an
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amount per share equal to or greater than (i) $1 or (ii) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding payment of a quarterly dividend or,
with respect to the initial quarterly dividend payment since the first issuance
of any share or fraction of a share of Series A Preferred Stock. If the Company
at any time declares or pays any dividend on the Common Stock payable in shares
of Common Stock, or effects a subdivision or combination or consolidation of the
outstanding shares of Common Stock into a greater or lesser number of shares of
Common Stock, then, in each such case, the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Under present Federal Reserve Board policy, the Company may pay cash
dividends only out of the Company's past year's net income, only if prospective
earnings retention is consistent with the Company's expected future needs, and
only if payment of dividends does not undermine the Company's ability to serve
as a source of strength to its subsidiary bank(s).
Dividends may accrue and cumulate on outstanding shares of Series A
Preferred Stock under certain circumstances but do not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares outstanding
at the time.
When issued in accordance with the Rights Agreement, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the
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Company. In the event the Company shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. Except as set forth herein, or as
otherwise provided by law, holders of Series A Preferred Stock have no other
special voting rights and their consent is not required (except to the extent
they are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (a) to the holders of Common Stock or shares of
Junior Stock unless, prior thereto, the holders of shares of Series A Preferred
Stock shall have received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of shares of Common Stock, or (b)
to the holders of shares of stock ranking on a parity (either as to dividends
upon liquidation, dissolution or winding up) with the Series A Preferred Stock
and all such parity stock in proportion to the total amounts to which the
holders of such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of
Series A Preferred Stock were entitled immediately
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prior to such event under the proviso in clause (a) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
In case the Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall be subject to the
provision for adjustment hereinafter set forth, equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of common stock is
changed or exchanged. If the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Shares of Series A Preferred Stock are not redeemable and rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock. When Series
A Preferred Stock is issued and delivered in accordance with the Rights
Agreement, it will be validly issued, fully paid, non-assessable, and not
subject to any further calls by the Company. Holders of Series A Preferred Stock
do not have cumulative voting rights, preemptive rights, or conversion rights
with respect to any such shares. The Series A Preferred Stock is not presently
subject to any sinking
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fund provisions or restrictions on transferability or alienability. There are no
provisions discriminating against a holder of Series A Preferred Stock as a
result of such shareholder's ownership of a substantial amount of Series A
Preferred Stock. The Certificate of Incorporation of the Company provides for a
staggered Board of Directors as it divides the directors into three classes, as
nearly equal in number as possible, with one class elected each year. Each
director of the Company holds office for a three year term.
(2) The rights of holders of Series A Preferred Stock may not be
modified in any event or for any purpose except by a vote of a majority or more
of the holders of outstanding shares of Series A Preferred Stock.
(3) Whenever quarterly dividends or other dividends or distributions
payable on any shares of Series A Preferred Stock are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding are paid in full,
the Company may not redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication to all holders of such shares upon such
terms as the Board of Directors of the Company, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series and classes.
(4) The rights of holders of Series A preferred stock rank, with
respect to payment of dividends and distribution of assets junior to any other
Class of the Company's preferred stock. Presently, there is no other class of
Preferred Stock of the Company outstanding.
(5) The Certificate of Incorporation of the Company provides that a
"super-majority" vote of shareholders must approve certain business
combinations, including mergers, consolidations, share exchanges, sales of all
or substantially all assets, liquidations, dissolutions or reclassifications,
between the Company and an "Interested Shareholder" (as such term is defined
below) or any other corporation
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(whether or not itself an Interested Shareholder) which is or after such merger
or consolidation would be, an affiliate or associate of any Interested
Shareholder unless the transaction is approved by the Board of Directors of the
Company or certain fair price procedural requirements are satisfied. An
"Interested Shareholder" is generally defined as a person or entity who is the
beneficial owner, directly or indirectly, of 10% or more of the voting power of
the outstanding shares of voting stock of the Company. Such transactions must
first be approved by the Company's Board of Directors and then by the
affirmative vote of the holders of at least 80% of the voting power of the then
outstanding shares of the voting stock, and by two-thirds of the voting power of
the outstanding shares of the voting stock exclusive of shares held by or on
behalf of the Interested Shareholder, unless: (1) the transaction is approved by
the Board of Directors before the Interested Shareholder first became an
Interested Shareholder; (2) or in the case of a merger, consolidation or share
exchange, and in all other business combinations, certain fair price and
procedural provisions are met. The fair price provisions generally require that
shareholders whose stock is acquired in a business combination be paid at least
as much as the highest price the Interested Shareholder paid for shares within
the two prior years or the price that the Interested Shareholder paid in the
transaction by which the Interested Shareholder first became an Interested
Shareholder, whichever is higher. The procedural provisions include prohibitions
against omissions of dividends on preferred stock, reductions in dividends on
the Common Stock and acquisitions by the Interested Shareholder of more stock of
the Company.
In the event that the fair price and procedural requirements are met or the
requisite approval of the Board of Directors is given with respect to a
particular business combination, the normal voting requirements of Connecticut
law would apply. Under Connecticut law, a merger, consolidation, sale of
substantially all of the assets of the Company and the adoption of a plan of
dissolution of the Company would generally require the approval of two-thirds a
majority of the issued and outstanding shares of the Company's capital stock
entitled to vote thereon. A reclassification of the Company's securities
involving an
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amendment to its Certificate of Incorporation and other issues requiring
shareholder approval would also require the approval of the holders of a
majority of the voting power of the Company's capital stock entitled to vote
thereon. Other issues requiring shareholder approval generally require the vote
of a majority of the shares entitled to vote thereon. A sale of less than
substantially all of the assets of the Company, a merger of the Company with a
company in which it owns not less than 90% of the outstanding capital stock or a
reclassification of the Company's securities not involving an amendment to its
Certificate of Incorporation would not require shareholder approval.
The Certificate of Incorporation of the Company prohibits any person from
acquiring 10% or more of the outstanding stock of the Company entitled to vote
for the election of directors (defined as "Voting Stock") unless: (a) such
acquisition has been approved prior to its consummation by the affirmative vote
of the holders of at least two-thirds of the Voting Stock entitled to vote at a
meeting of shareholders called for such purpose; and (b) all federal and state
regulatory approvals required under the Change in Bank Control Act of 1978, the
Bank Holding Company Act of 1956 and any similar Connecticut law and in
accordance with all regulations of the FDIC, Federal Reserve Board and
Connecticut Banking Commissioner.
Moreover no person may make an offer to acquire 10% or more of the then-
outstanding Voting Stock unless such person has notified the Company's Board of
Directors of such intent and the Board of Directors has not within fifteen days
after receipt of such notice, disapproved of such offer, or before the offer is
made, obtained prior approval of the acquisition by the FDIC or FRB and the
Banking Commissioner.
b. Debt Securities
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No debt securities are to be registered hereunder.
c. Warrants and Rights
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The Series A Preferred Stock will not be offered pursuant to warrants
or rights.
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d. Other Securities
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No securities other than the Series A Preferred Stock are to be
registered hereunder.
e. Market Information for Securities other than Common Equity
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No securities other than the Series A Preferred Stock are to be
registered hereunder.
f. American Depository Receipts
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No Depository Shares will be registered hereunder.
g. Security Rating
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The Company has not obtained a security rating from a nationally
recognized statistical rating organization with respect to its securities.
9.
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ITEM 2. EXHIBITS
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Exhibit 3i: Certificate of Incorporation of NSS Bancorp, Inc.
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Exhibit 3ii: Bylaws of NSS Bancorp, Inc.
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Exhibit 4: Shareholders' Rights Agreement
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10.
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SIGNATURE
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.
NSS BANCORP, INC.
Registrant
Date: July 25, 1997
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By: /s/ Robert T. Judson
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Robert T. Judson
Its President
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Exhibit 3.i
CERTIFICATE OF INCORPORATION
OF
NSS BANCORP, INC.
The undersigned incorporator, Norwalk Savings Society, a Connecticut stock
savings bank, hereby forms a Corporation under the Connecticut Business
Corporation Act.
I. CORPORATE NAME. The name of the Corporation is NSS Bancorp, Inc. The
principal office of the Corporation shall be located in the City of Norwalk,
County of Fairfield, and State of Connecticut.
II. PURPOSES. The nature of the business to be transacted and the purposes to
be promoted, carried out or engaged in by the Corporation are the following
activities:
A. To acquire, invest in or hold stock in any subsidiary permitted under
the Bank Holding Company Act of 1956 or sections 36a-180, et. seq., of the
Connecticut General Statutes, as such statutes may be amended from time to time,
and engaging in any other enterprise or activity which may be lawfully conducted
under said statutes; and
B. To engage generally in any business activity that may be lawfully
carried on by a corporation organized under the Connecticut Business Corporation
Act.
III. CAPITAL STOCK. The amount of capital stock of the Corporation hereby
authorized shall consist of 7,000,000 million shares of Common Stock, par value
$0.01 per share, and 500,000 shares of Serial Preferred Stock, par value $0.01
per share. A description of the different classes and series of the
Corporation's capital stock and a statement of the powers, designations,
preferences, limitations and relative rights of the shares of each class of and
series of capital stock are as follows:
A. Common Stock. Except as provided in this Article Third (or in any
resolution or resolutions adopted by the Board of Directors pursuant hereto),
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 for each share
held by such holder. There shall be no cumulative voting rights in the election
of directors. Each share of Common Stock shall have the same relative rights as
and be identical in all respects with all other shares of Common Stock.
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 or sinking fund or retirement fund or other retirement payments, if
any, to which such holders are respectively entitled in preference to the Common
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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.
B. Serial Preferred Stock. The Board of Directors of the Corporation is
authorized, subject to limitations prescribed by law and the provisions of this
Article Third, to provide by resolution for the issuance of Serial Preferred
Stock in series, including convertible preferred Stock, and by filing a
certificate pursuant to the applicable law of the State of Connecticut, to
establish from time to time the number of shares to be included in each such
series, and to fix the designations, powers, preferences and relative,
participating, optional and other special rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(1) The number of shares constituting that series and the distinctive
designation of that series;
(2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and if so, the terms of such voting rights,
including but not limited to providing voting rights which are more or less
heavily weighted than other series of Preferred Stock and/or of Common Stock;
(4) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
(5) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such
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redemption, including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case or redemption, which amount
may vary under different conditions and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amounts of such
sinking fund;
(7) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(8) Any other relative rights, preferences, and limitations of that
series.
To the extent that this Certificate of Incorporation does not fix or
determine the terms, limitations and relative rights and preferences of any
shares of Preferred Stock, or does not establish series and fix and determine
the variations as among series, the Board of Directors shall have the authority
to do so from time to time.
C. Series A Junior Participating Preferred Stock:
(1) Designation and Amount. The shares of such series shall be designated
as "Series A Junior Participating Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A Preferred Stock shall
be 50,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
(2) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock of the
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
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to the greater of (i) $1 or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (a) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
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determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than sixty days prior to the date fixed for the payment
thereof.
(3) Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or as otherwise provided by law,
if the Board of Directors creates a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
(4) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
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(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
(5) Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein or in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
(6) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (a)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an
<PAGE>
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (b) to the holders of shares of stock
ranking on a parity (either as to dividends upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made ratably
on the Series A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(7) Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case each share of Series A
Preferred Stock shall at amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(8) No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
(9) Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
<PAGE>
IV. QUORUM. Unless otherwise provided in this Certificate of Incorporation or
by law, to constitute a quorum for the transaction of business on any matter at
a meeting of shareholders, there must be present, in person or by proxy, the
holders of a majority of the shares of voting stock of the Corporation entitled
to vote thereon.
The shareholders present at a duly held meeting at which a quorum was
present may continue to transact business notwithstanding the withdrawal of
enough shares to leave less than a quorum.
V. DIRECTORS; BYLAWS. All the powers of the Corporation, insofar as the same
may be lawfully vested by this Certificate of Incorporation in the Board of
Directors, are hereby conferred upon the Board of Directors of the Corporation.
In furtherance and not in limitation of that power, the Board of Directors shall
have the power to make, adopt, alter, amend and repeal from time to time Bylaws
of the Corporation, subject to the right of the shareholders entitled to vote
with respect thereto to adopt, alter, amend and repeal Bylaws made by the Board
of Directors. Any shareholder action effecting an amendment or repeal of or an
adoption of a provision inconsistent with the Corporation's Bylaws shall
require:
(i) the affirmative vote of the holders of not less than 60% of the voting
power of the issued and outstanding shares entitled to vote for the election of
Directors, and (ii) if there is an Interested Shareholder (as defined in Article
Seventh hereof), the affirmative vote of not less than 60% of the voting power
of the issued and outstanding shares entitled to vote for the election of
Directors held by shareholders other than the Interested Shareholder.
The business, property and affairs of the Corporation shall be managed by
and under the direction of its Board of Directors. The number of directors shall
be not less than seven and not more than eleven as fixed from time to time by
the Board of Directors pursuant to the Corporation's Bylaws, except as a greater
number may be required to give effect to the rights of the holders of the
Preferred Stock or any series thereof to elect additional Directors.
The Board of Directors, other than those who may be elected by the holders
of Preferred Stock or any series thereof, shall be divided into three classes,
as nearly equal in number as possible. At each annual meeting of the
shareholders of the Corporation, the successors of the class of directors whose
terms expire at that meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following their
year of election. Each director shall hold office until his or her successor
shall have been duly elected and qualified. The election of directors need not
be by ballot unless the Bylaws so provide. No decrease in the number of
directors shall shorten the term of any incumbent director. If the number of
director is not evenly divisible by three, the remaining director(s) shall be
<PAGE>
allocated first to Class Two, and then to Class Three.
The names, addresses and occupations of those persons of each class to
initially serve on the Board of Directors and the year of expiration of their
respective initial terms (which should expire on the date of the annual meeting
in the year shown below) shall be as follows:
Class One: 1998
Charles F. Howell
Alan R. Staack
Herbert L. Jay
Class Two: 1999
Donald St. John
Robert T. Judson
Edward J. Kelley
Class Three: 2000
Brian A. Fitzgerald
John L. Segall
The terms, classifications, qualifications, and election of the Board of
Directors, and the method of filling vacancies thereon shall be provided herein
and in the Bylaws.
VI. BUSINESS COMBINATIONS. The shareholder vote required to approve any
Business Combination shall be set forth in this Article Sixth. The term
"Business Combination" is used as defined in Section B of this Article Sixth.
All other capitalized terms not otherwise defined in this Article Seventh or
elsewhere in this Certificate of Incorporation are used as defined in Section 4
of this Article Sixth.
A. Higher Vote for Business Combinations. In addition to any affirmative
vote required by law or this Certificate of Incorporation, and except as
otherwise expressly provided in Section C of this Article Sixth;
(1) any merger or consolidation of the Corporation or any Subsidiary with
(a) any Interested Shareholder or (b) any other corporation (whether or not
itself an Interested Shareholder) which is or after such merger or consolidation
would be, an Affiliate or Associate of an Interested Shareholder that was an
Interested Shareholder prior to the transaction; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition other than in the usual and regular course of business, in one
transaction or a series of transactions in any twelve-month period to or with
any Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder, other than the Corporation or any of its Subsidiary having,
measured at the time the transaction or transactions are approved by the Board
of Directors of the Corporation, an aggregate book value as of the end
<PAGE>
of the Corporation's most recent fiscal quarter of 10% or more of the total
Market Value of the outstanding shares of the Corporation or of its retained
earnings as of the end of its most recent fiscal quarter; or
(3) the issuance of transfer by the Corporation or any Subsidiary in one
transaction or a series of transactions of any equity securities of the
Corporation or any Subsidiary having an aggregate Market Value of 5% or more of
the total Market Value of the outstanding shares of the Common Stock of the
Corporation to any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder, other than the Corporation or any of its Subsidiaries,
except pursuant to the exercise of warrants, rights or options to subscribe to
or purchase securities offered, issued or granted pro rata to all holders of the
Voting Stock of the Corporation or any other method affording substantially
proportionate treatment to the holders of Voting Stock; or
(4) the adoption of any resolution for the liquidation or dissolution of
the Corporation or any Subsidiary proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder, other
than the Corporation or any of its Subsidiaries; or
(5) any reclassification of securities, including any reverse stock split,
or recapitalization of the Corporation, or any merger, consolidation or share
exchange of the Corporation with any of its Subsidiaries which has the effect,
directly or indirectly, in one transaction or a series of transactions, of
increasing by 5% or more of the total number of outstanding shares, the
proportionate amount of the outstanding shares of any class or equity or
convertible securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any Affiliate or Associate of
any Interested Shareholder, other than the Corporation or any of its
subsidiaries; shall first be approved by the Board of Directors and then be
approved by the affirmative vote of: (a) the holders of at least 80% of the
voting power of the then outstanding shares of Voting Stock of the Corporation,
and (b) the holders of at least two-thirds of the voting power of the then
outstanding shares of Voting Stock, exclusive of any shares of Voting Stock held
by or on behalf of such Interested Shareholder or any Affiliate or Associate of
such Interested Shareholder. Such affirmative votes shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, in any agreement with any national
securities exchange, or otherwise.
B. Definition of "Business Combination". The term "Business Combination"
as used in this Article Sixth shall mean any transaction which is referred to in
any one or more of paragraphs (1) through (5) of Section A of this Article
Sixth.
C. When Higher Vote is Not Required. The provision of Section A of this
Article Sixth shall not be applicable to any
<PAGE>
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law, any other provision of this
Certificate of Incorporation, or otherwise if in the case of any Business
Combination defined in paragraph (1) of Section A of this Article Sixth the
conditions specified in either of the following paragraphs (1) or (2) are met,
or in the case of any other Business Combination the condition specified in the
following paragraph A is met:
(1) Approval by Board of Directors. If such Business Combination involves
transactions with a particular Interested Shareholder or its existing or future
Affiliates, or Associates, such Business Combination shall have been approved by
a resolution of the Board of Directors at any time prior to the time that the
Interested Shareholder first became an Interested Shareholder.
(2) Price and Procedure Requirements. All of the following conditions
shall have been met:
(a) The aggregate amount of the cash and the Market Value as of the
Valuation Date of the consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be an amount at least
equal to the highest of the following (it being intended that the requirements
of this paragraph (a) shall be required to be met with respect to all shares of
Common Stock outstanding, whether or not the Interested Shareholder has
previously acquired any shares of the Common Stock):
(i) the highest per share price, including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of Common Stock acquired by it (a) within the two-year period
immediately prior to the first public announcement of the proposed Business
Combination (the "Announcement Date") or (2) in the transaction in which it
became an Interested Shareholder, whichever is higher; or
(ii) the Market Value per share of Common Stock on the Announcement Date
or on the date on which the Interested Shareholder became an Interested
Shareholder (the "Determination Date"), whichever is higher; or
(iii) the price per share equal to the Market Value per share of Common
Stock determined pursuant to subsection (a) (ii) hereof, multiplied by the
fraction of (1) the highest per share price, including any brokerage commission
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of Common Stock acquired by it within the two-year period
immediately prior to the Announcement Date, over (2) the Market Value per share
of Common Stock on the first day in such two-year period on which the Interested
Shareholder acquired any shares of Common Stock.
(b) The aggregate amount of the cash and The Market Value as of the
Valuation Date of the consideration other than cash to be
<PAGE>
received per share by holders of shares of any class or series of outstanding
Voting Stock, other than the Common Stock, shall be an amount at least equal to
the highest of the following:
(i) the highest per share price including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of such class or series 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 becomes an Interested Shareholder, whichever is higher;
or
(ii) the highest preferential amount per share to which the holders of
shares of such class or series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; or
(iii) the Market Value per share of such class or series of Voting Stock on
the Announcement Date or on the Determination Date, whichever is higher; or
(iv) the price per share equal to the Market Value per share of such class
or series of stock determined pursuant to subsection (b)(iii) hereof multiplied
by the fraction of: (1) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the Interested
Shareholder for any shares of any class or series of Voting Stock acquired by it
within the two-year period immediately prior to the Announcement Date, over (2)
the Market Value per share of the same class or series of Voting Stock on the
first day in such two-year period on which the Interested Shareholder acquired
any shares of the same class or series of Voting Stock.
(c) The consideration to be received by holders of a particular class or
series of outstanding Voting Stock shall be in cash or in the same form as the
Interested Shareholder has previously paid for shares of such class or series of
Voting Stock.
If the Interested Shareholder has paid for shares of any class or series of
Voting Stock with varying forms of consideration, the form of consideration for
such class or series of Voting Stock previously acquired by it.
(d) After such Interested Shareholder has become an Interested Shareholder
and prior to the consummation of such Business Combination: (i) there shall have
been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any outstanding Preferred
Stock; (ii) there shall have been no reduction in the annual rate of dividends
paid on the Common Stock, except as necessary to reflect any subdivision of the
Common Stock; and there shall have been 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
<PAGE>
has the effect of reducing the number of outstanding shares of Common Stock; and
(iii) such Interested Shareholder shall not have become the beneficial owner of
any additional shares of Voting Stock except as part of the transaction which
resulted in such Interested Shareholder or by virtue of proportionate stock
splits or stock dividends.
The provisions of subdivisions (d)(i) and (d)(ii) of this subsection do not
apply if no Interested Shareholder and no Affiliate or Associate of any
Interested Shareholder voted as a director of the Corporation in a manner
inconsistent with such subdivisions and the Interested Shareholder, within ten
days after any act or failure to act inconsistent with such subdivisions,
notifies the Board of Directors of the Corporation in writing that the
Interested Shareholder disapproves thereof and requests in good faith that the
Board of Directors rectify such act or failure to act.
(e) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the benefit,
directly or indirectly, except proportionately as a shareholder, of any loans,
advances, guarantees, pledges or other financial assistance of any tax credits
or other tax advantages provided by the Corporation or any of its Subsidiaries,
whether in anticipation of or in connection with such Business Combination or
otherwise.
(f) 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 provisions
replacing such Act, rules or regulations, shall be mailed to the shareholders of
the Corporation at least thirty days prior to the consummation of such Business
Combination, whether or not such proxy or registration statement is required to
be mailed pursuant to such Act or subsequent provisions.
D. Definitions. For the purposes of this Article Sixth:
1. "Affiliate" means a person that directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, a specified person.
2. "Associate", when used to indicate a relationship with any person,
means: (a) any domestic or foreign corporation or organization, other than the
Corporation or a subsidiary of the Corporation, of which such person is an
officer, director or partner or is, directly or indirectly, the beneficial owner
of 10% or more of any class of equity securities; (b) any beneficial interest or
as to which such person serves as a trustee or in a similar fiduciary capacity;
and (c) any relative or spouse of such person, or any relative of such spouse,
who has the same home as such person or who is a director or officer of the
Corporation or any of its Affiliates.
<PAGE>
3. "Beneficial Owner", when used with respect to any Voting Stock, means
a person:
(a) which, or any of its Affiliates or Associates of which, beneficially
owns Voting Stock directly or indirectly; or
(b) which has (a) the right to acquire Voting Stock, whether such right is
exercisable immediately or only after passage of time, pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; or (b) the right to
vote or direct the voting of Voting Stock pursuant to any agreement, arrangement
or understanding; or (c) the right to dispose of or to direct the disposition of
Voting Stock pursuant to any agreement, arrangement or understanding; or
(c) which, or any of its Affiliates or Associates of which, has an
agreement, arrangement or understanding for the purposes of acquiring, holding,
voting or disposing of Voting Stock with any other person that beneficially owns
or whose Affiliates or Associates beneficially own, directly or indirectly, such
shares of Voting Stock.
4. "Interested Shareholder" means any person, other than the Corporation
or any Subsidiary, who or which:
(a) is the beneficial owner, directly or indirectly, of 10% or more of the
voting power of the then outstanding Voting Stock; or
(b) 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 combined voting power of the then
outstanding Voting Stock; or
(c) 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 person described in (i) or (ii)
above, if such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving one of the following: a
public offering within the meaning of the Securities Act of 1933, a transfer of
shares on the open market, or a transfer of shares made with the approval of the
Connecticut Banking Commissioner.
5. For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph 4 of this Section D, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph 3 of this Section D, but shall not include any other
shares of voting Stock which may be issuable to persons other than the person in
question pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or
<PAGE>
otherwise.
6. "Market Value" as of any date means: (a) in the case of stock, the
highest closing sale price during the thirty-day period immediately preceding
the date in question of a share of such stock on the composite tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the composite
tape, on the New York Stock Exchange, or, if such stock is not listed on such
exchange, 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 or last sale
quotation with respect to a share of such stock during the thirty-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any similar 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 a majority of the Board of
Directors in good faith; and (b) 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 a majority of the Board of Directors in good faith.
7. A "person" means any natural person, company, partnership, trust,
unincorporated organization or other entity, and any two or more of the
foregoing acting together or in concert.
8. "Subsidiary" means any natural person, company, partnership, trust,
unincorporated organization or other entity, and any two or more of the
foregoing acting together or in concert.
9. "Valuation Date" means: (a) for a Business Combination voted on by
shareholders, the latter of the day prior to the date of the shareholders vote
or the date twenty days prior to the consummation of the Business Combination;
and (b) for a Business Combination not voted upon by the shareholders, the date
of the consummation of the Business Combination.
10. "Voting Stock" means the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors.
11. In the event of any Business Combination in which the Corporation is
the surviving corporation, the phrase "consideration other than cash to be
received" as used in paragraph 2(a) and 2(b) of Section 2 of this Article Sixth
shall include the shares of Common Stock and/or the shares of any other class or
series of outstanding Voting Stock retained by the holders of such shares.
E. Powers of the Board of Directors. A majority of the Board of
Directors of the Corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article Sixth, including without limitation:
(A) whether a person is an Interested Shareholder, (B) the number of shares of
<PAGE>
Voting Stock beneficially owned by any person, (C) whether a person is an
Affiliate or Associate of another, and (D) whether the requirements of paragraph
B of Section 3 have been met with respect to any Business Combination; and the
good faith determination of a majority of the Board of Directors on such matters
shall be conclusive and binding for all the purposes of this Article Sixth.
F. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article Sixth shall be construed to relieve the Board
of Directors or any Interested Shareholder form any fiduciary obligation imposed
by law.
VII. SPECIAL MEETING OF SHAREHOLDERS. Special meetings of Shareholders may be
called at any time but only by the Chairman of the Board, the President or a
majority of the Board of Directors of the Corporation, unless otherwise required
by law.
VIII. VACANCIES ON THE BOARD. Vacancies created by an increase in the number of
directors may be filled by action of the Board of Directors. Vacancies occurring
by reasons other than by an increase in the number of directors may be filled
until the next shareholders meeting at which directors are elected by a
concurring vote of a majority of the Directors remaining in office, even though
such remaining Directors may be less than a quorum, even though the number of
Directors at the meeting may be less than a quorum and even though such majority
may be less than a quorum. Any Director elected in accordance with the preceding
sentence shall hold office until the next shareholders' meeting at which
Directors are elected, provided that he shall serve until such Director's
successor shall have been elected and qualified or until there is a decrease in
the number of Directors. No decrease in the number of Directors constituting the
Board of Directors shall shorten the term of any incumbent Director.
Any voting requirement provided for under Connecticut law or under the
Bylaws of the Corporation may be amended by the affirmative vote of the
Shareholder provided that the adoption of any such Bylaw must meet the same
quorum requirement and be approved by the same vote then effective or proposed
to be adopted, whichever is greater.
IX. DIRECTOR LIABILITY. The personal liability to the Corporation or its
shareholders of a person who is or was a director of the Corporation for
monetary damages for breach of duty as a director shall be limited to the amount
of the compensation received by the director for serving the corporation during
the year of the violation if such breach did not: (1) involve a knowing and
culpable violation of law by the director; (2) enable the director or an
associate, as defined in subdivision (3) of Section 33-843 of the Connecticut
General Statutes, as amended to receive an improper personal economic gain; (3)
show a lack of good faith and a conscious disregard for the duty of the director
to the Corporation under circumstances in which the director was aware that his
or her conduct or omission created an unjustifiable risk
<PAGE>
of serious injury to the Corporation; (4) constitute a sustained and unexcused
patter of inattention that amounted to an abdication of the director's duty to
the Corporation; or (5) create liability under Section 33-757, as amended, or
Section 36a-58 of the Connecticut General Statutes. This paragraph shall not
limit or preclude the liability of a person who is or was a director for any act
or omission occurring prior to the effective date hereof. Any lawful repeal or
modification of this paragraph or the adoption of any provision inconsistent
herewith by the Board of Directors and the shareholders of the Corporation shall
not, with respect to a person who is or was a director, adversely affect any
limitation of liability, right or protection existing at or prior to the
effective date of such repeal, modification or adoption of a provision
inconsistent herewith.
X. REMOVAL OF DIRECTORS.
Any Director may be removed from office at any time for cause by the
affirmative vote of at least two-thirds of the Directors then in office.
XI. NOMINATIONS FOR DIRECTOR.
Not less than twenty days advance notice of nominations for the election
of Directors, other than by the Board of Directors or a committee thereof, shall
be given in the manner provided in the Bylaws.
XII. ACTION BY SHAREHOLDERS.
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
XIII. APPROVAL FOR CERTAIN ACQUISITIONS AND OFFERS TO ACQUIRE
VOTING STOCK.
No person, acting singly or together with any Affiliates, Associates or
group of persons acting in concert with such person, shall acquire 10% or more
of the issued and outstanding stock of the Corporation entitled to vote for the
election of directors ("Voting Stock") at any time, unless: (a) such acquisition
has been approved prior to its consummation by the affirmative vote of the
holders of at least two-thirds of the outstanding Voting Stock entitled to vote
at a duly constituted meeting of shareholders called for such purpose, and (b)
all federal and state regulatory approvals required under the Change in Bank
Control Act of 1978 (the "Change in Control Act"), the Bank Holding Company Act
of 1956 (the "Holding Company Act") and any similar Connecticut law (including
but not limited to The Connecticut Bank Holding Company and Bank Acquisition
Act) and in the manner provided by all applicable regulations of the Federal
Deposit Insurance Corporation (the "FDIC"), the Federal Reserve Board (the
"FRB") and the
<PAGE>
Connecticut Banking Commissioner have been obtained (or, as applicable, with
regard to each such agency, any required filings has not been disapproved within
the applicable time period). Notwithstanding any provision of this Certificate
of Incorporation, nothing in this Certificate shall be construed to restrict any
authority of the Connecticut Banking Commissioner to authorize an acquisition as
provided in The Connecticut Bank Holding Company and Bank Acquisition Act. The
Corporation shall be entitled to institute a private right of action to enforce
such statutory and regulatory provisions.
Moreover, no person may make an offer to acquire 10% or more of the then
outstanding Voting Stock of the Corporation unless such person has notified the
Board of Directors of the Corporation in writing of its intention to so offer
and the Board of Directors has not, within fifteen days after receipt of such
notice, disapproved such offer or, before the offer is made, obtained prior
approval of the acquisition by the FDIC or the FRB and the Banking Commissioner
(or, as applicable, with regard to each such agency, any required filings with
such regulatory agency have been made in a timely fashion and the action or
proposed action set forth therein has not been disapproved within applicable
time period.)
All shares of Voting Stock owned by any person violating the foregoing
provisions of this Article Thirteenth shall be considered from and after the
date of the acquisition by such Person to be "excess shares" to the extent such
shares exceed 10%, of the Voting Stock issued and outstanding. Such excess
shares shall thereafter no longer be entitled to vote on any matter or to take
other shareholder action or be counted in determining the total number of
outstanding shares for purposes of any matter involving shareholder action, and
the Board of Directors may cause such excess shares to be transferred to an
independent trustee for sale on the open market or otherwise, with the expenses
of such trustee to be paid out of the proceeds from such sale.
The term "person" shall include any individual, group acting in concert,
firm, corporation, partnership, association, joint stock company, trust,
unincorporated organization thereof, syndicate, or other entity. When any
person, directly or indirectly, acquires beneficial ownership of more than 10%
of the then outstanding voting stock of the Corporation without the prior
written approval of said Commissioner as required by this Article Thirteenth,
any voting stock beneficially owned by said person in excess of said 10% shall
not be counted as shares of voting stock entitled to notice, to vote or to take
any other shareholder action and shall not be voted by any person or be counted
in determining the total number of outstanding shares for purposes of any matter
involving shareholder action. The term "group acting in concert" includes
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,
trust, understanding, relationship, agreement, or other arrangement, whether
written or otherwise. The term "offer" includes every offer to buy or
<PAGE>
acquire, solicitation of an offer to sell, tender offer for, or request or
invitation for tender of, a security or interest in a security for value.
XIV. CONSIDERATIONS FOR MERGER, CONSOLIDATION OR OTHER OFFERS.
The Board of Directors of the Corporation, when evaluating any tender or
exchange offer for stock of the Corporation, offer or proposal to merge or
consolidate the Corporation with another institution, or an offer or proposal to
purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, shall, in connection with the exercise of its
judgment in determining what is in the best interests of the Corporation and its
shareholders, give due consideration to all relevant factors, including without
limitation what he reasonably believes to be in the best interests of the
Corporation, including (a) the long-term as well as the short-term interests of
the Corporation; (b) the long-term and short-term interests of shareholders,
including the possibility that those interests may be best served by continued
independence; (c) the interests of the Corporation's employees, customers,
creditors and suppliers; (d) community and societal considerations including
those of any community in which any office or other facility of the Corporation
is located; and (e) any other factor which the director determines in his or her
discretion to be appropriate in determining what he reasonably believes to be in
the best interests of the Corporation.
XV. CERTAIN AMENDMENTS.
Notwithstanding the provisions of Article Sixteenth, the provisions set
forth in this Article Fifteenth and in Articles Third, Fifth, Sixth, Seventh,
Eighth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth herein may not be
repealed or amended in any respect and no article imposing cumulative voting in
the election of Directors may be added, nor may any other provision be amended,
adopted or repealed which would have the effect of modifying or permitting
circumvention of such provisions or which would be inconsistent with such
provisions, unless such action is approved by, in addition to any vote specified
by law or the Bylaws or these Articles of Incorporation: (i) the affirmative
vote of the holders of not less than 60% of the voting power of the issued and
outstanding shares of the Corporation entitled to vote for the election of
directors, and (ii) if there is an Interested Shareholder (as defined in Article
Seventh), the affirmative vote of not less than 60% of the voting power of the
issued and outstanding shares of the Corporation entitled to vote for the
election of Directors held by shareholders other than the Interested
Shareholder.
XVI. AMENDMENTS.
Subject to the provisions of Article Fifteenth, the Corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in
<PAGE>
the manner now or hereafter prescribed by statute and these Articles of
Incorporation, and all rights conferred upon shareholders herein are granted
subject to this reservation.
XVII. REGISTERED AGENT.
The registered agent for the Corporation shall be Robert T. Judson, having
a business address of Norwalk Savings Society, 48 Wall Street, Norwalk,
Connecticut 06852 and having a residence address of 21 Bald Hill Road, Wilton,
Connecticut 06897.
I hereby declare, under the penalties of false statement, that the
statements made in the foregoing certificate are true.
Dated at Norwalk, Connecticut this 20th day of May, 1997.
Norwalk Savings Society, Incorporator
By:
Robert T. Judson
Its President
Street Address of Incorporator:
48 Wall Street
Norwalk, Connecticut
<PAGE>
Exhibit 3.ii
BY-LAWS
of
NSS BANCORP, INC.
Effective June 30, 1997
ARTICLE I
Offices
Section 1. Location. The principal office of the Company shall be located
in the Town of Norwalk, County of Fairfield and State of Connecticut, but the
Company may maintain such branch office or offices within or without the State
of Connecticut as authorized by the Board of Directors and any other regulatory
body that might have jurisdiction over the Company.
ARTICLE II
Shareholders' Meetings
Section 1. Place of Meetings. Every meeting of the shareholders of the
Company shall be held at the principal office of the Company or at such other
place either within or without the State of Connecticut as shall be specified in
the notice of said meeting given as hereinafter provided.
Section 2. Annual Meeting. The annual meeting of the shareholders shall
be held on such day and at such time and place in the month of April or such
other month of each year as the Board of Directors may determine from time to
time. At such meetings, the shareholders shall elect Directors and transact such
other business as may properly be brought before the meeting. Failure to hold an
annual meeting as herein prescribed shall not affect otherwise valid corporate
acts. In the event of such failure, a substitute annual meeting may be called in
the same manner as a special meeting.
Except for nominations of Directors as provided in Article III,
Section 2 of these By-laws, business is properly brought before an annual
meeting if it is (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (b) otherwise properly
brought before the meeting by or at the direction of the Board, or (c) otherwise
properly brought before the meeting by a shareholder. For business to be
properly brought before an annual meeting by a shareholder, the shareholder must
have given timely notice thereof in writing to the Secretary. To be timely, a
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the Company not less than twenty (20) days nor
more than one hundred thirty (130) days prior to the meeting. A shareholder's
notice to the Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a brief description of the
business desired to be brought
<PAGE>
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 Company's books,
of the shareholder proposing such business, (c) the class and number of shares
of the Company which are beneficially owned by the shareholder, and (d) any
material interest of the shareholder in such business. The Secretary may also
require, in writing and prior to the meeting, any and all information about the
shareholder or the proposed matter which the Secretary determines in his
discretion to be appropriate using the then current requirements of Securities
Exchange Commission Rule 14a-101 as a guide. Notwithstanding anything in the By-
laws to the contrary, no business shall be conducted at an annual meeting except
in accordance with the procedures set forth in this paragraph. The presiding
officer of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this paragraph, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
Section 3. Special Meetings. Special meetings of the shareholders may be
called at any time but only by the Chairman of the Board, the President or a
majority of the Board of Directors of the Corporation unless otherwise required
by law.
Section 4. Notice of Meetings. Notice of the time and place of all annual
and special meetings of shareholders and the purpose thereof shall be handed or
mailed, postage prepaid, by or at the direction of the Secretary, not less than
ten (10) nor more than sixty (60) days before such meeting, to each shareholder
of record and at such address as shall appear on the books of the Company.
Whenever notice is required to be given to any person, a written waiver of
notice signed by the person or persons entitled to such notice, whether before
or after the time stated therein, and filed with the Secretary, shall be
equivalent to the giving of such notice. Any shareholder who attends any
shareholders' meeting without protesting the lack of proper notice, prior to or
at the commencement of the meeting, shall be deemed to have waived such notice.
Failure of any shareholder to receive notice of any meeting shall not invalidate
the meeting.
Section 5. Quorum. To constitute a quorum for the transaction of business
at any meeting of shareholders, there must be present, in person or by proxy,
the holders of a majority of the issued and outstanding shares of stock of the
Company entitled to vote thereat. The shareholders present at a duly held
meeting at which a quorum was present may continue to transact business
notwithstanding the withdrawal of enough shares to leave less than a quorum.
Section 6. Adjournment of Meetings. The holders of a majority of the
voting power of the shares present, in person or by proxy, and entitled to vote,
whether or not a quorum is present,
<PAGE>
may adjourn the meeting to a future date as may be agreed. Notice of such
adjournment shall be given to the shareholders not present or represented at the
meeting. The holders of the voting power of the shares present and entitled to
vote, whether or not a quorum is present, may recess the meeting to a future
time to resume not later than 48 hours after the time of recess for the sole
purpose of collecting and soliciting proxies. Notice of such recess need not be
given to the shareholders not present or represented at the meeting.
Section 7. Voting Requirements. Except as may be otherwise specifically
provided in these By-laws or in the Certificate of Incorporation, the vote
requirements provided for in the Connecticut Business Corporation Act, the
Connecticut banking laws, or other applicable law, shall be the act of the
shareholders.
Section 8. Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote at a meeting of shareholders, or entitled to
receive a payment of any dividend, the Board of Directors may set a record date
which shall not be a date earlier than the date on which such action is taken by
the Board of Directors, nor more than seventy (70) nor less than ten (10) days
before the particular event requiring such determination is to occur. If no
record date is fixed by the Board of Directors, the date on which the notice of
the meeting is mailed or if no notice is given, the day preceding the meeting
shall be the record date for determination of shareholders entitled to vote at
such meeting, and the date on which the resolution of the Board of Directors
declaring a dividend is adopted shall be the record date for determination of
shareholders entitled to receive such distribution.
Section 9. Proxies. At all meetings of shareholders, any shareholder
entitled to vote may vote either in person or by proxy.
All proxies shall be in writing, signed and dated and shall be filed with the
Secretary of the Company before or at the time of the meeting. No proxy shall be
valid for more than eleven (11) months after its execution, unless otherwise
provided therein and in no event shall a proxy be valid for more than ten (10)
years after its execution.
Section 10. Committee on Proxies. The Board, in advance of any
shareholders' meeting, shall appoint not less than two inspectors to act as a
Committee on Proxies and as tellers at the meeting or any adjournment thereof.
In case the Board does not so act, or any person appointed to be an inspector
fails to appear or act, the vacancy may be filled by appointment made by the
Board in advance of the meeting or at the meeting by the presiding officer. The
inspectors shall receive and take in charge the proxies and ballots, shall
decide all questions concerning the qualification of voters, the validity of
proxies and the acceptance or rejection of votes, and shall count the ballots
cast and report to the presiding officer the result of the vote.
<PAGE>
Section 11. Presiding Officer. The Chairman of the Board, or such
Director as he may designate, shall preside over all meetings of the
shareholders.
Section 12. Number of Votes for Each Shareholder. Each shareholder shall
be entitled to one vote for each share of stock standing in his name on the
books of the Company as of the record date unless, and except to the extent
that, voting rights of shares of any class are increased, limited, or denied
pursuant to the Certificate of Incorporation.
ARTICLE III
Directors
Section 1. Authority and Term of Office. The business, property and
affairs of the Company shall be managed by, and under the direction of, the
Board of Directors.
The Board of Directors are empowered to engage the Company in any
activity authorized by the Connecticut Business Corporation Act or by applicable
State or Federal banking laws. The Board of Directors shall have charge of the
care and management of the affairs and property of the Company.
The Board of Directors shall, pursuant to the laws of the State of
Connecticut, as the same may be amended from time to time, be empowered to make
rules and regulations essential to the performance of its duties of caring for
and managing the property and affairs of the Company, to elect the officers, to
fill the vacancy of any elected officer, to elect or appoint such assistants and
committees as it may deem necessary for the business of the Company and to
prescribe their duties, to determine the amount and sufficiency of the bonds and
to prescribe the duties of all the officers and employees, to fix the
compensation of the Directors, officers and employees of the Company, to declare
dividends, to prescribe the rate, method of computation and time of payment of
such dividends due depositors and to take or to prescribe the taking of such
other action as may be necessary to the performance of its duties.
Directors need not be residents of Connecticut. At the time of
election, however, each Director must own in his individual capacity one or more
shares of stock of the Company. No Director attaining the age of seventy-five
(75) years shall be eligible for reelection, and if he or she attains such age
during his or her term of office, he or she shall be retired on the first day of
the month following, and his or her office will be deemed vacant at that time.
Section 2. Nominations. Subject to any rights of the holders of Preferred
Stock to elect Directors under specified circumstances, only persons who are
nominated in accordance with the procedures set forth in this section shall be
eligible for
<PAGE>
election as Directors. Nominations of persons for election to the Board may be
made at a meeting of shareholders by or at the direction of the Board or by any
shareholder of the Company entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in this section. Such
nominations by a shareholder shall be made only if written notice of such
shareholder's intent to make such nomination or nominations has been given to
the Secretary, delivered to or mailed and received at the principal executive
offices of the Company not less than twenty (20) days nor more than one hundred
thirty (130) days prior to the meeting. Such shareholder's notice shall set
forth (1) as to each person whom the shareholder proposes to nominate for
election as a Director, (a) the name, age, business address and residence
address of such person, (b) the principal occupation or employment of such
person, (c) the class and number of shares of the Company which are beneficially
owned by such person, and (d) any other information relating to such person that
is required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to applicable law and
regulations (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected); and (2) as to the shareholder giving the notice, (a) the name and
address, as they appear on the Company's books, of such shareholder, (b) the
class and number of shares of the Company which are beneficially owned by such
shareholder, (c) representation that the shareholder is a holder of record of
stock of the Company entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons specified in
the notice, and (d) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the shareholder. At the requirement of the Board, any person nominated
by the Board for election as a Director shall furnish to the Secretary that
information which would be required to be set forth in a shareholder's notice of
nomination which pertains to the nominee. The presiding officer of the meeting
shall refuse to acknowledge the nomination of any person not made in compliance
with this section and the defective nomination shall be disregarded.
Section 3. Vacancies. Except as otherwise fixed by or pursuant to the
provisions of law or the Certificate of Incorporation and subject to the rights
of holders of the Preferred Stock, if any, to elect additional Directors under
specified circumstances, vacancies in the Board resulting from death,
resignation, disqualification, removal from office or other cause shall be
filled until the next shareholders meeting at which Directors are elected by a
majority vote of the Directors then in office even though such remaining
Directors may be less than a quorum of the Board and such majority may be less
than a quorum. Any Director so chosen shall hold office for a term expiring at
the annual meeting of shareholders at which the term of the class to
<PAGE>
which he has been elected expires and until such Director's successor shall have
been elected and qualified. Vacancies created by an increase in the number of
Directors may be filled by action of the Board of Directors.
Section 4. Removal of Directors. Subject to the rights of the holders of
the Preferred Stock to elect Directors under specified circumstances, any
Director may be removed from office at any time for cause in accordance with the
provisions of the Certificate of Incorporation or applicable provisions of the
Connecticut Business Corporation Act. In addition, the office of any Director
who fails to attend six (6) consecutive meetings of the Board, special or
regular, shall become vacant if the majority of the Board of Directors
determines that such absence was without good cause.
Section 5. Place of Meetings. The Board of Directors shall hold its
meetings at the principal office of the Company or at such place or places
within or without the State of Connecticut as it may determine from time to
time.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at least monthly, at such times and places as shall be fixed by
the Directors, or with such other frequency as the Board of Directors may
determine.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or, in their absence
or disability, by a Vice President, or in writing by three (3) of the Directors.
Notice thereof, oral or written, specifying the date, time, place and object of
such meeting, shall be given to each Director at least two (2) days prior to
such meeting. If notice is given by mail, the Secretary shall address notices to
the Directors at their usual place of business or such address as may appear on
the Company's books.
Section 8. Waiver of Notice. Whenever notice is required to be given to
any person, a written waiver of notice signed by the person or persons entitled
to such notice, whether before or after the time stated therein, and filed with
the Secretary, shall be equivalent to the giving of such notice. If any Director
present at a meeting of the Board of Directors does not protest the lack of
proper notice prior to or at the commencement of the meeting such Director shall
be deemed to have waived notice of such meeting.
Section 9. Action by Directors Without a Meeting. Any resolution in
writing concerning action to be taken by the Company, which resolution is
approved and signed by all of the Directors, severally or collectively, shall
have the same force and effect as if such action were authorized at a meeting of
the Board of Directors duly called and held for that purpose, and such
resolution together with the Directors' written approval thereof, shall be
recorded by the Secretary in the minute book of the Company.
<PAGE>
Section 10. Telephonic Participation in Directors Meetings. A Director or
member of a committee of the Board of Directors may participate in a meeting of
the Board of Directors or of such committee by means of a conference telephone
or similar communications equipment enabling all Directors participating in the
meeting to hear one another, and participation in such a meeting shall
constitute presence in person at such meeting.
Section 11. Quorum and Voting Requirement. A majority of the number of
directors shall constitute a quorum for the transaction of business at all
meetings of the Board of Directors. The act of a majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board,
unless a higher percentage vote is required by law, the Certificate of
Incorporation, or these By-laws.
Section 12. Voting. At meetings of the Board of Directors, each Director
shall have one vote.
Section 13. Committees; Appointment and Authority. The Board of
Directors, by resolution adopted by the affirmative vote of Directors holding a
majority of the directorships, may designate two or more Directors to constitute
an Executive Committee or other committees, which committees shall have and may
exercise all such authority of the Board as shall be provided in such resolution
and may be permitted by law. Directors may be removed from committee memberships
by resolution adopted by the affirmative vote of a majority of the Directors.
Vacancies on any committee shall be filled by the Board of Directors at any
regular or special meeting.
All committees shall perform such duties as may be assigned to them and shall
report to the Board of Directors at such time and in such manner as the Board
shall direct. A majority of any committee shall constitute a quorum. If the
Board of Directors does not designate a Chairman of the committee, the committee
shall elect its own Chairman.
Section 14. Compensation of Directors. The Board of Directors shall have
authority to fix the fees of Directors, including reasonable allowance for
expenses actually incurred in connection with their duties.
Section 15. Chairman of the Board. The Board of Directors, at the next
regular meeting following the annual meeting, shall elect, each year, from among
its members, a person to be Chairman of the Board to preside at all meetings of
the Board of Directors and at the annual meeting of the shareholders, and such
Chairman shall have one (1) vote to break any ties that exist at the meetings of
the Board of Directors. In the event that such Chairman shall be absent from any
meeting of the Board of Directors, the remaining Directors shall have the power
to elect a temporary Chairman in his or her place and stead.
<PAGE>
ARTICLE IV
Officers
Section 1. Election of Officers. At the next regular meeting of the Board
of Directors, following the annual meeting of the shareholders, or at another
time as determined by the Board, the Board of Directors shall elect a President,
one or more Vice Presidents (who may be designated "Executive," "Senior," or
other to distinguish them from other Vice Presidents), a Secretary, a Treasurer
and shall designate a Chief Executive Officer for the ensuing year.
The Board may, in its discretion, from time to time, appoint such
other officers and assistants as it shall deem necessary who shall have such
authority and such designation and shall perform such duties as the Board of
Directors or the President from time to time prescribe.
The same person may be elected or appointed to serve simultaneously in
more than one office.
The officers need not be shareholders, and need not be residents of
Connecticut. The duties of the officers of the Company shall be such as are
imposed by these By-laws and from time to time prescribed by the Board of
Directors or the President.
Section 2. Vacancies. Vacancies in any office may be filled at any
regular or special meeting of the Board of Directors.
Section 3. Removal. Any officer may be removed from office by the
affirmative vote of two-thirds (2/3) of the whole Board of Directors at any
regular or special meeting, or as may otherwise be provided in any agreement
between the Company and the officer. In addition, any officer below the level of
Vice President may be removed from office in the discretion and at the direction
of the President unless such officer's duties require that he report directly to
the Board.
Section 4. President. The President shall have the general charge,
supervision, and control of the business and affairs of the Company subject to
the direction of the Board of Directors. The President shall have such other
powers and perform such other duties as are generally incident to the office of
President and as may be assigned to the President by the Board of Directors. The
President shall be an ex-officio member of all committees of the Board, except
the Auditing Committee.
Section 5. Vice Presidents. The Vice Presidents shall perform such
executive and administrative duties as from time-to-time may be assigned to them
by the President or the Board of Directors and in the absence of the President,
the Vice Presidents, in the order of their ranking in the Company's management
hierarchy, as determined by the Board of Directors from time to time, shall
perform the duties of the President.
<PAGE>
Section 6. Treasurer. The Treasurer shall be responsible for the custody
and safekeeping of all of the assets of the Company and shall perform all acts
incident to the position of Treasurer and shall submit such reports and
statements as may be required by law or by the Board of Directors and perform
such other duties as are assigned to the Treasurer from time-to-time by the
Board of Directors or the President.
Section 7. Secretary. The Secretary shall perform such executive and
administrative duties as from time-to-time may be assigned to the Secretary by
the Board of Directors or the President. The Secretary shall have charge of the
seal of the Company and shall have such other powers and perform such other
duties as designated in these By-laws or as are generally incident to the office
of Secretary. The Secretary shall notify the shareholders and Directors of all
meetings and shall keep the minutes of meetings of the shareholders and of the
Board of Directors.
Section 8. Retirement. The normal retirement age of any officer or
employee shall be age sixty-five (65); under unusual conditions, the Directors
may retain the services of an officer or employee on an annual basis beyond such
age, depending upon the ability of the officer or employee to perform the duties
of the position in a satisfactory manner, but there shall be no more than five
(5) such annual extensions. Notwithstanding the foregoing, this provision shall
not be enforceable if it is determined by a court in a final adjudication to be
illegal or contrary to any law or regulation.
ARTICLE V
Indemnification
Section 1. Indemnification. The Company shall indemnify the Directors,
officers, employees and agents of the Company to the maximum extent permitted by
and/or required by the Connecticut Business Corporations Act. Without otherwise
limiting the foregoing, Sections 33-770 to 33-778 of the Connecticut Business
Corporations Act of Connecticut as from time to time amended governs and applies
to certain matters of indemnification of Directors, officers, employees and
agents of the Company, and is incorporated herein by reference as a part of
these By-laws.
ARTICLE VI
Stock
Section 1. Issuance by the Board of Directors. The Board of Directors may
issue at one time, or from time to time, all or a portion of the authorized but
unissued shares of the capital stock of the Company, including treasury stock,
as in their opinion and discretion may be deemed in the Company's best
interests. The Board may accept, in consideration for such shares, money,
<PAGE>
promissory notes, other securities and other property of any description
actually received by the Company, provided, that such consideration equals or
exceeds in value the par value of said shares, if any, and that the
consideration is legally acceptable for the issue of said shares.
Section 2. Certificates of Stock. Certificates of stock shall be in a
form adopted by the Board of Directors and shall be signed by the President or
the Vice President and by the Secretary or Assistant Secretary, or by facsimile
signature of any or all of the foregoing, and shall carry the corporation seal
of the Company.
All certificates shall be consecutively numbered and the name of the person
owning the shares represented thereby and the number of such shares and the date
of issue shall be entered on the Company's books.
Section 3. Transfer of Stock. Shares of stock shall be transferred only
on the books of the Company by the holder thereof in person or by his attorney,
upon surrender of the certificate of stock properly endorsed. The Company shall
issue a new certificate to the person entitled thereto for all shares
surrendered.
Section 4. Cancellation of Certificate. All surrendered certificates
properly endorsed, shall be marked "cancelled" with the date of cancellation and
a notation of such cancellation made in the shareholder book.
Section 5. Lost Certificates. The President or any officer designated by
the President may, in case any share certificate is lost, stolen, destroyed, or
mutilated, authorize the issuance of a new certificate in lieu thereof, upon
such terms and conditions, including reasonable indemnification of the Company,
as the President or any designated officer shall determine, and notation of the
transaction made in the shareholder book.
Section 6. Closing of Stock Transfer Book. The stock transfer book may be
closed, if so ordered by the Board, for not exceeding twenty (20) days before
any dividend payment date or any meeting of the shareholders.
ARTICLE VII
Finance and Dividends
Section 1. Fiscal Year. The fiscal year of the Company shall begin on the
first day of January in each year.
Section 2. Dividends. Dividends may be voted by the Directors as
prescribed by applicable law, as from time to time amended. Such dividends will
be payable to shareholders of record at the close of business on such subsequent
days as the Directors may designate and to be paid on a named day not more then
seventy (70) days thereafter, and the Directors may further close the
<PAGE>
transfer books during the period from the day as of which the right to such
dividend is determined through the day upon which the same is to be paid. No
dividend shall be paid unless duly voted by the Directors of the Company and the
name of each Director voting for any dividend shall be entered by the Secretary
on the records of the Company. Dividends may be paid in cash, property, or
shares of the Company.
ARTICLE VIII
Amendment of By-laws
These By-laws may be altered or amended by the Board at any meeting by a
majority vote of the directors on the entire Board or at any meeting of the
shareholders, whether annual or special, by a majority in interest of the stock
entitled to vote, provided however that in order to amend or repeal or to adopt
any provision inconsistent with Article II, Article III (other than sections 5,
6, 14, the last paragraph of section 1 thereof and the last sentence of section
4 thereof) or this Article XIII, any vote of shareholders shall require (i) the
affirmative vote of the holders of at least sixty percent (60%) of the voting
power of all of the issued and outstanding shares of the Company then entitled
to vote for the election of Directors, and (ii) if there is an "Interested
Shareholder" (as that term is defined in the Certificate of Incorporation), the
affirmative vote of sixty percent (60%) of the voting powers of all of the
issued and outstanding shares of the Company entitled to vote for the election
of Directors held by shareholders other than the Interested Shareholder, and any
action of Directors shall require the affirmative vote of a majority of the
Directors then in office.
Any changes in the By-laws made by the Board between meetings of the
shareholders shall be reported to the shareholders at the next annual meeting.
Any notice of a meeting of the shareholders or the Board at which the By-laws
are to be altered or amended shall include notice of such proposed action.
ARTICLE IX
These new adopted By-laws supersede any and all prior By-laws previously
adopted.
CERTIFICATION
These By-laws were adopted at a meeting of the Directors of the Company on
the 20th day of May, 1997.
/s/ Jeremiah T. Dorney
---------------------------------------
Secretary
<PAGE>
Exhibit 4
NORWALK SAVINGS SOCIETY
and
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.
as Rights Agent
RIGHTS AGREEMENT
Dated as of May 10, 1996
<PAGE>
<TABLE>
<CAPTION>
INDEX
Page
<S> <C>
Section 1. Certain Definitions
Section 2. Appointment of Rights Agent
Section 3. Issue of Right Certificates
Section 4. Form of Right Certificates
Section 5. Countersignature and registration
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights
Section 8. Cancellation and Destruction of Right Certificates
Section 9. Reservation and Availability of Capital Stock
Section 10. Common Stock Record Date
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power
Section 14. Fractional Rights and Fractional Shares
Section 15. Rights of Action
Section 16. Agreement of Right Holders
Section 17. Right Certificate Holder Not Deemed a Stockholder
Section 18. Concerning the Rights Agent
Section 19. Merger or Consolidation or Change of Name of Rights
Agent
Section 20. Duties of Rights Agent
Section 21. Change of Rights Agent
Section 22. Issuance of New Right Certificates
Section 23. Redemption
Section 24. Notice of Proposed Actions
Section 25. Notices
Section 26. Supplements and Amendments
Section 27. Successors
Section 28. Determinations and Actions by the Board of
Directors, etc
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 29. Benefits of This Agreement
Section 30. Severability
Section 31. Governing Law
Section 32. Counterparts
Section 33. Descriptive Headings
Testimonium and Signatures
Exhibit A - Form of Amendment to Articles of Incorporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
</TABLE>
<PAGE>
RIGHTS AGREEMENT
This Rights Agreement dated as of May 10, 1996, between NORWALK SAVINGS
SOCIETY, a Connecticut-chartered capital stock savings bank (the "Bank"), and
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C., as Rights Agent (the "Rights
Agent"),
W I T N E S S E T H:
WHEREAS, on May 10, 1996 the Bank declared a dividend distribution of one
Right (hereafter referred to as a "Right") for each outstanding share of the
Common Stock, par value $.01 per share, of the Bank (the "Common Stock")
outstanding at the close of business on May 28, 1996 (hereinafter referred to as
the "Record Date") (other than shares of such Common Stock held in the Bank's
treasury on such date) and has authorized the issuance of one Right (as such
number may hereafter be adjusted pursuant to the provisions of Section 11(p)
hereof) in respect of each share of Common Stock of the Bank that shall become
outstanding after the Record Date (whether originally issued or delivered from
the Bank's treasury) and on or prior to the earlier of the Distribution Date and
the Expiration Date (as such terms are hereinafter defined), each Right
representing the right to purchase one one-hundredth of a share of the Bank's
Series A Junior Participating Preferred Stock upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated;
(a) "Acquiring Person" shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates (as hereinafter defined) and
Associates (as hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 10% or more of the shares of Common Stock
then outstanding, but shall not include the Bank, any Subsidiary (as
hereinafter defined) of the Bank, any employee benefit plan of the Bank or
any Subsidiary of the Bank, or any entity (including its Affiliates)
organized, appointed or established for or pursuant to the terms of any
such plan acting solely in its capacity (or their capacities) under such
plan. Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" solely as the result of an acquisition of Common Stock by the Bank
which, by reducing the number of shares outstanding, increases the
proportionate
<PAGE>
number of shares beneficially owned by such Person to 10% or more of the
shares of Common Stock then outstanding; provided however, that if a Person
becomes the Beneficial Owner of 10% or more of the shares of Common Stock
then outstanding by reason of share acquisitions by the Bank and shall,
after such acquisitions, become the Beneficial Owner of any additional
shares of Common Stock, then such Person shall be deemed to be an
"Acquiring Person."
(b) "Affiliate", "Associate" and "Control" 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 (the
"Exchange Act"), as in effect on the date hereof.
(c) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, beneficially owns (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement) or has the
right to dispose of;
(ii) which such Person or any of such Person's 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 (whether or not in writing), or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of or to "beneficially own"
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange; or (B) the right to vote, including pursuant to any
agreement, arrangement or understanding (whether or not in writing);
provided, however, that a Person shall not be deemed the "Beneficial
Owner" of or to "beneficially own" any security under this clause (B)
as a result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding (1) arises
solely from a revocable proxy or consent given in response to a public
proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations under the Exchange Act and
(2) is not also then reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
<PAGE>
(iii) which are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) with which
such Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in writing)
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in clause (B) of subparagraph (ii) of
this paragraph (c)) or disposing of any voting securities of the Bank.
(d) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of Connecticut are
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00 P.M.,
Eastern time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Eastern time, on the next succeeding
Business Day.
(f) "Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Bank, except that "Common Stock" when used with reference to
any Person other than the Bank shall mean the capital stock of such Person
with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such Person.
(g) "Common Stock Equivalent" shall mean a share, or depositary
receipt exchangeable for a fraction of a share, of any authorized class or
series of preferred stock of the Bank having dividend, voting, liquidation
and other rights which result, in the judgment of the Board of Directors,
in such share, or depositary receipt, being approximately equivalent in
value to one share of Common Stock as of the date of occurrence of a
Section 11 (a) (ii) Event (as such term is hereinafter defined) (the "Event
Date"); provided, however, that, if there is no authorized class or series
of preferred stock of the Bank or if in the judgment of the Board of
Directors there are not sufficient authorized but unissued shares of
preferred stock available for the creation of Common Stock Equivalents,
"Common Stock Equivalent" shall mean such cash, reduction in Purchase Price
(as such term is hereinafter defined), other equity securities, debt
securities, other assets or any combination of the foregoing, that the
Board of Directors shall determine to be approximately equivalent in value
to one share of Common Stock as of the Event Date.
(h) "Continuing Director" shall mean (i) any member of the Board of
Directors of the Bank, while such Person is a member of the Board, who is
not an Acquiring Person or an Affiliate or Associate of an Acquiring Person
or a representative or nominee of an Acquiring Person or of any such
Affiliate or Associate and was a member of the Board
<PAGE>
prior to the time any Person becomes an Acquiring Person, and (ii) any
Person who subsequently becomes a member of the Board, while such Person is
a member of the Board, who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or a representative or nominee of an
Acquiring Person or of any such Affiliate or Associate, if such Person's
nomination for election or election to the Board is recommended or approved
by a majority of the Continuing Directors.
(i) "Distribution Date" shall have the meaning defined in Section 3
hereof.
(j) "Exchange" and "Exchange Ratio" shall have the respective
meanings defined in Section 25 hereof.
(k) "Exchange Date" shall have the meaning defined in Section 7(a)
hereof.
(l) "Expiration Date" shall have the meaning defined in Section 7(a),
hereof.
(m) "Person" shall mean any individual, firm, limited liability
company, corporation, partnership or other entity.
(n) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, par value $.01 per share, of the Bank having
the rights and preferences set forth in the Form of Amendment to Articles
of Incorporation attached to this Agreement as Exhibit A.
(o) "Purchase Price" shall have the meaning defined in Section 4
hereof.
(p) "Section 11(a) (ii) Event" shall mean the event described in
Section 11(a) (ii).
(q) "Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, the filing of a report pursuant to Section 13(d) under
the Exchange Act or pursuant to a comparable successor statute) by the Bank
or an Acquiring Person indicating that an Acquiring Person has become such.
(r) "Subsidiary" of any Person shall mean any other Person of which
securities or other ownership interests having ordinary voting power, in
the absence of contingencies, to elect a majority of the board of directors
or other Persons performing similar functions as a board of directors are
at the time directly or indirectly owned by such first Person, or which is
otherwise controlled by such first Person.
(s) "Trading Day" shall have the meaning defined in
<PAGE>
Section 11(d) hereof.
(t) "Triggering Event" shall mean any Section 11(a) (ii) Event or any
event described in Sections 13(a)(i), (ii) or (iii) hereof.
Section 2. Appointment of Rights Agent. The Bank hereby appoints the
Rights Agent to act as agent for the Bank in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Bank may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable. In the event the Bank appoints one or more Co-Rights
Agents, the respective duties of the Rights Agent and any Co-Rights Agents shall
be as the Bank shall determine.
Section 3. Issue of Right Certificates.
(a) Until the earliest of (i) the close of business on the tenth day
after the Stock Acquisition Date (or, if the tenth business day after the
Stock Acquisition Date occurs before the Record Date, the close of business
on the Record Date); or (ii) the close of business on the tenth Business
Day after the date of the commencement of a tender or exchange offer by any
Person if, upon consummation thereof, such Person would be an Acquiring
Person (including any such date which is after the date of this Agreement
and prior to the issuance of the Rights; or (iii) the tenth day (or such
later day as may be determined by action of the Board of Directors of the
Bank prior to such time as any person becomes an Acquiring Person) after
the filing by any Person (other than the Bank) of a registration statement
under the Securities Act of 1933, as amended, with respect to a
contemplated exchange offer to acquire (when added to any shares as to
which such person is the beneficial owner immediately prior to such filing)
beneficial ownership of 10% or more of the issued and outstanding shares of
Common Stock; the earliest of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be Right
Certificates) and not by separate Right Certificates, and (y) the Rights
will be transferable only in connection with the transfer of the underlying
shares of Common Stock. As soon as practicable after the Bank has notified
the Rights Agent of the occurrence of the Distribution Date, the Rights
Agent will send, by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of
the Bank, one or more right certificates, in substantially the form of
Exhibit B hereto (the "Right Certificates"), evidencing one Right for each
share of Common Stock so held, subject to adjustment as provided herein. In
the event that
<PAGE>
an adjustment in the number of Rights per share of Common Stock has been
made pursuant to Section 11(p) hereof, at the time of distribution of the
Right Certificates, the Bank shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that the
Right Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) As soon as practicable after the Record Date, the Bank will send
a copy of a Summary of Rights to Purchase Preferred Shares, in
substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder of the Common
Stock as of the close of business on the Record Date at the address of such
holder shown on the records of the Bank. With respect to certificates for
the Common Stock outstanding as of the Record Date, until the Distribution
Date (or the earlier redemption, exchange or expiration of the Rights), the
Rights will be evidenced by such certificates for the Common Stock
registered in the names of the holders of the Common Stock together with a
copy of the Summary of Rights, and the registered holders of the Common
Stock shall also be registered holders of the associated Rights. Until the
Distribution Date (or the earlier redemption, exchange or expiration of the
Rights), the transfer of any of the certificates for the Common Stock
outstanding as of the Record Date with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
(c) Rights shall be issued in respect of all shares of
Common Stock which become outstanding after the Record Date
but on or prior to the Distribution Date (or the earlier
redemption, exchange or expiration of the Rights).
Certificates representative of such shares of Common Stock
shall be deemed also to be certificates for Rights and shall
have impressed on, printed on, written on or otherwise affixed
to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Norwalk
Savings Society (the "Bank") and Chemical Mellon Shareholder Services,
L.L.C. dated as of May 10, 1996 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of the Bank. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no longer
be evidenced by this certificate. The Bank will mail to the holder of
this certificate a copy of the Rights Agreement
<PAGE>
without charge promptly after receipt of a written request therefor.
As described in the Rights Agreement, Rights beneficially owned by (i)
an Acquiring Person or any Associate or Affiliate thereof (as such
terms are defined in the Rights Agreement), (ii) a transferee of an
Acquiring Person (or of any such Affiliate) who becomes a transferee
after the Acquiring Person becomes such is designated as such or (iii)
under certain circumstances, a transferee of an Acquiring Person (or
of any such Affiliate) who becomes a transferee before or concurrently
with the Acquiring Person becoming such, shall become null and void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date (or the earlier redemption, exchange or expiration of the
Rights) the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone, and the transfer of
any of such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
(d) Effective on or before the Distribution Date, the Board of Directors
of the Bank shall, pursuant to the provisions of Connecticut General Statutes
33-341(c) and 33-360(b), cause the Articles of Incorporation of the Bank to be
amended to include the provisions related to the Preferred Shares as set forth
in the Form of Amendment to Articles of Incorporation attached hereto as Exhibit
A and made a part hereof.
Section 4. Form of Right Certificates. The Right Certificates (and the
forms of election to purchase and of assignment to be printed on the reverse
thereof) shall be substantially in the form of Exhibit B hereto and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Bank may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law, rule or regulation or with any rule or
regulation of any stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Right Certificates, whenever distributed, shall be dated
as of the Record Date and on their face shall entitle the holders thereof to
purchase such number of one one-hundredths of a Preferred Share as shall be set
forth therein at the price per one one-hundredths of a Preferred Share set forth
therein (such exercise price per one one-hundredth of a share, the "Purchase
Price"), but the amount and type of securities purchasable upon the exercise of
each Right and the Purchase Price thereof shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Bank by
its Chairman of the Board, its President or any
<PAGE>
Vice President, either manually or by facsimile signature, and shall have
affixed thereto the Bank's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Bank, either
manually or by facsimile signature. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Bank whose
manual or facsimile signature is affixed to the Right Certificates shall
cease to be such officer of the Bank before countersignature by the Rights
Agent and issuance and delivery by the Bank, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent, issued and
delivered with the same force and effect as though the Person who signed
such Right Certificates had not ceased to be such officer of the Bank. Any
Right Certificate may be signed on behalf of the Bank by any Person who, at
the actual date of the execution of such Right Certificate, shall be a
proper officer of the Bank to sign such Right Certificate, although at the
date of the execution of this Rights Agreement any such Person was not such
an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Right Certificates upon exercise or
transfer, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates, the certificate
number of each of the Right Certificates and the date of each of the Right
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Section 7(e) and Section 14 hereof,
at any time after the close of business on the Distribution Date, and at or
prior to the close of business on the Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section 11(a)(ii)
hereof) may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock (or, following a
Triggering Event, Common Stock, other securities, cash or assets, as the
case may be) as the Right Certificate or Right Certificates surrendered
then entitled such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
<PAGE>
exchanged at the principal office or offices of the Rights Agent designated
for such purpose. Neither the Rights Agent nor the Bank shall be obligated
to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder shall have
completed and signed the certificate contained in the form of assignment on
the reverse side of such Right Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Bank shall
reasonably request. Thereupon the Rights Agent shall, subject to Section
7(e) and Section 14 hereof, countersign and deliver to the Person entitled
thereto a Right Certificate or Right Certificates, as the case may be, as
so requested. The Bank may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right Certificates.
(b) Upon receipt by the Bank and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and,
at the Bank's request, reimbursement to the Bank and the Rights Agent of
all reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if mutilated, the
Bank will make and deliver a new Right Certificate of like tenor to the
Rights Agent for countersignature and delivery to the registered owner in
lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration of Rights.
(a) The Rights shall not be exercisable prior to the Distribution
Date. Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a) (iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to
the Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-hundredths of a
Preferred Share (or other securities or property, as the case may be) as to
which such surrendered Rights are then exercisable, at or prior to the
earliest of (i) the close of business on May 27, 2006 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof or (iii) the
<PAGE>
time at which the Rights are exchanged as provided in Section 24 hereof
(the "Exchange Date") (the earliest of (i), (ii) and (iii) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredths of a Preferred
Share purchasable pursuant to the exercise of a Right shall initially be
$40.00, shall be subject to adjustment from time to time as provided in
Section 11 and Section 13(a) hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly
executed, accompanied by payment, with respect to each Right so exercised,
of the Purchase Price per one one-hundredths of a Preferred Share (or other
shares, securities or property, as the case may be) to be purchased, and an
amount equal to any applicable transfer tax, in cash, or in the form of a
certified check or money order payable to the order of the Bank, the Rights
Agent shall, subject to Section 20(k) hereof, thereupon promptly (i)
requisition from any transfer agent of the Preferred Shares (or make
available, if the Rights Agent is the transfer agent therefor) certificates
for the total number of Preferred Shares to be purchased and the Bank
hereby irrevocably authorizes its transfer agent to comply with all such
requests, (ii) requisition from the Bank the amount of cash, if any, to be
paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates cause the same to
be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) after receipt thereof, promptly deliver such cash, if any,
to or upon the order of the registered holder of such Right Certificate. In
the event that the Bank is obligated to issue other securities of the Bank,
pay cash and/or distribute other property pursuant to Section 11(a) hereof,
the Bank will make all arrangements necessary so that such other
securities, cash and/or other property are available for distribution by
the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to, or upon
the order of, the registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section
<PAGE>
11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such or (iii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such
and receives such Rights pursuant to either (A) a transfer (whether or not
for consideration) from the Acquiring Person (or from any such Associate or
Affiliate) to holders of equity interests in such Acquiring Person (or in
any such Associate or Affiliate) or to any Person with whom the Acquiring
Person (or any such Associate or Affiliate) has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a
transfer which the Board of Directors of the Bank has determined (whether
before or after such transfer) is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of
this Section 7(e), shall become null and void without any further action
and no holder of such Rights shall have any rights whatsoever with respect
to such Rights, whether under any provision of this Agreement or otherwise.
No Right Certificate shall be issued pursuant to Section 3 hereof that
represents Rights beneficially owned by an Acquiring Person or any
Associate or Affiliate thereof and no Right Certificate shall be issued at
any time upon the transfer of any Rights to an Acquiring Person or any
Affiliate or Associate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate. Any Right Certificate delivered to the Rights Agent
for transfer to any of the foregoing Persons, or which represents void
Rights, shall be canceled. The Bank shall use all reasonable efforts to
insure that the provisions of this Section 7(e) are complied with, but
shall have no liability to any holder of Right Certificates or other Person
as a result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates and Associates or any transferee of any
of them hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Bank shall be obligated to undertake any
action with respect to a registered holder of Rights upon the occurrence of
any purported transfer as set forth in Section 6 hereof or exercise as set
forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered
for such exercise and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Bank shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered for the purpose
<PAGE>
of exercise, transfer, split up, combination or exchange shall, if surrendered
to the Bank or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall
be canceled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement. The
Bank shall deliver to the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Right Certificate purchased
or acquired by the Bank otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Right Certificates to the Bank, or shall, at
the written request of the Bank, destroy such canceled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Bank.
Section 9. Reservation and Availability of Capital Stock.
(a) The Bank covenants and agrees that it will cause to be reserved
and kept available out of its currently authorized and unissued Preferred
Shares (or other shares or securities, as the case may be) the number of
Preferred Shares (or other shares or securities, as the case may be) that,
as provided in this Agreement, including Section 11(a) (iii) hereof, will
be sufficient to permit to the maximum extent possible the exercise of all
outstanding Rights.
(b) So long as the Preferred Shares (or other shares or securities,
as the case may be) issuable and deliverable upon the exercise of Rights
may be listed on any national securities exchange, the Bank shall use its
best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed on such
exchange upon official notice of issuance upon such exercise.
(c) The Bank shall use its best efforts, if necessary, to (i) file,
as soon as practicable following the earliest date after the occurrence of
a Section 11(a)(ii) Event as of which the consideration to be delivered by
the Bank upon exercise of the Rights has been determined in accordance with
Section 11(a)(ii) or Section 11(a)(iii) hereof, or as soon as is required
by law following the Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933, as amended (the "Act"), with
respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become
effective as soon as practicable after such filing and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities and (B)
the Expiration Date. The Bank will also take such action as may be
appropriate under, or to ensure compliance with, the securities or "blue
sky" laws of the various states in
<PAGE>
connection with the exercisability of the Rights. The Bank may temporarily
suspend, for a period of time not to exceed 90 days after the date set
forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Bank shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect. Notwithstanding any
such provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof shall not
be permitted under applicable law or a registration statement shall not
have been declared effective. Nothing herein shall require the Bank to bear
the expense of obtaining registration if the cost of such registration in a
particular jurisdiction presents an unreasonable burden on the Bank under
the circumstances.
(d) The Bank covenants and agrees that it will take all such action
as may be necessary to insure that all Preferred Shares (or other shares or
securities, as the case may be) delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued
and fully paid and nonassessable.
(e) The Bank further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right
Certificates and of any certificates for Preferred Shares (or other shares
or securities) upon the exercise of Rights. The Bank shall not, however, be
required to pay any transfer tax which may be payable in respect of any
transfer involved in the transfer or delivery of Right Certificates to a
Person other than, or the issuance or delivery of Preferred Shares (or
other shares or securities) in respect of a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or deliver any certificates for Preferred Shares
(or other shares or securities) in a name other than that of the registered
holder upon the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to the Bank's
satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each Person in whose name any
certificate for a Preferred Share (or other shares or securities) is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of such Preferred Shares (or other shares or securities)
represented
<PAGE>
thereby on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Shares or other appropriate transfer books of the Bank are closed,
such Person shall be deemed to have become the record holder of such shares on,
and such certificate shall be dated, the next succeeding Business Day on which
the Preferred Shares or other appropriate transfer books of the Bank are open.
Prior to the exercise of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a stockholder of the Bank
with respect to shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Bank, except as provided herein.
Section 11. Adjustment of Purchase Price. Number and Kind of Shares or
Number of Rights. The Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Bank shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Shares payable
in Preferred Shares, (B) subdivide the outstanding Preferred Shares,
(C) combine the outstanding Preferred Shares into a smaller number of
shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which
the Bank is the continuing or surviving corporation) except as
otherwise provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Preferred
Shares or capital stock, as the case may be, issuable on such date,
shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon payment
of the Purchase Price then in effect, the aggregate number and kind of
Preferred Shares or capital stock, as the case may be, which, if such
Right had been exercised immediately prior to such date and at a time
when the Preferred Shares transfer books of the Bank were open, he
would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification.
(ii) In the event that any Person, alone or together with its
Affiliates and Associates or otherwise, shall become an Acquiring
Person, then proper provision shall
<PAGE>
promptly be made so that each holder of a Right, except as provided
below and in Section 7(e) hereof, shall thereafter have a right to
receive, upon exercise thereof at the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share
for which a Right is then exercisable, in accordance with the terms of
this Agreement, such number of shares of Common Stock of the Bank as
shall equal the result obtained by (x) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable and (y) dividing that
product by 25% of the current market price per share of the Common
Stock (determined pursuant to Section 11(d)) on the date of the
occurrence of the Section 11(a) (ii) Event.
(iii) In the event that the number of shares of Common Stock
which are authorized by the Bank's certificate of incorporation but
not outstanding or reserved for issuance for purposes other than upon
exercise of the Rights is not sufficient to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii)
of this Section 11(a), proper provision shall promptly be made so that
each holder of a Right, except as provided in Section 7(e) hereof,
shall, in the discretion of the Bank's Board of Directors, thereafter
have a right to receive, upon exercise thereof in accordance with the
terms of this Agreement such number of Common Stock Equivalents or the
maximum number of shares of Common Stock available for issuance to
such holder at a reduced Purchase Price which reflects a per share
Purchase Price of 25% of current market value as determined pursuant
to subparagraph (ii) above.
(b) In case the Bank shall fix a record date for the issuance of
rights, options or warrants (other than the Rights) to all holders of
Preferred Shares entitling them to subscribe for or purchase (for a period
expiring within 45 calendar days after such record date) Preferred Shares
(or securities having the same rights, privileges and preferences as the
Preferred Shares ("equivalent Preferred Shares")) or securities convertible
into Common Stock or equivalent Preferred Shares at a price per share of
Preferred Shares or per share of equivalent Preferred Shares (or having a
conversion or exercise price per share, if a security convertible into or
exercisable for Preferred Shares or equivalent preferred shares) less than
the current market price (as determined pursuant to Section 11(d) hereof)
per share of Preferred Shares on such record date, the Purchase Price to be
in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such date by a fraction, the
numerator of which shall be the number of Preferred Shares outstanding on
<PAGE>
such record date, plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares and/or equivalent
preferred shares so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at
such current market price and the denominator of which shall be the number
of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be
offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In case such
subscription price may be paid by delivery of consideration part or all of
which shall be in a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of Directors of the Bank,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of Rights.
Preferred Shares owned by or held for the account of the Bank shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if
such record date had not been fixed.
(c) In case the Bank shall fix a record date for the making of a
distribution to all holders of Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Bank is the continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular periodic cash dividend out of the
earnings or retained earnings of the Bank), assets (other than a dividend
payable in Preferred Shares, but including any dividend payable in stock
other than Preferred Shares) or convertible securities, subscription rights
or warrants (excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the current
market price (as determined pursuant to Section 11(d) hereof) per share of
Preferred Shares on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the Bank, whose
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of Rights) of the
portion of the cash, assets or evidences of indebtedness so to be
distributed or of such convertible securities, subscription rights or
warrants applicable to one Preferred Share and the denominator of which
shall be such current market price (as determined pursuant to Section 11(d)
hereof) per Preferred Share. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
<PAGE>
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation hereunder, the "current market
price" per share of any security of the Bank (a "Security") on any date
shall be deemed to be the average of the daily closing prices per share of
such Security for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however,
that in the event that the current market price per share of the Security
is determined during a period following the announcement by the issuer of
such Security of (A) a dividend or distribution on such Security payable in
shares of such Security or securities convertible into shares of such
Security (other than the Rights), or (B) any subdivision, combination or
reclassification of such Security, and prior to the expiration of the
requisite 30 Trading Day period, as set forth above, after the ex-dividend
date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such case,
the "current market price" shall be properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System National Market ("NASDAQ") or such other exchange or
system on which the Security is then listed or quoted, or, if on any such
date the Security is not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the Security selected by the Board of Directors of
the Bank. If on any such date no market maker is making a market in the
Security, the fair value of such Security on such date as determined in
good faith by the Board of Directors of the Bank shall be used. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading or traded
is open for the transaction of business or, if the shares of the Security
are not listed or admitted to trading on any national securities exchange,
a Business Day. If the Security is not publicly held or not so listed or
traded, "current market price" per share shall mean the fair value per
share as determined in good faith by the Board of Directors of the Bank,
or, if at the time of such determination there is an Acquiring Person, by a
majority of the Continuing Directors then in office, or if there are no
Continuing Directors, by a nationally recognized investment banking firm
selected by the Board of Directors, which determination shall be described
in a statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such
<PAGE>
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest one
millionth of a Preferred Share or ten-thousandth of any other share or
security, as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the transaction
which mandates such adjustment or (ii) the Expiration Date.
(f) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a) (ii), Section 11(a) (iii) or Section 13(a)
hereof, the holder of any Right shall be entitled to receive upon exercise
of such Right any shares of capital stock other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock contained in
Section 11(a), (b), (c), (e), (g), (h), (i), (j), (k), (l) and (m) and the
provisions of Sections 6, 7, 9, 10, 13 and 14 with respect to the Preferred
Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Bank subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths
of a Preferred Share purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Bank shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Section 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number
of one one-hundredths of a Preferred Share (calculated to the nearest one
millionth) obtained by (i) multiplying (x) the number of one one-hundredths
of a Preferred Share covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Bank may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of one one-
<PAGE>
hundredths of a Preferred Share purchasable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one one-hundredths of a
Preferred Share for which such Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest ten thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price
in effect immediately after adjustment of the Purchase Price. The Bank
shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day thereafter, but, if
the Right Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Bank shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date
Right Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Bank, shall cause to be distributed to
such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Bank, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after
such adjustment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may bear,
at the option of the Bank, the adjusted Purchase Price) and shall be
registered in the names of the holders of record of Right Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of Preferred Shares (or other shares or securities, as the case
may be) issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the Purchase
Price and the number of shares which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any,
of the Preferred Shares issuable upon exercise of the Rights, the Bank
shall take any corporate action which may, in the opinion of its counsel,
be necessary in order that the Bank may validly and legally issue fully
paid and nonassessable Preferred Shares at such adjusted Purchase Price.
<PAGE>
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Bank may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record
date of the Preferred Shares and other capital stock or securities of the
Bank, if any, issuable upon such exercise over and above the Preferred
Shares and other capital stock or securities of the Bank, if any, issuable
upon such exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided however, that the Bank shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Bank shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and
to the extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Preferred
Shares, issuance wholly for cash of any Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or exchangeable for
Preferred Shares, stock dividends or issuance of rights, options or
warrants referred to hereinabove in this Section 11, hereafter made by the
Bank to the holders of its Preferred Shares, shall not be taxable to such
stockholders.
(n) The Bank covenants and agrees that it shall not at any time after
the earlier of the Stock Acquisition Date and the Distribution Date (i)
consolidate with, (ii) merge with or into, or (iii) sell or transfer to, in
one transaction or a series of related transactions, assets or earning
power aggregating more than 50% of the assets or earning power of the Bank
and its Subsidiaries taken as a whole, any other Person or Persons if (x)
at the time of or immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments outstanding or
agreements or arrangements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights or
(y) prior to, simultaneously with or immediately after such consolidation,
merger or sale, the stockholders of a Person who constitutes, or would
constitute, the "Principal Party" for the purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.
(o) The Bank covenants and agrees that after the earlier of the Stock
Acquisition Date and the Distribution Date it will not, except as permitted
by Section 23, Section 24 or Section 27 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably
<PAGE>
foreseeable that such action will substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in
the event that the Bank shall at any time after the date hereof and prior
to the Distribution Date (i) declare a dividend on the outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or delivered thereafter
but prior to the Distribution Date, shall be proportionately adjusted so
that the number of Rights thereafter associated with each share of Common
Stock following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of Common Stock
immediately prior to such event by a fraction the numerator of which shall
be the total number of shares of Common Stock outstanding immediately prior
to the occurrence of the event and the denominator of which shall be the
total number of shares of Common Stock outstanding immediately following
the occurrence of such event. The adjustments provided for in this Section
11(p) shall be made successively when ever a dividend is declared or paid
or such a subdivision or combination is effected.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 and 13 hereof, the
Bank shall (a) promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Common Stock a copy
of such certificate and (c) mail a brief summary thereof to each holder of a
Right Certificate (or, if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in accordance with Section 25
hereof. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale of Assets or Earning Power.
(a) In the event that, following the earlier of the Distribution Date
and the Stock Acquisition Date, directly or indirectly, (i) the Bank shall
consolidate with, or merge with and into, any other Person, and the Bank
shall not be the continuing or surviving corporation of such consolidation
or merger, (ii) any Person shall merge with and into the Bank, and the Bank
shall be the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Stock shall be
changed into or exchanged for stock or other securities of any other Person
or cash or any other property, or (iii) the Bank shall sell or otherwise
<PAGE>
transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related transactions, assets
or earning power aggregating more than 50% of the assets or earning power
of the Bank and its Subsidiaries (taken as a whole) to any other Person or
Persons, then, and in each such case, proper provision shall be made so
that: (w) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable
(without taking into account any adjustment previously made pursuant to
Section 11(a) (ii) or 11(a) (iii)), in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of validly
authorized and issued, fully paid and nonassessable shares of freely
tradeable Common Stock of the Principal Party (as hereinafter defined), not
subject to any rights of call or first refusal, liens, encumbrances or
other claims, as shall be equal to the result obtained by (1) multiplying
the then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to Section 11(a) (ii) or
11(a)(iii)) and dividing that product by (2) 25% of the current market
price (determined pursuant to Section 11(d) (i) hereof) per share of the
Common Stock of such Principal Party on the date of consummation of such
consolidation, merger, sale or transfer; (x) the Principal Party shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of
the Bank pursuant to this Agreement; (y) the term "Bank" shall thereafter
be deemed to refer to such Principal Party, it being specifically intended
that the provisions of Section 11 hereof shall apply to such Principal
Party and (z) such Principal Party shall take such steps (including, but
not limited to, the authorization and reservation of a sufficient number of
shares of its Common Stock to permit exercise of all outstanding Rights in
accordance with this Section 13(a)) in connection with such consummation as
may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the shares of
its Common Stock thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean
(1) in the case of any transaction described in clause (i) or
(ii) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Common Stock of the Bank
are converted in such merger or consolidation, and if no securities
are so issued, the Person that is the other party to the merger or
consolidation; and
<PAGE>
(2) in the case of any transaction described in clause (iii) of
the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions; provided,
however, that in any such case, (x) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding
12-month period registered under Section 12 of the Exchange Act, and
such person is a direct or indirect Subsidiary of another Person the
Common Stock of which is and has been so registered, "Principal Party"
shall refer to such other Person; and (y) in case such Person is a
Subsidiary, directly or indirectly, of more than one Person, the
Common Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value.
(c) The Bank shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number
of authorized shares of its Common Stock which have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Bank and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a)
and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of assets
mentioned in paragraph (a) of this Section 13, the Principal Party will
(i) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, will use its best efforts to cause
such registration statement to become effective as soon as practicable
after such filing and will use its best efforts to cause such
registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Act) until the Expiration Date;
and
(ii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all respects with the requirements for registration on Form
10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. If any event described in
Section 13(a)(i), (ii) or (iii) shall occur at any time after the occurrence of
a Section 11(a) (ii) Event, the Rights which have not theretofore been exercised
shall
<PAGE>
thereafter become exercisable in the manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Bank shall not issue fractions of Rights or distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current
market value of a whole Right. For the purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of
the Rights for any day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as quoted on NASDAQ or, if on
any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of
Directors of the Bank. If on any such date no such market maker is making a
market in the Rights the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the Bank shall be
used and shall be conclusive for all purposes.
(b) The Bank shall not issue fractions of Preferred Shares, or of any
other share or security, as the case may be, upon exercise of the Rights or
distribute certificates which evidence fractions of Preferred Shares or of
any other share or security, as the case may be. In lieu of fractional
shares, the Bank shall pay to the registered holders of Right Certificates
at the time such Right Certificates are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of
one Preferred Share or of one share or security, as the case may be, issued
in lieu of a Preferred Share. For purposes of this Section 14(b), the
current market value of one share of Preferred Share or one share or
security, as the case may be, shall be the closing price of a share of
Preferred Share or one share or security, as the case may be, (as
determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights expressly
waives his right to receive any fractional Rights or any fractional share
upon exercise of Rights.
Section 15. Rights of Action. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution
<PAGE>
Date, the registered holders of Common Stock); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Stock), may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Bank to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such Right Certificate
in the manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of, any Person subject to this
Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right by
accepting the same consents and agrees with the Bank and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Bank and the
Rights Agent may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Stock
certificate made by anyone other than the Bank or the Rights Agent) for all
purposes whatsoever, and neither the Bank nor the Rights Agent, subject to
the last sentence of Section 7(e) hereof, shall be affected by any notice
to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Bank nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any
<PAGE>
governmental authority prohibiting or otherwise restraining performance of
such obligation; provided however, the Bank must use its best efforts to
have any such order, decree or ruling lifted or otherwise overturned as
soon as possible.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder,
as such, of any Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of shares of Common Stock
or any other securities of the Bank which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Bank or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent.
(a) The Bank agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to
time, on demand of the Rights Agent, its reasonable expenses and counsel
fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Bank also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, or willful misconduct on the part of
the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any claim of
liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
Right Certificate or certificate for Common Stock or for other securities
of the Bank, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to
be signed, executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
<PAGE>
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust or stock transfer business of the Rights
Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21. In case at the time such
successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent
may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and
in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Bank), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter (including, without limitation, the identity of any "Acquiring
Person" and the determination of "current market price") be proved or
established by the Bank prior to taking or suffering any
<PAGE>
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of the
Board, the President or any Executive or Senior Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Bank and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Bank only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Bank of any
covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 7(e) hereof) or any adjustment in the terms on the Rights
(including the manner, method or amount thereof) provided for in Sections
3, 11, 13, 23 or 24, or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise of
Rights evidenced. by Right Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Common Stock will, when issued,
be validly authorized and issued, fully paid and nonassessable.
(f) The Bank agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its
<PAGE>
duties hereunder from the Chairman of the Board, the President or any
Executive or Senior Vice President or the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the Bank, and to
apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Bank or become pecuniarily interested in any
transaction in which the Bank may be interested, or contract with or lend
money to the Bank or otherwise act as fully and freely as though it were
not the Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Bank or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Bank resulting from any
such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the cases may be, has
either not been completed or indicates an affirmative response to any item
therein, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the Bank.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Bank and to each transfer agent of
the Common Stock by registered or certified mail and to the holders of the Right
Certificates by first-class mail. The Bank may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and
<PAGE>
to each transfer agent of the Common Stock by registered or certified mail and
to the holders of the Right Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable of acting,
the Bank shall appoint a successor to the Rights Agent. If the Bank shall fail
to make such appointment within a period of 30 days after such removal or after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Bank), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Bank or by such a court, shall
be (a) a corporation organized and doing business under the laws of the United
States or of any state of the United States, in good standing, having a
principal office in the State of Connecticut or New York, which is authorized
under such laws to exercise stock transfer or corporate trust powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an Affiliate of a corporation described
in clause (a) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Bank shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Stock and mail a notice thereof in writing to the registered holders
of the Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Bank may, at
its option, issue new Right Certificates evidencing Rights in such form as may
be approved by its Board of Directors to reflect any adjustment or change in the
Purchase Price and the number or kind or class of shares of stock or other
securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution
Date and prior to the earliest of the redemption, exchange or expiration of the
Rights, the Bank (a) shall, with respect to shares of Common Stock so issued or
sold pursuant to the exercise of employee stock options or under or to any
employee plan, profit sharing trust or other arrangement outstanding, granted or
awarded as of the
<PAGE>
Distribution Date, or upon the exercise, conversion or exchange of securities
issued by the Bank prior to such date, and (b) may, in any other case, if deemed
necessary or appropriate by a majority of Continuing Directors, issue Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Right Certificate
shall be issued if, and to the extent that, the Bank shall be advised by counsel
that such issuance would create a significant risk of material adverse tax
consequences to the Bank or the person to whom such Right Certificate would be
issued, and (ii) no such Right Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
Section 23. Redemption.
(a) The Board of Directors of the Bank may, at its option and subject
to receipt of all necessary bank regulatory approvals (if any), at any time
prior to the earlier of (i) the close of business on the tenth day after
the Stock Acquisition Date or (ii) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a redemption price of
$.001 per Right appropriately adjusted to reflect any stock split, stock
dividend, reclassification or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the
"Redemption Price"); provided, however, that if the Board of Directors of
the Bank authorizes redemption of the Rights at or after the time a Person
becomes an Acquiring Person, then there must be Continuing Directors then
in office and such authorization shall require the concurrence of a
majority of such Continuing Directors. Notwithstanding anything in this
Agreement to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a) (ii) Event until such time as the
Bank's right of redemption hereunder has expired which time period may be
extended by the Board of Directors for so long as necessary to obtain any
required bank regulatory approvals. The Bank may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based on the "current
market price," as defined in Section 11(d)(i) hereof, of the Common Stock
at the time of redemption) or any other form of consideration deemed
appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Directors of the Bank
ordering the redemption of the Rights and without any further action and
without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the action of the
Board of Directors ordering the redemption of the Rights, the Bank shall
give notice of such redemption to the Rights Agent and the holders of the
then outstanding Rights by mailing such notice to all such holders at their
<PAGE>
last addresses as they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Bank nor any of
its Subsidiaries may redeem, acquire or purchase for value any Rights at
any time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with the
purchase or other acquisition of shares of Common Stock prior to the
Distribution Date.
Section 24. Notice of Proposed Actions.
(a) In case the Bank shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to
the holders of Preferred Shares or to make any other distribution to the
holders of Preferred Shares (other than a regular quarterly cash dividend
out of earnings or retained earnings of the Bank), or (ii) to offer to the
holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional shares of Preferred Shares or shares of stock of
any class or any other securities, rights or options, or (iii) to effect
any reclassification of its Preferred Shares (other than a reclassification
involving only the subdivision of outstanding shares of Preferred Shares),
or (iv) to effect any consolidation or merger into or with any other
Person, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than 50% of the
assets or earning power of the Bank and its Subsidiaries (taken as a whole)
to any other Person or Persons, (v) to effect the liquidation, dissolution
or winding up of the Bank, or (vi) to declare or pay any dividend on the
Common Stock payable in Common Stock or to effect a subdivision,
combination or consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock), then, in each such
case, the Bank shall give to each holder of a Right, to the extent feasible
and in accordance with Section 25, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of Common Shares and/or Preferred Shares, if any
such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 20 days prior to
the record date for determining holders of the Preferred Shares for
purposes of such action, and in the case of any such other action, at least
20 days prior to
<PAGE>
the date of the taking of such proposed action or the date of participation
therein by the holders of Common Shares and/or Preferred Shares, whichever
shall be the earlier. The failure to give notice required by this Section
24 or any defect therein shall not affect the legality or validity of the
action taken by the Bank or the vote upon any such action.
(b) In case any Section 11(a) (ii) Event shall occur, then, in any
such case, the Bank shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 25 hereof, a
notice of the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 25. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Bank shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Rights Agent) as follows:
Norwalk Savings Society
48 Wall Street
Norwalk, CT 06852
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Bank or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid addressed (until another address is
filed in writing with the Bank) as follows:
Chemical Mellon Shareholder Services, L.L.C.
Overpeck Centre
85 Challenger Road
Ridgefield Park, N.J. 07660
Notices or demands authorized by this Agreement to be given or made by the Bank
or the Rights Agent to the holder of any Right Certificate (or, prior to the
Distribution Date, to the holder of any certificate representing shares of
Common Stock) shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Bank.
Section 26. Supplements and Amendments. Prior to the earlier of the Stock
Acquisition Date and the Distribution Date and subject to the penultimate
sentence of this Section 26, the Bank and the Rights Agent shall, if the Bank so
directs, supplement or amend any provision of this Agreement (whether or not
adverse to the holders of Rights) without the approval of any holders of Rights.
From and after the earlier of the Stock Acquisition Date and the
<PAGE>
Distribution Date and subject to the penultimate sentence of this Section 26,
the Bank and the Rights Agent shall, if the Bank so directs, supplement or amend
this Agreement without the approval of any holders of Rights in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder (which shortening or
lengthening shall be effective only if there are Continuing Directors then in
office and shall require the concurrence of a majority of such Continuing
Directors if such supplement or amendment occurs at or after the time a Person
becomes an Acquiring Person) or (iv) to change or supplement the provisions
hereof in any manner which the Bank may deem necessary or desirable and which
shall not materially adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person); provided, however, that this Agreement may not be
supplemented or amended to lengthen, pursuant to clause (iii) of this sentence,
(A) a time period relating to when the Rights may be redeemed at such time as
the Rights are not then redeemable or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing or clarifying the rights
of, and/or the benefits to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Bank which states that the
proposed supplement or amendment is in compliance with the terms of this Section
26, the Rights Agent shall execute such supplement or amendment. Notwithstanding
anything contained in this Agreement to the contrary, no supplement or amendment
shall be made which decreases the Redemption Price. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock.
Section 27. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Bank or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of Directors, etc. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock and/or Preferred Shares outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the Beneficial Owner,
shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. The Board of Directors of
the Bank (with, where specifically provided for herein, the concurrence of the
Continuing Directors) shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the
Board (with, where specifically provided for herein, the concurrence of the
Continuing Directors) or to the Bank, or as may be necessary or advisable in the
administration of this Agreement, including without limitation, the right and
power to (i) interpret the provisions of this
<PAGE>
Agreement and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or not
redeem the Rights, to exchange or not to exchange the rights or to amend the
Agreement). All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (or, where specifically provided
for herein, by the Continuing Directors) in good faith, shall (x) be final,
conclusive and binding on the Bank, the Rights Agent, the holders of the Rights
and all other parties, and (y) not subject to the Board or the Continuing
Directors to any liability to the holders of the Right.
Section 29. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Bank, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Stock) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Bank, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Connecticut and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state.
Section 32. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute one and the
same instrument.
Section 33. Descriptive Headings. The captions herein and in the table of
contents hereto are included for convenience of reference only, do not
constitute a part of this Agreement and shall be ignored in the construction and
interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
<PAGE>
NORWALK SAVINGS SOCIETY
By
------------------------------------
President
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.
By
------------------------------------
Vice President
Exhibit A
FORM
of
AMENDMENT TO ARTICLES OF INCORPORATION
of
NORWALK SAVINGS SOCIETY
(Pursuant to Connecticut General Statutes
Sections 33-341(c) and 33-360(b))
NORWALK SAVINGS SOCIETY, a capital stock savings bank organized and
existing under the laws of the State of Connecticut (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation at a meeting duly called and held on
April 24, 1996:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of the Amended and Restated
Articles of Incorporation of the Corporation and sections 33-341(b) and (c) of
the Connecticut General Statutes, the Board of Directors hereby creates a series
of Preferred Stock, par value $0.01 per share (the "Preferred Stock"), of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences, and limitations thereof as set forth in the
following amendment to the Amended and Restated Articles of Incorporation of the
Corporation:
FURTHER RESOLVED, that the Amended and Restated Articles of Incorporation
of the Corporation shall be, and they hereby are, amended by the addition of the
following pursuant to ARTICLE THIRD:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
<PAGE>
shall be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be 50,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock, par value $0.01
per share (the "Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of
<PAGE>
this Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, if the Board of
<PAGE>
Directors creates a series of Preferred Stock or any similar stock, or by law,
the holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on
a parity with the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such terms
as the Board of Directors, after
<PAGE>
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock, then in each such case the aggregate amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under the
proviso in clause (1) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
<PAGE>
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
FURTHER RESOLVED, that 50,000 shares of Series A Preferred Stock be, and
they hereby are, initially reserved for issuance upon exercise, in accordance
with the terms of a certain Rights Agreement dated as of May 10, 1996 by and
between the Corporation and Chemical Mellon Transfer Services, Inc. as Rights
Agent, as amended from time to time (the "Rights Agreement"), of the Rights (as
defined in the Rights Agreement), such number to be subject to adjustment from
time to time in accordance with the Rights Agreement.
<PAGE>
Exhibit B
Form of Right Certificate
Certificate No. R- Rights
---------
NOT EXERCISABLE AFTER MAY 27, 2006 OR EARLIER IF REDEEMED OR EXCHANGED BY
THE BANK. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE BANK,
AT $.001 PER RIGHT, AND TO EXCHANGE AT THE OPTION OF THE BANK, ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. AS DESCRIBED IN THE RIGHTS AGREEMENT,
RIGHTS BENEFICIALLY OWNED BY (l) AN ACQUIRING PERSON OR ANY ASSOCIATE OR
AFFILIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), (2)
A TRANSFEREE OF AN ACQUIRING PERSON (OR OF ANY SUCH ASSOCIATE OR AFFILIATE)
WHO BECOMES A TRANSFEREE AFTER THE ACQUIRING PERSON BECOMES SUCH OR (3)
UNDER CERTAIN CIRCUMSTANCES, A TRANSFEREE OF AN ACQUIRING PERSON (OR OF ANY
SUCH ASSOCIATE OF AFFILIATE) WHO BECOMES A TRANSFEREE BEFORE OR
CONCURRENTLY WITH THE ACQUIRING PERSON BECOMING SUCH, SHALL BECOME NULL AND
VOID.
Right Certificate
Norwalk Savings Society
This certifies that __________________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of May 10, 1996 (the "Rights Agreement") between
Norwalk Savings Society, a Connecticut-chartered capital stock savings bank (the
"Bank"), and Chemical Mellon Shareholder Services, L.L.C. (the "Rights Agent"),
to purchase from the Bank at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M. (Eastern time) on May
27, 2006 at the office or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-hundredths of a fully paid,
non-assessable share of Series A Junior Participating Preferred Stock, par value
$.01, (the "Preferred Shares") of the Bank, at a cash purchase price of $40.00
per one one-hundredths of a Preferred Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase and the related Certificate duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one one-hundredths of a
Preferred Share which may be purchased upon exercise thereof) set forth above,
and the Purchase Price per one
<PAGE>
one-hundredths of a Preferred Share set forth above, are the number and
Purchase Price as of May 28, 1996, based on the Preferred Shares as constituted
at such date.
Upon the occurrence of a Section 11(a) (ii) Event (as such term is defined
in the Rights Agreement), if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined in the Rights Agreement),
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate)
who becomes a transferee after the Acquiring Person becomes such), or (iii)
under certain circumstances specified in the Rights Agreement, a transferee of
an Acquiring Person (or of any such Affiliate or Associate) who becomes a
transferee before or concurrently with the Acquiring Person becoming such), such
Rights shall become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such Section 11(a) (ii)
Event.
As provided in the Rights Agreement, the Purchase Price and the number of
one one-hundredths of the Preferred Shares and the number and kind of other
securities which may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Bank and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Bank.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Bank at its option at a redemption
price of $.001 per Right or (ii) may be exchanged by the Bank at
<PAGE>
its option for Preferred Shares or shares of the Bank's Common Stock, par value
$.01 per share (or, in certain circumstances, Common Stock Equivalents (as such
term is defined in the Rights Agreement)).
No fractional Preferred Shares or fractional shares of Common Stock or
other securities will be issued upon the exercise of any Right or Rights
evidenced hereby, but in lieu thereof a cash payment will be made, as provided
in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Preferred Shares or
of shares of any other securities of the Bank which may at any time be issuable
on the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Bank or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting thereof, or to give
or withhold consent to any corporate action, or, to receive notice of meetings
or other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Bank and its
corporate seal.
Dated as of , 19 .
-------------------- --
Attest: Norwalk Savings Society
- -------------------------- ---------------------------
Secretary Title:
(seal)
Countersigned:
- --------------------------
as Rights Agent
By
------------------------
Authorized Signature
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _____________________________________________________________
hereby sells, assigns and transfers unto _______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Bank,
with full power of substitution.
Dated: , .
--------------- ----
--------------------------------------------------
Signature Guaranteed: Signature
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Right Certificate ____ are ____ are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement) ;
(2) after due inquiry and to the best knowledge of the undersigned, the
Rights evidenced by this Right Certificate ___ are ___ are not being sold,
assigned and transferred to a Person who is an Acquiring Person, an Affiliate or
Associate of an Acquiring Person or a nominee of any such Acquiring Person,
Affiliate or Associate.
<PAGE>
(3) after due inquiry and to the best knowledge of the undersigned, it
____ did ____ did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 19 ---------------------------------------------
----------- -- Signature
NOTICE
The signatures to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: Norwalk Savings Society
The undersigned hereby irrevocably elects to exercise
___________________ Rights represented by this Right Certificate to purchase the
Preferred Shares issuable upon the exercise of the Rights (or such other
securities of the Bank or of any other person which may be issuable upon the
exercise of the Rights) and requests that certificates for such shares be issued
in the name of and delivered to:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
<PAGE>
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated: , 19 .
------------------ --
--------------------------------------------------
Signature Guaranteed: Signature
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate ____ are ____ are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it ____
did ____ did not acquire the Rights evidenced by this eight Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: , 19 . --------------------------------------------------
------------ -- Signature
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change whatsoever.
<PAGE>
Exhibit C
NORWALK SAVINGS SOCIETY
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On May 10, 1996 (the "Declaration Date"), Norwalk Savings Society (the "Bank")
declared a dividend distribution of one Right for each outstanding share of
Common Stock of the Bank. The dividend is payable on May 28, 1996 to the
stockholders of record as of the close of business on such date (the "Record
Date"). Each Right entitles the registered holder to purchase from the company
one one-hundredths of a share of Series A Junior Participating Preferred Stock,
par value $.01 per share (the "Preferred Shares") at a price of $40.00 per one
one-hundredths of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Bank and Chemical Mellon
Shareholder Services, L.L.C. (the "Rights Agent").
Until the close of business on the earliest of (i) the tenth day after a public
announcement that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership of 10% or more
of the outstanding shares of Common Stock of the Bank (an "Acquiring Person");
(ii) the tenth day (or such later day as may be determined by action of the
Board of Directors of the Bank prior to such time as any person becomes an
Acquiring Person) after the date of the commencement of a tender or an exchange
offer by any person (other than the Bank) to acquire (when added to any shares
as to which such person is the beneficial owner immediately prior to such
commencement) beneficial ownership of 10% or more of the issued and outstanding
shares of Common Stock; and (iii) the tenth day (or such later day as may be
determined by action of the Board of Directors of the Bank prior to such time as
any person becomes an Acquiring Person) after the filing by any Person (other
than the Bank) of a registration statement under the Securities Act of 1933, as
amended, with respect to a contemplated exchange offer to acquire (when added to
any shares as to which such person is the beneficial owner immediately prior to
such filing) beneficial ownership of 10% or more of the issued and outstanding
shares of Common Stock (the earliest of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
Bank's Common Stock certificates outstanding as of the Record Date, by such
Common Stock certificate and this Summary. The date of announcement of the
existence of an Acquiring Person referred to in clause (i) above is hereinafter
referred to as the "Stock Acquisition Date."
The Rights Agreement provides that, until the Distribution Date, the Rights will
be transferred with and only with the Bank's Common Stock. New Common Stock
certificates issued after the Record Date upon transfer or new issuance of the
Bank's Common Stock will contain a notation incorporating the Rights Agreement
by reference.
<PAGE>
Until the Distribution Date, the surrender for transfer of any of the Common
Stock certificates outstanding as of the Record Date will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate and the number of Rights associated with each share of Common Stock
shall be proportionately adjusted in the event of any dividend in Common Stock
on the Common Stock or subdivision, combination or reclassification of the
Common Stock. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Bank's Common Stock as of the close of business on the
Distribution Date and such separate certificates alone will evidence Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on May 27, 2006, unless earlier redeemed by the Bank as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then-current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be redeemable.
Each Preferred Share will be entitled to a minimum preferential quarterly
dividend payment of $1 per share but will be entitled to an aggregate dividend
of 100 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share. All
liquidation payments are subject to the prior rights of Bank account holders to
the Bank's "liquidation account" established in accordance with Connecticut
Banking Law in connection with the Bank's conversion from mutual to capital
stock form in 1994. Each Preferred Share will have 100 votes, voting
<PAGE>
together with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount received per
Common Share. These rights are protected by customary anti-dilution provisions.
In the event that the Bank is acquired in a merger or other business
combination, proper provision shall be made so that each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the surviving company (or its parent company or other controlling entity) which
at the time of such transaction would have a market value of four times the
exercise price of the Right. In the event that the Bank were the surviving
corporation in a merger with any Person, or in the event that the Stock
Acquisition Date occurs, the Rights Agreement provides that proper provision
would be made so that each holder of a Right, other than the Acquiring Person
(whose Rights would thereafter be null and void) and certain of its transferees,
would thereafter have the right to receive upon exercise that number of shares
of the Bank's Common Stock having a market value of four times the exercise
price of the Right (i.e., a 75% discount to market value); if insufficient
shares are available to satisfy the Right, the Bank may substitute other
consideration, as appropriate, or make an adjustment to the exercise price of
the Right to achieve substantially the intended economic benefit to shareholders
(other than the Acquiring Person) of the 75% discount.
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
Purchase Price. No fractional Preferred Shares or fractional shares of other
securities will be issued and, in lieu thereof, if necessary, an adjustment in
cash will be made based on the market price of the Preferred Shares or other
securities on the last trading date prior to the date of exercise.
At any time prior to the close of business on the date that Rights holders
become entitled to purchase Preferred Shares of the Bank (which time period may
be extended by the Board of Directors for so long as necessary to obtain any
required bank regulatory approvals), the Bank may redeem the Rights in whole,
but not in part, at a price of $.001 per Right (payable in cash, Preferred
Shares, shares of Common Stock or other consideration), appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (the "Redemption Price"). Immediately upon the action of
the Board of Directors of the Bank electing to redeem the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a stockholder of the Bank, including, without limitation, no right to vote or to
receive dividends.
<PAGE>
The terms of the Rights may be amended by the Bank and the Rights Agent,
provided that following the earlier of the Distribution Date and the Stock
Acquisition Date, the amendment does not materially adversely affect the
interests of the holders of the Rights (other than an Acquiring Person) and
provided that no amendment shall be made which decreases the Redemption Price.
A copy of the Rights Agreement is being filed with the Federal Deposit Insurance
Corporation as an Exhibit to a Form F-10. A copy of the Rights Agreement will be
available free of charge from the Bank. This summary description of the Rights
does not purport to be complete and is qualified in its entirety by reference to
the Rights Agreement, which is incorporated herein by reference.
<PAGE>
Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT between NORWALK SAVINGS
SOCIETY, a Connecticut Chartered stock savings bank (the "Bank")
and CHASEMELLON SHAREHOLDERS SERVICES, L.L.C., as successor-in-
interest to Chemical-Mellon Shareholder Services, L.L.C., (the
"Rights Agent") is dated as of February 28, 1997 (the "Amendment").
WHEREAS, the Bank and the Rights Agent have entered into that
certain Rights Agreement dated May 10, 1996 (the "Agreement"), a
copy of which is attached hereto and incorporated by reference.
WHEREAS, Section 26 of the Agreement provides that, under
certain conditions, the Bank and the Rights Agent may, if the Bank
so directs, amend the Agreement in any manner which the Bank may
deem necessary or desirable and which shall not materially
adversely affect the interests of Rights Holders (as defined in the
Agreement) without the approval of Rights Holders.
WHEREAS, the Board of Directors of the Bank has determined at
a meeting held on February 26, 1997 that it is in the best interest
of the Bank to amend the Agreement as set forth herein.
NOW THEREFORE, the undersigned parties mutually agree to
following terms and conditions and to amend the Agreement as
follows:
1. Section 1(a) of the Agreement shall be amended and
restated in its entirety to read as follows:
<PAGE>
" Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all
Affiliates (as hereinafter defined) and Associates (as
hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 10% or more of the shares of
Common Stock then outstanding, but shall not include (i) the
Bank, (ii) any Subsidiary (as hereinafter defined) of the
Bank, (iii) any employee benefit plan of the Bank or any
Subsidiary of the Bank, (iv) any entity (including its
Affiliates) organized, appointed or established for or
pursuant to the terms of any such plan acting solely in its
capacity (or their capacities) under such plan, or (v) any
Person that beneficially owns 10% or more of the Common Stock
if the Bank's Board of Directors, in its sole discretion,
formally determines that such Person should not be considered
an "Acquiring Person" for purposes of this Agreement because
of the identity of such Person and/or the nature of the
ownership of shares of Common Stock held by such Person or for
other good cause shown. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" solely as the result
of an acquisition of Common Stock by the Bank which, by
reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such
Person to 10% or more of the shares of Common Stock then
outstanding; provided however, that if a Person becomes the
Beneficial Owner of 10% or more of the shares of Common Stock
then outstanding by reason of share acquisitions by the Bank
and shall, after such acquisitions, become the Beneficial
Owner of any additional shares of Common Stock, then such
Person shall be deemed to be an "Acquiring Person" subject
only to the foregoing.
2. Section 3 of the Agreement shall be amended to add a new
Section 3(e) as set forth below:
" Section 3. Issuance of Rights Certificates.
(e) In no event shall Rights Certificates be issued to
Rights Holders if, pursuant to Section 1(a)(v) of this
Agreement, the Board of Directors of the Bank determines, on
or before the 10th day after a Stock Acquisition Date, that a
Beneficial Owner of 10% or more of Common Stock should not be
considered an "Acquiring Person" for purposes of this
Agreement because of the identity of such Person and/or the
nature of the ownership of shares of Common Stock held by such
Person or for other good cause shown.
3. Except as expressly modified or amended by this Amendment,
all of the terms, covenants and conditions of the Agreement are
hereby ratified and confirmed, all to remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment as of the date first written above.
NORWALK SAVINGS SOCIETY
By: /s/ Robert T. Judson
Robert T. Judson
Its President
CHASE MELLON SHAREHOLDERS SERVICES, LLC
By: /s/ Harriet Drandoff
Harriet Drandoff
Its
<PAGE>
Exhibit 4.2
ASSIGNMENT
This ASSIGNMENT is dated May 20, 1997 and is entered into
between and among NORWALK SAVINGS SOCIETY, a Connecticut stock
savings bank (the "Assignor"), NSS BANCORP, INC., a Connecticut
corporation (the "Assignee"), and CHASEMELLON SHAREHOLDER SERVICES,
LLC (the "Rights Agent")
WHEREAS, the Assignor and the Rights Agent have entered into
that certain Rights Agreement dated May 10, 1996, as amended by
that certain Amendment to Rights Agreement dated as of February 28,
1997 (collectively, the "Rights Agreement");
WHEREAS, section 27 of the Rights Agreement provides that all
of the covenants and provisions of the Rights Agreement by or for
the benefit of the Assignor or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns;
and
WHEREAS, pursuant to that certain Agreement and Plan of
Reorganization entered into between the Bank and that Company dated
May 20, 1997 (the "Plan"), the Bank is obligated to assign all
right, title, and interest in the Rights Agreement to the Company
and the Company is obligated to accept such assignment from the
Bank.
NOW THEREFORE, in consideration of the mutual promises and
covenants contained herein, the Bank, the Company and the Rights
Agent agree as follows:
1. Assignment. The Assignor hereby assigns to Assignee all
right, title, and interest in and to the Rights Agreement and
<PAGE>
Assignee hereby accepts such assignment effective upon the
effective date of the Plan.
2. Covenants of Assignor. Assignor warrants that the Rights
Agreement is valid and is now in full force and effect and that all
covenants and conditions of the Rights Agreement have been and
continue to be fulfilled.
3. Covenants of Assignee; Performance of Duties. The
Assignee hereby agrees to perform all duties of the Assignor under
the Rights Agreement, and shall indemnify and hold harmless
Assignor from any claim or demand made thereunder.
4. Amendment to Rights Agreement. The following terms as
used in the Rights Agreement shall have the following meaning:
(a) Section 1(f) of the Rights Agreement shall be
deleted in its entirety and the following shall be substituted in
lieu thereof:
(f) "Common Stock" shall mean the Common
Stock, par value $0.01 per share, of NSS Bancorp, Inc., except that
"Common Stock" when used with reference to any Person other than
the Bank shall mean the capital stock of such Person with the
greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such
Person.
(b) All references to the "Bank" made in the Rights
Agreement shall hereafter be deemed to refer not to "Norwalk
Savings Society" but instead to "NSS Bancorp, Inc."
5. Acknowledgement of Rights Agent. The Rights Agent hereby
acknowledges that all right, title, and interest in the Rights
Agreement previously vested in the Assignor has been validly
assigned to and accepted by the Assignee. The Rights Agent hereby
releases the Assignor from all of Assignor's obligations to perform
under the Rights Agreement and agrees to accept performance of all
obligations thereunder by the Assignee.
IN WITNESS WHEREOF, the undersigned parties have executed this
Assignment this 20th day of May, 1997.
NORWALK SAVINGS SOCIETY
By: /s/ Robert T. Judson
Robert T. Judson
Its President
NSS BANCORP, INC.
By: /s/ Robert T. Judson
Robert T. Judson
Its President
CHASE MELLON SHAREHOLDERS SERVICES, LLC
By: /s/ Harriet Drandoff
Harriet Drandoff
Its Relationship Manager
