UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q/A
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD _________ TO __________
COMMISSION FILE NUMBER 1-6366
FLEET FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
RHODE ISLAND 05-0341324
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
ONE FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(Address of principal executive office) (Zip Code)
(617) 346-4000
Registrant's telephone number, including area code
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file reports), and (2) has been subject to such filing requirements
for the past 90 days.
YES X NO
The number of shares of common stock of the Registrant outstanding as of October
31, 1998 was 568,336,222.
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PART II. ITEM 6.
(a) Exhibit Index
Exhibit
Number
3 Restated Articles of Incorporation of the Registrant, as amended.
4* Instruments defining the rights of security holders,
including Debentures
11 Statement re: computation of per share earnings**
12 Statement re: computation of ratios**
27 Financial data schedule**
* Registrant has no instruments defining the rights of holders of equity
or debt securities where the amount of securities authorized thereunder
exceeds 10% of the total assets of the registrant and its subsidiaries on
a consolidated basis. Registrant hereby agrees to furnish a copy of any
such instrument to the Commission upon request.
** Previously filed.
(b) Four Form 8-K's were filed during the period from July 1, 1998 to the
date of the filing of this report.
- Current Report on Form 8-K dated July 7, 1998 reporting the issuance
of $250 million of 6.70% Subordinated Debentures.
- Current Report on Form 8-K dated July 15, 1998 announcing second
quarter earnings and a two-for-one stock split.
- Current Report on Form 8-K dated September 25, 1998 authorizing the
sale of and establishing the terms of $2 billion in aggregate
principal amount of medium term notes under Registration Statement No.
333-62905.
- Current Report on Form 8-K dated October 21, 1998 announcing third
quarter earnings and a 10% increase in the quarterly common stock
dividend to $.27 per common share.
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SIGNATURES
Pursuant to the requirement of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FLEET FINANCIAL GROUP, INC.
(Registrant)
By /s/ Robert C. Lamb, Jr.
-----------------------------
Robert C. Lamb, Jr.
Controller and Chief
Accounting Officer
DATE: November 24, 1998
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EXHIBIT 3
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
BUSINESS CORPORATION
RESTATED ARTICLES OF INCORPORATION, AS AMENDED
OF
FLEET FINANCIAL GROUP, INC.
Pursuant to the provisions of Section 7-1.1-59 of the General Laws, 1956, as
amended, the undersigned corporation adopts the following Restated Articles of
Incorporation:
FIRST: The name of the corporation (hereinafter called the Corporation) is
FLEET FINANCIAL GROUP, INC.
SECOND: The period of its duration is perpetual.
THIRD: The nature of the business of the Corporation and the objects or
purposes to be transacted, promoted or carried on by it are as
follows:
1. To purchase or otherwise acquire and to hold, pledge, sell, exchange or
otherwise dispose of securities (which term includes any shares of stock, bonds,
debentures, notes, mortgages or other instruments representing rights to
receive, purchase or subscribe for the same or representing any other rights or
interest therein or in any property or assets) created or issued by any person,
firm, association, corporation (including, to the extent permitted by the laws
of the State of Rhode Island, the Corporation) or government or subdivision,
agency or instrumentality thereof; to make payment therefor in any lawful
manner; and to exercise, as owner or holder thereof, any and all rights, powers
and privileges in respect thereof (to the extent aforesaid).
2. To make, manufacture, produce, prepare, process, purchase or otherwise
acquire, and to hold, use, sell, import, export, or otherwise trade or deal in
and with, goods, wares, products, merchandise, machines, machinery, appliances
and apparatus, of every kind, nature and any manufacturing or other business of
any kind or character whatsoever, including, but not by way of limitation,
importing, exporting, mining, quarrying, producing, farming, agriculture,
forestry, construction, management, advisory, mercantile, financial or
investment business, any business engaged in rendering any manner of services
and any business of buying, selling, leasing or dealing in properties of any and
all kinds, whether any such business is located in the United States of America
or any foreign country, and whether or not related to, conducive to, incidental
to, or in any way connected with, the foregoing business.
3. To engage in research, exploration, laboratory and development work relating
to any material, substance, compound or mixture now known or which may hereafter
be known, discovered or developed and to perfect, develop, manufacture, use,
apply and generally to deal in and with any such material, substance, compound
or mixture.
4. To purchase, lease or otherwise acquire, to hold, own, use, develop,
maintain, manage and operate, to sell, transfer, lease, assign, convey,
exchange, or otherwise turn to account or dispose of, and, generally, to deal in
and with, personal and real property, tangible or intangible, of every kind and
description, wheresoever situated, and any and all rights, concessions,
interests and privileges therein.
5. To adopt, apply for, obtain, register, purchase, lease or otherwise acquire,
to maintain, protect, hold, use, own, exercise, develop, manufacture under,
operate and introduce and to sell and grant licenses or other rights in respect
of, assign or otherwise dispose of, turn to account, or in any manner deal with,
and contract with reference to, any trademarks, trade names, patents, patent
rights, concessions, franchises, designs, copyrights and distinctive marks and
rights analogous thereto and inventions, devices, improvements, processes,
recipes, formulae and the like, including, but not by way of limitation, such
thereof as may be covered by, used in connection with, or secured or received
under, Letters Patent of the United States of America or elsewhere, and any
licenses and rights in respect thereof, in connection therewith or appertaining
thereto.
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6. To make, enter into, perform and carry out contracts of every kind and
description with any person, firm, association, corporation or government or
subdivision, agency or instrumentality thereof; to endorse or guarantee the
payment of principal, interest or dividends upon, and to guarantee the
performance of sinking fund or other obligations of, any securities or the
payment of a certain amount per share in liquidation of the capital stock of any
other corporation; and to guarantee in any way permitted by law the performance
of any of the contracts or other undertakings of any person, firm, association,
corporation or government or subdivision, agency or instrumentality thereof.
7. To acquire by purchase, exchange or otherwise, all, or any part of, or any
interest in, the properties, assets, business and good will of any one or more
persons, firms, associations or corporations heretofore or hereafter engaged in
any business whatsoever; to pay for the same in cash, property or its own or
other securities; to hold, operate, lease, reorganize, liquidate, sell or in any
manner dispose of the whole or any part thereof; to assume or guarantee, in
connection therewith, the performance of any liabilities, obligations or
contracts of such persons, firms, associations or corporations; and to conduct
the whole or any part of any business thus acquired.
8. To lend its uninvested funds from time to time to such extent, to such
persons, firms, associations, corporations or governments or subdivisions,
agencies or instrumentalities thereof, and on such terms and on such security,
if any, as the Board of Directors of the Corporation (hereinafter called the
Board of Directors) may determine.
9. To borrow money for any of the purposes of the Corporation, from time to
time, and without limits as to amount; to issue and sell from time to time its
own securities in such amounts, on such terms and conditions, for such purposes
and for such consideration, as may now be or hereafter shall be permitted by the
laws of the State of Rhode Island; and to secure such securities by mortgage
upon, or the pledge of, or the conveyance or assignment in trust of, the whole
or any part of the properties, assets, business and good will of the Corporation
then owned or thereafter acquired.
10. To promote, organize, manage, aid or assist, financially or otherwise,
persons, firms, associations or corporations engaged in any business whatsoever;
and to assume or underwrite the performance of all or any of their obligations.
11. To organize or cause to be organized under the laws of the State of Rhode
Island, any other state or states of the United States of America, the District
of Columbia, any territory, dependency, colony or possession of the United
States of America, or of any foreign country, a corporation or corporations for
the purpose of transacting, promoting or carrying on any or all objects or
purposes for which the Corporation is organized; to dissolve, wind up,
liquidate, merge or consolidate any such corporation or corporations or to cause
the same to be dissolved, wound up, liquidated, merged or consolidated; and,
subject to the laws of the State of Rhode Island, to consolidate or merge with
or into one or more other corporations organized under the laws of the State of
Rhode Island or under the laws of any other state or states in the United States
of America, the District of Columbia, any territory, dependency, colony or
possession of the United States of America or of any foreign country if the laws
under which said other corporation or corporations are formed shall permit such
consolidation or merger.
12. To conduct its business in any and all of its branches and maintain offices
both within and without the State of Rhode Island in any and all states of the
United States of America, in the District of Columbia, in any or all
territories, dependencies, colonies or possessions of the United States of
America and in foreign countries.
13. To such extent as a business corporation organized under the laws of the
State of Rhode Island may now or hereafter lawfully do, to do, either as
principal or agent and either alone or through subsidiaries or in connection
with other persons, firms, associations or corporations, all and everything
necessary, suitable, convenient or proper for, or in connection with, or
<PAGE>
incident to, the accomplishment of any of the purposes or the attainment of any
one or more of the objects herein enumerated or designed directly or indirectly
to promote the interests of the Corporation or to enhance the value of its
properties and in general to engage in any lawful act or activity for which
corporations may be organized under the General Laws of Rhode Island; and to do
any and all things and exercise all powers, rights and privileges which a
business corporation may now or hereafter be organized or authorized to do or to
exercise under the laws of the State of Rhode Island.
14. Whenever the context permits, the following provisions shall govern the
construction of the paragraphs of these purposes: no specified enumeration shall
be construed as restricting in any way any general language; any word, whether
in the singular or plural shall be construed to mean both the singular and the
plural; any phrase in the conjunctive or in the disjunctive shall include both
the conjunctive and disjunctive; the mention of the whole shall include any part
or parts; any one or more or all of the purposes set forth may be pursued from
time to time and whenever deemed desirable; verbs in the present or future tense
shall be construed to include both the present and future tenses or either of
them.
FOURTH: The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 1,216,000,000, of which 16,000,000 shares of
the par value of $1 each are to be of a class designated "Preferred Stock" and
1,200,000,000 of the par value of $0.01 each are to be of a class designated
"Common Stock".
The voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the classes of stock of the Corporation which are fixed
by these Articles of Incorporation, and the authority vested in the Board of
Directors to fix by vote or votes providing for the issue of Preferred Stock,
the voting powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of Preferred Stock which are not fixed by
these Articles of Incorporation, are as follows:
(a) The Preferred Stock may be issued from time to time in one or more
series of any number of shares; provided that the aggregate number of
shares issued and not canceled of any and all such series shall not exceed
the total number of shares of Preferred Stock hereinabove authorized. Each
series of Preferred Stock shall be distinctively designated by letter or
descriptive words. All series of Preferred Stock shall rank equally and be
identical in all respects except as permitted by the provisions of
paragraph (b) of this Article FOURTH.
(b) Authority is hereby vested in the Board of Directors from time to time
to issue the Preferred Stock of any series and in connection with the
creation of each such series to fix by vote or votes providing for the
issue of shares thereof the voting powers, if any, the designation,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, of such series
to the full extent now or hereafter permitted by these Articles of
Incorporation and the laws of the State of Rhode Island, in respect of the
matters set forth in the following subparagraphs (1) to (8), inclusive:
(1) The distinctive designation of such series and the number of
shares which shall constitute such series, which number may be
increased or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of
Directors;
(2) The dividend rate of such series, any preferences to or provisions
in relation to the dividends payable on any other class or classes or
of any other series of stock, and any limitations, restrictions or
conditions on the payment of dividends;
(3) The price or prices at which, and the terms and conditions on
which, the shares of such series may be redeemed by the Corporation;
<PAGE>
(4) The amount or amounts payable upon the shares of such series in
the event of any liquidation, dissolution or winding up of the
Corporation;
(5) Whether or not the shares of such series shall be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption
of shares of such series and, if so entitled, the amount of such fund
and the manner of its application;
(6) Whether or not the shares of such series shall be made convertible
into, or exchangeable for, shares of any other class or classes of
stock of the Corporation or shares of any other series of Preferred
Stock, and, if made so convertible or exchangeable, the conversion
price or prices, or the rate or rates of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be made, and
any other terms and conditions of such conversion or exchange;
(7) Whether or not the shares of such series shall have any voting
powers and, if voting powers are so granted, the extent of such voting
powers; and
(8) Whether or not the issue of any additional shares of such series
or of any future series in addition to such series shall be subject to
restrictions in addition to the restrictions, if any, on the issue of
additional shares imposed in the vote or votes fixing the terms of any
outstanding series of Preferred Stock theretofore issued pursuant to
this Article FOURTH and, if subject to additional restrictions, the
extent of such additional restrictions.
(c) The holders of Preferred Stock of each series shall be entitled to
receive, when and as declared by the Board of Directors, dividends in
cash at the rate for such series fixed by the Board of Directors as
provided in paragraph (b) of this Article FOURTH, and no more, payable
quarterly on the first days of January, April, July and October or of
such other months as may be designated by the Board of Directors (each
of the quarterly periods ending on the first day of January, April,
July and October in each year, or on the first days of such other
months, respectively, being hereinafter called a dividend period), in
each case from the date of cumulation (as defined in paragraph (h) of
this Article FOURTH) of such series. Except as may otherwise be
provided in the vote or votes providing for the issue of any given
series of Preferred Stock, dividends on Preferred Stock shall be
cumulative (whether or not there shall be net profits or net assets of
the Corporation legally available for the payment of such dividends),
so that, if at any time full cumulative dividends (as defined in
paragraph (h) of this Article FOURTH) upon the Preferred Stock of all
series to the end of the last completed dividend period shall not have
been paid or declared and a sum sufficient for payment thereof set
apart, the amount of the deficiency shall be fully paid, but without
interest, or dividends in such amount shall have been declared on each
such series and a sum sufficient for the payment thereof shall have
been set apart for such payment, before any sum or sums shall be set
aside for or applied to the purchase or redemption of Preferred Stock
of any series (either pursuant to any applicable sinking fund
provisions or any redemptions authorized pursuant to paragraph (g) of
this Article FOURTH or otherwise) or set aside for or applied to the
purchase of Common Stock and before any dividend shall be declared or
paid or any other distribution ordered or made upon the Common Stock
(other than a dividend payable in Common Stock); provided, however,
that any moneys deposited in the sinking fund provided for any series
of Preferred Stock in the vote or votes providing for the issue of
shares of said series, in compliance with the provisions of such
sinking fund and of this paragraph (c), may thereafter be applied to
the purchase or redemption of Preferred Stock in accordance with the
terms of such sinking fund, whether or not at the time of such
application full cumulative dividends upon the outstanding Preferred
Stock of all series to the end of the last completed dividend period
shall have been paid or declared and set apart for payment. All
dividends declared upon the Preferred Stock of the respective series
outstanding shall be declared pro rata, so that the amounts of
dividends declared per share on the Preferred Stock of different
series shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of such respective series
bear to each other.
(d) Before any sum or sums shall be set aside for or applied to the
purchase of Common Stock and before any dividends shall be declared or paid
or any distribution ordered or made upon the Common Stock (other than a
dividend payable in Common Stock), the Corporation shall comply with the
sinking fund provisions, if any, of any vote or votes providing for the
issue of any series of Preferred Stock any shares of which shall at the
time be outstanding.
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(e) Subject to the provisions of paragraphs (c) and (d) of this Article
FOURTH, the holders of Common Stock shall be entitled, to the exclusion of
the holders of Preferred Stock of any and all series, to receive such
dividends as from time to time may be declared by the Board of Directors.
(f) In the event of any liquidation, dissolution or winding up of the
Corporation, the holders of Preferred Stock of each series then outstanding
shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders, whether from capital, surplus or
earnings, before any payment shall be made to the holders of Common Stock,
an amount determined as provided in paragraph (b) of this Article FOURTH
for every share of their holdings of Preferred Stock of such series. If
upon any liquidation, dissolution or winding up of the Corporation the
assets of the Corporation available for distribution to its stockholders
shall be insufficient to pay the holders of Preferred Stock of all series
the full amounts to which they respectively shall be entitled, the holders
of Preferred Stock of all series shall share ratably in any distribution of
assets according to the respective amounts which would be payable in
respect of the shares of Preferred Stock held by them upon such
distribution if all amounts payable on or with respect to Preferred Stock
of all series were paid in full. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of Preferred
Stock of the full amount to which they shall be entitled as aforesaid, the
holders of Common Stock shall be entitled, to the exclusion of the holders
of Preferred Stock of any and all series, to share, ratably according to
the number of shares of Common Stock held by them, in all remaining assets
of the Corporation available for distribution to its stockholders. Neither
the merger or consolidation of the Corporation into or with another
corporation nor the merger or consolidation of any other corporation into
or with the Corporation, nor the sale, transfer or lease of all or
substantially all the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation.
(g) Subject to any requirements which may be applicable to the redemption
of any given series of Preferred Stock as provided in any vote or votes
providing for the issue of such series of Preferred Stock, the Preferred
Stock of all series, or of any series thereof, or any part of any series
thereof, at any time outstanding, may be redeemed by the Corporation, at
its election expressed by vote of the Board of Directors, any time or from
time to time, upon not less than 30 days previous notice to the holders of
record of Preferred Stock to be redeemed, given by mail in such manner as
may be prescribed by vote or votes of the Board of Directors,
(1) If such redemption shall be otherwise than by the application of
moneys in any sinking fund referred to in paragraph (d) of this
Article FOURTH, at the redemption price, fixed as provided in
paragraph (b) of this Article FOURTH, at which shares of Preferred
Stock of the particular series may then be redeemed at the option of
the Corporation and
(2) If such redemption shall be by the application of moneys in any
sinking fund referred to in paragraph (d) of this Article FOURTH, at
the redemption price, fixed as provided in paragraph (b) of this
Article FOURTH, at which shares of Preferred Stock of the particular
series may then be redeemed for such sinking fund;
provided, however, that, before any Preferred Stock of any series shall be
redeemed at said redemption price thereof specified in clause (1) of this
paragraph (g), all moneys at the time in the sinking fund, if any, for Preferred
Stock of that series shall first be applied, as nearly as may be, to the
purchase or redemption of Preferred Stock of that series as provided in the vote
or votes of the Board of Directors providing for such sinking fund. If less than
all the outstanding shares of Preferred Stock of any series are to be redeemed,
the redemption may be made either by lot or pro rata in such manner as may be
prescribed by vote of the Board of Directors. The Corporation may, if it shall
so elect, provide moneys for the payment of the redemption price by depositing
the amount thereof for the account of the holders of Preferred Stock entitled
thereto with a bank or trust company
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doing business in the City of New York, in the State of New York, or in the City
of Providence, in the State of Rhode Island, and having capital and surplus of
at least $5,000,000. The date upon which such deposit may be made by the
Corporation (hereinafter called the "date of deposit") shall be prior to the
date fixed as the date of redemption. In any such case there shall be included
in the notice of redemption a statement of the date of deposit and of the name
and address of the bank or trust company with which the deposit has been or will
be made. On and after the date fixed in any such notice of redemption as the
date of redemption (unless default shall be made by the Corporation in providing
moneys for the payment of the redemption price pursuant to such notice) or, if
the Corporation shall have made such deposit on or before the date specified
therefor in the notice, then on and after the date of deposit all rights of the
holders of the Preferred Stock to be redeemed as stockholders of the
Corporation, except the right to receive the redemption price as hereinafter
provided, and, in the case of such deposit, any conversion rights not
theretofore expired, shall cease and terminate. Such conversion rights, however,
in any event shall cease and terminate upon the date fixed for redemption or
upon any earlier date fixed by the Board of Directors pursuant to paragraph (b)
of this Article FOURTH for termination of such conversion rights. Anything
herein contained to the contrary notwithstanding, said redemption price shall
include an amount equal to accrued dividends on the Preferred Stock to be
redeemed to the date fixed for the redemption thereof and the Corporation shall
not be required to declare or pay on such Preferred Stock to be redeemed, and
the holders thereof shall not be entitled to receive, any dividends in addition
to those thus included in the redemption price, provided, however, that the
Corporation may pay in regular course any dividends thus included in the
redemption price either to the holders of record on the record date fixed for
the determination of stockholders entitled to receive such dividends (in which
event, anything herein to the contrary notwithstanding, the amount so deposited
need not include any dividends so paid or to be paid) or as part of the
redemption price upon surrender of the certificates for the shares redeemed. At
any time on or after the date fixed as aforesaid for such redemption or, if the
Corporation shall elect to deposit the money for such redemption as herein
provided, then at any time on or after the date of deposit and without awaiting
the date fixed as aforesaid for such redemption, the respective holders of
record of the Preferred Stock to be redeemed shall be entitled to receive the
redemption price upon actual delivery to the Corporation, or, in the event of
such deposit, to the bank or trust company with which such deposit shall be
made, of certificates for the shares to be redeemed, such certificates, if
required, to be properly stamped for transfer and duly endorsed in blank or
accompanied by proper instruments of assignment and transfer thereof duly
executed in blank. Any moneys so deposited which shall remain unclaimed by the
holders of such Preferred Stock at the end of five years after the redemption
date shall be paid by such bank or trust company to the Corporation and any
interest accrued on moneys so deposited shall belong to the Corporation and
shall be paid to it from time to time. Preferred Stock redeemed pursuant to the
provisions of this paragraph (g) shall be canceled and shall thereafter have the
status of authorized and unissued shares of Preferred Stock.
(h) The term "date of cumulation" as used with reference to any series of
Preferred Stock shall be deemed to mean the date fixed by the Board of
Directors as the date of cumulation of such series at the time of creation
thereof or, if no date shall have been fixed, the date on which shares of
such series are first issued. Whenever used with reference to any share of
any series of Preferred Stock, the term "full cumulative dividends" shall
be deemed to mean (whether or not in any dividend period, or any part
thereof, in respect of which such term is used there shall have been net
profits or net assets of the Corporation legally available for the payment
of such dividends) that amount which shall be equal to dividends at the
full rate fixed for such series as provided in paragraph (b) of this
Article FOURTH for the period of time elapsed from the date of cumulation
of such series to the date as of which full cumulative dividends are to be
computed (including an amount equal to the dividend at such rate for any
fraction of a dividend period included in such period of time); and the
term "accrued dividends" shall be deemed to mean full cumulative dividends
to the date as of which accrued dividends are to be computed, less the
amount of all dividends paid, or deemed paid as hereinafter in this
paragraph (h) provided, upon said share. In the event of the issue of
additional shares of Preferred Stock of any series after the original issue
of shares of
<PAGE>
Preferred Stock of such series, all dividends paid or accrued on Preferred
Stock of such series prior to the date of issue of such additional
Preferred Stock shall be deemed to have been paid on the additional
Preferred Stock so issued.
(i) No holder of stock of any class of the Corporation, whether now or
hereafter authorized, shall have any preemptive, preferential or other
rights to subscribe for or purchase or acquire any shares of any class or
any other securities of the Corporation, whether now or hereafter
authorized, and whether or not convertible into, or evidencing or carrying
the right to purchase, shares of any class or any other securities now or
hereafter authorized, and whether the same shall be issued for cash,
services or property, or by way of dividend or otherwise.
(j) Subject to the provisions of these Articles of Incorporation and except
as otherwise provided by law, the shares of stock of the Corporation,
regardless of class, may be issued for such consideration and for such
corporate purposes as the Board of Directors may from time to time
determine.
(k) Except as otherwise provided by law, or these Articles of
Incorporation, or by the vote or votes providing for the issue of any
series of Preferred Stock, the holders of shares of Preferred Stock as such
holders, shall not have any right to vote, and are hereby specifically
excluded from the right to vote, in the election of directors or for any
other purpose. Except as aforesaid, the holders of Preferred Stock, as such
holders, shall not be entitled to notice of any meeting of stockholders.
(l) Subject to the provisions of any applicable law, or of the Bylaws of
the Corporation as from time to time amended, with respect to the closing
of the transfer books or the fixing of a record date for the determination
of stockholders entitled to vote and except as otherwise provided by law or
by these Articles of Incorporation, or by the vote or votes providing for
the issue of any series of Preferred Stock, the holders of outstanding
shares of Common Stock shall exclusively possess voting power for the
election of directors and for all other purposes, each holder of record of
shares of Common Stock being entitled to one vote for each share of Common
Stock standing in his name on the books of the Corporation.
(As of the date of these Restated Articles of Incorporation, the following
series of Preferred Stock have been authorized by the Board of Directors of the
Corporation: (i) Series III 10.12% Perpetual Preferred Stock, the terms and
provisions of which are set forth in Exhibit A hereto, (ii) Series IV 9.375%
Perpetual Preferred Stock, the terms and provisions of which are set forth in
Exhibit B hereto, (iii) Dual Convertible Preferred Stock, the terms and
provisions of which are set forth in Exhibit C hereto, (iv) Cumulative
Participating Junior Preferred Stock, the terms and provisions of which are set
forth in Exhibit D hereto, (v) Preferred Stock with Cumulative and Adjustable
Dividends, the terms and provisions of which are set forth in Exhibit E hereto,
(vi) 9.30% Cumulative Preferred Stock, the terms and provisions of which are set
forth in Exhibit F hereto, (vii) 9.35% Cumulative Preferred Stock, the terms and
provisions of which are set forth in Exhibit G hereto, (viii) Series V 7.25%
Perpetual Preferred Stock, the terms and provisions of which are set forth in
Exhibit H hereto and (ix) Series VI 6.75% Perpetual Preferred Stock, the terms
and provisions of which are set forth in Exhibit I hereto, said Exhibits A
through I being hereby incorporated by reference in this Article FOURTH as if
set forth herein. As of the date of these Restated Articles of Incorporation,
there were issued and outstanding (i) 519,758 shares of Series III 10.12%
Perpetual Preferred Stock, (ii) 478,838 shares of Series IV 9.375% Perpetual
Preferred Stock, (iii) no shares of Dual Convertible Preferred Stock, (iv) no
shares of Cumulative Participating Junior Preferred Stock, (v) 688,700 shares of
Preferred Stock with Cumulative and Adjustable Dividends, (vi) 575,000 shares of
9.30% Cumulative Preferred Stock, (vii) 500,000 shares of 9.35% Cumulative
Preferred Stock, (viii) 1,100,000 shares of Series V 7.25% Perpetual Preferred
Stock and (ix) 600,000 shares of Series VI 6.75% Perpetual Preferred Stock.)
FIFTH: The private property of the stockholders of the Corporation shall not be
subject to the payment of corporate debts to any extent whatsoever.
<PAGE>
SIXTH: Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the
meeting and vote of stockholders may be dispensed with and such action may be
taken with the written consent of stockholders having not less than the minimum
percentage of the total vote required by statute for the proposed corporate
action, and provided that prompt notice of such action be given to all
stockholders who would have been entitled to vote upon the action if such
meeting were held.
SEVENTH: (a) Directors of the Corporation need not be stockholders, but no
person shall be elected a Director who has attained the age of 72 and no person
shall continue to serve as Director after the date of the first meeting of the
stockholders of the Corporation held on or after the date on which such person
attained the age of 72.
The powers and authorities herein conferred upon the Board of Directors are in
furtherance and not in limitation of those conferred by the laws of the State of
Rhode Island. In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Rhode
Island, of these Articles of Incorporation and of the Bylaws of the Corporation.
(b) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The number of directors of
the Corporation (exclusive of directors to be elected by the holders of any
one or more series of the Preferred Stock voting separately as a class or
classes) that shall constitute the Board of Directors shall be 13, unless
otherwise determined from time to time by resolution adopted by the
affirmative vote of:
(1) At least 80% of the Board of Directors, and
(2) A majority of the Continuing Directors.
(c) Subject to applicable law, the Directors shall be divided into
three (3) classes, each class to be as nearly equal in number as
possible. The term of office of Directors of the first class shall
expire at the annual meeting of stockholders to be held in 1984 and
until their respective successors are duly elected and qualified. The
term of office of Directors of the second class shall expire at the
annual meeting of stockholders to be held in 1985 and until their
respective successors are duly elected and qualified. The term of
office of Directors of the third class shall expire at the annual
meeting of stockholders to be held in 1986 and until their respective
successors are duly elected and qualified. Subject to the foregoing,
at each annual meeting of stockholders, commencing at the annual
meeting to be held in 1984, the successors to the class of directors
whose term shall then expire shall be elected to hold office for a
term expiring at the third succeeding annual meeting and until their
successors shall be duly elected and qualified. Any vacancies in the
Board of Directors for any reason, and any newly created directorships
resulting from any increase in the number of directors, may be filled
only by the Board of Directors, acting by vote of 80% of the directors
then in office, although less than a quorum, and any directors so
chosen shall hold office until the next election of the class for
which such directors shall have been chosen and until their respective
successors shall be duly elected and qualified. No decrease in the
number of directors shall shorten the term of any incumbent director.
Notwithstanding the foregoing, and except as otherwise required by
law, whenever the holders of any one or more series of Preferred Stock
shall have the right, voting separately as a class, to elect one or
more directors of the Corporation, (i) the terms of the director or
directors elected by such holders shall expire at the next succeeding
annual meeting of stockholders and vacancies created with respect to
any directorship of the directors so elected may be filled in the
manner specified by such Preferred Stock, and (ii) this Article
SEVENTH shall be deemed to be construed and/or modified so as to
permit the full implementation of the terms and conditions relating to
election of directors of any series of Preferred Stock that has been
or will be designated by the Board of Directors.
(d) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Articles of Incorporation
or the Bylaws
<PAGE>
of the Corporation), any one or more directors of the Corporation may be
removed at any time, but only for cause and only by either (1) the
affirmative vote of a majority of the Continuing Directors and a majority
of the Board of Directors or (2) the affirmative vote, at a meeting of the
stockholders called for that purpose, as to all stock held by the holders
of 80% or more of the outstanding Voting Shares, voting separately as a
class.
Notwithstanding the foregoing, and except as otherwise required by law, whenever
the holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the provisions of this Section (d) shall not apply with respect to the director
or directors elected by such holders of Preferred Stock.
(e) For purposes of this Article SEVENTH, the following definitions shall
apply:
(1) Affiliate. An "Affiliate" of, or a Person "affiliated with", a
specified Person, means a Person that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified.
(2) Associate. The term "Associate" used to indicate a relationship
with any Person means:
(A) Any corporation or organization (other than the Corporation or a
Subsidiary of the Corporation) of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten
percent or more of any class of equity securities;
(B) Any trust or other estate in which such Person has a ten percent
or greater beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity;
(C) Any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person; or
(D) Any investment company registered under the Investment Company Act
of 1940 for which such Person or any Affiliate or Associate of such
Person serves as investment adviser.
(3) Beneficial Owner. A Person shall be considered the "Beneficial
Owner" of any shares of stock (whether or not owned of record):
(A) With respect to which such Person or any Affiliate or Associate of
such Person directly or indirectly has or shares (i) voting power,
including the power to vote or to direct the voting of such shares of
stock, and/or (ii) investment power, including the power to dispose of
or to direct the disposition of such shares of stock;
(B) Which such Person or any Affiliate or Associate of such Person has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (ii) the right to vote pursuant to any agreement, arrangement
or understanding (whether such right is exercisable immediately or
only after the passage of time); or
(C) Which are Beneficially Owned within the meaning of (A) or (B) of
this Section (3) by any other Person with which such first mentioned
Person or any of its Affiliates or Associates has any agreement,
arrangement or understanding, written or oral, with respect to
acquiring, holding, voting or disposing of any shares of stock of the
Corporation or any Subsidiary of the Corporation or acquiring, holding
or disposing of all or substantially all, or any Substantial Part, of
the assets or business of the Corporation or a Subsidiary of the
Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage specified in this Article SEVENTH of the
outstanding Voting Shares, such shares shall be deemed to include any
Voting Shares which may be issuable pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants, options or otherwise and which are
deemed to be beneficially owned by only such Person pursuant to the
foregoing provisions of this Section (3).
<PAGE>
(4) Business Combination. A "Business Combination" means:
(A) The sale, exchange, lease, transfer or other disposition to or
with a Related Person or any Affiliate or Associate of such Related
Person by the Corporation or any of its Subsidiaries (in a single
transaction or a series of related transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
businesses (including, without limitation, any securities issued by a
Subsidiary);
(B) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(C) Any merger or consolidation of the Corporation or any Subsidiary
thereof into or with a Related Person or any Affiliate or Associate of
such Related Person, irrespective of which Person is the surviving
entity in such merger or consolidation;
(D) Any reclassification of securities, recapitalization or other
transaction (other than a redemption in accordance with the terms of
the security redeemed) which has the effect, directly or indirectly,
of increasing the proportionate amount of Voting Shares of the
Corporation or any Subsidiary thereof which are Beneficially Owned by
a Related Person, or any partial or complete liquidation, spinoff,
split off or split up of the Corporation or any Subsidiary thereof;
provided however, that this Section (4)(D) shall not relate to any
transaction of the types specified herein that has been approved by
(i) a majority of the Board of Directors, and (ii) 80% of the
Continuing Directors; or
(E) The acquisition upon the issuance thereof of Beneficial Ownership
by a Related Person of Voting Shares or securities convertible into
Voting Shares or any voting securities or securities convertible into
voting securities of any Subsidiary of the Corporation, or the
acquisition upon the issuance thereof of Beneficial Ownership by a
Related Person of any rights, warrants or options to acquire any of
the foregoing or any combination of the foregoing Voting Shares or
voting securities of a Subsidiary of the Corporation.
As used in this definition, a "series of related transactions" shall
be deemed to include not only a series of transactions with the same
Related Person but also a series of separate transactions with a
Related Person or any Affiliate or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this definition
shall not be deemed to include any transaction of the type set forth in Sections
(4)(A) through (4)(C) above between or among any two or more Subsidiaries of the
Corporation or the Corporation and one or more Subsidiaries of the Corporation
if such transaction has been approved by the affirmative vote of at least 80% of
the Board of Directors and a majority of the Continuing Directors on or prior to
the Date of Determination.
(5) Continuing Director. A "Continuing Director" shall mean:
(A) An individual who was a member of the Board of Directors of the
Corporation first elected by the stockholders or by the Board of
Directors prior to April 13, 1983 or prior to the time that a Related
Person became the Beneficial Owner of in excess of 10% of the Voting
Shares of the Corporation entitled to vote in the election of
directors; or
(B) An individual designated (before such individual's initial
election as a director) as a Continuing Director by a majority of the
then Continuing Directors.
(6) Date of Determination. The term "Date of Determination" means:
(A) The date on which a binding agreement (except for the fulfillment
of conditions precedent, including, without limitation, votes of
stockholders to approve such transaction) is entered into by the
Corporation, as authorized by its
<PAGE>
Board of Directors, and another Person providing for any Business
Combination; or
(B) If such an agreement as referred to in Section (6)(A) above is
amended so as to make it less favorable to the Corporation and its
stockholders, the date on which such amendment is approved by the
Board of Directors of the Corporation; or
(C) In cases where neither Section (6)(A) or (6)(B) above shall be
applicable, the record date for the determination of stockholders
of the Corporation entitled to notice of and to vote upon the
transaction in question. A majority of the Continuing Directors
shall have the power and duty to determine the Date of
Determination as to any transaction under this Article SEVENTH.
Any such determination shall be conclusive and binding for all
purposes of this Article.
(7) Person. The term "Person" shall mean any individual,
partnership, corporation, group or other entity (other than the
Corporation, any Subsidiary of the Corporation for itself or as a
fiduciary for customers in the ordinary course, or a trustee
holding stock for the benefit of employees of the Corporation or
its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more Persons
act as a partnership, limited partnership, syndicate, association
or other group for the purpose of acquiring, holding or disposing
of shares of stock, such partnership, syndicate, association or
group shall be deemed a "Person".
(8) Related Person. "Related Person" means any Person which is the
Beneficial Owner, as of the Date of Determination or immediately
prior to the consummation of a Business Combination, or both, of
10% or more of the Voting Shares, or any Person who is an
Affiliate of the Corporation and at any time within five years
preceding the Date of Determination was the Beneficial Owner of
10% or more of the then outstanding Voting Shares, but does not
include any one group of more than one Continuing Director.
(9) Substantial Part. The term "Substantial Part" as used with
reference to the assets of the Corporation, of any Subsidiary or
of any Related Person means assets having a value of more than
five percent of the total consolidated assets of the Corporation
and its Subsidiaries as of the end of the Corporation's most
recent fiscal year ending prior to the time the determination is
being made.
(10) Subsidiary. "Subsidiary" shall mean any corporation or entity
of which the Person in question owns not less than 50% of any
class of equity securities, directly or indirectly.
(11) Voting Shares. "Voting Shares" shall mean shares of the
Corporation's capital stock entitled to vote generally in the
election of directors.
(12) Certain Determinations With Respect to Article SEVENTH. (A) A
majority of the Continuing Directors shall have the conclusive
power and authority to determine, for the purposes of this Article
SEVENTH, on the basis of information known to them: (i) the number
of Voting Shares of which any Person is the Beneficial Owner, (ii)
whether a Person is an Affiliate or Associate of another, (iii)
whether a Person has an agreement, arrangement or understanding
with another as to the matters referred to in the definition of
"Beneficial Owner" as hereinabove defined, (iv) whether the assets
subject to any Business Combination constitute a "Substantial
Part" as hereinabove defined, (v) whether two or more transactions
constitute a "series of related transactions" as hereinabove
defined, (vi) any matters referred to in subsection (12)(B) below,
and (vii) such other matters with respect to which a determination
is required under this Article SEVENTH. Any such determination
shall be final and binding for all purposes hereunder.
(B) A Related Person shall be deemed to have acquired a Voting
Share of the Corporation at the time when such Related Person
became the Beneficial Owner thereof. With respect to Voting Shares
owned by Affiliates, Associates or other Persons whose ownership
is attributed to a Related Person under the foregoing definition
of Beneficial Owner, if the price paid by such Related Person for
such shares is not determinable, the price so paid shall be deemed
to be the higher of (i) the price paid upon acquisition thereof by
the Affiliate, Associate or other Person or (ii) the market price
of the shares in question (as determined by a majority of the
Continuing Directors) at the time when the Related Person became
the Beneficial Owner thereof.
<PAGE>
(f) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Articles of Incorporation
or the Bylaws of the Corporation), and in addition to such additional vote
of the Preferred Stock as may be required by the provisions of any series
thereof or by applicable law, this Article SEVENTH shall not be amended,
altered, changed or repealed without:
(1) The affirmative vote of 80% of the Board of Directors and of a
majority of Continuing Directors, and
(2) The affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares, voting separately as a class.
EIGHTH: (a) The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained
in these Articles of Incorporation, and other provisions authorized by
the laws of the State of Rhode Island at the time in force may be
added or inserted in these Articles of Incorporation, in the manner
(i) now or hereafter prescribed by law, and (ii) as has otherwise been
provided in Articles SEVENTH and NINTH of these Articles of
Incorporation; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other
persons whomsoever by and pursuant to these Articles of Incorporation
in their present form or as hereafter amended are granted subject to
the right reserved in this Article EIGHTH.
(b) Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Articles of Incorporation
or the Bylaws of the Corporation), and in addition to such additional vote
of the Preferred Stock as may be required by the provisions of any series
thereof or by applicable law, this Article EIGHTH shall not be amended,
altered, changed or repealed without the affirmative vote as to all stock
held by the holders of 80% or more of the outstanding shares of the
Corporation's capital stock entitled to vote generally in the election of
directors, voting separately as class.
NINTH: (a) Definitions and Related Matters as to Certain Business Combinations.
1.1 Affiliate. An "Affiliate" of, or a Person "affiliated with", a specified
Person, means a Person that directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
1.2 Associate. The term "Associate" used to indicate a relationship with any
Person means:
(1) Any corporation or organization (other than the Corporation or a
Subsidiary of the Corporation) of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten
percent or more of any class of equity securities;
(2) Any trust or other estate in which such Person has a ten percent
or greater beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity;
(3) Any relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person; or
(4) Any investment company registered under the Investment Company Act
of 1940 for which such Person or any Affiliate or Associate of such
Person serves as investment adviser.
1.3 Beneficial Owner. A Person shall be considered the "Beneficial Owner" of any
shares of stock (whether or not owned of record):
(1) With respect to which such Person or any Affiliate or Associate of
such Person directly or indirectly has or shares (i) voting power,
including the power to vote or to direct the voting of such shares of
stock, and/or (ii) investment power, including the power to dispose of
or to direct the disposition of such shares of stock;
<PAGE>
(2) Which such Person or any Affiliate or Associate of such Person has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (ii) the right to vote pursuant to any agreement, arrangement
or understanding (whether such right is exercisable immediately or
only after the passage of time); or
(3) Which are Beneficially Owned within the meaning of (1) or (2) of
this Section 1.3 by any other Person with which such first-mentioned
Person or any of its Affiliates or Associates has any agreement,
arrangement or understanding, written or oral, with respect to
acquiring, holding, voting or disposing of any shares of stock of the
Corporation or any Subsidiary of the Corporation or acquiring, holding
or disposing of all or substantially all, or any Substantial Part, of
the assets or business of the Corporation or a Subsidiary of the
Corporation.
For the purpose only of determining whether a Person is the Beneficial
Owner of a percentage specified in this Article NINTH of the
outstanding Voting Shares, such shares shall be deemed to include any
Voting Shares which may be issuable pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants, options or otherwise and which are
deemed to be beneficially owned by only such Person pursuant to the
foregoing provisions of this Section 1.3.
1.4 Business Combination. A "Business Combination" means:
(1) The sale, exchange, lease, transfer or other disposition to or
with a Related Person or any Affiliate or Associate of such Related
Person by the Corporation or any of its Subsidiaries (in a single
transaction or a series of related transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
business (including, without limitation, any securities issued by a
Subsidiary);
(2) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all, or any Substantial Part, of
the assets or business of a Related Person or any Affiliate or
Associate of such Related Person;
(3) Any merger or consolidation of the Corporation or any Subsidiary
thereof into or with a Related Person or any Affiliate or Associate of
such Related Person, irrespective of which Person is the surviving
entity in such merger or consolidation;
(4) Any reclassification of securities, recapitalization or other
transaction (other than a redemption in accordance with the terms of
the security redeemed) which has the effect, directly or indirectly,
of increasing the proportionate amount of Voting Shares of the
Corporation or any Subsidiary thereof which are Beneficially Owned by
a Related Person, or any partial or complete liquidation, spin-off,
split-off or split-up of the Corporation or any Subsidiary thereof;
provided, however, that this Section 1.4(4) shall not relate to any
transaction of the types specified herein that has been approved by
(i) a majority of the Board of Directors and (ii) 80% of the
Continuing Directors; or
(5) The acquisition upon the issuance thereof of Beneficial Ownership
by a Related Person of Voting Shares or securities convertible into
Voting Shares or any voting securities or securities convertible into
voting securities of any Subsidiary of the Corporation, or the
acquisition upon the issuance thereof of Beneficial Ownership by a
Related Person of any rights, warrants or options to acquire any of
the foregoing or any combination of the foregoing Voting Shares or
voting securities of a Subsidiary of the Corporation.
<PAGE>
As used in this definition, a "series of related transactions" shall
be deemed to include not only a series of transactions with the same
Related Person but also a series of separate transactions with a
Related Person or any Affiliate or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this
definition shall not be deemed to include any transaction of the type
set forth in Section 1.4(1) through 1.4(3) above between or among any
two or more Subsidiaries of the Corporation or the Corporation and one
or more Subsidiaries of the Corporation if such transaction has been
approved by the affirmative vote of at least 80% of the Board of
Directors and a majority of the Continuing Directors on or prior to
the Date of Determination.
1.5 Continuing Director. A "Continuing Director" shall mean:
(1) An individual who was a member of the Board of Directors of the
Corporation first elected by the stockholders or by the Board of
Directors prior to April 13, 1983 or prior to the time that a Related
Person became the Beneficial Owner of in excess of 10% of the Voting
Shares of the Corporation entitled to vote in the election of
directors; or
(2) An individual designated (before such individual's initial
election as a director) as a Continuing Director by a majority of the
then Continuing Directors.
1.6 Date of Determination. The term "Date of Determination" means:
(1) The date on which a binding agreement (except for the fulfillment
of conditions precedent, including, without limitation, votes of
stockholders to approve such transaction) is entered into by the
Corporation, as authorized by its Board of Directors, and another
Person providing for any Business Combination; or
(2) If such an agreement as referred to in Section 1.6(1) above is
amended so as to make it less favorable to the Corporation and its
stockholders, the date on which such amendment is approved by the
Board of Directors of the Corporation; or
(3) In cases where neither Section 1.6(1) or (2) above shall be
applicable, the record date for the determination of stockholders of
the Corporation entitled to notice of and to vote upon the transaction
in question.
A majority of the Continuing Directors shall have the power and duty
to determine the Date of Determination as to any transaction under
this Article NINTH. Any such determination shall be conclusive and
binding for all purposes of this Article.
1.7 Person. The term "Person" shall mean any individual, partnership,
corporation, group or other entity (other than the Corporation, any Subsidiary
of the Corporation for itself or as a fiduciary for customers in the ordinary
course, or a trustee holding stock for the benefit of employees of the
Corporation or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such partnership,
syndicate, association or group shall be deemed a "Person".
1.8 Related Person. "Related Person" means any Person which is the Beneficial
Owner, as of the Date of Determination or immediately prior to the consummation
of a Business Combination or both, of 10% or more of the Voting Shares, or any
Person who is an Affiliate of the Corporation and at any time within five years
preceding the Date of Determination was the Beneficial Owner of 10% or more of
the then outstanding Voting Shares, but does not include any one or group of
more than one Continuing Director.
1.9 Substantial Part. The term "Substantial Part" as used with reference to the
assets of the Corporation, of any Subsidiary or of any Related Person means
assets having a value of more than five percent of the total consolidated assets
of the Corporation
<PAGE>
and its Subsidiaries as of the end of the Corporation's most recent fiscal year
ending prior to the time the determination is being made.
1.10 Subsidiary. "Subsidiary" shall mean any corporation or entity of which the
Person in question owns not less than 50% of any class of equity securities,
directly or indirectly.
1.11 Voting Shares. "Voting Shares" shall mean shares of the Corporation's
capital stock entitled to vote generally in the election of directors.
1.12 Certain Determinations With Respect to Article NINTH.
(1) A majority of the Continuing Directors shall have the conclusive
power and authority to determine, for the purposes of this Article
NINTH, on the basis of information known to them: (i) the number of
Voting Shares of which any Person is the Beneficial Owner, (ii)
whether a Person is an Affiliate or Associate of another, (iii)
whether a Person has an agreement, arrangement or understanding with
another as to the matters referred to in the definition of "Beneficial
Owner" as hereinabove defined, (iv) whether the assets subject to any
Business Combination constitute a "Substantial Part" as hereinabove
defined, (v) whether two or more transactions constitute a "series of
related transactions" as hereinabove defined, (vi) any matters
referred to in subsection 1.12(2) below, and (vii) such other matters
with respect to which a determination is required under this Article
NINTH. Any such determination shall be final and binding for all
purposes hereunder.
(2) A Related Person shall be deemed to have acquired a Voting Share
of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to Voting Shares owned by
Affiliates, Associates or other Persons whose ownership is attributed
to a Related Person under the foregoing definition of Beneficial
Owner, if the price paid by such Related Person for such shares is not
determinable, the price so paid shall be deemed to be the higher of
(i) the price paid upon acquisition thereof by the Affiliate,
Associate or other Person or (ii) the market price of the shares in
question (as determined by a majority of the Continuing Directors) at
the time when the Related Person became the Beneficial Owner thereof.
(b) Approval of Certain Business Combinations.
Whether or not a vote of the stockholders is otherwise required in
connection with the transaction, neither the Corporation nor any of
its Subsidiaries shall become a party to any Business Combination
without prior compliance with the provisions of Section 1.1 or 1.2 or
1.3 hereinbelow, in addition to such additional vote of the Preferred
Stock as may be required by the provisions of any series thereof or by
applicable law.
1.1 Prior Approval by the Board of Directors. Such Business Combination was
approved by the Board of Directors of the Corporation by the affirmative vote of
at least 80% of the Board of Directors of the Corporation either (a) at a time
prior to the acquisition of 10% or more of the outstanding Voting Shares of the
Corporation by the Related Person, or (b) after such acquisition, but only so
long as such Related Person sought and obtained the approval, by the affirmative
vote of at least 80% of the Board of Directors of the Corporation, of the
acquisition of 10% or more of the outstanding Voting Shares prior to such
acquisition being consummated.
1.2 Approval by Continuing Directors and Additional Requirements.
Such Business Combination (a) shall be approved at a meeting of the Board
of Directors by the affirmative vote of 80% of the Continuing Directors and
a majority of the Board of Directors, and (b) all of the conditions
hereinafter set forth in subsections (1) through (5) shall be satisfied:
(1) The ratio of (i) the aggregate amount of the cash and the fair
market value of other consideration to be received per share of Common
Stock in such Business Combination by holders of Common Stock other
than the Related Person involved in such Business Combination, to (ii)
the market price per share of the Common Stock immediately prior to
the announcement of the proposed Business Combination, is at least as
great as the ratio of (x) the highest per share
<PAGE>
price (including brokerage commissions, transfer taxes and soliciting
dealers' fees) which such Related Person has theretofore paid in acquiring
any Common Stock prior to such Business Combination, to (y) the market
price per share of Common Stock immediately prior to the initial
acquisition by such Related Person of any shares of Common Stock; and
(2) The aggregate amount of the cash and the fair market value of other
consideration to be received per share of Common Stock in such Business
Combination by holders of Common Stock, other than the Related Person
involved in such Business Combination, (i) is not less than the highest per
share price (including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by such Related Person in acquiring any of its holdings
of Common Stock, (ii) is not less than the earnings per share of Common
Stock for the four consecutive fiscal quarters of the Corporation
immediately preceding the Date of Determination of such Business
Combination multiplied by the then price/earnings multiple (if any) of such
Related Person as customarily computed and reported in the financial
community; provided, that for the purposes of this clause (ii), if more
than one Person constitutes the Related Person involved in the Business
Combination, the price/earnings multiple (if any) of the Person having the
highest price/earnings multiple shall be used for the computation in this
clause (ii), and (iii) is not less than the book value of a share of the
Common Stock, as reflected in the balance sheet of the Corporation as of
the last day of the last fiscal quarter of the Corporation preceding the
Date of Determination; and
(3) The consideration (if any) to be received in such Business Combination
by holders of Common Stock other than the Related Person involved shall,
except to the extent that a stockholder agrees otherwise as to all or part
of the shares which he or she owns, be in the same form and of the same
kind as the consideration paid by the Related Person in acquiring Common
Stock already owned by it; and
(4) After such Related Person became a Related Person and prior to the
consummation of such Business Combination: (i) such Related Person shall
have taken steps to ensure that the Board of Directors of the Corporation
included at all times representation by Continuing Directors proportionate
to the ratio that the number of Voting Shares of the Corporation from time
to time owned by stockholders who are not Related Persons bears to all
Voting Shares of the Corporation outstanding at the time in question (with
a Continuing Director to occupy any resulting fractional position among the
directors); (ii) such Related Person shall not have acquired from the
Corporation, directly or indirectly, any shares of the Corporation (except
(x) upon conversion of convertible securities acquired by it prior to
becoming a Related Person or (y) as a result of a pro rata stock dividend,
stock split or division of shares or (z) in a transaction consummated after
this Article NINTH was added to these Articles of Incorporation and which
satisfied all applicable requirements of this Article NINTH); (iii) such
Related Person shall not have acquired any additional Voting Shares of the
Corporation or securities convertible into or exchangeable for Voting
Shares except as a part of the transaction which resulted in such Related
Person's becoming a Related Person; and (iv) such Related Person shall not
have (x) received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances, guarantees,
pledges or other financial assistance or tax credits provided by the
Corporation or any Subsidiary, or (y) made any major change in the
Corporation's business or equity capital structure or entered into any
contract, arrangement or understanding with the Corporation except any such
change, contract, arrangement or understanding as may have been approved by
the favorable vote of not less than 80% of the Continuing Directors and a
majority of the Board of Directors of the Corporation; and
(5) A proxy statement complying with the requirements of the Securities
Exchange Act of 1934 shall have been mailed to all holders of Voting Shares
for the purpose of soliciting stockholder approval of such Business
Combination. Such proxy statement shall contain at the front thereof, in a
prominent place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may have furnished in writing and, if
<PAGE>
deemed advisable by two thirds of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness)
of the terms of such Business Combination from the point of view of the
holders of Voting Shares other than any Related Person (such investment
banking firm to be selected by two thirds of the Continuing Directors, to
be furnished with all information it reasonably requests, and to be paid by
the Corporation a reasonable fee for its services upon receipt by the
Corporation of such opinion).
For purposes of Sections 1.1 (1) and (2) hereof, in the event of a Business
Combination upon consummation of which the Corporation would be the
surviving corporation or company or would continue to exist (unless it is
provided, contemplated or intended that as part of such Business
Combination or within one year after consummation thereof a plan of
liquidation or dissolution of the Corporation will be effected), the term
"other consideration to be received" shall include (without limitation)
Common Stock retained by stockholders of the Corporation other than Related
Persons who are parties to such Business Combination.
1.3 Approval by Stockholders. If there is not full compliance with the
provisions of Section 1.1 or 1.2 of paragraph (b) of this Article, such
Business Combination shall be approved by the affirmative vote of 80% of
the Voting Shares, voting as a single class; provided that a proxy
statement complying with the requirements of the Securities Exchange Act of
1934 shall have been mailed to all holders of Voting Shares for the purpose
of soliciting stockholder approval of such Business Combination. Such proxy
statement shall contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors, or any of them, may have
furnished in writing and, if deemed advisable by two thirds of the
Continuing Directors, an opinion of a reputable investment banking firm as
to the fairness (or lack of fairness) of the terms of such Business
Combination from the point of view of the holders of Voting Shares other
than any Related Person (such investment banking firm to be selected by two
thirds of the Continuing Directors, to be furnished with all information it
reasonably requests, and to be paid a reasonable fee by the Corporation for
its services upon receipt by the Corporation of such opinion).
(c) Amendments to this Article NINTH.
Notwithstanding any other provisions of these Articles of Incorporation or
the Bylaws of the Corporation (and notwithstanding the fact that some
lesser percentage may be specified by law, these Articles of Incorporation
or the Bylaws of the Corporation), and in addition to such additional vote
of the Preferred Stock as may be required by the provisions of any series
thereof or by applicable law, this Article NINTH shall not be amended,
altered, changed or repealed without:
(1) The affirmative vote of 80% of the Board of Directors and a
majority of the Continuing Directors, and
(2) The affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares, voting separately as a class.
(d) Amendments Recommended by Directors.
The provisions of paragraph (c) of this Article NINTH shall not apply
to, and the vote referred to therein shall not be required for, any
amendment, addition, alteration or repeal of any provision of this
Article NINTH that is recommended to the stockholders by the favorable
vote of (1) a majority of the Board of Directors, and (2) not less
than 80% of the Continuing Directors, and any such amendment,
addition, alteration or repeal so recommended shall require only the
vote, if any, required under the applicable provisions of the Rhode
Island Business Corporation Law.
TENTH: (a) No director of the Corporation shall be liable to the Corporation or
to its stockholders for monetary damages for breach of the director's duty as a
director; provided, however, that this Article TENTH shall not eliminate or
limit the liability of a director: (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) the liability imposed pursuant to
<PAGE>
the provisions of R.I.G.L. Section 7-1.1-43 (as in effect or as hereafter
amended); or (iv) for any transaction from which the director derived an
improper personal benefit unless said transaction is permitted by R.I.G.L.
Section 7-1.1-37.1 (as in effect or as hereafter amended). If the Rhode Island
General Laws are amended after the adoption of this Article TENTH to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of each director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Rhode Island
General Laws, as so amended. Neither the amendment nor repeal of this Article
TENTH nor the adoption of any provision of these Articles of Incorporation
inconsistent with this Article TENTH shall eliminate or reduce the effect of
this Article TENTH in respect of any matter occurring, or any cause of action,
suit or claim that, but for this Article TENTH, would occur or arise, prior to
such amendment, repeal or adoption of an inconsistent provision.
(b) Notwithstanding any other provision of these Articles of Incorporation,
including Section EIGHTH (a), or the Bylaws of the Corporation (and
notwithstanding the fact that some lesser percentage may be specified by
law, these Articles of Incorporation or the Bylaws of the Corporation), and
in addition to such additional vote of the Preferred Stock as may be
required by the provisions of any series thereof or by applicable law, this
Article TENTH shall not be amended, altered, changed or repealed without:
(1) the affirmative vote of 80% of the Board of Directors and a
majority of Continuing Directors (as defined in Article SEVENTH of
these Articles of Incorporation), and
(2) the affirmative vote as to all stock held by the holders of 80% or
more of the outstanding Voting Shares (as defined in Article SEVENTH
of these Articles of Incorporation), voting separately as a class.
ELEVENTH: The Restated Articles of Incorporation correctly set forth without
change the corresponding provisions of the Articles of Incorporation as
heretofore amended, and supersede the original Articles of Incorporation and all
amendments thereto.
<PAGE>
EXHIBIT A
FLEET FINANCIAL GROUP, INC.
SERIES III 10.12% PERPETUAL PREFERRED STOCK
(a) Designation. The designation of the series of Preferred Stock shall be
"Series III 10.12% Perpetual Preferred Stock" (hereinafter called this
"Series") and the number of shares constituting this Series is One Million
One Hundred Thousand (1,100,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 10.12% per annum computed on the basis of an
issue price thereof of $100 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on March 1, June 1, September 1 and December 1 of each year,
commencing September 1, 1991. Each such dividend shall be paid to the
holders of record of shares of this Series as they appear on the stock
register of the Corporation on such record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board.
Dividends on account of arrears for any past quarters may be declared and
paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
A-1
<PAGE>
(4) Dividends payable on this Series for any period, including the
period from the original issue of such shares until September 1, 1991,
shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to June 1,
1996. On and after June 1, 1996, the Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or
from time to time, at a redemption price per share as follows:
If redeemed during the twelve-month period beginning June 1, 1996-- $105.060 per
share
If redeemed during the twelve-month period beginning June 1, 1997-- $104.048 per
share
If redeemed during the twelve-month period beginning June 1, 1998-- $103.036 per
share
If redeemed during the twelve-month period beginning June 1, 1999-- $102.024 per
share
If redeemed during the twelve-month period beginning June 1, 2000-- $101.012 per
share
If redeemed at any time from and after June 1, 2001--$100.000 per share
plus, in each case, accrued and unpaid dividends thereon to the date fixed for
redemption.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall
be determined by the Board and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board or by
any other method as may be determined by the Board in its sole
discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the aforesaid redemption price. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares
of this Series pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of this Series.
A-2
<PAGE>
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive and be
paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to the shares of
this Series upon liquidation, the amount of $100 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation nor the merger or consolidation of the Corporation into
or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (d), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, shall
be insufficient to pay in full all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(e) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of this Series shall vote together as a separate class, shall
be necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Articles of
Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions thereof,
or any similar document relating to any series of Preferred Stock)
which would adversely affect the preferences, rights, powers or
privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series
of Preferred Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of this
Series and such other series of Preferred Stock shall vote together as
a single class without regard to series, shall be necessary for
authorizing, effecting, increasing or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series
A-3
<PAGE>
as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or the
creation, authorization or issue of any obligation or security convertible
into or evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the election
of directors, a default in preference dividends on any series of the
Preferred Stock or any other class or series of preferred stock of the
Corporation (other than the Corporation's Series II 6 1/2% Cumulative
Convertible Preferred Stock (the "Series II Preferred") and any other class
or series of the Corporation's preferred stock expressly entitled to elect
additional directors to the Board by a vote separate and distinct from the
vote provided for in this paragraph (3) ("Voting Preferred")) shall exist,
the number of directors constituting the Board shall be increased by two
(without duplication of any increase made pursuant to the terms of any
other class or series of the Corporation's preferred stock other than the
Series II Preferred and any Voting Preferred) and the holders of the
Corporation's preferred stock of all classes and series (other than the
Series II Preferred and any such Voting Preferred) shall have the right at
such meeting, voting together as a single class without regard to class or
series, to the exclusion of the holders of Common Stock, the Series II
Preferred and the Voting Preferred, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall
continue until there are no dividends in arrears upon shares of any class
or series of the Corporation's preferred stock ranking prior to or on a
parity with shares of this Series as to dividends (other than the Series II
Preferred and any Voting Preferred). Each director elected by the holders
of shares of any series of the Preferred Stock or any other class or series
of the Corporation's preferred stock in an election provided for by this
paragraph (3) (herein called a "Preferred Director") shall continue to
serve as such director for the full term for which he shall have been
elected, notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of the outstanding shares of the Corporation's preferred stock
entitled to have originally voted for such director's election, voting
together as a single class without regard to class or series, at a meeting
of the stockholders, or of the holders of shares of the Corporation's
preferred stock, called for that purpose. So long as a default in any
preference dividends on any series of the Preferred Stock or any other
class or series of preferred stock of the Corporation shall exist (other
then the Series II Preferred and any Voting Preferred) (A) any vacancy in
the office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of
the removal of any Preferred Director, the vacancy may be filled by the
vote of the holders of the outstanding shares of the Corporation's
preferred stock entitled to have originally voted for the removed
director's election, voting together as a single class without regard to
class or series, at the same meeting at which such removal shall be voted.
Each director appointed as aforesaid shall be deemed for all purposes
hereto to be a Preferred Director. Whenever the term of office of the
Preferred Directors shall end and a default in preference dividends shall
no longer exist, the number of directors constituting the Board shall be
reduced by two. For purposes hereof, a "default in preference dividends" on
any series of the Preferred Stock or any other class or series of preferred
stock of the Corporation shall be deemed to have occurred whenever the
amount of accrued dividends upon such class or series of the Corporation's
preferred stock shall be equivalent to six full quarterly dividends or
more, and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all such shares
of the Corporation's preferred stock of each and every series then
outstanding (other than the Series II Preferred, any Voting Preferred or
shares of any class or series ranking junior to shares of this Series as to
dividends) shall have been paid to the end of the last preceding quarterly
dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island
A-4
<PAGE>
Business Corporation Act, have the status of authorized and unissued shares of
Preferred Stock and may be reissued, but only as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board.
(h) Relation to Existing Preferred Classes of Stock. Shares of this Series
are equal in rank and preference with all other series of the Preferred
Stock outstanding on the date of original issue of the shares of this
Series and the Preferred Stock with Cumulative and Adjustable Dividends,
$20.00 par value, and are senior in rank and preference to the Common Stock
and the Cumulative Participating Junior Preferred Stock of the Corporation.
(i) Relation to Other Preferred Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be
deemed to rank:
(1) prior to the shares of this Series, either as to dividends or
upon liquidation, if the holders of such class or classes shall be
entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of
shares of this Series;
(2) on a parity with shares of this Series, either as to dividends
or upon liquidation, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share or
sinking fund provisions, if any, be different from those of this
Series, if the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of
this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of such class
or classes.
A-5
<PAGE>
EXHIBIT B
FLEET FINANCIAL GROUP, INC.
SERIES IV 9.375% PERPETUAL PREFERRED STOCK
(a) Designation. The designation of the series of Preferred Stock shall be
"Series IV 9.375% Perpetual Preferred Stock" (hereinafter called this
"Series") and the number of shares constituting this Series is One Million
(1,000,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 9.375% per annum computed on the basis of an
issue price thereof of $100 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on March 1, June 1, September 1 and December 1 of each year,
commencing March 1, 1992. Each such dividend shall be paid to the holders
of record of shares of this Series as they appear on the stock register of
the Corporation on such record date, not exceeding 30 days preceding the
payment date thereof, as shall be fixed by the Board. Dividends on account
of arrears for any past quarters may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
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(4) Dividends payable on this Series for any period, including the
period from the original issue of such shares until March 1, 1992,
shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to
December 1, 1996. On and after December 1, 1996, the Corporation, at
its option, may redeem shares of this Series, in whole or in part, at
any time or from time to time, at a redemption price of $100 per
share, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall
be determined by the Board and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board or by
any other method as may be determined by the Board in its sole
discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the aforesaid redemption price. In case fewer than all
the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares
of this Series pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of this Series.
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be
entitled to receive and be paid out of the assets of the Corporation
available for distribution to its stockholders, before any payment or
distribution shall be made on the Common Stock or on any other class
of stock ranking junior to the shares of this Series upon liquidation,
the amount of $100 per share, plus a sum equal to all dividends
(whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
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(2) Neither the sale of all or substantially all the property or
business of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or
consolidation of any other corporation into or with the Corporation,
shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (d), the
holders of this Series as such shall have no right or claim to any of
the remaining assets of the Corporation.
(4) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (1)
of this Section (d), no such distribution shall be made on account of
any shares of any other class or series of Preferred Stock ranking on
a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this Series, ratably, in
proportion to the full distributable amounts for which holders of all
such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
(e) Conversion or Exchange. The holders of shares of this Series shall
not have any rights herein to convert such shares into or exchange
such shares for shares of any other class or classes or of any other
series of any class or classes of capital stock of the Corporation.
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of this Series shall vote together as a separate class, shall
be necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Articles of
Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions thereof,
or any similar document relating to any series of Preferred Stock)
which would adversely affect the preferences, rights, powers or
privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series
of Preferred Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of this
Series and such other series of Preferred Stock shall vote together as
a single class without regard to series, shall be necessary for
authorizing, effecting, increasing or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series as to dividends
or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into
or evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the
election of directors, a default in preference dividends on any series
of the Preferred Stock or any other class or series of preferred stock
of the Corporation (other than the Corporation's Series II 6 1/2%
Cumulative Convertible Preferred Stock (the "Series II Preferred") and
any other class or series of the Corporation's preferred stock
expressly entitled to elect additional directors to the Board by a
vote separate and
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<PAGE>
distinct from the vote provided for in this paragraph (3) ("Voting
Preferred")) shall exist, the number of directors constituting the Board
shall be increased by two (without duplication of any increase made
pursuant to the terms of any other class or series of the Corporation's
preferred stock other than the Series II Preferred and any Voting
Preferred) and the holders of the Corporation's preferred stock of all
classes and series (other than the Series II Preferred and any such Voting
Preferred) shall have the right at such meeting, voting together as a
single class without regard to class or series, to the exclusion of the
holders of Common Stock, the Series II Preferred and the Voting Preferred,
to elect two directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no dividends in
arrears upon shares of any class or series of the Corporation's preferred
stock ranking prior to or on a parity with shares of this Series as to
dividends (other than the Series II Preferred and any Voting Preferred).
Each director elected by the holders of shares of any series of the
Preferred Stock or any other class or series of the Corporation's preferred
stock in an election provided for by this paragraph (3) (herein called a
"Preferred Director") shall continue to serve as such director for the full
term for which he shall have been elected, notwithstanding that prior to
the end of such term a default in preference dividends shall cease to
exist. Any Preferred Director may be removed by, and shall not be removed
except by, the vote of the holders of record of the outstanding shares of
the Corporation's preferred stock entitled to have originally voted for
such director's election, voting together as a single class without regard
to class or series, at a meeting of the stockholders, or of the holders of
shares of the Corporation's preferred stock, called for that purpose. So
long as a default in any preference dividends on any series of the
Preferred Stock or any other class or series of preferred stock of the
Corporation shall exist (other than the Series II Preferred and any Voting
Preferred) (A) any vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (B)) by an instrument in
writing signed by the remaining Preferred Director and filed with the
Corporation and (B) in the case of the removal of any Preferred Director,
the vacancy may be filled by the vote of the holders of the outstanding
shares of the Corporation's preferred stock entitled to have originally
voted for the removed director's election, voting together as a single
class without regard to class or series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid shall be
deemed for all purposes hereto to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of
directors constituting the Board shall be reduced by two. For purposes
hereof, a "default in preference dividends" on any series of the Preferred
Stock or any other class or series of preferred stock of the Corporation
shall be deemed to have occurred whenever the amount of accrued dividends
upon such class or series of the Corporation's preferred stock shall be
equivalent to six full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all such shares of the Corporation's
preferred stock of each and every series then outstanding (other than the
Series II Preferred, any Voting Preferred or shares of any class or series
ranking junior to shares of this Series as to dividends) shall have been
paid to the end of the last preceding quarterly dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be
reissued but only as part of a new series of Preferred Stock to be created
by resolution or resolutions of the Board.
(h) Relation to Existing Preferred Classes of Stock. Shares of this Series
are equal in rank and preference with all other series of the Preferred
Stock outstanding on the date of original issue of the shares of this
Series and the Preferred Stock with Cumulative and Adjustable Dividends,
$20.00 par
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value, and are senior in rank and preference to the Common Stock and the
Cumulative Participating Junior Preferred Stock of the Corporation.
(i) Relation to Other Preferred Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be
deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of this
Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of dividends or
of amounts distributable upon dissolution, liquidation or winding up
of the Corporation, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without preference or
priority, one over the other, as between the holders of such stock and
the holders of shares of this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes.
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EXHIBIT C
FLEET FINANCIAL GROUP, INC.
DUAL CONVERTIBLE PREFERRED STOCK
(a) Designation. The designation of this series of Preferred Stock created
by this resolution shall be "Dual Convertible Preferred Stock" (the "Dual
Convertible Preferred Stock") consisting of 1,415,000 shares. The stated
value of the Dual Convertible Preferred Stock shall be $200 per share.
(b) Rank. The Dual Convertible Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding up and dissolution, rank
prior to the Common Stock, par value $1.00 per share (the "Common Stock"),
of the Corporation. (All equity securities of the Corporation to which the
Dual Convertible Preferred Stock ranks prior with respect to dividend
rights and rights on liquidation, winding up and dissolution, including the
Common Stock, are collectively referred to herein as the "Junior
Securities", all equity securities of the Corporation with which the Dual
Convertible Preferred Stock ranks on a parity with respect to dividend
rights and rights on liquidation, winding up and dissolution are
collectively referred to herein as the "Parity Securities" and all equity
securities of the Corporation to which the Dual Convertible Preferred Stock
ranks junior, whether with respect to dividends or upon liquidation,
dissolution, winding-up or otherwise, are collectively referred to herein
as the "Senior Securities.") The Dual Convertible Preferred Stock shall be
subject to the creation of Junior Securities, Parity Securities and Senior
Securities, subject, in the case of Senior Securities, to obtaining the
approval of the holders of the shares of the Dual Convertible Preferred
Stock in accordance with paragraph (h).
(c) Dividends.
(i) The holders of the shares of Dual Convertible Preferred Stock shall be
entitled to receive, out of funds legally available for the payment of
dividends, cumulative dividends in an amount equal to 50% of the dividends
declared on the common stock, par value $.01 per share ("Holding Common
Stock"), of Fleet/Norstar Holding Company, Inc., a Rhode Island corporation
("Holding"), and its successor or assign; provided, however, that dividends
shall not become payable on the shares of the Dual Convertible Preferred
Stock until an aggregate of $15 million of dividends have been declared by
Holding and shall only become payable to the extent of dividends declared
by Holding in excess of such amount; and, provided further, that the amount
of such dividends shall be subject to reduction in accordance with
paragraph (f) (iv); and, provided further, that dividends shall not become
payable on the shares of the Dual Convertible Preferred Stock as a result
of the declaration of the Dividend Note (as hereinafter defined) or other
amounts payable as dividends by Holding to the Corporation pursuant to the
Tax Allocation Agreement (as hereinafter defined). Such dividends shall be
payable from time to time as declared by the Board (each of such dates
being a "dividend payment date"), in preference to dividends on the Junior
Securities. Such dividends shall be paid to the holders of record at the
close of business on the tenth business day immediately preceding each
dividend payment date (each of such dates being a "dividend payment record
date"). Each of such dividends shall be fully cumulative and shall accrue
without interest, until paid.
(ii) All dividends paid with respect to shares of the Dual Convertible
Preferred Stock pursuant to paragraph (c)(i) shall be paid pro rata to the
holders entitled thereto.
(iii) No full dividends shall be declared by the Board of Directors or paid
or set apart for payment by the Corporation on any Parity Securities for
any period unless full cumulative accrued dividends have been or
contemporaneously are declared and paid or declared and a sum set apart
sufficient for such payment on the Dual Convertible Preferred Stock. If any
dividends are not paid
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in full upon the shares of the Dual Convertible Preferred Stock and any
other Parity Securities, all dividends declared upon shares of the Dual
Convertible Preferred Stock and any other Parity Securities shall be
declared pro rata so that the amount of dividends declared per share of the
Dual Convertible Preferred Stock and such Parity Securities shall in all
cases bear to each other the same ratio that accrued dividends per share on
the Dual Convertible Preferred Stock and such Parity Securities bear to
each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Dual
Convertible Preferred Stock or any other Parity Securities which may be in
arrears. Any dividend not paid pursuant to paragraph (c)(i) hereof or this
paragraph (c)(iii) shall be fully cumulative and shall accrue (whether or
not declared), without interest, as set forth in paragraph (c)(i) hereof.
(iv) (A) Holders of shares of the Dual Convertible Preferred Stock shall be
entitled to receive the dividends provided for in paragraph (c)(i) hereof
in preference to and in priority over any dividends upon any of the Junior
Securities.
(B) So long as any shares of the Dual Convertible Preferred Stock are
outstanding, the Board of Directors shall not declare, and the Corporation
shall not pay or set apart for payment, any dividend on any of the Junior
Securities or make any payment on account of, or set apart for payment
money for a sinking or other similar fund for, the repurchase, redemption
or other retirement of, any of the Junior Securities or Parity Securities
or any warrants, rights or options exercisable for or convertible into any
of the Junior Securities or Parity Securities, or make any distribution in
respect of the Junior Securities, either directly or indirectly, and
whether in cash, obligations or shares of the Corporation or other property
(other than distributions or dividends in Junior Securities to the holders
of Junior Securities), and shall not permit any corporation or other entity
directly or indirectly controlled by the Corporation to purchase or redeem
any of the Junior Securities or Parity Securities or any warrants, rights,
calls or options exercisable for or convertible into any of the Junior
Securities or Parity Securities unless prior to or concurrently with such
declaration, payment, setting apart for payment, repurchase, redemption or
other retirement or distribution, as the case may be, all accrued and
unpaid dividends on shares of the Dual Convertible Preferred Stock not paid
on the dates provided for in paragraph (c) (i) hereof shall have been or be
paid; provided, however, that the foregoing restriction shall not prohibit
the Corporation from redeeming the rights outstanding under that certain
Rights Agreement dated as of November 21, 1990, as amended, between the
Corporation and Fleet National Bank, for a redemption price not in excess
of $.01 per right.
(d) Payment in Liquidation.
(i) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, the holders of shares of
Dual Convertible Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
shareholders an amount in cash equal to $200 for each share outstanding,
plus an amount in cash equal to all accrued but unpaid dividends thereon to
the date of liquidation, dissolution or winding up, before any payment
shall be made or any assets distributed to the holders of any of the Junior
Securities. If the assets of the Corporation are not sufficient to pay in
full the liquidation payments payable to the holders of outstanding shares
of the Dual Convertible Preferred Stock and any Parity Securities, then the
holders of all such shares shall share ratably in such distribution of
assets in accordance with the amount which would be payable on such
distribution if the amounts to which the holders of outstanding shares of
Dual Convertible Preferred Stock and the holders of outstanding shares of
such Parity Securities are entitled were paid in full.
(ii) For the purposes of this paragraph (d), neither the voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or
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substantially all of the property or assets of the Corporation nor the
consolidation or merger of the Corporation with or into one or more other
corporations nor the consolidation or merger of one or more corporations
with or into the Corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up.
(e) Common Stock Conversion.
(i) Upon the terms and in the manner set forth in this paragraph (e) and
subject to the provisions for adjustment contained in paragraph (e) (vii),
(A) the shares of the Dual Convertible Preferred Stock shall be
convertible, in whole, but not in part, at the option of the holders
thereof, at any time after the date that is one year after the Issue Date
(as hereinafter defined) and (B) each share of the Dual Convertible
Preferred Stock shall be convertible, from time to time in part, after the
date that is ten years after the Issue Date, or such earlier date as
provided in paragraph (e)(ii), in either case, upon surrender to the
Corporation of the certificates for the shares to be converted, into a
number of fully paid and nonassessable shares of Common Stock equal to the
aggregate stated value of the Dual Convertible Preferred Stock to be
converted divided by a conversion price (the "Conversion Price") of $17.65.
As used herein, the term "Issue Date" shall mean the date of initial
issuance of the Dual Convertible Preferred Stock.
(ii) If, prior to the date that is one year after the Issue Date, there
occurs a sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the
property or assets of the Corporation or a consolidation or merger of the
Corporation with or into another corporation in which the shares of Common
Stock are converted into cash, assets or securities (other than shares of
Common Stock where the Corporation is the surviving corporation), the time
when the conversion rights of holders of shares of Dual Convertible
Preferred Stock into Common Stock become effective shall be accelerated and
such conversion rights shall be effective at and after a time at least 20
business days prior to the consummation of such transaction.
(iii) In order to convert shares of the Dual Convertible Preferred Stock
into Common Stock, (x) if such shares are converted in whole, but not in
part, pursuant to paragraph (e)(i)(A) above, there shall be delivered to
the Corporation written evidence reasonably satisfactory to it that the
holders of a majority of the shares of Dual Convertible Preferred Stock
have elected to convert the Dual Convertible Preferred Stock into Common
Stock (the "Common Stock Conversion Election"), and (y) if such shares are
converted in part, the holder thereof shall deliver a properly completed
and duly executed written notice of election to convert specifying the
number (in whole shares) of the shares of the Dual Convertible Preferred
Stock to be converted. In either case, each holder of shares of the Dual
Convertible Preferred Stock shall (A) deliver a written notice to the
Corporation at its principal office or at the office of the agency which
may be maintained for such purpose (the "Common Stock Conversion Agent")
specifying the name or names in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued, (B) surrender the
certificate for such shares of Dual Convertible Preferred Stock to the
Corporation or the Common Stock Conversion Agent, accompanied, if so
required by the Corporation or the Common Stock Conversion Agent, by a
written instrument or instruments of transfer in form reasonably
satisfactory to the Corporation or the Common Stock Conversion Agent duly
executed by the holder or his attorney duly authorized in writing, and (C)
pay any transfer or similar tax required by paragraph (e)(ix).
(iv) (A) A "Common Stock Conversion" shall be deemed to have been effected
at the close of business on the date (the "Common Stock Conversion Date")
on which the Corporation or the Common Stock Conversion Agent shall have
received (x) the written notice of Common Stock Conversion Election or (y)
a notice of election to convert, a surrendered certificate, any required
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payments contemplated by paragraph (e) (ix) below, and all other required
documents. Immediately upon conversion, the rights of the holders of
converted shares of Dual Convertible Preferred Stock shall cease and the
persons entitled to receive the shares of Common Stock upon the conversion
of such shares of Dual Convertible Preferred Stock shall be treated for all
purposes as having become the beneficial owners of such shares of Common
Stock; provided, however, that such persons shall be entitled to receive
when paid dividends accrued on such shares of Dual Convertible Preferred
Stock to the last preceding dividend payment date and unpaid as of the date
of such conversion. A Common Stock Conversion shall be at the Conversion
Price in effect on such date, unless the stock transfer books of the
Corporation shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record of
the Common Stock at the close of business on the next succeeding day on
which such stock transfer books are open, but such conversion shall be at
the Conversion Price in effect on the Common Stock Conversion Date.
(B) As promptly as practicable after the Common Stock Conversion Date, the
Corporation shall deliver or cause to be delivered at the office or agency
of the Common Stock Conversion Agent, to or upon the written order of the
holders of the surrendered shares of Dual Convertible Preferred Stock, a
certificate or certificates representing the number of fully paid and
nonassessable shares of Common Stock, with no personal liability attaching
to the ownership thereof, free of all taxes with respect to the issuance
thereof, liens, charges and security interests and not subject to any
preemptive rights, into which such shares of Dual Convertible Preferred
Stock have been converted in accordance with the provisions of this
paragraph (e), and any cash payable in respect of fractional shares as
provided in paragraph (e)(v).
(C) Upon the surrender of a certificate representing shares of Dual
Convertible Preferred Stock that is converted in part, the Corporation
shall issue or cause to be issued for the holder a new certificate
representing shares of Dual Convertible Preferred Stock equal in number to
the unconverted portion of the shares of Dual Convertible Preferred Stock
represented by the certificate so surrendered.
(v) No fractional shares or scrip representing fractional shares of Common
Stock shall be issued upon the conversion or redemption of any shares of
Dual Convertible Preferred Stock. Instead of any fractional interest in a
share of Common Stock which would otherwise be deliverable upon the
conversion or redemption of a share of Dual Convertible Preferred Stock,
the Corporation shall pay to the holder of such share (a "Fractional
Shareholder") an amount in cash (computed to the nearest cent) equal to the
current market price (as defined in paragraph (e)(vii)(E) below) thereof on
the business day next preceding the day of conversion or redemption. If
more than one share shall be surrendered for conversion or redemption at
one time by the same holder, the number of full shares of Common Stock
issuable upon conversion or redemption thereof shall be computed on the
basis of the aggregate stated value of the shares of Dual Convertible
Preferred Stock so surrendered.
(vi) The holders of shares of Dual Convertible Preferred Stock at the close
of business on a dividend payment record date shall be entitled to receive
the dividend payable on such shares on the corresponding dividend payment
date notwithstanding the conversion thereof or the Corporation's default in
payment of the dividend due on such dividend payment date.
(vii) The Conversion Price shall be subject to adjustment as follows:
(A) If the Corporation shall (1) declare or pay a dividend on its
outstanding Common Stock in shares of Common Stock or make a distribution
to holders of its Common Stock in shares of Common Stock, (2) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, (3) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (4) issue by reclassification
of its shares
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of Common Stock other securities of the Corporation, then the
Conversion Price in effect immediately prior thereto shall be adjusted
so that the holder of any shares of Dual Convertible Preferred Stock
thereafter converted shall be entitled to receive the number and kind
of shares of Common Stock or other securities that the holder would
have owned or have been entitled to receive after the happening of any
of the events described above had such shares of Dual Convertible
Preferred Stock been converted immediately prior to the happening of
such event or any record date with respect thereto. An adjustment made
pursuant to this paragraph (e)(vii)(A) shall become effective on the
date of the dividend payment, subdivision, combination or issuance
retroactive to the record date with respect thereto, if any, for such
event. Such adjustment shall be made successively.
(B) If the Corporation shall issue to all holders of its Common Stock
rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common
Stock at a price per share that is lower than the then current market
price per share of Common Stock (as defined in paragraph (e)(vii)(E)
below), then the Conversion Price shall be adjusted in accordance with
the following formula:
0 + (N x P)
(M)
AC = C x
0 + N
where:
AC = the adjusted Conversion Price.
C = the current Conversion Price.
0 = the number of shares of Common Stock outstanding
on the record date.
N = the number of additional shares of Common
Stock offered.
P = the offering price per share of the additional shares.
the current market price per share of Common Stock on the
record.
M = date.
The adjustment shall be made successively whenever any such rights,
options, warrants or convertible or exchangeable securities are
issued, and shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights,
options, warrants or convertible or exchangeable securities.
(C) Upon the expiration of any rights, options, warrants or
convertible or exchangeable securities issued by the Corporation to
all holders of its Common Stock which caused an adjustment to the
Conversion Price pursuant to paragraph (e) (vii) (B), if any thereof
shall not have been exercised, then the Conversion Price shall be
increased by the amount of the initial adjustment of the Conversion
Price pursuant to paragraph (e) (vii) (B) in respect of such expired
rights, options, warrants or convertible or exchangeable securities.
(D) If the Corporation shall distribute to all holders of its
outstanding Common Stock any shares of capital stock of the
Corporation (other than Common Stock) or evidences of indebtedness or
assets (excluding ordinary cash dividends and dividends or
distributions referred to in paragraphs (e) (vii) (A) and (B) above)
or rights or warrants to subscribe for or purchase any of its
securities (excluding those referred to in paragraph (e) (vii) (B)
above), (any of the foregoing being hereinafter in this paragraph (e)
(vii) (D) called the "Securities or Assets"), then in each such case,
unless the Corporation elects to reserve shares or other units of such
Securities or Assets for distribution to the holders of the Dual
Convertible Preferred Stock upon the conversion of the shares of Dual
Convertible Preferred Stock so that any such holder converting shares
of Dual Convertible Preferred Stock will receive upon such conversion,
in addition to the shares of the Common Stock to which such holder is
entitled, the amount and kind of such Securities or Assets which such
holder would have received if such holder had, immediately prior to
the record date for
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the distribution of the Securities or Assets, converted its shares of Dual
Convertible Preferred Stock into Common Stock, the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of
such distribution by a fraction of which the numerator shall be the current
market price per share (as defined in paragraph (e) (vii) (E) below) of the
Common Stock on the record date mentioned below less the then fair market
value (as determined by the Board in good faith) of the portion of the
capital stock or assets or evidences of indebtedness so distributed or of
such rights or warrants applicable to one share of Common Stock, and of
which the denominator shall be the current market price per share of the
Common Stock on such record date; provided, however, that if the then fair
market value (as so determined) of the portion of the Securities or Assets
so distributed applicable to one share of Common Stock is equal to or
greater than the current market price per share of the Common Stock on the
record date mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of shares of the Dual
Convertible Preferred Stock shall have the right to receive the amount and
kind of Securities and Assets such holder would have received had such
holder converted each such share of the Dual Convertible Preferred Stock
immediately prior to the record date for the distribution of the Securities
or Assets. Such adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive such
distribution.
(E) For the purposes of any computation under paragraph (e) (vii), and for
the purposes of paragraphs (e) (v) and (g)(ii), the current market price
per share of Common Stock at any date shall be deemed to be the average of
the daily closing prices for the 20 consecutive trading days commencing on
the 30th trading day prior to the date in question. The closing price for
each day shall be (i) if the Common Stock is listed or admitted to trading
on a national securities exchange, the closing price on the New York Stock
Exchange Consolidated Tape (or any successor composite tape reporting
transactions on national securities exchanges) or, if such a composite tape
shall not be in use or shall not report transactions in the Common Stock,
the last reported sales price regular way on the principal national
securities exchange on which the Common Stock is listed or admitted to
trading (which shall be the national securities exchange on which the
greatest number of shares of Common Stock has been traded during such 20
consecutive trading days), or, if there is no transaction on any such day
in any such situation, the mean of the bid and asked prices on such day or,
(ii) if the Common Stock is not listed or admitted to trading on any such
exchange, the closing price, if reported, or, if the closing price is not
reported, the average of the closing bid and asked prices as reported by
the National Association of Securities Dealers Automated Quotation System
("NASDAQ") or, (iii) if bid and asked prices for the Common Stock on each
such day shall not have been reported through NASDAQ, the average of the
bid and asked prices for such date as furnished by any three New York Stock
Exchange member firms regularly making a market in the Common Stock and not
affiliated with the Corporation selected for such purpose by the Board or,
(iv) if no such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member firm
regularly making a market in the Common Stock selected for such purpose by
the Board.
(F) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of such
price; provided, however, that any adjustments which by reason of this
paragraph (e) (vii) (F) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph (e) (vii) shall be made to the nearest
one hundredth of a cent or to the nearest one-hundredth of a share, as the
case may be.
(G) If the Corporation shall be a party to any transaction, including
without limitation a merger, consolidation, sale of all or substantially
all of the Corporation's assets, liquidation or recapitalization of the
Common Stock (each of the foregoing being referred to as a "Transaction"),
in each case (except in the case of a Common Stock Fundamental Change (as
hereinafter defined))
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as a result of which shares of Common Stock shall be converted into the
right to receive stock, securities or other property (including cash or any
combination thereof), in addition to the right to exchange the Dual
Convertible Preferred Stock for Holding Common Stock, which shall survive
the consummation of any such Transaction, each share of Dual Convertible
Preferred Stock shall thereafter be convertible into the kind and amount of
shares of stock and other securities and property receivable (including
cash) upon the consummation of such Transaction by a holder of that number
of shares of Common Stock into which one share of Dual Convertible
Preferred Stock was convertible immediately prior to such Transaction. The
Corporation shall not be a party to any Transaction unless the terms of
such Transaction are consistent with the provisions of this paragraph (e)
(vii) (G) and it shall not consent or agree to the occurrence of any
Transaction until the corporation has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit of the
holders of the Dual Convertible Preferred Stock, which shall contain
provisions (i) enabling the holders of the Dual Convertible Preferred Stock
to convert into the consideration received by holders of Common Stock at
the Conversion Price immediately after such Transaction and (ii)
acknowledging the right of the Dual Convertible Preferred Stock to be
exchanged for Holding Common Stock and assuming any obligations with
respect thereto. The provisions of this paragraph (e) (vii) (G) shall
similarly apply to successive Transactions.
(H) In the event of a Common Stock Fundamental Change, in addition to the
right to exchange the Dual Convertible Preferred Stock for Holding Common
Stock, which shall survive the consummation of any such Common Stock
Fundamental Change, each share of Dual Convertible Preferred Stock shall be
convertible into common stock of the kind received by holders of Common
Stock as the result of such Common Stock Fundamental Change. The Conversion
Price immediately following such Common Stock Fundamental Change shall be
the Conversion Price in effect immediately prior to such Common Stock
Fundamental Change multiplied by a fraction, the numerator of which is the
Purchaser Stock Price (as hereinafter defined) and the denominator of which
is the Applicable Price (as hereinafter defined). The Corporation shall not
consent or agree to the occurrence of any Common Stock Fundamental Change
until the Corporation has entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit of the holders of
the Dual Convertible Preferred Stock, which shall contain provisions (i)
enabling the holders of the Dual Convertible Preferred Stock to convert
into the consideration received by holders of Common Stock at the
Conversion Price immediately after such Fundamental Change and (ii)
acknowledging the right of the Dual Convertible Preferred Stock to be
exchanged for Holding Common Stock and assuming any obligations with
respect thereto. The provisions of this paragraph (e)(vii)(H) shall
similarly apply to successive Common Stock Fundamental Changes.
(I) As used herein:
(1) The term "Applicable Price" means the current market price for one
share of the Common Stock (determined in accordance with paragraph
(e)(vii)(E)) on the record date for the determination of the holders of
Common Stock entitled to receive common stock in connection with such
Common Stock Fundamental Change, or, if there is no such record date, on
the date upon which the holders of Common Stock shall have the right to
receive such common stock.
(2) The term "Common Stock Fundamental Change" shall mean the occurrence of
any transaction or event in connection with which all or substantially all
the Common Stock shall be exchanged for, converted into, acquired for or
shall constitute solely the right to receive common stock that, for the ten
consecutive trading days immediately prior to such Common Stock Fundamental
Change, has been admitted for listing on a national securities exchange or
quoted on the National Market System of NASDAQ (whether by means of an
exchange order, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise).
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(3) The term "Purchaser Stock Price" shall mean, with respect to
any Common Stock Fundamental Change, the current market price for
one share of the common stock received by holders of Common Stock
in such Common Stock Fundamental Change (determined in accordance
with paragraph (e)(vii)(E) as if such paragraph were applicable to
such common stock) on the record date for the determination of the
holders of Common Stock entitled to receive such common stock or,
if there is no such record date, on the date upon which the
holders of Common Stock shall have the right to receive such
common stock.
(J) For the purposes of this paragraph (e)(vii) and paragraph
(e)(x), the term "shares of Common Stock" shall mean (i) the class
of stock designated as the Common Stock of the Corporation at the
date hereof or (ii) any other class of stock resulting from
successive changes or reclassifications of such shares consisting
solely of changes in par value, or from no par value to par value.
If at any time, as a result of an adjustment made pursuant to
paragraphs (e) (vii) (A), (D), (G) or (H) above, the holders of
Dual Convertible Preferred Stock shall become entitled to receive
any securities other than shares of Common Stock, thereafter the
number of such other securities so issuable upon conversion of the
shares of Dual Convertible Preferred Stock 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
shares of Dual Convertible Preferred Stock contained in this
paragraph (e) (vii).
(K) Notwithstanding the foregoing, in any case which this
paragraph (e) (vii) provides that an adjustment shall become
effective immediately after a record date for an event, the
Corporation may defer until the occurrence of such event (i)
issuing to the holder of any share of Dual Convertible Preferred
Stock converted after such record date and before the occurrence
of such event the additional shares of Common Stock issuable upon
such conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of any fraction
pursuant to paragraph (e)(v).
(L) If the Corporation shall take any action affecting the Common
Stock, other than action described in this paragraph (e) (vii),
which in the opinion of the Board would materially adversely
affect the conversion rights of the holders of the shares of Dual
Convertible Preferred Stock, the Conversion Price for the Dual
Convertible Preferred Stock may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as the
Board may determine in good faith to be equitable in the
circumstances. Failure of the Board to provide for any such
adjustment prior to the effective date of any such action by the
Corporation affecting the Common Stock shall be evidence that such
Board has determined that it is equitable to make no adjustments
in the circumstances.
(viii) Whenever the Conversion Price is adjusted as herein
provided, the Chief Financial Officer of the Corporation shall
compute the adjusted Conversion Price in accordance with the
foregoing provisions and shall prepare a certificate setting forth
such adjusted Conversion Price and showing in reasonable detail
the facts upon which such adjustment is based. A copy of such
certificate shall be filed promptly with the Common Stock
Conversion Agent. Promptly after delivery of such certificate, the
Corporation shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and
the date on which such adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Price to the
holder of each share of Dual Convertible Preferred Stock at his
last address as shown on the stock books of the Corporation.
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(ix) The Corporation will pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Common Stock on the conversion of shares of Dual
Convertible Preferred Stock pursuant to this paragraph (e); provided,
however, that the Corporation shall not be required to pay any tax
which may be payable in respect of any registration or transfer
involved in the issue or delivery of shares of Common Stock in a name
other than that of the registered holder of Dual Convertible Preferred
Stock converted or to be converted, and no such issue or delivery
shall be made unless and until the person requesting such issue has
paid to the Corporation the amount of any such tax or has established,
to the satisfaction of the Corporation, that such tax has been paid.
(x) (A) The Corporation shall at all times reserve and keep available,
free from all liens, charges and security interests and not subject to
any preemptive rights, out of the aggregate of its authorized but
unissued Common Stock or its issued Common Stock held in its treasury,
or both, for the purpose of effecting the conversion of the Dual
Convertible Preferred Stock, the full number of shares of Common Stock
then deliverable upon the conversion of all outstanding shares of the
Dual Convertible Preferred Stock.
(B) Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value (if any) of the Common
Stock issuable upon conversion of the Dual Convertible Preferred
Stock, the Corporation will take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Corporation
may validly and legally issue fully paid and nonassessable shares of
such Common Stock at such adjusted Conversion Price.
(xi) If (A) the Corporation shall declare a dividend on its
outstanding Common Stock (excluding ordinary cash dividends) or make a
distribution to holders of its Common Stock; (B) the Corporation shall
authorize the granting to the holders of the Common Stock of rights,
options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase any shares of Common Stock or
any of its securities; (C) there shall be any reclassification of the
Common Stock or any consolidation or merger to which the Corporation
is a party and for which approval of any shareholders of the
Corporation is required, or the sale or transfer of all or
substantially all of the assets of the Corporation; or (D) there shall
be any Common Stock Fundamental Change; then the Corporation shall
cause to be mailed to the holders of shares of the Dual Convertible
Preferred Stock at their addresses as shown on the stock books of the
Corporation, as promptly as possible, but at least 15 days, prior to
the applicable date hereinafter specified, a notice stating (l) the
date on which a record is to be taken for the purpose of such dividend
or distribution, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such
dividend or distribution are to be determined or (2) the date on which
such reclassification, consolidation, merger, sale, transfer or Common
Stock Fundamental Change is expected to become effective, and the date
as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or Common Stock Fundamental
Change.
(f) Holding Exchange.
(i) Upon the terms and in the manner set forth in this paragraph (f),
the shares of Dual Convertible Preferred Stock shall be exchangeable,
in whole, but not in part, at the option of the holders thereof, upon
surrender to the Corporation of the certificates representing such
shares of Dual Convertible Preferred Stock, for a number of fully paid
and nonassessable shares of Holding Common Stock equal to 50% of the
shares of Holding Common Stock on a fully diluted basis on the Holding
Exchange Date (as hereinafter defined).
(ii) On the Issue Date, all of the shares of Dual Convertible
Preferred Stock will be issued to one or more limited partnerships
(the "Partnerships"), for which Kohlberg Kravis Roberts & Co. or one
of its affiliates acts as sole general partner. The Partnerships shall
distribute all shares of
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Dual Convertible Preferred Stock then owned by the Partnerships to the
partners thereof (the "Distribution") upon the earlier to occur of (A) the
date of the Automatic Early Distribution (as hereinafter defined) or (B)
the date that is six years after the Issue Date, unless the Partnerships
shall have received the consent of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") to an alternative date on
which to effect the Distribution (which shall not be earlier than the date
that is four years after the Issue Date). The Partnerships shall promptly
notify the Corporation of the Distribution.
(iii) The shares of Dual Convertible Preferred Stock shall be exchangeable
for Holding Common Stock, in whole, but not in part, in accordance with
this paragraph (f), (A) at any time after the Automatic Early Distribution
shall have been effected and before the date that is ten years after the
Issue Date, or (B) from time to time after the date that is (x) four years
after the Issue Date or at any time after such date, if the Partnerships do
not own any shares of Dual Convertible Preferred Stock on any such date and
before the date that is ten years after the Issue Date, or (y) the date
that the Distribution shall have been effected, which shall be six years
after the Issue Date unless the Partnerships shall have received the
consent of the Federal Reserve Board to an alternative date on which to
effect the Distribution (which shall not be earlier than the date that is
four years after the Issue Date) and before the date that is ten years
after the Issue Date (the period of time set forth in either clause (x) or
(y) of this paragraph (f)(iii)(B) is referred to herein as the "Exchange
Period").
(iv) At any time and from time to time during the Exchange Period, the
holders of a majority of the shares of the Dual Convertible Preferred Stock
shall have the right to have an independent nationally recognized
investment banking firm render an opinion (an "Appraisal") of the fair
price for all the outstanding shares of Holding Common Stock as if all such
shares were to be sold to a third party in their entirety reflecting a full
control premium (the "Appraised Price"). The fees and expenses of such
investment banking firm shall be paid by the Corporation. The Corporation
shall be entitled to reduce the amount of dividends that would otherwise be
payable on the Dual Convertible Preferred Stock pursuant to paragraph (c)
(i) by the amount of such fees and expenses paid by the Corporation. The
investment banking firm that performs each Appraisal shall be selected by
the Corporation but shall be reasonably acceptable to the holders of a
majority of the shares of the Dual Convertible Preferred Stock. The holders
of a majority of the shares of the Dual Convertible Preferred Stock shall
have 30 days to accept or reject the Appraised Price set by any Appraisal.
The Dual Convertible Preferred Stock will become exchangeable for Holding
Common Stock for a period of 90 days commencing on the date that is six
months after the written acceptance by the holders of a majority of the
shares of the Dual Convertible Preferred Stock of the Appraised Price set
by an Appraisal. If the holders of the Dual Convertible Preferred Stock do
not elect to exchange their shares of the Dual Convertible Preferred Stock
for Holding Common Stock during any such 90-day period, in addition to
their other rights hereunder, the holders shall be entitled to have
additional Appraisals rendered and to otherwise comply with the
requirements hereof to have the Dual Convertible Preferred Stock again
become exchangeable for Holding Common Stock.
(v) The right to exchange the Dual Convertible Preferred Stock for Holding
Common Stock may also be exercised at any time on or after the 60th day
after the Corporation shall have given notice to the holders of the shares
of the Dual Convertible Preferred Stock that the Corporation's consolidated
Tier 1 capital leverage ratio, based on the rules and regulations of the
Federal Reserve Board as currently in effect (using year-end 1992
standards) as disclosed in any report of condition filed by the Corporation
with any bank regulatory authority, adjusted to include the Corporation's
goodwill existing at the Issue Date, shall be less than 3%. The Corporation
shall give the holders of the shares of the Dual Convertible Preferred
Stock immediate notice if its consolidated Tier 1 capital leverage ratio as
reported in any such regulatory filing, adjusted to include its goodwill
existing at the Issue Date, falls below 3%. Prior to the fifth day after
the Partnerships shall have
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received such notice, unless the Partnerships shall have received the
consent of the Federal Reserve Board to an extension of such date, the
Partnerships shall effect the Distribution with respect to all shares of
Dual Convertible Preferred Stock then owned by the Partnerships (the
"Automatic Early Distribution"). The Corporation shall cause an Appraisal
to be prepared at the Corporation's expense and delivered to the holders of
the shares of the Dual Convertible Preferred Stock within 20 days after the
Corporation's notice of capital deficiency. The holders of a majority of
the shares of the Dual Convertible Preferred Stock shall have 20 days to
accept or reject such Appraisal. If such Appraisal is accepted, the
Corporation may redeem at its option, with the prior approval of the
Federal Reserve Board, the Dual Convertible Preferred Stock in whole, but
not in part, for the Gross Redemption Price, determined and payable in
accordance with paragraph (g) below.
(vi) In order to exchange shares of the Dual Convertible Preferred Stock
into Holding Common Stock, there shall be delivered to the Corporation
written evidence reasonably satisfactory to it that the holders of a
majority of the shares of Dual Convertible Preferred Stock have elected to
exchange the Dual Convertible Preferred Stock into Holding Common Stock
(the "Holding Exchange Election"), which election shall be binding on all
the holders of the shares of the Dual Convertible Preferred Stock. Each
holder of shares of the Dual Convertible Preferred Stock shall (A) deliver
a written notice of the name or names in which such holder wishes the
certificate or certificates for shares of Holding Common Stock to be issued
to the Corporation at its principal office or at the office of the agency
which may be maintained for such purpose (the "Holding Exchange Agent"),
(B) surrender the certificate for such shares of Dual Convertible Preferred
Stock to the Corporation or the Holding Exchange Agent, accompanied, if so
required by the Corporation or the Holding Exchange Agent, by a written
instrument or instruments of transfer in form reasonably satisfactory to
the Corporation or the Holding Exchange Agent duly executed by the holder
or his attorney duly authorized in writing, and (C) pay any transfer or
similar tax required by paragraph (f)(x)(A).
(vii) (A) The "Holding Exchange" shall be deemed to have been effected at
the close of business on the fifth business day after the date (the
"Holding Exchange Date") on which the Corporation shall have received the
written notice of the Holding Exchange Election. Immediately upon exchange,
the rights of all the holders of Dual Convertible Preferred Stock shall
cease and the persons entitled to receive the shares of Holding Common
Stock upon the exchange of Dual Convertible Preferred Stock shall be
treated for all purposes as having become the beneficial owners of such
shares of Holding Common Stock; provided, however, that such persons shall
be entitled to receive when paid dividends accrued on such shares of Dual
Convertible Preferred Stock to the last preceding dividend payment date and
unpaid as of the date of such exchange.
(B) As promptly as practicable after the Holding Exchange Date subject to
the provisions of paragraph (f) (x), the Corporation shall deliver or cause
to be delivered at the office or agency of the Holding Exchange Agent, to
or upon the written order of the holders of the surrendered shares of Dual
Convertible Preferred Stock, a certificate or certificates representing the
number of fully paid and nonassessable shares of Holding Common Stock into
which such shares of Dual Convertible Preferred Stock have been exchanged
in accordance with the provisions of this paragraph (f).
(viii) No fractional shares or scrip representing fractional shares of
Holding Common Stock shall be issued upon the exchange of the Dual
Convertible Preferred Stock for Holding Common stock. The Corporation shall
cause Holding to effect a stock split or reverse stock split so that no
fractional shares become deliverable pursuant to the Holding Exchange.
(ix) The holders of shares of Dual Convertible Preferred Stock at the close
of business on a dividend payment record date shall be entitled to receive
the dividend payable on such shares on the corresponding dividend payment
date notwithstanding the exchange thereof or the Corporation's default in
payment of the dividend due on such dividend payment date.
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(x) (A) The Corporation will pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Holding Common Stock on the exchange of shares
of Dual Convertible Preferred Stock pursuant to this paragraph (f);
provided, however, that the Corporation shall not be required to pay
any tax which may be payable in respect of any registration or
transfer involved in the issue or delivery of shares of Holding Common
Stock in a name other than that of the registered holder or Dual
Convertible Preferred Stock exchanged or to be exchanged, and no such
issue or delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such tax or
has established, to the satisfaction of the Corporation, that such tax
has been paid.
(B) If the Board of Directors of Holding determines in good faith that
(i) the declaration and payment of the dividend note (the "Dividend
Note") described in Section 3 of the Supplemental Tax Allocation
Agreement between the Corporation and Holding, dated the Issue Date
(the "Tax Allocation Agreement"), would cause Holding to be unable to
comply with regulatory capital maintenance requirements and policies
then in effect or with safe and sound banking practices or (ii)
Holding will have insufficient cash to pay the Dividend Note, then the
Corporation may condition the issuance of Holding Common Stock to any
holder of the Dual Convertible Preferred Stock upon the receipt of a
cash capital contribution (a "Capital Contribution") from such holder
to Holding concurrently with such issuance equal to the product of a
fraction, the numerator of which equals the number of shares of
Holding Common Stock for which such holder's Dual Convertible
Preferred Stock may be exchanged and the denominator of which equals
the total number of shares of Holding Common Stock that will be
outstanding (on a fully diluted basis) after all of the shares of Dual
Convertible Preferred Stock have been exchanged, multiplied by the
amount of the Dividend Note and, in such event, the declaration and
payment of the Dividend Note to the Corporation will be conditioned
upon Holding's receipt of a Capital Contribution from the Corporation
equal to 50% of the amount of the Dividend Note. Except as provided in
this paragraph (f) (x), the holders of the Dual Convertible Preferred
Stock shall have no obligation to make any capital contribution,
including, without limitation, with respect to the obligations of
Holding to the Corporation under the Tax Allocation Agreement.
(C) The Board of Directors of Holding shall give written notice of its
determination to require a Capital Contribution to each holder of
record of the shares of the Dual Convertible Preferred Stock, which
notice shall state the amount of such holder's required Capital
Contribution and the consequences of failing to make such Capital
Contribution. If any holder of the Dual Convertible Preferred Stock
fails to make such holder's Capital Contribution within 90 days of
such notice, the shares of Holding Common Stock for which such
holder's shares of the Dual Convertible Preferred Stock may be
exchanged (the "Escrowed Shares") shall be deposited by the
Corporation in escrow with an independent trustee (the "Trustee") that
is not affiliated with the Corporation. The Trustee shall be empowered
and directed to sell such of the Escrowed Shares as will be sufficient
to realize net proceeds (after the payment of the fees and expenses of
the Trustee) equal to such holder's required Capital Contribution,
together with interest on such amount at the prime rate then in effect
at the Corporation's banking subsidiaries commencing on the 90th day
after the notice of such Capital Contribution ("Interest"). The holder
of the shares of the Dual Convertible Preferred Stock to which such
Escrowed Shares relate may obtain the release of such Escrowed Shares
from the Trustee at any time prior to the Trustee's disposition
thereof by paying the amount of the Capital Contribution, together
with Interest thereon, to the Trustee. The Trustee shall have the
right to sell such of the Escrowed Shares in a public offering or in
one or more private sales as will result in the receipt of sufficient
proceeds, after the payment of the fees and expenses of the Trustee
therefrom, to pay the required Capital Contribution, together with
Interest thereon, with respect to such Escrowed Shares. The Trustee
shall use its best efforts to obtain the highest price for the
Escrowed Shares to be sold. The Trustee shall not be prohibited from
selling, and shall be specifically authorized to sell, any of the
Escrowed Shares to the Corporation provided that the Corporation
purchases such shares for a consideration at least equal to the book
value thereof.
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Upon the receipt of sufficient proceeds to pay the required Capital
Contribution, together with Interest thereon, the balance of such Escrowed
Shares will be released to the holder of the Dual Convertible Preferred
Stock to which such Escrowed Shares relate in exchange for the Dual
Convertible Preferred Stock held by such holder.
(g) Optional Redemption.
(i) The Corporation may redeem at its option, with the prior approval of
the Federal Reserve Board, the Dual Convertible Preferred Stock, in whole,
but not in part, at any time during the period after the acceptance of any
Appraisal by the holders of a majority of the shares of Dual Convertible
Preferred Stock but before the 90-day period following the acceptance of
any Appraisal during which the Dual Convertible Preferred Stock becomes
exchangeable for Holding Common Stock in accordance with paragraph (f) (iv)
or before the Dual Convertible Preferred Stock becomes exchangeable for
Holding Common Stock in accordance with paragraph (f)(v) above (the
"Optional Redemption Period"), at a redemption price equal to 50% of the
Appraised Price (the "Gross Redemption Price"), together with accrued and
unpaid dividends thereon to the date of redemption. The Appraised Price
that is applicable to any Optional Redemption Period shall be the Appraised
Price set forth in the Appraisal, the acceptance of which gave rise to such
Optional Redemption Period.
(ii) The Gross Redemption Price shall be reduced by the aggregate of (A)
the aggregate current market price of the shares of Common Stock into which
the Dual Convertible Preferred Stock would then be convertible, regardless
of whether such shares are actually convertible at such time (which current
market price shall be determined in accordance with paragraph (e) (vii) (E)
and the date in question for purposes thereof shall be the date that the
Optional Redemption Notice (as hereinafter defined) is mailed in accordance
with paragraph (g)(iii) below) or, if any Transaction has been effected in
which shares of Common Stock were converted into the right to receive
stock, securities or other property (including cash or any combination
thereof) (the "Transaction Consideration") and the Common Stock is no
longer outstanding, the value of the Transaction Consideration into which
the Dual Convertible Preferred Stock would then be convertible, and (B) the
value of the rights to purchase Common Stock (the "Rights") issued to the
Partnerships on the Issue Date. The value of the Rights shall be determined
as follows:
(1) with respect to any portion of the Rights that has been exercised and
the holder of such Rights received Common Stock upon the exercise thereof,
the value of such Rights shall be equal to the aggregate current market
price of the Common Stock received upon the exercise of the Rights on the
date of exercise less the aggregate exercise price paid for such Common
Stock (which current market price shall be determined in accordance with
paragraph (e) (vii) (E) and the date in question for purposes thereof shall
be the date of exercise);
(2) with respect to any portion of the Rights that has not been exercised,
the value of such Rights shall be equal to the aggregate current market
price of the Common Stock that the holders of such Rights would then be
entitled to receive upon the exercise thereof in their entirety less the
aggregate exercise price that would then be payable upon such exercise
(which current market price shall be determined in accordance with
paragraph (e) (vii) (E) and the date in question for purposes thereof shall
be the date that the Optional Redemption Notice is mailed); and
(3) with respect to any portion of the Rights that has been exercised and
the Corporation exercised its option to purchase such Rights rather than
issue Common Stock upon the exercise thereof, the value of such Rights
shall be equal to the aggregate purchase price received by the holders
thereof upon the Corporation's purchase of such Rights.
The value of the Transaction Consideration shall be determined as follows:
(1) with respect to any portion of the Transaction Consideration that
consists of stock or securities, the value of such stock or securities
shall be equal to the aggregate current market price
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of such stock or securities (determined in accordance with paragraph (e)
(vii) (E) as if such paragraph were applicable to such stock or securities
and the date in question for purposes thereof shall be the date that the
Optional Redemption Notice is mailed); and
(2) with respect to any portion of the Transaction Consideration that
consists of other property, the value of such other property shall be equal
to its then aggregate fair market value as determined by the Board in good
faith.
If the Corporation certifies in the Optional Redemption Notice that it must
report gain, and that it will do so on its tax return for the taxable year
of the redemption, that will result in an actual income tax liability or an
actual reduction in income tax refund (or combination thereof) on the
income tax return of the Corporation for the taxable year of the redemption
as a direct result of the actual redemption of the Dual Convertible
Preferred Stock for cash and/or the issuance of Common Stock or debt
securities of the Corporation pursuant to paragraph (g) (i), the Gross
Redemption Price shall be reduced by one-half of the amount of the total
income tax liability actually to be incurred as a result of, and/or the
actual reduction in income tax refund to occur caused by, such redemption,
as will be reported on the income tax return of the Corporation to be filed
for the taxable year of the redemption, including any income tax for which
the Corporation is liable as a result of such reduction. If the Corporation
does not expect to incur an actual tax liability or reduction in refund (or
combination thereof) in the year of the redemption, the Gross Redemption
Price shall be reduced by one-half of the amount determined by the Board of
Directors of the Corporation in good faith, equal to the projected tax
liability to be incurred by the Corporation in future years as a result of
the redemption appropriately discounted to take into account the period of
time before such tax liability will actually be paid by the Corporation.
The Corporation will not provide the certification in the Optional
Redemption Notice unless there is substantial authority that requires gain
to be recognized by the Corporation on the redemption and no substantial
authority supporting the position that gain is not recognized by the
Corporation on the redemption.
If the Corporation subsequently receives a refund of all or any portion of the
taxes paid or has a reduction in the tax liability that resulted in a reduction
of the Gross Redemption Price, the Corporation shall promptly pay the former
holders of the Dual Convertible Preferred Stock their respective proportionate
share of 50% of such refund or reduction in tax liability, together with any
interest at the underpayment rate set forth in Section 6621(a) (2) of the
Internal Revenue Code of 1986, as amended. The Gross Redemption Price reduced by
the value of the Rights in accordance with clause (B) above and any reduction
pursuant to the three preceding sentences shall be referred to herein as the
"Net Redemption Price", and further reduced by the aggregate current market
price of the Common Stock or the aggregate value of the Transaction
Consideration in accordance with clause (A) above shall be referred to herein as
the "Balance".
(iii) The Net Redemption Price shall be payable to the holders of the shares of
Dual Convertible Preferred Stock as follows:
(A) certificates representing the number of shares of Common Stock or,
if any Transaction has been effected, certificates representing the
number of shares of stock or securities together with any other
property, into which the Dual Convertible Preferred Stock would then
be convertible, regardless of whether such shares are actually
convertible at such time, and any cash payable in respect of
fractional shares as provided in paragraph (e)(v), shall be delivered
to the holders of the Dual Convertible Preferred Stock in accordance
with the procedures for effecting a Common Stock Conversion; and
(B) the Balance shall be payable, at the Corporation's option, in any
combination of cash or the Corporation's capital and other securities
having a realizable market value (as determined by an independent
nationally recognized investment banking firm selected and paid for by
the Corporation and reasonably acceptable to the holders of at least a
majority of the shares of the Dual Convertible Preferred Stock) equal
to the Balance.
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(iv) The Corporation shall have the obligation to redeem, with the
prior approval of the Federal Reserve Board, the Dual Convertible
Preferred Stock, in whole, but not in part, if (A) the Corporation
offers to redeem (the "Redemption Offer") the Dual Convertible
Preferred Stock at a redemption price other than the Gross Redemption
Price, which offer, if made after the Distribution shall have been
effected, may only be made during an Optional Redemption Period or
during the period after an Appraisal has been received and prior to
the acceptance or rejection thereof by the holders of the shares of
the Dual Convertible Preferred Stock, and (B) the holders of a
majority of the outstanding shares of the Dual Convertible Preferred
Stock shall have elected to accept the Redemption Offer, which
election shall be binding on all the holders of the shares of the Dual
Convertible Preferred Stock. Written notice of every Redemption Offer
shall be given by first class mail, postage prepaid, to each holder of
record of the shares of the Dual Convertible Preferred Stock at such
holder's address as the same appears on the stock register of the
Corporation. Each Redemption Offer shall state: (A) the consideration
offered by the Corporation for all the shares of the Dual Convertible
Preferred Stock (the "Alternative Redemption Price"); (B) the proposed
date on and the manner in which the Alternative Redemption Price would
be payable; and (C) the Gross Redemption Price, the Net Redemption
Price and the Balance, together with a certificate of the Chief
Financial Officer of the Corporation setting forth in reasonable
detail the facts upon and the manner in which each was determined.
(v) If the Corporation shall redeem shares of Dual Convertible
Preferred Stock pursuant to this paragraph (g), written notice of such
redemption (the "Optional Redemption Notice") shall be given by first
class mail, postage prepaid, mailed not less than 10 days nor more
than 30 days prior to the redemption date, to each holder of record of
the shares of the Dual Convertible Preferred Stock at such holder's
address as the same appears on the stock register of the Corporation.
The Optional Redemption Notice shall state: (A) the redemption date;
(B) the Gross Redemption Price, the Net Redemption Price and the
Balance, together with a certificate of the Chief Financial Officer of
the Corporation setting forth in reasonable detail the facts upon and
the manner in which each was determined or the Alternative Redemption
Price, as the case may be; (C) that shares of Dual Convertible
Preferred Stock called for redemption may be converted in accordance
with, and subject to the terms of, paragraph (e) hereof at any time
prior to the date fixed for redemption (unless the Corporation shall
default in payment of the Net Redemption Price or the Alternative
Redemption Price, in which case such right shall not terminate at such
date); (D) the place or places where certificates for such shares are
to be surrendered for payment of the Net Redemption Price or the
Alternative Redemption Price; (E) the amount of any accrued and unpaid
dividends; and (F) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(vi) The Optional Redemption Notice having been mailed as aforesaid,
from and after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the Net
Redemption Price or the Alternative Redemption Price) dividends on the
shares of Dual Convertible Preferred Stock shall cease to accrue and
said shares shall no longer be deemed to be outstanding and shall have
the status of authorized but unissued shares of Preferred Stock,
undesignated as to series, and all rights of the holders thereof as
shareholders of the Corporation (except the right to receive from the
Corporation the Net Redemption Price or the Alternative Redemption
Price and any accrued and unpaid dividends) shall cease. Upon
surrender in accordance with the Optional Redemption Notice of any
certificates for the shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so
require and the Optional Redemption Notice shall so state), such
shares shall be redeemed by the Corporation at the Net Redemption
Price or the Alternative Redemption Price, as the case may be, plus
any accrued and unpaid dividends thereon.
(h) Voting Rights.
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(i) The holders of record of shares of Dual Convertible Preferred
Stock shall not be entitled to any voting rights except as hereinafter
provided in this paragraph (h) or as otherwise provided by law.
(ii)(A) Whenever any matter is required to be acted upon herein by the
holders of a majority of the Dual Convertible Preferred Stock, the
affirmative vote of the holders of a majority of the outstanding Dual
Convertible Preferred Stock, whether at a special meeting of such
holders called as hereinafter provided, or by the written consent of
such holders pursuant to Section 7-1.1-30.3 of the Rhode Island
Business Corporation Act, shall be required to adopt such matter,
which adoption shall be binding on all the holders of the shares of
Dual Convertible Preferred Stock.
(B) Upon the written request of the holders of at least 10% of the
shares of the Dual Convertible Preferred Stock, addressed to the
Secretary of the Corporation, a proper officer of the Corporation
shall call a special meeting of holders of Dual Convertible Preferred
Stock. Such meeting shall be held at the earliest practicable date
upon the notice required for special meetings of shareholders at a
place designated by the holders of at least 10% of the shares of the
Dual Convertible Preferred Stock. If such meeting shall not be called
by the proper officers of the Corporation within 5 days after the
personal service of such written request upon the Secretary of the
Corporation, or within 10 days after mailing the same within the
United States, by registered mail, addressed to the Secretary of the
Corporation at its principal office (such mailing to be evidenced by
the registry receipt issued by the postal authorities), then the
holders of at least 10% of the shares of Dual Convertible Preferred
Stock may designate in writing a holder of Dual Convertible Preferred
Stock to call such meeting at the expense of the Corporation, and such
meeting may be called by such person designated upon the notice
required for special meetings of shareholders and shall be held at the
same place as is elsewhere provided in this paragraph (h)(ii)(B). Any
holder of Dual Convertible Preferred Stock that would be entitled to
vote at such meeting shall have access to the stock books of the
Corporation relating to the Dual Convertible Preferred Stock and the
right to examine and to make extracts therefrom, in person or by agent
or attorney, at any reasonable time or times, for the purpose of
causing a meeting of shareholders to be called pursuant to the
provisions of this paragraph or otherwise communicating with the
holders of the Dual Convertible Preferred Stock or for any other
proper purpose.
(C) At any meeting of the holders of the Dual Convertible Preferred
Stock, the presence in person or by proxy of the holders of a majority
of the then outstanding shares of Dual Convertible Preferred Stock
shall be required and be sufficient to constitute a quorum of such
holders for the action to be taken by such class. At any such meeting
or adjournment thereof in the absence of a quorum of the holders of
shares of Dual Convertible Preferred Stock, the holders of a majority
of such shares present in person or by proxy shall have the power to
adjourn the meeting from time to time, without notice (except as
required by law) other than announcement at the meeting, until a
quorum shall be present.
(D) At any meeting of the holders of the Dual Convertible Preferred
Stock, the holders of a majority of the outstanding shares of the Dual
Convertible Preferred Stock shall be entitled to designate a committee
(the "Committee") consisting of as many holders of the Dual
Convertible Preferred Stock as the holders of a majority of such
shares may determine to be appropriate. The Committee may be empowered
to act on behalf of all holders of the Dual Convertible Preferred
Stock with respect to certain matters affecting the exchangeability of
the Dual Convertible Preferred Stock specified in paragraphs (f) (iv)
and (f) (v) and the acceptability of the Corporation's selection of an
investment banking firm hereunder if so designated by the holders of
the Dual Convertible Preferred Stock pursuant to this paragraph
(h)(ii)(D); provided, however, that in no event may the Committee be
empowered to elect to convert the Dual Convertible Preferred Stock
into Common Stock, to accept any Redemption Offer or to exchange the
Dual Convertible Preferred Stock for Holding Common Stock on behalf of
the holders thereof.
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(iii) So long as any shares of the Dual Convertible Preferred Stock
are outstanding, the Corporation shall not, without the affirmative
vote or consent of the holders of at least 66 2/3% of the outstanding
shares of Dual Convertible Preferred Stock, voting as a class, given
in person or by proxy, either in writing or by resolution adopted at a
special meeting called for the purpose, authorize any new class of
Senior Securities.
(iv) So long as any shares of the Dual Convertible Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote
or consent of the holders of at least 66 2/3% of the outstanding
shares of Dual Convertible Preferred Stock, voting as a class, given
in person or by proxy, either in writing or by resolution adopted at a
special meeting called for the purpose, amend the Certificate of
Incorporation or this Certificate of Designation so as to affect
materially and adversely the specified rights, preferences, privileges
or voting rights of shares of Dual Convertible Preferred Stock.
(i) Other Redemption Rights.
(i) If less than 10% of the shares of the Dual Convertible Preferred
Stock originally issued is then outstanding, the Corporation may
redeem at its option, with the prior approval of the Federal Reserve
Board, the Dual Convertible Preferred Stock, in whole, but not in
part, at any time on or after the date that is ten years after the
Issue Date, at a redemption price of $200 per share (the "Stated Value
Redemption Price"), together with accrued and unpaid dividends thereon
to the date of redemption, without interest.
(ii) The Corporation may redeem at its option, with the prior approval
of the Federal Reserve Board, the Dual Convertible Preferred Stock, in
whole, but not in part, at any time on or after the date that is 12
years after the Issue Date, at a redemption price in cash equal to the
Fair Market Value (as hereinafter defined) of such shares. The
Corporation shall have the right to have an independent nationally
recognized investment banking firm render an opinion of the fair
market value for all the outstanding shares of the Dual Convertible
Preferred Stock as if all such shares were to be sold to a third party
(the "Fair Market Value"). The investment banking firm that renders
such opinion shall be selected by the Corporation but shall be
reasonably acceptable to the holders of a majority of the outstanding
shares of the Dual Convertible Preferred Stock. Such determination of
Fair Market Value shall be binding and conclusive on the Corporation
and the holders of the Dual Convertible Preferred Stock. The fees and
expenses of such investment banking firm shall be paid by the
Corporation.
(iii) If the Corporation shall redeem shares of Dual Convertible
Preferred Stock pursuant to this paragraph (i), written notice of such
redemption shall be given by first class mail, postage prepaid, mailed
not less than 90 days nor more than 120 days prior to the redemption
date, to each holder of record of the shares of the Dual Convertible
Preferred Stock at such holder's address as the same appears on the
stock register of the Corporation. Each such notice shall state: (A)
the redemption date; (B) the number of shares of Dual Convertible
Preferred Stock to be redeemed; (C) the Stated Value Redemption Price
or the Fair Market Value of such holder's shares, as the case may be;
(D) that shares of Dual Convertible Preferred Stock called for
redemption may be converted in accordance with, and subject to the
terms of, paragraph (e) hereof at any time prior to the date fixed for
redemption (unless the Corporation shall default in payment of the
Stated Value Redemption Price or the Fair Market Value of such shares,
in which case such right shall not terminate at such date); (E) the
place or places where certificates for such shares are to be
surrendered for payment of the Stated Value Redemption Price or the
Fair Market Value of such shares; and (F) that dividends on the shares
to be redeemed will cease to accrue on such redemption date.
(iv) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the Stated Value Redemption Price
or the Fair Market Value of such shares) dividends on the shares of
Dual
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Convertible Preferred Stock shall cease to accrue and said shares shall no
longer be deemed to be outstanding and shall have the status of authorized
but unissued shares of Preferred Stock, undesignated as to series, and all
rights of the holders thereof as shareholders of the Corporation (except
the right to receive from the Corporation the Stated Value Redemption Price
and any accrued and unpaid dividends or the Fair Market Value of such
shares) shall cease. Upon surrender in accordance with said notice of any
certificates for the shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the Stated Value Redemption Price plus any accrued and
unpaid dividends thereon or the Fair Market Value of such shares, as the
case may be.
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EXHIBIT D
FLEET FINANCIAL GROUP, INC.
CUMULATIVE PARTICIPATING JUNIOR PREFERRED STOCK
Section 1. Designation and Amount. The shares of such series shall be designated
as "Cumulative Participating Junior Preferred Stock" (the "Junior Preferred
Stock") and the number of shares constituting the Junior Preferred Stock shall
be 1,500,000. 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 Junior 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 Junior
Preferred Stock.
Section 2. Dividends and Distributions.
(A) The holders of shares of Junior Preferred Stock, in preference to the
holders of Common Stock, par value $1.00 per share (the "Common Stock"), of
the Corporation, and of any other junior stock, but subject to the rights
of holders of any senior 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 days of
January, April, July and October 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 or fraction of a share of Junior Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 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 Junior Preferred Stock. In the event the
Corporation shall at any time after November 21, 1990 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 amount to
which holders of shares of Junior 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 Junior
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 $1.00 per
share on the Junior 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 Junior 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
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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 Junior 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 Junior
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
Junior Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 50 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Junior Preferred Stock shall
have the following voting rights:
(A) Each share of Junior Preferred Stock shall entitle the holder thereof
to one hundred votes (subject to adjustment as set forth below) on all
matters submitted to a vote of the stockholders of the Corporation
(including, without limitation, the election of directors). In the event
the Corporation shall at any time after November 21, 1990, 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 number of
votes to which holders of shares of Junior Preferred Stock were entitled to
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.
(B) Except as otherwise provided herein, in the Restated Articles of
Incorporation, or by law, the holders of shares of Junior Preferred Stock,
the holders of shares of Common Stock and the holders of 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) (i) If at any time dividends on any Junior Preferred Stock shall be in
arrears in an amount equal to the full accrued dividends for six (6) or
more quarterly dividend periods, whether or not consecutive, shall not have
been paid or declared and a sum sufficient for the payment thereof
irrevocably set aside in trust for the holders of all of such shares, the
Board of Directors of the Corporation shall promptly take all necessary
actions to increase the authorized number of directors of the Corporation
by one (1) and the holders of the shares of the Junior Preferred Stock then
outstanding shall be entitled (by series, voting as a single class) to
elect one (1) person director to the Board of Directors of the Corporation
(such right to elect one (1) director being hereinafter sometimes referred
to as the "special voting rights"), each outstanding share having such
right being entitled for such purpose to one vote; provided, however, that
at such time as the arrearage in payment of dividends which gave rise to
the exercise of the special voting rights has been cured with regard to the
Junior Preferred Stock by waiver or payment of all accrued dividends, the
right of the holders of such shares so to vote as provided in this
paragraph (C)(i) of this Section 3 shall cease (subject to renewal from
time to time upon the same terms and conditions) and the term of office of
the person who is at that time a director elected by such holders shall
terminate and the number of directors of the Corporation shall be
automatically reduced by one (1).
(ii) At any time after the special voting rights shall have become vested
in the holders of the shares of the Junior Preferred Stock as provided in
paragraph (C)(i) of this Section 3, the Secretary of the Corporation, as
promptly as possible but in any event within twenty (20) days after receipt
of the written request of the holders of 10% of the shares of the Junior
Preferred Stock then outstanding, addressed to the Corporation at its
principal office, shall call a special meeting of the holders of the
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shares of the Junior Preferred Stock for the purpose of electing such additional
director, such meeting to be held at any place as provided by the Bylaws of the
Corporation for meetings of the Corporation's stockholders, and upon not less
than ten (10) nor more than twenty (20) days notice. If such meeting shall not
be so called within twenty (20) days after receipt of the request by the
Secretary of the Corporation, then the holders of 10% of the shares of the
Junior Preferred Stock then outstanding may, by written notice to the Secretary
of the Corporation, designate any person to call such meeting, and the person so
designated may call such meeting, at any such place as provided above and upon
not less than ten (10) nor more than twenty (20) days notice and for that
purpose shall have access to the stockholder record books of the Corporation. No
such special meeting of the holders of the shares of the Junior Preferred Stock
and no adjournment thereof shall be held on a date later than thirty (30) days
before the annual meeting of stockholders of the Corporation. At any meeting so
called or at any annual meeting held at any time when the special voting rights
are in effect, the holders of a majority of the shares of the Junior Preferred
Stock then outstanding, present in person or by proxy, shall be sufficient to
constitute a quorum for the election of such additional director, and such
additional director, together with any and all other directors who are then
members of the Board of Directors, shall constitute the duly elected directors
of the Corporation.
(iii) With respect to a vacancy arising in the directorship referred to in
paragraph (C)(i) of this Section 3 at any time when the special voting rights
are in effect pursuant to paragraph (C)(i) of this Section 3, upon the written
request of the holders of 10% of the shares of the Junior Preferred Stock then
outstanding, addressed to the Corporation at its principal office, the Secretary
of the Corporation shall give notice of a special meeting of holders of the
shares of the Junior Preferred Stock of the election of a director to fill such
vacancy caused by the death, resignation or other inability to serve as a
director elected by such holders, to be held not less than ten (10) nor more
than twenty (20) days following receipt by the Secretary of the Corporation of
such written request. So long as special voting rights are in effect pursuant to
paragraph (i) of this Section 3(c), any director who shall have been so elected
by the holders of the Junior Preferred Stock may be removed at any time, either
with or without cause, only by the affirmative vote of the holders of the shares
at the time entitled to cast a majority of the votes entitled to be cast for the
election of such director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the vote of such
holders.
(D) Except as set forth herein, or as otherwise provided by the Restated
Articles of Incorporation or by law, holders of Junior 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.
(E) Holders of Junior Preferred Stock shall be entitled to such notice of
each meeting of stockholders as is furnished to the holders of Common Stock
with respect to such meeting.
Section 4. Certain Restrictions.
(A) Subject to the provisions of the Restated Articles of Incorporation,
whenever quarterly dividends or other dividends or distributions payable on
the Junior Preferred Stock as provided in Section 2 are in arrears as of
any Quarterly Dividend Payment Date, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of
Junior 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 Junior 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 Junior Preferred
Stock, except dividends paid ratably on the Junior Preferred Stock and
all such parity
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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 Junior 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 and upon dissolution, liquidation or winding up) to the
Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on a
parity with the Junior Preferred Stock, except in accordance with the
terms of the Restated Articles of Incorporation and 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.
Section 5. Reacquired Shares. Any shares of Junior Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and cancelled 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 Restated
Articles of Incorporation, or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Junior Preferred Stock unless, prior thereto, the holders of shares of Junior
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 (the "Junior Preferred Liquidation Preference").
Following the payment of the full amount of the Junior Preferred Liquidation
Preference, no additional distributions shall be made to the holders of shares
of Junior Preferred Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Junior Preferred Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph
(C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii)
immediately above being referred to as the "Adjustment Number"). Following the
payment of the full amount of the Junior Preferred Liquidation Preference and
the Common Adjustment in respect of all outstanding shares of Junior Preferred
Stock and Common Stock, respectively, holders of Junior Preferred Stock and
holders of shares of Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of the Adjustment
Number to one (1) with respect to such Junior Preferred Stock and Common Stock,
on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Junior Preferred Liquidation Preference
and the liquidation preferences of all other series of
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preferred stock, if any, which rank on a parity with the Junior Preferred Stock,
then such remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences. In the
event, however, that there are not sufficient assets available to permit payment
in full of the Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time after November 21, 1990,
(i) declare any dividend on 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, then in each such
case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment 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.
Section 7. Consolidation, Merger, Etc. In case the Corporation should 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 Junior
Preferred Stock shall at the same time be similarly exchanged or changed into an
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 after November 21, 1990 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 of change of shares of Junior 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. Ranking. The Junior Preferred Stock shall rank junior, as to
dividends and upon liquidation, dissolution or winding up, to (a) the Common
Stock, (b) the Preferred Stock with Cumulative and Adjustable Dividends, $20 par
value, (c) any other class of capital stock of the Corporation unless the terms
of such class shall expressly provide otherwise, and (d), to the extent
permitted by the Restated Articles of Incorporation, all other series of
Preferred Stock issued by the Corporation.
Section 9. No Redemption. The shares of Junior Preferred Stock shall not be
redeemable.
Section 10. Fractional Shares. The Junior Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of shares of Junior Preferred Stock.
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EXHIBIT E
FLEET FINANCIAL GROUP, INC.
PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE DIVIDENDS
(a) Designation. The designation of this series of Preferred Stock shall be
"Preferred Stock with Cumulative and Adjustable Dividends" (hereinafter
called this "Series") and the number of shares constituting this Series is
688,700. Shares of this Series shall have a stated value of $50 per share.
The number of authorized shares of this Series may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate
pursuant to the provisions of the Rhode Island Business Corporation Act
stating that such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
(b) Dividend Rate.
(1) The dividend rate on the shares of this Series shall be $.8875 per
share for the period (the "Initial Dividend Period") from the date of their
original issue to and including March 31, 1988. Dividend rates on the
shares of this Series shall be for each quarterly dividend period
(hereinafter referred to as a "Quarterly Dividend Period"; and the Initial
Dividend Period or any Quarterly Dividend Period being hereinafter
individually referred to as a "Dividend Period" and collectively referred
to as "Dividend Periods") thereafter, which Quarterly Dividend Periods
shall commence on January 1, April 1, July 1, and October 1, in each year
and shall end on and include the day next preceding the first day of the
next Quarterly Dividend Period, at a rate per annum of the stated value
thereof of 2.25% below the Applicable Rate (as defined in paragraph (2) of
this Section (b)) in respect of such Quarterly Dividend Period. Anything to
the contrary herein notwithstanding, the dividend rate for any Quarterly
Dividend Period shall in no event be less than 6% or greater than 12% per
annum. Such dividends shall be cumulative from the date of original issue
of such shares and shall be payable, when and as declared by the Board, on
January 1, April 1, July 1, and October 1, of each year, commencing on
April 1, 1988. Each such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock register of the
Corporation on such record date, not exceeding 30 days preceding the
payment date thereof, as shall be fixed by the Board. Dividends on account
of arrears for any past Dividend Periods may be declared and paid at any
time, without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be the highest of the Treasury Bill
Rate, the Ten Year Constant Maturity Rate or the Twenty Year Constant
Maturity Rate (each as hereinafter defined) for such Dividend Period. In
the event that the Corporation determines in good faith that for any reason
one or more of such rates cannot be determined for any Quarterly Dividend
Period, then the Applicable Rate for such Quarterly Dividend Period shall
be the higher of whichever of such rates can be so determined. In the event
that the Corporation determines in good faith that none of such rates can
be determined for any Quarterly Dividend Period, then the Applicable Rate
in effect for the preceding Dividend Period shall be continued for such
Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly Dividend Period shall be the arithmetic average of the
two most recent weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall be published
during the relevant Calendar Period as provided below) for three-month U.S.
Treasury bills, as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of the
March, June, September or December, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series is
being
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determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum market discount rate during such Calendar Period,
then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum market discount
rates (or the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period as provided
below) for three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that a per
annum market discount rate for three-month U.S. Treasury bills shall not be
published by the Federal Reserve Board or by any Federal Reserve Bank or by
any U.S. Government department or agency during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as provided below) for all
of the U.S. Treasury bills then having maturities of not less than 80 nor
more than 100 days, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such
rates, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason no such U.S. Treasury Bill
Rates are published as provided above during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average
of the per annum market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable
noninterest-bearing U.S. Treasury securities with a maturity of not less
than 80 nor more than 100 days from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers selected by the
Corporation. In the event that the Corporation determines in good faith
that for any reason the Corporation cannot determine the Treasury Bill Rate
for any Quarterly Dividend Period as provided above in this paragraph, the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average
of the per annum market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable interest-bearing
U.S. Treasury securities with a maturity of not less than 80 nor more than
100 days from the date of each such quotation, as quoted daily for each
business day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least three recognized
U.S. Government securities dealers selected by the Corporation.
(4) Except as provided in this paragraph, the "Ten Year Constant Maturity
Rate" for each Quarterly Dividend Period shall be the arithmetic average of
the two most recent weekly per annum Ten Year Average Yields (or the one
weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days of the March, June,
September or December, as the case may be, prior to the Quarterly Dividend
Period for which the dividend rate on this Series is being determined. In
the event that the Federal Reserve Board does not publish such a weekly per
annum Ten Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or
the one weekly per annum Ten Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period as provided below),
as published weekly during such Calendar Period by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the Corporation.
In the event that a per annum Ten Year Average Yield shall not be published
by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields
to maturity (or the one weekly average yield to maturity, if only
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one such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities) then having
maturities of not less than eight nor more than twelve years, as published
during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In
the event that the Corporation determines in good faith that for any reason
the Corporation cannot determine the Ten Year Constant Maturity Rate for
any Quarterly Dividend Period as provided above in this paragraph, then the
Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon
the closing bids during such Calendar Period for each of the issues of the
actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) with a final maturity date not less than
eight nor more than twelve years from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers selected by the
Corporation.
(5) Except as provided below in the paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields
(or the one weekly per annum Twenty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period as provided
below), as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of the
March, June, September or December, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series is
being determined. In the event that the Federal Reserve Board does not
publish such a weekly per annum Twenty Year Average Yield during such
Calendar Period, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent
weekly per annum Twenty Year Average Yields (or the one weekly per annum
Twenty Year Average Yield, if only one such Yield shall be published during
the relevant Calendar Period as provided below), as published weekly during
such Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that a per
annum Twenty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum average yields to maturity
(or the one weekly average yield to maturity, if only one such yield shall
be published during the relevant Calendar Period as provided below) for all
of the actively trade marketable U.S. Treasury fixed interest securities
(other than Special Securities) then having maturities of not less than
eighteen nor more than twenty-two years, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board shall
not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event
that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this paragraph, then the
Twenty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon
the closing bids during such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) with a final maturity date not less than
eighteen nor more than twenty-two years from the date of each such
quotation, as quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities dealers
selected by the Corporation.
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(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
(7) The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The mathematical
accuracy of each such calculation will be confirmed in writing by
independent accountants of recognized standing. The Corporation will
cause each dividend rate to be published in a newspaper of general
circulation in New York City prior to the commencement of the new
Quarterly Dividend Period to which it applies and will cause notice of
such dividend rate to be enclosed with the dividend payment checks
next mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any
Federal estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued at
a deep or substantial discount.
(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest
rate securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for
payment on Preferred Stock of any series ranking, as to dividends, on
a parity with or junior to this Series for any period unless full
cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set
apart for such payment on this Series for all dividend payment periods
terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not paid in full, as aforesaid, upon the
shares of this Series and any other Preferred Stock ranking on a
parity as to dividends with this Series, all dividends declared upon
shares of this Series and any other Preferred Stock ranking on a
parity as to dividends with this Series shall be declared pro rata so
that the amount of dividends declared per share on this Series and
such other Preferred Stock shall in all cases bear to each other the
same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of
shares of this Series shall not be entitled to any dividend, whether
payable in cash, property or stocks, in excess of full cumulative
dividends, as herein provided, on this Series. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend
payment or payments on this Series which may be in arrears.
(10) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation and other
than as provided in paragraph (9) of this Section (b)) shall be
declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or upon any other stock ranking
junior to or on a parity with this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys paid to or made
available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to
dividends and upon
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liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(11) Dividends payable on each share of this Series for each full Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Quarterly Dividend Period by four and applying such rate against the stated
value, per share of this Series. Dividends payable on this Series for any
period less than a full Quarterly Dividend Period shall be computed on the
basis of a 360-day year consisting of 30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to April 1,
1988. On and after April 1, 1988, the Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from
time to time, at a redemption price (i) in the case of any redemption on a
redemption date occurring on or after April 1, 1988, and prior to April 1,
1993, of $51.50 per share, and (ii) in the case of any redemption on a
redemption date occurring on or after April 1, 1993, of $50.00 per share,
plus, in each case, accrued and unpaid dividends thereon to the date fixed
for redemption.
(2) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined
by the Board and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board or by any other method as may be
determined by the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series, notice
of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date,
to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the number of shares
of this Series to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the shares of this
Series so called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Corporation (except the right to receive
from the Corporation the redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board shall so require
and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the
shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without cost to the
holder thereof.
(5) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the
Board.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or
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acquisition of shares of this Series pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of this
Series.
(d) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
(e) Voting. The shares of this Series shall not have any voting powers
either general or special, except that
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing by a vote
at a meeting called for the purpose at which the holders of shares of
this Series shall vote together as a separate class, shall be
necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Articles of
Incorporation of the Corporation or of any certificate amendatory
thereof or supplemental thereto (including any Certificate of
Designation, Preferences and Rights or any similar document relating
to any series of Preferred Stock) which would adversely affect the
preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series
of Preferred Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of this
Series and such other series of Preferred Stock shall vote together as
a single class without regard to series, shall be necessary for
authorizing, effecting or validating the creation, authorization or
issue of any shares of any class of stock of the Corporation ranking
prior to the shares of this Series as to dividends or upon
liquidation, or the reclassification or any authorized stock of the
Corporation into any such prior shares, or the creation, authorization
or issue of any obligation or security convertible into or evidencing
the right to purchase any such prior shares;
(3) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends on the
Preferred Stock shall exist, the number of directors constituting the
Board of the Corporation shall be increased by two, and the holders of
the Preferred Stock of all series shall have the right at such
meeting, voting together as a single class without regard to series,
to the exclusion of the holders of Common Stock, to elect two
directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon
the Preferred Stock. Each director elected by the holders of shares of
Preferred Stock (herein called a "Preferred Director") shall continue
to serve as such director for the full term for which he shall have
been elected, notwithstanding that prior to the end of such term a
default in preference dividends shall cease to exist. Any Preferred
Director may be removed by, and shall not be removed except by, the
vote of the holders of record of the outstanding shares of Preferred
Stock, voting together as a single class without regard to series, at
a meeting of the stockholders, or of the holders of shares of
Preferred Stock, called for that purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist, (A) any
vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (B)) by an instrument in writing
signed by the remaining Preferred Director and filed with the
Corporation and (B) in the case of the removal of any Preferred
Director, the vacancy may be filled by the vote of the holders of the
outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof,
to be a Preferred Director. Whenever the term of office of the
Preferred Directors shall end and a default in preference
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dividends shall no longer exist, the number of directors constituting the
Board of the Corporation shall be reduced by two. For the purposes hereof,
a "default in preference dividends" on the Preferred Stock shall be deemed
to exist whenever the amount of accrued dividends upon any series of the
Preferred Stock shall be equivalent to six full quarter-yearly dividends or
more, and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive out of
the assets of the Corporation, before any payment or distribution shall be
made on the Common Stock or on any other class of stock ranking junior to
the Preferred Stock upon liquidation, the amount of $50.00 per share, plus
a sum equal to all dividends (whether or not earned or declared) on such
shares accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into
or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purpose of this Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, shall
be insufficient to pay in full all amounts to which such holders are
entitled pursuant to paragraph 1 of this Section (f), no such distribution
shall be made on account of any shares of any other class or series of
Preferred Stock ranking on a parity with the shares of this Series upon
such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this Series,
ratably, in proportion to the full distributable amounts for which holders
of all such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series then outstanding shall be entitled to
be paid out of the assets of the Corporation available for distribution to
its stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior
upon liquidation of this Series.
(g) Ranking of Classes of Stock. Any stock of any class or classes of the
Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of this
Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the
holders of such stock
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shall be entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of
shares of this Series shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the holders
of shares of such class or classes.
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EXHIBIT F
FLEET FINANCIAL GROUP, INC.
9.30% CUMULATIVE PREFERRED STOCK
(a) Designation. The designation of this series of Preferred Stock shall be
"9.30% Cumulative Preferred Stock" (hereinafter called the "Preferred
Shares") and the number of shares constituting this series shall be
575,000. Such Preferred Shares shall have a stated value of $250 per share.
The number of authorized Preferred Shares may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate
pursuant to the provisions of the Rhode Island Business Corporation Act
stating that such reduction has been so authorized, but the number of
authorized Preferred Shares shall not be increased.
(b) Dividends.
(1) Dividend periods ("Dividend Periods") shall commence on January 1,
April 1, July 1 and October 1 in each year and shall end on and include the
day next preceding the first day of the next Dividend Period. The dividend
rate on the Preferred Shares from November 3, 1992 to and including
December 31, 1992 (the "Initial Dividend Period") and for each Dividend
Period thereafter will be 9.30% per annum of the stated value thereof. Such
dividends shall be cumulative from November 3, 1992 and shall be payable
when and as declared by the Board, on January 15th, April 15th, July 15th
and October 15th of each year, commencing January 15, 1993. Each such
dividend shall be paid to the holders of record of Preferred Shares as they
appear on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed by
the Board. Dividends on account of arrears for any past Dividend Periods
may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45
days preceding the payment date thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for payment on
Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to the Preferred Shares for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
the Preferred Shares for all dividend payment periods terminating on or
prior to the date of payment of such full cumulative dividends. When
dividends are not paid in full, as aforesaid, upon the Preferred Shares and
any other Preferred Stock ranking on a parity as to dividends with the
Preferred Shares, all dividends declared upon shares of the Preferred
Shares and any other Preferred Stock ranking on a parity as to dividends
with the Preferred Shares shall be declared pro rata so that the amount of
dividends declared per share on the Preferred Shares and such other
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Preferred Shares and such other
Preferred Stock bear to each other. Holders of the Preferred Shares shall
not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on the
Preferred Shares. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on the Preferred
Shares which may be in arrears.
(3) So long as any of the Preferred Shares are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to the Preferred Shares as to dividends and upon liquidation and other than
as provided in paragraph (2) of this Section (b)) shall be declared or paid
or set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
the Preferred Shares as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking
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junior to or on a parity with the Preferred Shares as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and upon liquidation)
unless, in each case, the full cumulative dividends on all outstanding
Preferred Shares shall have been paid for all past dividend payment
periods.
(4) Dividends payable on each Preferred Share for each Dividend Period
shall be computed by annualizing the applicable dividend rate and dividing
by four. Dividends payable on the Preferred Shares for any period less than
a full Dividend Period shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(c) Redemption.
(1) The Preferred Shares shall not be redeemable prior to October 15, 1997.
On and after October 15, 1997, the Corporation, at its option, may redeem
the Preferred Shares, as a whole or in part, at any time or from time to
time at a redemption price equal to $250 per share plus accrued and unpaid
dividends thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding Preferred Shares are
to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board of the Corporation or by any duly
authorized committee thereof or by any other method as may be determined by
the Board of the Corporation or by any duly authorized committee thereof in
its sole discretion to be equitable, provided that such method satisfies
any applicable requirements of any securities exchange on which the
Preferred Shares are listed.
(3) In the event the Corporation shall redeem Preferred Shares, notice of
such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the number of
Preferred Shares to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the Preferred Shares
so called for redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof
as stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of the Corporation or any
duly authorized committee thereof shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares without cost to the holder thereof.
(5) Any of the Preferred Shares which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series until such
shares are once more designated as part of a particular series by the Board
of the Corporation or any duly authorized committee thereof.
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(6) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on the Preferred Shares are in arrears, no Preferred
Shares shall be redeemed unless all outstanding Preferred Shares of
this series are simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire any Preferred Shares; provided, however,
that the foregoing shall not prevent the purchase or acquisition of
Preferred Shares pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Preferred Shares.
(d) Conversion or Exchange. The holders of the Preferred Shares shall
not have any rights herein to convert such shares into or exchange
such shares for shares of any other class or classes or of any other
series of any class or classes of capital stock of the Corporation.
(e) Voting. The Preferred Shares shall not have any voting powers, either
general or special, except that
(i) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the Preferred Shares at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of Preferred
Shares shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the Articles of Incorporation or of
any certificate amendatory thereof or supplemental thereto (including
any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would
adversely affect the preferences, rights, powers or privileges of the
Preferred Shares;
(ii) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the Preferred Shares and all other series of
Preferred Stock ranking on a parity with the Preferred Shares, either
as to dividends or upon liquidation, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of Preferred Shares and such
other series of Preferred Stock shall vote together as a single class
without regard to series, shall be necessary for authorizing,
effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the
Preferred Shares as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any
such prior shares, or the creation, authorization or issue of any
obligation or security convertible into or evidencing the right to
purchase any such prior shares;
(iii) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends (as defined
below) on the Preferred Stock shall exist, the number of directors
constituting the Board of the Corporation shall be increased by two,
and the holders of the Preferred Stock of all series shall have the
right at such meeting, voting together as a single class without
regard to series, to the exclusion of the holders of common stock, to
elect two directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no dividends
in arrears upon the Preferred Stock. Each director elected by the
holders of shares of Preferred Stock (herein called a "Preferred
Director") shall continue to serve as such director for the full term
for which he or she shall have been elected, notwithstanding that
prior to the end of such term a default in preference dividends shall
cease to exist. Any Preferred Director may be removed by, and shall
not be removed except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for the purpose.
So long as a default in any preference dividends on the Preferred
Stock shall exist, (a) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause
(b)) by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in case of the removal
of any Preferred Director, the vacancy may be filled by the vote of
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the holders of the outstanding shares of Preferred Stock, voting together
as a single class without regard to series, at the same meeting at which
such removal shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof, to
be a Preferred Director. Whenever the term of office of the Preferred
Directors shall end and a default in preference dividends shall no longer
exist, the number of directors constituting the Board of the Corporation
shall be reduced by two. For the purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed to exist whenever the
amount of accrued dividends upon any series of Preferred Stock shall be
equivalent to six full quarter-yearly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Preferred Stock of each and
every series then outstanding shall have been paid to the end of the last
preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the holders of the Preferred Shares shall be
entitled to receive, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the
Preferred Shares upon liquidation, the amount of $250 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation, shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purpose of this Section (f).
(3) After the payment to the holders of the Preferred Shares of the full
preferential amounts provided for in this Section (f), the holders of the
Preferred Shares as such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of the Preferred Shares upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (l) of this Section (f), no such distribution shall
be made on account of any shares of any other class or series of Preferred
Stock ranking on a parity with the Preferred Shares upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall
be paid on account of the Preferred Shares, ratably, in proportion to the
full distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the holders of the Preferred Shares then outstanding
shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (f) before any payment
shall be made to the holders of any class of capital stock of the
Corporation ranking junior upon liquidation to the Preferred Shares.
(g) Ranking of Classes of Stock. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
(1) prior to the Preferred Shares, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
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voluntary or involuntary dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the
holders of the Preferred Shares;
(2) on a parity with the Preferred Shares, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if
any, be different from those of the Preferred Shares, if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without preference or
priority, one over the other, as between the holders of such stock and the
holders of the Preferred Shares; and
(3) junior to the Preferred Shares, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of the
Preferred Shares shall be entitled to receipt of dividends or of amounts
distributable upon voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes.
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EXHIBIT G
FLEET FINANCIAL GROUP, INC.
9.35% CUMULATIVE PREFERRED STOCK
(a) Designation. The designation of this series of Preferred Stock shall be
"9.35% Cumulative Preferred Stock" (hereinafter called the "Preferred
Shares") and the number of shares constituting this series shall be
500,000. Such Preferred Shares shall have a stated value of $250 per share.
The number of authorized Preferred Shares may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate
pursuant to the provisions of the Rhode Island Business Corporation Act
stating that such reduction has been so authorized, but the number of
authorized Preferred Shares shall not be increased.
(b) Dividends.
(1) Dividend periods ("Dividend Periods") shall commence on January 15,
April 15, July 15 and October 15 in each year and shall end on and include
the day next preceding the first day of the next Dividend Period. The
dividend rate on the Preferred Shares from January 26, 1995 to and
including April 14, 1995 (the "Initial Dividend Period") and for each
Dividend Period thereafter will be 9.35% per annum of the stated value
thereof. Such dividends shall be cumulative from January 26, 1995 and shall
be payable when and as declared by the Board, on January 15, April 15, July
15 and October 15 of each year, commencing April 15, 1995. Each such
dividend shall be paid to the holders of record of Preferred Shares as they
appear on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed by
the Board. Dividends on account of arrears for any past Dividend Periods
may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45
days preceding the payment date thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or paid or set apart for payment on
Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to the Preferred Shares for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
the Preferred Shares for all dividend payment periods terminating on or
prior to the date of payment of such full cumulative dividends. When
dividends are not paid in full, as aforesaid, upon the Preferred Shares and
any other Preferred Stock ranking on a parity as to dividends with the
Preferred Shares, all dividends declared upon shares of the Preferred
Shares and any other Preferred Stock ranking on a parity as to dividends
with the Preferred Shares shall be declared pro rata so that the amount of
dividends declared per share on the Preferred Shares and such other
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Preferred Shares and such other
Preferred Stock bear to each other. Holders of the Preferred Shares shall
not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on the
Preferred Shares. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on the Preferred
Shares which may be in arrears.
(3) So long as any of the Preferred Shares are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to the Preferred Shares as to dividends and upon liquidation and other than
as provided in paragraph (2) of this Section (b)) shall be declared or paid
or set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
the Preferred Shares as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking
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junior to or on a parity with the Preferred Shares as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and upon liquidation)
unless, in each case, the full cumulative dividends on all outstanding
Preferred Shares shall have been paid for all past dividend payment
periods.
(4) Dividends payable on each Preferred Share for each Dividend Period
shall be computed by annualizing the applicable dividend rate and dividing
by four. Dividends payable on the Preferred Shares for any period less than
a full Dividend Period shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(c) Redemption.
(1) The Preferred Shares shall not be redeemable prior to January 15, 2000.
On and after January 15, 2000, the Corporation, at its option, may redeem
the Preferred Shares, as a whole or in part, at any time or from time to
time at a redemption price equal to $250 per share plus accrued and unpaid
dividends thereon to the date fixed for redemption. Notwithstanding the
foregoing, to the extent applicable law requires, the Preferred Shares may
not be redeemed by the Corporation without the prior approval of the Board
of Governors of the Federal Reserve System.
(2) In the event that fewer than all the outstanding Preferred Shares are
to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board of the Corporation or by any duly
authorized committee thereof or by any other method as may be determined by
the Board of the Corporation or by any duly authorized committee thereof in
its sole discretion to be equitable, provided that such method satisfies
any applicable requirements of any securities exchange on which the
Preferred Shares are listed.
(3) In the event the Corporation shall redeem Preferred Shares, notice of
such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each
such notice shall state: (i) the redemption date; (ii) the number of
Preferred Shares to be redeemed and, if fewer than all the shares held by
such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (iii) the redemption price; (iv) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the Preferred Shares
so called for redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof
as stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of the Corporation or any
duly authorized committee thereof shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares without cost to the holder thereof.
(5) Any of the Preferred Shares which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
shares of Preferred Stock, without
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designation as to series until such shares are once more designated as part
of a particular series by the Board of the Corporation or any duly
authorized committee thereof.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on the Preferred Shares are in arrears, no Preferred Shares shall
be redeemed unless all outstanding Preferred Shares of this series are
simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any Preferred Shares; provided, however, that the
foregoing shall not prevent the purchase or acquisition of Preferred Shares
pursuant to a purchase or exchange offer made on the same terms to holders
of all outstanding Preferred Shares.
(d) Conversion or Exchange. The holders of the Preferred Shares shall not
have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
(e) Voting. The Preferred Shares shall not have any voting powers, either
general or special, except that
(i) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the Preferred Shares at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of Preferred
Shares shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the Articles of Incorporation or of
any certificate amendatory thereof or supplemental thereto (including
any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would
adversely affect the preferences, rights, powers or privileges of the
Preferred Shares;
(ii) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the Preferred Shares and all other series of
Preferred Stock ranking on a parity with the Preferred Shares, either
as to dividends or upon liquidation, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of Preferred Shares and such
other series of Preferred Stock shall vote together as a single class
without regard to series, shall be necessary for authorizing,
effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the
Preferred Shares as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any
such prior shares, or the creation, authorization or issue of any
obligation or security convertible into or evidencing the right to
purchase any such prior shares;
(iii) If at the time of any annual meeting of stockholders for the
election of directors a default in preference dividends (as defined
below) on the Preferred Stock shall exist, the number of directors
constituting the Board of the Corporation shall be increased by two,
and the holders of the Preferred Stock of all series shall have the
right at such meeting, voting together as a single class without
regard to series, to the exclusion of the holders of common stock, to
elect two directors of the Corporation to fill such newly created
directorships. Such right shall continue until there are no dividends
in arrears upon the Preferred Stock. Each director elected by the
holders of shares of Preferred Stock (herein called a "Preferred
Director") shall continue to serve as such director for the full term
for which he or she shall have been elected, notwithstanding that
prior to the end of such term a default in preference dividends shall
cease to exist. Any Preferred Director may be removed by, and shall
not be removed except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a single
class without regard to series, at a meeting of the stockholders, or
of the holders of shares of Preferred Stock, called for the purpose.
So long as a default in any preference dividends on the Preferred
Stock shall exist, (a) any vacancy in the office
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<PAGE>
of a Preferred Director may be filled (except as provided in the following
clause (b)) by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in the case of the removal
of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof, to
be a Preferred Director. Whenever the term of office of the Preferred
Directors shall end and a default in preference dividends shall no longer
exist, the number of directors constituting the Board of the Corporation
shall be reduced by two. For the purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed to exist whenever the
amount of accrued dividends upon any series of Preferred Stock shall be
equivalent to six full quarter-yearly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of Preferred Stock of each and
every series then outstanding shall have been paid to the end of the last
preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the holders of the Preferred Shares shall be
entitled to receive, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the
Preferred Shares upon liquidation, the amount of $250 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation, shall
be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purpose of this Section (f).
(3) After the payment to the holders of the Preferred Shares of the full
preferential amounts provided for in this Section (f), the holders of the
Preferred Shares as such shall have no right or claim to any of the
remaining assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of the Preferred Shares upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall
be made on account of any shares of any other class or series of Preferred
Stock ranking on a parity with the Preferred Shares upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall
be paid on account of the Preferred Shares, ratably, in proportion to the
full distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation, the holders of the Preferred Shares then outstanding
shall be entitled to be paid out of the assets of the Corporation available
for distribution to its stockholders all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (f) before any payment
shall be made to the holders of any class of capital stock of the
Corporation ranking junior upon liquidation to the Preferred Shares.
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(g) Ranking of Classes of Stock. For purposes of this resolution, any stock
of any class or classes of the Corporation shall be deemed to rank:
(1) prior to the Preferred Shares, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon voluntary
or involuntary dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the
holders of the Preferred Shares;
(2) on a parity with the Preferred Shares, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of the Preferred Shares,
if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of the
Preferred Shares; and
(3) junior to the Preferred Shares, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of
the Preferred Shares shall be entitled to receipt of dividends or of
amounts distributable upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of such class or
classes.
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<PAGE>
EXHIBIT H
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE
NOT BEEN SET FORTH IN THE ARTICLES OF INCORPORATION
OR IN ANY AMENDMENT THERETO, OF THE
SERIES V 7.25% PERPETUAL PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
PURSUANT TO SECTION 7-1.1-15 OF THE
RHODE ISLAND BUSINESS CORPORATION ACT
We, the undersigned, William C. Mutterperl and Marc C. Leslie, the Senior Vice
President and the Assistant Secretary, respectively, of FLEET FINANCIAL GROUP,
INC., a Rhode Island corporation (hereinafter called the "Corporation"), DO
HEREBY CERTIFY that the following resolution was duly adopted by the Board of
Directors of the Corporation at a meeting duly convened and held on February 21,
1996, at which a quorum was present and acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of Directors (the
"Board") of Fleet Financial Group, Inc., a Rhode Island corporation (the
"Corporation"), by the Restated Articles of Incorporation, as amended, (the
"Articles of Incorporation") of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 1,265,000 shares, and
hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the designations, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof, set
forth in the Articles of Incorporation which are applicable to the Preferred
Stock of all classes or series) as follows:
(a) Designation. The designation of the series of Preferred Stock shall be
"Series V 7.25% Perpetual Preferred Stock" (hereinafter called this
"Series") and the number of shares constituting this Series is one million
two hundred sixty-five thousand (1,265,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 7.25% per annum computed on the basis of an
issue price thereof of $250 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on January 15, April 15, July 15 and October 15 of each year,
commencing April 15, 1996 (a "Dividend Payment Date"). Each such dividend
shall be paid to the holders of record of shares of this Series as they
appear on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed by
the Board. Dividends on account of arrears for any past quarters may be
declared and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board.
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<PAGE>
(2) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(3) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(4) Dividends payable on this Series for any period, including the period
from the original issue of such shares until April 15, 1996, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) The shares of this Series shall not be redeemable prior to April 15,
2001. On and after April 15, 2001, the Corporation, at its option, may
redeem shares of this Series, in whole or in part, at any time or from time
to time, at a redemption price of $250 per share, plus accrued and unpaid
dividends thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this Series
are to be redeemed pursuant to subsection (1), the number of shares to be
redeemed shall be determined by the Board and the shares to be redeemed
shall be determined by lot or pro rata as may be determined by the Board or
by any other method as may be determined by the Board in its sole
discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series
pursuant to subsections (1) or (2), notice of such redemption shall be
given by first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears on
the stock register of the Corporation. Each such notice shall state: (i)
the redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii)
the redemption price; (iv) the place or
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<PAGE>
places where certificates for such shares are to be surrendered for payment
of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money
for the payment of the redemption price) dividends on the shares of this
Series so called for redemption under either subsection (1) or (2) above
shall cease to accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board shall so require and the notice shall
so state), such shares shall be redeemed by the Corporation at the
applicable redemption price. In case fewer than all the shares represented
by any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive and be
paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to the shares of
this Series upon liquidation, the amount of $250 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation nor the merger or consolidation of the Corporation into
or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (d), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, shall
be insufficient to pay in full all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(e) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
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<PAGE>
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of this Series shall vote together as a separate class, shall
be necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Articles of
Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions thereof,
or any similar document relating to any series of Preferred Stock)
which would adversely affect the preferences, rights, powers or
privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series
of Preferred Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of this
Series and such other series of Preferred Stock shall vote together as
a single class without regard to series, shall be necessary for
authorizing, effecting, increasing or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series as to dividends
or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into
or evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the
election of directors, a default in preference dividends on any series
of the Preferred Stock or any other class or series of preferred stock
of the Corporation (other than any other class or series of the
Corporation's preferred stock expressly entitled to elect additional
directors to the Board by a vote separate and distinct from the vote
provided for in this paragraph (3) ("Voting Preferred")) shall exist,
the number of directors constituting the Board shall be increased by
two (without duplication of any increase made pursuant to the terms of
any other class or series of the Corporation's preferred stock other
than any Voting Preferred) and the holders of the Corporation's
preferred stock of all classes and series (other than any such Voting
Preferred) shall have the right at such meeting, voting together as a
single class without regard to class or series, to the exclusion of
the holders of Common Stock and the Voting Preferred, to elect two
directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon
shares of any class or series of the Corporation's preferred stock
ranking prior to or on a parity with shares of this Series as to
dividends (other than any Voting Preferred). Each director elected by
the holders of shares of any series of the Preferred Stock or any
other class or series of the Corporation's preferred stock in an
election provided for by this paragraph (3) (herein called a
"Preferred Director") shall continue to serve as such director for the
full term for which he shall have been elected, notwithstanding that
prior to the end of such term a default in preference dividends shall
cease to exist. Any Preferred Director may be removed by, and shall
not be removed except by, the vote of the holders of record of the
outstanding shares of the Corporation's preferred stock entitled to
have originally voted for such director's election, voting together as
a single class without regard to class or series, at a meeting of the
stockholders, or of the holders of shares of the Corporation's
preferred stock, called for that purpose. So long as a default in any
preference dividends on any series of the Preferred Stock or any other
class or series of preferred stock of the Corporation shall exist
(other than any Voting Preferred) (A) any vacancy in the office of a
Preferred Director may be filled (except as provided in the following
clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case
of the removal of any Preferred
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<PAGE>
Director, the vacancy may be filled by the vote of the holders of the
outstanding shares of the Corporation's preferred stock entitled to
have originally voted for the removed director's election, voting
together as a single class without regard to class or series, at the
same meeting at which such removal shall be voted. Each director
appointed as aforesaid shall be deemed for all purposes hereto to be a
Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of
directors constituting the Board shall be reduced by two. For purposes
hereof, a "default in preference dividends" on any series of the Preferred
Stock or any other class or series of preferred stock of the Corporation
shall be deemed to have occurred whenever the amount of accrued dividends
upon such class or series of the Corporation's preferred stock shall be
equivalent to six full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all such shares of the Corporation's
preferred stock of each and every series then outstanding (other than any
Voting Preferred or shares of any class or series ranking junior to shares
of this Series as to dividends) shall have been paid to the end of the last
preceding quarterly dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be
reissued but only as part of a new series of Preferred Stock to be created
by resolution or resolutions of the Board.
(h) Relation to Existing Preferred Classes of Stock. Shares of this Series
are equal in rank and preference with all other series of the Preferred
Stock outstanding on the date of original issue of the shares of this
Series and are senior in rank and preference to the Common Stock and the
Cumulative Participating Junior Preferred Stock of the Corporation.
(i) Relation to Other Preferred Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be
deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of this
Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of dividends or
of amounts distributable upon dissolution, liquidation or winding up
of the Corporation, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without preference or
priority, one over the other, as between the holders of such stock and
the holders of shares of this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes.
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<PAGE>
IN WITNESS WHEREOF, this Certificate has been made under the seal of Fleet
Financial Group, Inc., and has been signed by the undersigned, William C.
Mutterperl, its Senior Vice President, and Marc C. Leslie, its Assistant
Secretary, respectively, this 21st day of February, 1996.
FLEET FINANCIAL GROUP, INC.
[SEAL]
By /s/
----------------------------------
(Senior Vice President)
By /s/
----------------------------------
(Assistant Secretary)
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
In said County and State on this 21st day of February, 1996, personally appeared
before me William C. Mutterperl and Marc C. Leslie, the Senior Vice President
and the Assistant Secretary, respectively, of Fleet Financial Group, Inc., to me
known and known by me to be the parties executing the foregoing instrument, and
they acknowledged said instrument by them executed to be their free act and deed
and the free act and deed of said Fleet Financial Group, Inc.
By /s/
----------------------------------
Notary Public
My Commission Expires:
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<PAGE>
EXHIBIT I
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND
THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN
SET FORTH IN THE ARTICLES OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
SERIES VI 6.75% PERPETUAL PREFERRED STOCK
OF
FLEET FINANCIAL GROUP, INC.
PURSUANT TO SECTION 7-1.1-15 OF THE
RHODE ISLAND BUSINESS CORPORATION ACT
We, the undersigned, William C. Mutterperl and Marc C. Leslie, the Senior Vice
President and the Assistant Secretary, respectively, of FLEET FINANCIAL GROUP,
INC., a Rhode Island corporation (hereinafter called the "Corporation"), DO
HEREBY CERTIFY that the following resolution was duly adopted by the Board of
Directors of the Corporation at a meeting duly convened and held on February 21,
1996, at which a quorum was present and acting throughout.
"RESOLVED, that pursuant to authority conferred upon the Board of Directors (the
"Board") of Fleet Financial Group, Inc., a Rhode Island corporation (the
"Corporation"), by the Restated Articles of Incorporation, as amended (the
"Articles of Incorporation"), of the Corporation, the Board hereby creates a
series of Preferred Stock of the Corporation to consist of 690,000 shares, and
hereby fixes the voting powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of such series (in addition
to the designations, preferences and relative, participating, option or other
special rights, and the qualifications, limitations or restrictions thereof, set
forth in the Articles of Incorporation which are applicable to the Preferred
Stock of all classes or series) as follows:
(a) Designation. The designation of the series of Preferred Stock shall be
"Series VI 6.75% Perpetual Preferred Stock" (hereinafter called this
"Series") and the number of shares constituting this Series is Six Hundred
Ninety Thousand (690,000).
(b) Dividend Rate.
(1) The holders of shares of this Series shall be entitled to receive
dividends thereon at a rate of 6.75% per annum computed on the basis of an
issue price thereof of $250 per share, and no more, payable quarterly out
of the funds of the Corporation legally available for the payment of
dividends. Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when, as and if declared by the
Board, on January 15, April 15, July 15 and October 15 of each year,
commencing April 15, 1996 (a "Dividend Payment Date"). Each such dividend
shall be paid to the holders of record of shares of this Series as they
appear on the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be fixed by
the Board. Dividends on account of arrears for any past quarters may be
declared and paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board.
(2) If one or more amendments to the Internal Revenue Code of 1986, as
amended (the "Code"), are enacted that change the percentage of the
dividends received deduction (currently 70%) as specified in Section
243(a)(1) of the Code or any successor provision (the "Dividends
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<PAGE>
Received Percentage"), the amount of each dividend payable per share of
this Series for dividend payments made on or after the date of enactment of
such change shall be adjusted by multiplying the amount of the dividend
payable determined as described above (before adjustment) by a factor which
shall be the number determined in accordance with the following formula
(the "DRD Formula"), and rounding the result to the nearest cent:
1 - .35 (1 - .70)
-----------------
1 - .35 (1 - DRP)
For the purposes of the DRD Formula, "DRP" means the Dividends Received
Percentage applicable to the dividend in question. No amendment to the
Code, other than a change in the percentage of the dividends received
deduction set forth in Section 243(a)(1) of the Code or any successor
provision, will give rise to an adjustment. Notwithstanding the foregoing
provisions, in the event that, with respect to any such amendment, the
Corporation shall receive either an unqualified opinion of independent
recognized tax counsel or a private letter ruling or similar form of
authorization from the Internal Revenue Service to the effect that such an
amendment would not apply to dividends payable on shares of this Series,
then any such amendment shall not result in the adjustment provided for
pursuant to the DRD Formula. The Corporation's calculation of the dividends
payable as so adjusted and as certified accurate as to calculation and
reasonable as to method by the independent certified public accountants
then regularly engaged by the Corporation shall be final and not subject to
review.
If any amendment to the Code which reduces the Dividends Received
Percentage is enacted after a dividend payable on a Dividend Payment Date
has been declared, the amount of dividend payable on such Dividend Payment
Date will not be increased; but instead, an amount, equal to the excess of
(x) the product of the dividends paid by the Corporation on such Dividend
Payment Date and the DRD Formula (where the DRP used in the DRD Formula
would be equal to the reduced Dividends Received Percentage) and (y) the
dividends paid by the Corporation on such Dividend Payment Date, will be
payable to holders of record on the next succeeding Dividend Payment Date
in addition to any other amounts payable on such date.
In addition, if prior to May 16, 1996, an amendment to the Code is enacted
that reduces the Dividends Received Percentage and such reduction
retroactively applies to a Dividend Payment Date as to which the
Corporation previously paid dividends on shares of this Series (each an
"Affected Dividend Payment Date"), the Corporation will pay (if declared)
additional dividends (the "Additional Dividends") on the next succeeding
Dividend Payment Date (or if such amendment is enacted after the dividend
payable on such Dividend Payment Date has been declared, on the second
succeeding Dividend Payment Date following the date of enactment) to
holders of record on such succeeding Dividend Payment Date in an amount
equal to the excess of (x) the product of the dividends paid by the
Corporation on each Affected Dividend Payment Date and the DRD Formula
(where the DRP used in the DRD Formula would be equal to the Dividends
Received Percentage applied to each Affected Dividend Payment Date) and (y)
the dividends paid by the Corporation on each Affected Dividend Payment
Date.
Additional Dividends will not be paid in respect of the enactment of any
amendment to the Code on or after May 16, 1996 which retroactively reduces
the Dividends Received Percentage, or if prior to May 16, 1996, such
amendment would not result in an adjustment due to the Corporation having
received either an opinion of counsel or tax ruling referred to in the
third preceding paragraph. The Corporation will only make one payment of
Additional Dividends.
In the event that the amount of dividend payable per share of this Series
shall be adjusted pursuant to the DRD Formula and/or Additional Dividends
are to be paid, the Corporation will
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<PAGE>
cause notice of each such adjustment and, if applicable, any Additional
Dividends, to be sent to each holder of record of the shares of this Series
at such holder's address as the same appears on the stock register of the
Corporation.
(3) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity
with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
preferred stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other class or series
of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends
declared per share on this Series and such other preferred stock shall in
all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other preferred stock bear to
each other. Holders of shares of this Series shall not be entitled to any
dividend, whether payable in cash, property or stocks, in excess of full
cumulative dividends, as herein provided, on this Series. No interest, or
sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on this Series which may be in arrears.
(4) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in subsection (3) of this Section (b)) shall be declared or paid
or set aside for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or on a parity
with this Series as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(5) Dividends payable on this Series for any period, including the period
from the original issue of such shares until April 15, 1996, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) (A) The shares of this Series shall not be redeemable prior to April
15, 2006. On and after April 15, 2006, the Corporation, at its option, may
redeem shares of this Series, in whole or in part, at any time or from time
to time, at a redemption price of $250 per share, plus accrued and unpaid
dividends thereon to the date fixed for redemption.
(B) In the event that fewer than all the outstanding shares of this Series
are to be redeemed pursuant to subsection (1)(A), the number of shares to
be redeemed shall be determined by the Board and the shares to be redeemed
shall be determined by lot or pro rata as may be determined by the Board or
by any other method as may be determined by the Board in its sole
discretion to be equitable.
(2) (A) Notwithstanding subsection (1) above, if the Dividends Received
Percentage is equal to or less than 40% and, as a result, the amount of
dividends on the shares of this Series payable on any Dividend Payment Date
will be or is adjusted upwards as described in Section (b)(2) above, the
Corporation, at its option, may redeem all, but not less than all, of the
outstanding shares of this
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<PAGE>
Series; provided, that within sixty days of the date on which an amendment
to the Code is enacted which reduces the Dividends Received Percentage to
40% or less, the Corporation sends notice to holders of shares of this
Series of such redemption in accordance with subsection (3) below.
(B) Any redemption of the Perpetual Preferred Stock in accordance with this
subsection (2) shall be at the applicable redemption price set forth in the
following table, in each case plus accrued and unpaid dividends (whether or
not declared) thereon to the date fixed for redemption, including any
changes in dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends, if any.
REDEMPTION PRICE
REDEMPTION PERIOD PER SHARE PER DEPOSITARY SHARE
February 21, 1996 to April 14, 1997.......... $262.50 $52.50
April 15, 1997 to April 14, 1998............. 261.25 52.25
April 15, 1998 to April 14, 1999............. 260.00 52.00
April 15, 1999 to April 14, 2000............. 258.75 51.75
April 15, 2000 to April 14, 2001............. 257.50 51.50
April 15, 2001 to April 14, 2002............. 256.25 51.25
April 15, 2002 to April 14, 2003............. 255.00 51.00
April 15, 2003 to April 14, 2004............. 253.75 50.75
April 15, 2004 to April 14, 2005............. 252.50 50.50
April 15, 2005 to April 14, 2006............. 251.25 50.25
On or after April 15, 2006................... 250.00 50.00
(3) In the event the Corporation shall redeem shares of this Series
pursuant to subsections (1) or (2) above, notice of such redemption
shall be given by first class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation.
Each such notice shall state: (i) the redemption date; (ii) the number
of shares of this Series to be redeemed and, if fewer than all the
shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price;
(iv) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such
redemption date.
(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of this Series so called for redemption under either
subsection (1) or (2) above shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right
to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for
any shares so redeemed (properly endorsed or assigned for transfer, if
the Board shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption
price. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(5) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are
simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares
of this Series pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of this Series.
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<PAGE>
(d) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive and be
paid out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on the
Common Stock or on any other class of stock ranking junior to the shares of
this Series upon liquidation, the amount of $250 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation nor the merger or consolidation of the Corporation into
or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (d).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (d), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, shall
be insufficient to pay in full all amounts to which such holders are
entitled pursuant to paragraph (1) of this Section (d), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this
Series upon such dissolution, liquidation or winding up unless
proportionate distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full distributable amounts
for which holders of all such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(e) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any
class or classes of capital stock of the Corporation.
(f) Voting. The shares of this Series shall not have any voting powers,
either general or special, except that:
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series at the time
outstanding, given in person or by proxy, either in writing or by a
vote at a meeting called for the purpose at which the holders of
shares of this Series shall vote together as a separate class, shall
be necessary for authorizing, effecting or validating the amendment,
alteration or repeal of any of the provisions of the Articles of
Incorporation or of any certificate amendatory thereof or supplemental
thereto (including any Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions thereof,
or any similar document relating to any series of Preferred Stock)
which would adversely affect the preferences, rights, powers or
privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at
least 66 2/3% of all of the shares of this Series and all other series
of Preferred Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of this
Series and such other series of Preferred Stock shall vote together as
a single class without regard to series, shall be necessary for
authorizing, effecting, increasing or validating the creation,
authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series
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<PAGE>
as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or the
creation, authorization or issue of any obligation or security convertible
into or evidencing the right to purchase any such prior shares.
(3) If, at the time of any annual meeting of stockholders for the election
of directors, a default in preference dividends on any series of the
Preferred Stock or any other class or series of preferred stock of the
Corporation (other than any other class or series of the Corporation's
preferred stock expressly entitled to elect additional directors to the
Board by a vote separate and distinct from the vote provided for in this
paragraph (3) ("Voting Preferred")) shall exist, the number of directors
constituting the Board shall be increased by two (without duplication of
any increase made pursuant to the terms of any other class or series of the
Corporation's preferred stock other than any Voting Preferred) and the
holders of the Corporation's preferred stock of all classes and series
(other than any such Voting Preferred) shall have the right at such
meeting, voting together as a single class without regard to class or
series, to the exclusion of the holders of Common Stock and the Voting
Preferred, to elect two directors of the Corporation to fill such newly
created directorships. Such right shall continue until there are no
dividends in arrears upon shares of any class or series of the
Corporation's preferred stock ranking prior to or on a parity with shares
of this Series as to dividends (other than any Voting Preferred). Each
director elected by the holders of shares of any series of the Preferred
Stock or any other class or series of the Corporation's preferred stock in
an election provided for by this paragraph (3) (herein called a "Preferred
Director") shall continue to serve as such director for the full term for
which he shall have been elected, notwithstanding that prior to the end of
such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed except by,
the vote of the holders of record of the outstanding shares of the
Corporation's preferred stock entitled to have originally voted for such
director's election, voting together as a single class without regard to
class or series, at a meeting of the stockholders, or of the holders of
shares of the Corporation's preferred stock, called for that purpose. So
long as a default in any preference dividends on any series of the
Preferred Stock or any other class or series of preferred stock of the
Corporation shall exist (other than any Voting Preferred) (A) any vacancy
in the office of a Preferred Director may be filled (except as provided in
the following clause (B)) by an instrument in writing signed by the
remaining Preferred Director and filed with the Corporation and (B) in the
case of the removal of any Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding shares of the Corporation's
preferred stock entitled to have originally voted for the removed
director's election, voting together as a single class without regard to
class or series, at the same meeting at which such removal shall be voted.
Each director appointed as aforesaid shall be deemed for all purposes
hereto to be a Preferred Director.
Whenever the term of office of the Preferred Directors shall end and a
default in preference dividends shall no longer exist, the number of
directors constituting the Board shall be reduced by two. For purposes
hereof, a "default in preference dividends" on any series of the Preferred
Stock or any other class or series of preferred stock of the Corporation
shall be deemed to have occurred whenever the amount of accrued dividends
upon such class or series of the Corporation's preferred stock shall be
equivalent to six full quarterly dividends or more, and, having so
occurred, such default shall be deemed to exist thereafter until, but only
until, all accrued dividends on all such shares of the Corporation's
preferred stock of each and every series then outstanding (other than any
Voting Preferred or shares of any class or series ranking junior to shares
of this Series as to dividends) shall have been paid to the end of the last
preceding quarterly dividend period.
(g) Reacquired Shares. Shares of this Series which have been issued and
reacquired through redemption or purchase shall, upon compliance with an
applicable provision of the Rhode Island Business Corporation Act, have the
status of authorized and unissued shares of Preferred Stock and may be
reissued but only as part of a new series of Preferred Stock to be created
by resolution or resolutions of the Board.
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<PAGE>
(h) Relation to Existing Preferred Classes of Stock. Shares of this Series
are equal in rank and preference with all other series of the Preferred
Stock outstanding on the date of original issue of the shares of this
Series and are senior in rank and preference to the Common Stock and the
Cumulative Participating Junior Preferred Stock of the Corporation.
(i) Relation to Other Preferred Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the Corporation shall be
deemed to rank:
(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of shares of this
Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of dividends or
of amounts distributable upon dissolution, liquidation or winding up
of the Corporation, as the case may be, in proportion to their
respective dividend rates or liquidation prices, without preference or
priority, one over the other, as between the holders of such stock and
the holders of shares of this Series; and
(3) junior to the shares of this Series, either as to dividends or
upon liquidation, if such class shall be Common Stock or if the
holders of shares of this Series shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation or
winding up of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or classes.
IN WITNESS WHEREOF, this Certificate has been made under the seal of
Fleet Financial Group, Inc., and has been signed by the undersigned,
William C. Mutterperl, its Senior Vice President, and Marc C. Leslie,
its Assistant Secretary, respectively, this 21st day of February,
1996.
FLEET FINANCIAL GROUP, INC.
(Registrant)
[SEAL]
By /s/ William C. Mutterperl
--------------------------------
William C. Mutterperl
Senior Vice President
By /s/ Marc C. Leslie
--------------------------------
Marc C. Leslie
Assistant Secretary
STATE OF MASSACHUSETTS
COUNTY OF SUFFOLK
In said County and State on this 21st day of February, 1996, personally appeared
before me William C. Mutterperl and Marc C. Leslie, the Senior Vice President
and Assistant Secretary, respectively, of Fleet Financial Group, Inc., to me
known and known by me to be the parties executing the foregoing instrument, and
they acknowledged said instrument by them executed to be their free act and deed
and the free act and deed of said Fleet Financial Group, Inc.
By /s/ Notary
-------------------------------
Notary Public
My Commission Expires:
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