SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
UNUMPROVIDENT CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 62-1598430
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(State of incorporation or organization) (I.R.S. employer
identification no.)
2211 Congress Street
Portland, Maine 04122
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(Address of principal executive offices) (Zip code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. |_| box. |_|
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, par value $0.10 per share New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On June 30, 1999, UNUM Corporation, a Delaware corporation ("UNUM")
merged (the "Merger") with and into Provident Companies, Inc., a Delaware
corporation ("Provident"), with Provident as the surviving corporation in the
Merger. In the Merger, Provident (a) changed its name to "UNUMProvident
Corporation" ("UNUMProvident") and (b) adopted a new Restated Certificate of
Incorporation (the "Charter"), which differs in material respects from
Provident's Amended and Restated Certificate of Incorporation in effect prior to
the Merger. The rights of security holders of UNUMProvident are summarized
below.
The foregoing description of the Merger and the adoption of the
Charter is qualified in its entirety by reference to information set forth under
the captions "Comparison of Stockholders' Rights" and "Discussion of
UNUMProvident Certificate of Incorporation and UNUMProvident Bylaws" in
Provident's Registration Statement on Form S-4, as filed with the Securities and
Exchange Commission on June 2, 1999 (the "Form S-4"). Pages 109 through 118 and
120 through 121 of the Form S-4 are incorporated herein by reference and copies
of such pages are attached hereto as Exhibit 1.
AUTHORIZED CAPITAL STOCK
The authorized common stock of UNUMProvident consists of 725,000,000
shares of common stock, par value $0.10 per share ("Company Common Stock").
Each outstanding share of Company Common Stock will be entitled to
participate equally in dividends when and as such dividends may be declared by
the UNUMProvident Board of Directors (the "UNUMProvident Board") out of funds
legally available therefor. As a Delaware corporation, UNUMProvident is subject
to statutory limitations on the declaration and payment of dividends. In the
event of a dissolution or winding-up of UNUMProvident, holders of Company Common
Stock have the right to a ratable portion of assets remaining after satisfaction
in full of the prior rights of creditors (including holders of UNUMProvident's
indebtedness), all liabilities and the aggregate liquidation preferences of any
outstanding shares of UNUMProvident preferred stock. The holders of Company
Common Stock have no conversion, sinking fund, redemption, preemptive,
cumulative voting rights or other call/assessment provisions. There are no
restrictions on transfer of the Company Common Stock. All outstanding shares of
Company Common Stock are validly issued, fully paid and non-assessable.
The holders of Company Common Stock are entitled to one vote per
share for each share held of record on all matters voted on by stockholders,
including the election of directors. The Charter provides that the UNUMProvident
Board will consist of not less than 3 nor more than 15 directors, with the exact
number to be determined from time to time by resolution adopted by the
UNUMProvident Board. The Charter provides that the UNUMProvident Board will be
divided into three classes with staggered three-year terms. In addition, the
Charter provides that directors may be removed only for cause by the affirmative
vote of the holders of 80% of the votes entitled to be cast by the holders of
all outstanding shares of UNUMProvident entitled to vote, voting together as a
single class. In order to amend the Charter, the Delaware General Corporation
Law requires the UNUMProvident Board to adopt a resolution setting forth any
amendment, to declare
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its advisability and to call a stockholder meeting to adopt such amendment.
Amendments to the Charter also require the affirmative vote of the holders of a
majority of the outstanding stock, except that: (a) the affirmative vote of the
holders of not less than 80% of the votes entitled to be cast by the holders of
all outstanding shares of UNUMProvident entitled to vote, voting together as a
single class, is required to amend, repeal or adopt provisions inconsistent
with, those provisions of the Charter regarding: (i) management of UNUMProvident
by the UNUMProvident Board and the size or the classification of the
UNUMProvident Board; (ii) the prohibition on stockholders acting by written
consent; or (iii) the power of the UNUMProvident Board and the stockholders to
amend the bylaws; and (b) both (1) the affirmative vote of the holders of not
less than 80% of the votes entitled to be cast by the holders of all outstanding
shares of UNUMProvident entitled to vote, voting together as a single class, and
(2) not less than a majority of the votes entitled to be cast by the holders of
all outstanding shares of UNUMProvident entitled to vote beneficially owned by
persons other than "Interested Stockholders" (as described below), if any,
voting together as a single class, is required to amend or repeal, or adopt
provisions inconsistent with, those provisions of the Charter regarding
"business combinations" with Interested Stockholders. The supermajority voting
requirements described herein do not apply to any amendment, repeal or adoption
recommended by the UNUMProvident Board, so long as the UNUMProvident Board
consists of a majority of Continuing Directors. A "Continuing Director" is
defined in the Charter as a member of the UNUMProvident Board (or his or her
successor) who is not an affiliate of an "Interested Stockholder" and who was a
member of the UNUMProvident Board before the Interested Stockholder became such.
The Charter generally prohibits a "Business Combination" between
UNUMProvident and any person who is the beneficial owner of 15% or more of the
votes entitled to be cast by the holders of all then outstanding shares of
UNUMProvident entitled to vote (an "Interested Stockholder"), or any affiliate
or associate of UNUMProvident who has been an Interested Stockholder within the
past two years prior to the date in question, unless such transaction is: (a)
approved by the affirmative vote of (1) not less than 80% of the votes entitled
to be cast by the holders of all outstanding shares of UNUMProvident entitled to
vote, voting together as a single class; and (2) not less than a majority of the
votes entitled to be cast by the holders of all outstanding shares of
UNUMProvident entitled to vote, which are beneficially owned by persons other
than such Interested Stockholder, voting together as a single class; or (b)
approved by a majority of the Continuing Directors. The term "Business
Combination" includes: (i) mergers and consolidations; (ii) certain transfers of
company assets or securities; (iii) liquidation or dissolution; and (iv)
reclassification, recapitalization or similar transactions that have the effect
of increasing the percentage of stock owned by an Interested Stockholder.
The Amended and Restated Bylaws of UNUMProvident (the "Bylaws")
provide that special meetings of stockholders may be called by the Chairman of
the Board, the Chief Executive Officer or the President and shall be called by
any such officer at the request in writing of a majority of the UNUMProvident
Board.
The Bylaws may be amended by the stockholders by the affirmative
vote of at least 80% of the votes entitled to be cast by the holders of all
outstanding shares of UNUMProvident entitled to vote, voting together as a
single class.
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ANTI-TAKEOVER CONSIDERATIONS
Certain provisions of the Charter and the Bylaws, such as those
providing for the classification of the UNUMProvident Board, the requirement of
stockholder action by meeting only, the restrictions on who may call special
meetings of the stockholders, and the requirement of an 80% stockholder vote to
amend certain provisions of the Charter and to amend the Bylaws, may have
anti-takeover effects. These provisions may discourage attempts by others to
acquire control of UNUMProvident without negotiation with the UNUMProvident
Board. This would enhance the ability of the UNUMProvident Board to attempt to
promote the interests of all holders of Company Common Stock. However, to the
extent that these provisions make UNUMProvident a less attractive takeover
candidate, they may not always be in the best interests of UNUMProvident or the
holders of Company Common Stock. None of these provisions is the result of any
specific effort by a third party to accumulate securities of UNUMProvident or to
obtain control by means of merger, tender offer, solicitation in opposition to
management or otherwise.
The provisions providing for the classification of the UNUMProvident
Board will have the effect of making it more difficult to change the overall
composition of the UNUMProvident Board. At least two meetings of stockholders
will be required for stockholders to effect a change in a majority of the
UNUMProvident Board. In addition, the Charter provides that directors may only
be removed for cause by the affirmative vote of the holders of 80% of the votes
entitled to be cast by the holders of all outstanding shares of UNUMProvident
entitled to vote, voting together as a single class. The longer time required to
elect a majority of the UNUMProvident Board and the high stockholder vote
requirement to remove a director with cause is intended to help assure
continuity and stability in the management of the business and affairs of
UNUMProvident.
The Charter provides that special meetings of stockholders may be
called only by the Chairman of the Board, the Chief Executive Officer or the
President, and are to be called by any such officer at the request of a majority
of the UNUMProvident Board. The limitation of persons authorized to call a
special meeting of the stockholders and the requirement that stockholder action
be taken only pursuant to a meeting are intended to ensure that any action taken
by the stockholders is not taken precipitously, and is only taken after giving
opportunity for reasoned discussion among the stockholders and the management
and directors of UNUMProvident.
The provisions that require the affirmative vote of 80% of the
stockholders to amend certain provisions of the Charter and the Bylaws are
intended to prevent a large minority of UNUMProvident stockholders from being
adversely affected by the amendment of key governance provisions contained in
such documents.
The foregoing description of the Charter and the Bylaws does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the text of such documents, which are filed as Exhibits 2 and 3,
respectively, hereto and are incorporated herein by reference.
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ITEM 2. EXHIBITS
Pursuant to the instructions as to exhibits to Form 8-A, the
following exhibits are being filed with this Registration Statement:
1. "Comparison of Stockholders' Rights" and "Discussion of
UNUMProvident Certificate of Incorporation and UNUMProvident
Bylaws" on pages 109 through 118 and 120-121 of the Registration
Statement on Form S-4, dated June 2, 1999 (Registration No.
333-79781).
2. Restated Certificate of Incorporation of UNUMProvident
Corporation.
3. Amended and Restated Bylaws of UNUMProvident Corporation.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
UNUMPROVIDENT CORPORATION
By: /s/ James F. Orr III
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Name: James F. Orr III
Title: Chairman and Chief Executive
Officer
Dated: June 30, 1999
Page 6 of 6
DESCRIPTION OF PROVIDENT CAPITAL STOCK
The following description of material terms of the capital stock of
Provident does not purport to be complete and is qualified in its entirety by
reference to the Provident certificate of incorporation, which document is
incorporated herein by reference as an exhibit to the registration statement of
which this document is a part.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of Provident currently consists of 150 million
shares of Provident common stock, par value $1.00 per share, and 25 million
shares of preferred stock, par value $1.00 per share, issuable in series. As of
the record date for the Provident meeting, there were issued and outstanding
135,643,319 shares of Provident common stock, with an additional 294,151 shares
issued and held in treasury. There are no shares of Provident preferred stock
outstanding.
PROVIDENT COMMON STOCK
The holders of Provident common stock are entitled to one vote per share for
each share held of record on all matters voted on by stockholders, including the
election of directors, and are entitled to participate equally in dividends when
and as such dividends may be declared by the Provident board of directors out of
funds legally available therefor. As a Delaware corporation, Provident is
subject to statutory limitations on the declaration and payment of dividends. In
the event of a liquidation, dissolution or winding-up of Provident, holders of
Provident common stock have the right to a ratable portion of assets remaining
after satisfaction in full of the prior rights of creditors (including holders
of Provident's indebtedness), all liabilities and the aggregate liquidation
preferences of any outstanding shares of Provident preferred stock. The holders
of Provident common stock have no conversion, redemption, preemptive or
cumulative voting rights. All outstanding shares of Provident common stock are,
and the shares of UNUMProvident common stock to be issued in the merger will be,
validly issued, fully paid and non-assessable.
The transfer agent and registrar for Provident common stock is First Chicago
Trust Company of New York.
COMPARISON OF STOCKHOLDERS' RIGHTS
GENERAL
Provident is incorporated under the laws of the State of Delaware and,
accordingly, the rights of Provident stockholders are governed by the Provident
certificate of incorporation, the Provident bylaws and the laws of the State of
Delaware. UNUM is also incorporated under the laws of the State of Delaware and,
accordingly, the rights of UNUM stockholders are governed by the UNUM
certificate of incorporation, the UNUM bylaws and the laws of the State of
Delaware.
As a result of the merger, UNUM stockholders will become stockholders of
UNUMProvident and each of the Provident certificate of incorporation and the
Provident bylaws will be amended in its entirety. Accordingly, following the
merger, the rights of the Provident stockholders and of the UNUM stockholders
who become UNUMProvident stockholders in the merger will be governed by the
UNUMProvident certificate of incorporation, the UNUMProvident bylaws and the
laws of the State of Delaware. The UNUMProvident certificate of incorporation
and the UNUMProvident bylaws are attached as Exhibits A-1 and A-2, respectively,
to the merger agreement, which is attached as Appendix A to this document.
Provident and UNUM have agreed that the UNUMProvident certificate of
incorporation and the UNUMProvident bylaws will be substantially identical to
the current UNUM certificate of incorporation and UNUM bylaws and will differ in
material respects from the current Provident certificate of incorporation and
Provident bylaws.
109
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COMPARISON OF STOCKHOLDERS' RIGHTS
Set forth on the following pages is a summary comparison of material
differences among the rights of a Provident stockholder under the current
Provident certificate of incorporation and Provident bylaws (left column), the
rights of a UNUM stockholder under the current UNUM certificate of incorporation
and UNUM bylaws (right column), and the rights of a UNUMProvident stockholder
following the merger under the UNUMProvident certificate of incorporation and
UNUMProvident bylaws (middle column). The summary set forth below is not
intended to provide a comprehensive summary of each of such company's governing
documents. This summary is qualified in its entirety by reference to the full
text of each of such documents. Copies of the Provident certificate of
incorporation and Provident bylaws, and the UNUM certificate of incorporation
and UNUM bylaws, will be sent to Provident and UNUM stockholders upon request.
See "Where You Can Find More Information" on page 144.
<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
CAPITAL STOCK
AUTHORIZED CAPITAL
<S> <C> <C>
150 million shares of common 725 million shares of common 240 million shares of common
stock, par value $1.00 per stock, par value $.10 per stock, par value $.10 per
share. share. share.
25 million shares of 25 million shares of 10 million shares of
preferred stock, par value preferred stock, par value preferred stock, par value
$1.00 per share. $.10 per share. $.10 per share.
As of May 10, 1999, there Based on the number of shares As of May 10, 1999, there
were 135,643,319 shares of of common stock of Provident were 139,463,040 shares of
Provident common stock issued and UNUM issued and UNUM common stock issued and
and outstanding and 9,027,705 outstanding on May 10, 1999, outstanding and 10,809,183
shares reserved for issuance. and the exchange ratio, shares reserved for issuance.
As of that date, there were approximately 238,482,663 As of that date, there were
no shares of preferred stock shares of common stock of no shares of preferred stock
issued and outstanding and no UNUMProvident will be issued issued and outstanding and no
shares were reserved for and outstanding after shares were reserved for
issuance. completion of the merger. issuance.
Based on the number of shares
of common stock of Provident
and UNUM reserved for
issuance on May 10, 1999, and
the exchange ratio,
approximately 17,399,408
shares of common stock of
UNUMProvident will be
reserved for issuance after
completion of the merger.
Based on the number of shares
of preferred stock of
Provident and UNUM issued and
outstanding on May 10, 1999,
no shares of preferred stock
of UNUMProvident will be
issued and outstanding after
completion of the merger.
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<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
BOARD OF DIRECTORS
CLASSIFICATION
<S> <C> <C>
All directors are elected Directors are divided into Directors are divided into
annually. three classes. Following the three classes. Each class
initial two annual meetings serves a three-year term and
after the merger, each class is as nearly equal in size as
serves a three-year term. possible.
Each class is as nearly equal
in size as possible;
PROVIDED, HOWEVER, that until
July 1, 2001, any change in
the size of the classes of
directors will, when a quorum
is present, require the
affirmative vote of not less
than 75% of directors voting
at a meeting for which proper
notice of the actions taken
was duly given.
NUMBER OF DIRECTORS
As fixed by the board of Not less than three nor more Not less than three nor more
directors from time to time than 15, as fixed by the than 15, as fixed by the
and currently fixed at 12. board of directors from time board of directors from time
to time and initially 15, to time and currently fixed
seven of whom initially will at 12.
be designated by Provident
and eight of whom initially
will be designated by UNUM.
However, until July 1, 2001,
any change in the size of the
board of directors will
require, when a quorum is
present, the affirmative vote
of not less than 75% of
directors voting at a meeting
for which proper notice of
the actions taken was duly
given.
</TABLE>
<TABLE>
<CAPTION>
REMOVAL
<S> <C>
Directors may be removed, Directors may be removed only for cause, and in that event
with or without cause, by the only by the affirmative vote of 80% of the stockholders.
affirmative vote of a
majority of the stockholders.
VACANCIES AND NEWLY CREATED DIRECTORSHIPS
Filled by the vote of a Filled only by a majority of the directors then in office,
majority of the remaining though less than a quorum, or by the sole remaining
directors or the sole director.
remaining director.
</TABLE>
<TABLE>
<CAPTION>
QUALIFICATIONS
<S> <C> <C>
No specific qualifications. A person who reaches the age A person who reaches the age
of 72 must retire at the end of 72 must retire at the next
of his or her current term. annual meeting after his or
her 72nd birthday.
</TABLE>
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<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
EXECUTIVE COMMITTEE
<S> <C> <C>
The creation of committees is The creation of committees is The creation of committees is
permitted; Provident has an permitted. UNUMProvident will permitted; however, no
executive committee. have an Executive Committee executive committee has been
which, among other things, created.
will have the sole power and
authority to recommend
nominees to the board of
directors for election at
stockholders meetings and to
fill vacancies on the board
of directors or any committee
thereof. Until July 1, 2001,
the Executive Committee will
consist of three directors
initially designated by UNUM,
including the Chief Executive
Officer initially serving
UNUMProvident who will serve
as chairman of the Executive
Committee as provided in his
employment contract, and
three directors initially
designated by Provident,
including the President
initially serving
UNUMProvident.
SPECIAL MEETINGS OF THE BOARD
May be called by the May be called by the Chairman May be called by the
President or by one-third of of the Board, the Chief Chairman, the President or by
the board of directors. Executive Officer, the any three directors.
President or by any three
directors.
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<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
STOCKHOLDERS
STOCKHOLDER ACTION BY WRITTEN CONSENT
<S> <C> <C>
Permitted if all stockholders Prohibited. Prohibited.
give written consent to
taking an action without a
meeting.
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of Special meetings of Special meetings of
stockholders may be called stockholders may be called by stockholders may be called by
only by the President, the the Chairman of the Board, the Chairman of the board of
board of directors or upon the Chief Executive Officer directors, or the President,
the written request of the or the President, and are to and are to be called by any
holders of at least 10% of be called by any such officer such officer at the request
the votes entitled to be cast at the request of a majority of a majority of the board of
on any issue proposed to be of the board of directors. directors.
considered at the special
meeting.
</TABLE>
<TABLE>
<CAPTION>
VOTING
<S> <C>
Elections for the board of Elections for the board of directors are decided by a
directors are decided by a plurality of the votes cast.
plurality of the votes cast. All other questions are decided by a majority of the votes
All other questions are entitled to be cast by the holders of stock represented and
decided by a majority of the entitled to vote at a meeting, except as otherwise required
votes cast, except as by law or applicable stock exchange rules or regulations or
otherwise required by as otherwise provided in the certificate of incorporation or
Delaware law, or as otherwise bylaws.
provided in the certificate
of incorporation or bylaws.
</TABLE>
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<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
STOCKHOLDER PROPOSALS AND NOMINATIONS OF DIRECTORS
<S> <C>
A stockholder must give notice of director nominations or
For an annual meeting, a proposals to the Secretary between 60 and 90 days before the
stockholder must give notice meeting of stockholders, in the case of a notice of director
of director nominations or nominations, or before the annual meeting of stockholders,
proposals to the Secretary in the case of proposals. However, if less than 75 days'
between 60 and 90 days prior notice or prior public disclosure of the date of such
to the first anniversary of meeting is given to stockholders, such notice must be
the preceding year's annual received by the 15th day after the day that such notice of
meeting. However, if the date the meeting was mailed or such public disclosure was made.
of the annual meeting is more
than 30 days before or more
than 60 days after such
anniversary, then stockholder
notice must be given not
earlier than the close of
business on the 90th day
prior to such annual meeting
and not later than the later
of:
(a) 60 days prior to such
annual meeting; or
(b) 10 days following the
date on which public
announcement of the date of
such annual meeting is first
made.
Stockholders may also
nominate directors for
election to the board of
directors at a special
meeting of stockholders
called for such purpose by
delivering notice to the
Secretary not earlier than 90
days and not later than the
later of:
(a) 60 days prior to such
special meeting; or
(b) 10 days following the
date on which public
announcement of the date of
such special meeting is first
made.
</TABLE>
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<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
AMENDMENT OF CERTIFICATE OF INCORPORATION
<S> <C>
Delaware law requires the board of directors to adopt a
resolution setting forth any amendment, to declare its
advisability and to call a stockholder meeting to adopt such
amendment. Amendment also requires the affirmative vote of a
majority of the outstanding stock, except that:
(a) 80% of the outstanding voting stock, voting together as
a single class, is required for amendment of provisions
regarding:
- management of the corporation by the directors and the
classification of the board of directors;
Delaware law requires the - the ability of stockholders to act by written consent; or
board of directors to adopt a - the power of the board of directors and the stockholders
resolution setting forth any to amend the bylaws; and
amendment, to declare its (b) both (1) 80% of the outstanding voting stock, voting
advisability and to call a together as a single class, and (2) a majority of the
stockholder meeting to adopt outstanding voting stock beneficially owned by persons other
such amendment. Amendment than "interested stockholders", as defined in the
also requires the affirmative certificate of incorporation, if any, voting together as a
vote of both:
(a) a majority of the members single class, is required for amendment of
of the board of directors, - the provisions regarding "business combinations" with
and
(b) 66 2/3% of the capital
stock, voting together as a interested stockholders; and
single class. - the provisions setting forth the supermajority voting
requirements outlined above;
unless such amendment, in the case of either clause (a) or
(b) above, is recommended by the board of directors and the
board of directors consists of a majority of Continuing
Directors.
A "Continuing Director" is a member of the board of
directors (or his or her successor) who is not an affiliate
of an "interested stockholder" and who was a member of the
board of directors before the interested stockholder became
such.
</TABLE>
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<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
AMENDMENT OF BYLAWS
<S> <C> <C>
Amendment requires: Amendment requires the Amendment requires
- - the affirmative vote of affirmative vote of a - the affirmative vote of a
two-thirds of the board of majority of the board of majority of the board of
directors; or directors. However, until directors; or
- - the affirmative vote of a July 1, 2001, when a quorum - the affirmative vote of at
majority of the shares is present, the affirmative least 80% of the votes
entitled to vote generally vote of not less than 75% of entitled to be cast by the
in the election of the directors voting at a holders of all outstanding
directors or at least meeting for which proper shares of voting stock,
66 2/3% of such shares notice of the actions taken voting together as a single
present and in person or was duly given is required class.
represented by proxy at a for amendments regarding:
meeting and entitled to - any change in size of the
vote, whichever is less. board of directors or a
class thereof,
- any change in the
composition or power and
authority of the Executive
Committee of the board or
the chairmanship thereof,
- any change or amendment to
the bylaws,
- any proposals to be
submitted to the stockholders
by the board of directors,
- any removal of the Chairman
of the Board and Chief
Executive Officer other
than in accordance with his
employment contract or the
President and Chief
Operating Officer other
than in accordance with his
employment contract, in
each case as appointed as
of the effective time of
the merger, and
- modification to the
provisions of either of the
respective employment
contracts of Messrs. Orr
and Chandler, or any
modification to either of
their respective roles,
duties or authority.
Amendment may also be made by
the affirmative vote of at
least 80% of the votes
entitled to be cast by the
holders of all outstanding
shares of voting stock,
voting together as a single
class.
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<TABLE>
<CAPTION>
CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
TRANSACTIONS WITH INTERESTED STOCKHOLDERS
<S> <C> <C>
Provident has elected not to Generally prohibits certain Generally prohibits certain
be governed by restrictions transactions between the transactions between the
imposed by Delaware law on company and any 15% company and any 10%
transactions with interested stockholder, or any affiliate stockholder, or any affiliate
stockholders. or associate of UNUMProvident or associate of UNUM who has
who has been a 15% been a 10% stockholder within
stockholder within the past the past two years prior to
two years prior to the date the date in question, unless
in question, unless such such transaction is:
transaction is: (a) approved by the
(a) approved by the affirmative vote of
affirmative vote of (1) 80% of the voting
(1) 80% of the voting stock, voting together as a
stock, voting together as a single class; and
single class; and (2) a majority of voting
(2) a majority of voting stock beneficially owned by
stock beneficially owned by stockholders who are not
stockholders who are not interested stockholders,
interested stockholders, voting together as a single
voting together as a single class; or
class; or (b) approved by a majority of
(b) approved by a majority of the Continuing Directors.
the Continuing Directors.
Prohibited transactions Prohibited transactions
include: include:
- mergers and consolidations; - mergers and consolidations;
- certain transfers of - certain transfers of
company assets or securities; company assets or securities;
- liquidation or dissolution; - liquidation or dissolution;
and and
- reclassification, - reclassification,
recapitalization or similar recapitalization or similar
transactions that have the transactions that have the
effect of increasing the effect of increasing the
percentage of stock owned percentage of stock owned
by an interested by an interested
stockholder. stockholder.
UNUMProvident also will be UNUM also is subject to
subject to restrictions restrictions imposed by
imposed by Delaware law on Delaware law on transactions
transactions with interested with interested stockholders.
stockholders. These These restrictions are
restrictions are similar to similar to the restrictions
the restrictions described described above and contained
above and contained in the in the UNUM certificate of
UNUMProvident certificate of incorporation. In order to
incorporation. In order to engage in any transaction
engage in any transaction that is subject to the
that is subject to the provisions of the UNUM
provisions of the certificate of incorporation
UNUMProvident certificate of or such provisions of
incorporation or such Delaware law, the
provisions of Delaware law, requirements of both the UNUM
the requirements of both the certificate of incorporation
UNUMProvident certificate of and Delaware law must be
incorporation and Delaware satisfied.
law must be satisfied.
</TABLE>
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CURRENT PROVIDENT UNUMPROVIDENT CURRENT UNUM
APPRAISAL RIGHTS
Delaware law provides stockholders of a corporation involved in a merger the
right to demand and receive payment in cash of the fair value of their stock in
certain mergers. However, such appraisal rights are not available to holders of
(a) shares (1) listed on a national securities exchange, (2) designated as
a national market system security on an interdealer quotation system
operated by the National Association of Securities Dealers, Inc., or
(3) held by more than 2,000 holders, or
(b) shares of the surviving corporation in the merger, if the merger did
not require the approval of the stockholders of such corporation
unless in either case, the holders of such stock are required by the terms of
the merger agreement to accept for such stock anything other than
(a) shares of stock (or depositary receipts) of the surviving corporation,
(b) shares of stock (or depositary receipts) of another corporation that,
at the effective date of the merger, will be either (1) listed on a
national securities exchange, (2) designated as a national market
system security on an interdealer quotation system operated by the
National Association of Securities Dealers, Inc., or (3) held of
record by more than 2,000 holders,
(c) cash in lieu of fractional shares or fractional depositary receipts,
or
(d) any combination of the shares of stock, depositary receipts and cash
in lieu of fractional shares described in clauses (a) through (c)
above.
Unless otherwise provided in the corporation's certificate of incorporation,
appraisal rights are not available for a sale of assets or an amendment to the
certificate of incorporation. None of the certificates of incorporation of
either Provident, UNUM or UNUMProvident provide for appraisal rights under these
circumstances.
<TABLE>
<CAPTION>
LIMITATION ON BUSINESS TRANSACTIONS
<S> <C>
The affirmative vote of No specific limitations.
66 2/3% of the voting stock,
voting together as a single
class, is required for
approval of certain business
combinations, including:
- - mergers, consolidations, or
share exchanges;
- - transfer of substantially
all of the assets of
Provident; or
- - dissolution or liquidation.
OTHER CONSTITUENTS
No specific provision. When considering a business combination or similar
transaction, the board of directors, committees, directors
and officers may, in the best interests of the company and
its stockholders, consider the effects of such business
combination or similar transaction upon employees,
customers, suppliers and the communities in which the
company's offices are located.
</TABLE>
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<PAGE>
DISCUSSION OF UNUMPROVIDENT CERTIFICATE OF INCORPORATION AND UNUMPROVIDENT
BYLAWS
INCREASE IN AUTHORIZED SHARES
Provident is currently authorized to issue 150 million shares of Provident
common stock and UNUM is currently authorized to issue 240 million shares of
UNUM common stock. The UNUMProvident certificate of incorporation provides for
an authorized capital stock of 725 million shares of common stock. A vote "FOR"
the adoption of the merger agreement by Provident stockholders will also
represent a vote in favor of the adoption of the UNUMProvident certificate of
incorporation and the increased number of authorized common stock.
Without the proposed increase in the number of authorized shares of common
stock, UNUMProvident will not have sufficient uncommitted authorized but
unissued shares of UNUMProvident common stock to issue to UNUM stockholders in
the merger. Further, the proposed increase in the number of authorized shares
will provide the flexibility needed to meet future corporate objectives and will
ensure that, following the issuance of shares in the merger, UNUMProvident
retains a sufficient number of shares available for issuance. Maintaining the
availability of shares for issuance is advisable to provide UNUMProvident with
flexibility to take advantage of opportunities to issue common stock to obtain
capital, as consideration for possible acquisitions and for other corporate
purposes. There are currently no plans, understandings, agreements or
arrangements concerning the issuance of additional shares of UNUMProvident
common stock, other than in connection with the merger and employee benefit
plans. If any plans, understandings, agreements or arrangements are made
concerning the issuance of additional shares, holders of the UNUMProvident
common stock outstanding at that time may or may not be given the opportunity to
vote upon the issuance of the shares, depending on the nature of the
transaction, the law applicable thereto, the applicable rules and regulations of
the NYSE and the judgment of the UNUMProvident board of directors as to whether
the stockholders should vote on the issuance.
ANTI-TAKEOVER CONSIDERATIONS
GENERAL
Provisions of the UNUMProvident certificate of incorporation and the
UNUMProvident bylaws, such as those providing for the classified board of
directors, the requirement of stockholder action by meeting only, the
restrictions on who may call special meetings of the stockholders, and the
requirement of an 80% stockholder vote to amend certain provisions of the
UNUMProvident certificate of incorporation and to amend the UNUMProvident
bylaws, may have anti-takeover effects. These provisions may discourage attempts
by others to acquire control of UNUMProvident without negotiation with its board
of directors. This would enhance the board of directors' ability to attempt to
promote the interests of all of UNUMProvident stockholders. However, to the
extent that these provisions make UNUMProvident a less attractive takeover
candidate, they may not always be in the best interests of UNUMProvident or its
stockholders. None of these provisions is the result of any specific effort by a
third party to accumulate securities of UNUMProvident or to obtain control by
means of merger, tender offer, solicitation in opposition to management or
otherwise.
CLASSIFIED BOARD AND REMOVAL OF DIRECTORS
The provisions providing for the classification of the board of directors,
which parallel the provisions in the UNUM certificate of incorporation and the
UNUM bylaws, will have the effect of making it more difficult to change the
overall composition of the UNUMProvident board of directors. At least two
stockholders' meetings will be required for stockholders to effect a change in a
majority of the UNUMProvident board of directors, as is currently the case with
the UNUM board of directors.
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<PAGE>
Under Delaware law, unless the certificate of incorporation provides
otherwise, directors on a classified board may be removed only for cause by the
holders of a majority of the shares then entitled to vote at an election of
directors. The provisions of the UNUMProvident certificate of incorporation
providing for a classified board of directors do not permit stockholders to
remove a director without cause. In addition, the UNUMProvident certificate of
incorporation requires an 80% stockholder vote to remove a director for cause.
Provident stockholders currently have the right to remove directors at any time
without cause.
Although there has been no problem in the past with the continuity or
stability of the Provident board of directors, the parties believe that the
longer time required to elect a majority of the UNUMProvident board of directors
and the higher stockholder vote requirement to remove a director with cause will
help assure continuity and stability in the management of the business and
affairs of UNUMProvident after the merger.
STOCKHOLDER MEETINGS
The limitation of persons authorized to call a special meeting of the
stockholders and the requirement that stockholder action be taken only pursuant
to a meeting, which parallel provisions in the UNUM certificate of incorporation
and the UNUM bylaws, are intended to ensure that any action taken by the
UNUMProvident stockholders is not taken precipitously, and is only taken after
giving opportunity for reasoned discussion among the stockholders and the
management and directors of UNUMProvident.
SUPERMAJORITY AMENDMENT PROVISIONS
The provisions that require the affirmative vote of 80% of the stockholders
to amend certain provisions of the UNUMProvident certificate of incorporation
and UNUMProvident bylaws, many of which parallel similar stockholder vote
requirements in the UNUM certificate of incorporation and the UNUM bylaws, are
intended to prevent a large minority of UNUMProvident stockholders from being
adversely affected by the amendment of key governance provisions contained in
such documents.
121
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNUMPROVIDENT CORPORATION
FIRST: The name of the Corporation is UNUMProvident Corporation.
SECOND: The address of the registered office of the Corporation in the state
of Delaware is 1209 Orange Street, in the city of Wilmington, county of New
Castle. The name of the Corporation's registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: A. The total number of shares of capital stock which the Corporation
shall have authority to issue is 750,000,000 shares, consisting of 725,000,000
shares of Common Stock, par value $.10 per share (the "Common Stock") and
25,000,000 shares of Preferred Stock, par value $.10 per share (the "Preferred
Stock").
B. Shares of Preferred Stock may be issued from time to time in one or more
classes or series as may be determined from time to time by the Board of
Directors of the Corporation (the "Board of Directors"), each such class or
series to be distinctly designated. Except in respect of the particulars fixed
by the Board of Directors for classes or series provided for by the Board of
Directors as permitted hereby, all shares of Preferred Stock shall be of equal
rank and shall be identical. All shares of any one series of Preferred Stock so
designated by the Board of Directors shall be alike in every particular, except
that shares of any one series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative. The voting rights, if
any, of each such class or series and the preferences and relative,
participating, optional and other special rights of each such class or series
and the qualifications, limitations and restrictions thereof, if any, may differ
from those of any and all other classes or series at any time outstanding; and
the Board of Directors of the Corporation is hereby expressly granted authority
to fix, by resolutions duly adopted prior to the issuance of any shares of a
particular class or series of Preferred Stock so designated by the Board of
Directors, the voting powers of stock of such class or series, if any, and the
designations, preferences and relative, participating, optional and other
special rights and the qualifications, limitations and restrictions of such
class or series, including, but without limiting the generality of the
foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute, such class or series, and such
number may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the Board of Directors;
(2) The rate and time at which, and the terms and conditions upon which,
dividends, if any, on Preferred Stock of such class or series shall be paid,
the extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other classes of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such class
or series to convert the same into, or exchange the same for, shares of any
other class or classes or of any series of the same or any other class or
classes of stock and the terms and conditions of such conversion or
exchange;
(4) Whether or not Preferred Stock of such class or series shall be
subject to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions upon which, Preferred Stock of
such class or series may be redeemed;
<PAGE>
(5) The rights, if any, of the holders of Preferred Stock of such class
or series upon the voluntary or involuntary liquidation of the Corporation;
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such class or series; and
(7) The voting powers, if any, of the holders of such class or series of
Preferred Stock.
C. Except as otherwise provided in this Certificate of Incorporation, the
Board of Directors shall have authority to authorize the issuance, from time to
time without any vote or other action by the stockholders, of any or all shares
of stock of the Corporation of any class or series at any time authorized, and
any securities convertible into or exchangeable for any such shares, and any
options, rights or warrants to purchase or acquire any such shares, in each case
to such persons and on such terms (including as a dividend or distribution on or
with respect to, or in connection with a split or combination of, the
outstanding shares of stock of the same or any other class) as the Board of
Directors from time to time in its discretion lawfully may determine; PROVIDED,
HOWEVER, that the consideration for the issuance of shares of stock of the
Corporation having par value (unless issued as such a dividend or distribution
or in connection with such a split or combination) shall not be less than such
par value. Shares so issued shall be fully paid stock, and the holders of such
stock shall not be liable to any further call or assessments thereon.
D. Except as provided in this Certificate of Incorporation, each holder of
Common Stock shall be entitled to one vote for each share of Common Stock held
by him.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
the Board of Directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The Board of Directors shall consist of not less than three nor more
than fifteen directors. The exact number of directors shall be determined
from time to time by resolution adopted by the affirmative vote of a
majority of the Board of Directors, subject to Article III, Section 11 of
the By-laws of the Corporation. The Directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
Directors constituting the entire Board of Directors.
(3) Upon, or as soon as practicable following, the filing of the
Certificate of Merger to which this Certificate of Incorporation is
attached, Class I Directors shall be elected for a one-year term, Class II
Directors for a two-year term and Class III Directors for a three-year term.
At each succeeding annual meeting of stockholders, successors to the class
of Directors whose term expires at that annual meeting shall be elected for
a three-year term. If the number of Directors is changed in accordance with
the terms of this Certificate of Incorporation or the By-laws, any increase
or decrease shall be apportioned among the classes so as to maintain the
number of Directors in each class as nearly equal as possible, and any
additional Director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the
number of Directors shorten the term of any incumbent Director. A Director
shall hold office until the annual meeting for the year in which his term
expires and until his successor shall be elected and shall qualify, subject,
however, to the Director's prior death, resignation, disqualification or
removal from office. The stockholders shall not have the right to remove any
one or all of the Directors except for cause and in that event only by the
affirmative vote of the holders of eighty percent (80%) of the votes
entitled to be cast by the holders of all outstanding shares of Voting Stock
(as hereinafter defined) voting together as a single class. Any vacancy on
the Board of Directors that results from a newly created Directorship shall
only be filled by the affirmative vote of a majority of the Board of
Directors then in office, and any other vacancy occurring on the Board of
Directors shall only be filled by a majority of the Directors then in
office, although less than a quorum,
2
<PAGE>
or by a sole remaining Director. Any Director elected to fill a vacancy not
resulting from an increase in the number of Directors shall have the same
remaining term as that of his predecessor.
(4) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect Directors at
an annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such Directorships shall be
governed by the terms of this Certificate of Incorporation applicable
thereto (including the resolutions adopted by the Board of Directors
pursuant to Section B of Article FOURTH), and such Directors so elected
shall not be divided into classes pursuant to Paragraph (2) of this Article
FIFTH unless expressly provided by such terms. Election of Directors need
not be by written ballot unless the By-Laws so provide.
(5) The Board of Directors may from time to time determine whether, to
what extent, at what times and places and under what conditions and
regulations the accounts, books and papers of the Corporation, or any of
them, shall be open to the inspection of the stockholders, and no
stockholder shall have any right to inspect any account, book or document of
the Corporation, except as and to the extent expressly provided by law with
reference to the right of stockholders to examine the original or duplicate
stock ledger, or otherwise expressly provided by law, or except as expressly
authorized by resolution of the Board of Directors.
(6) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the Directors are hereby empowered to
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
statutes of Delaware, this Certificate of Incorporation, and the By-laws.
(7) Except as may be otherwise determined by the Board of Directors in
fixing the terms of any class or series of Preferred Stock pursuant to
Article FOURTH hereof, no action shall be taken by stockholders of the
Corporation except at an annual or special meeting of stockholders of the
Corporation and the right of stockholders to act by written consent in lieu
of a meeting is specifically denied.
SIXTH: A. The Board of Directors shall have concurrent power with the
stockholders as set forth in this Certificate of Incorporation to make, alter,
amend, change, add to or repeal the By-Laws of the Corporation.
B. Subject to Article III, Section 11 of the By-laws, the Board of Directors
may amend the By-Laws of the Corporation upon the affirmative vote of the number
of directors which shall constitute, under the terms of the By-Laws, the action
of the Board of Directors. Stockholders may not amend the By-Laws of the
Corporation except upon the affirmative vote of at least eighty percent (80%) of
the votes entitled to be cast by the holders of all outstanding shares of Voting
Stock voting together as a single class.
SEVENTH: A. In addition to any affirmative vote required by law, this
Certificate of Incorporation, the By-Laws of the Corporation or otherwise,
except as otherwise expressly provided in Section B of this Article SEVENTH, the
Corporation shall not engage, directly or indirectly, in any Business
Combination (as hereinafter defined) with an Interested Stockholder (as
hereinafter defined) without the affirmative vote of (i) not less than eighty
percent (80%) of the votes entitled to be cast by the holders of all outstanding
shares of Voting Stock voting together as a single class, and (ii) not less than
a majority of the votes entitled to be cast by the holders of all outstanding
shares of Voting Stock which are beneficially owned by persons other than such
Interested Stockholder voting together as a single class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or that
a lesser percentage or separate class vote may be specified, by law or in any
agreement with any national securities exchange or otherwise.
B. The provisions of Section A of this Article SEVENTH shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law, this
Certificate of Incorporation, the By-Laws of the Corporation, or otherwise, if
such Business Combination shall have been approved by a majority (whether such
approval is made prior to or
3
<PAGE>
subsequent to the acquisition of beneficial ownership of Voting Stock that
caused the Interested Stockholder to become an Interested Stockholder) of the
Continuing Directors (as hereinafter defined).
C. For the purposes of this Certificate of Incorporation:
(1) The term "Business Combination" shall mean:
(a) any merger or consolidation of this Corporation or any Subsidiary
(as hereinafter defined) with (i) any Interested Stockholder or (ii) any
other corporation (whether or not itself an Interested Stockholder) which
is or after such merger or consolidation would be an Affiliate or
Associate of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) between the
Corporation or any Subsidiary and any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving any assets
or securities of the Corporation, any Subsidiary or any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder
the value of which would constitute, immediately prior to such
transaction, a Substantial Part (as hereinafter defined) of the assets of
the Corporation; or
(c) the adoption of any plan or proposal for the liquidation or
dissolution of, or similar transaction involving, the Corporation
proposed by or on behalf of an Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder; or
(d) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise involving an
Interested Stockholder) that has the effect, directly or indirectly, of
increasing the proportionate share of any class or series of Capital
Stock, or any securities convertible into Capital Stock or into equity
securities of any Subsidiary, that is beneficially owned by any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(e) any agreement, contract or other arrangement providing for any
one or more of the actions specified in the foregoing clauses (a) to (d).
(2) The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article FOURTH
of this Certificate of Incorporation, and the term "Voting Stock" shall mean
all Capital Stock which by its terms may be voted on all matters submitted
to stockholders of the Corporation generally.
(3) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(4) The term "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the Corporation
or any Subsidiary or any trustee of or fiduciary with respect to any such
plan or any trust or any other entity formed for the purposes of holding
Voting Stock for the purpose of funding any such plan or funding other
employee benefits for employees of the Corporation or any Subsidiary, in
each case when acting in such capacity) who (a) is the beneficial owner of
Voting Stock representing fifteen percent (15%) or more of the votes
entitled to be cast by the holders of all then outstanding shares of Voting
Stock; or (b) is an Affiliate or Associate of the Corporation and at any
time within the two-year period immediately prior to the date in question
was the beneficial owner of Voting Stock representing fifteen percent (15%)
or more of the votes entitled to be cast by the holders of all then
outstanding share of Voting Stock.
(5) A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its
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<PAGE>
Affiliates or Associates has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable immediately or subject only to
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, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (c) which are beneficially
owned, directly or indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
any shares of Capital Stock. For the purposes of determining whether a
person is an Interested Stockholder pursuant to Paragraph 4 of this Section
C, the number of shares of Capital Stock deemed to be outstanding shall
include shares deemed beneficially owned by such person through application
of Paragraph 5 of this Section C, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options,
or otherwise.
(6) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Securities Exchange
Act of 1934, as amended (the "Act"), (the term "registrant" in Rule 12b-2
meaning in this case the Corporation).
(7) The term "Subsidiary" means any corporation of which a majority of
any class of equity security is beneficially owned by the Corporation;
PROVIDED, HOWEVER, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph 4 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each class
of equity security is beneficially owned by the Corporation.
(8) The term "Continuing Director" means any member of the Board of
Directors, while such person is a member of the Board of Directors, who is
not an Affiliate or Associate or representative of the Interested
Stockholder and was a member of the Board prior to the time that the
Interested Stockholder became an Interested Stockholder, and any successor
of a Continuing Director, while such successor is a member of the Board of
Directors, who is not an Affiliate or Associate or representative of the
Interested Stockholder and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors. In order for a
Business Combination or other action to be approved, or a fact or other
matter to be determined, "by a majority of the Continuing Directors"
hereunder, there must be one or more Continuing Directors then serving on
the Board of Directors.
(9) The term "Substantial Part" means assets having an aggregate Fair
Market Value (as hereinafter defined) in excess of ten percent (10%) of the
book value 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 stockholders of the Corporation would be
required to approve or authorize the Business Combination involving assets
constituting any such Substantial Part.
(10) The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale
price, during the 30-day period immediately preceding the date in question,
of a share of such stock on the Composite Tape for New York Stock Exchange,
Inc. Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, Inc., or, if such stock is not listed on
such exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or if such stock is not listed
on any such exchange, the highest closing bid quotation with respect to a
share of such stock, during the 30-day period preceding the date in
question, on the National Association of Securities Dealers, Inc. Automated
Quotation System or any similar system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of
such stock as determined by a majority of the Continuing Directors in good
faith; and (c) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
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<PAGE>
D. A majority of the Continuing Directors shall have the power and duty to
determine for the purposes of this Article SEVENTH, on the basis of information
known to them after reasonable inquiry, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another and (d) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by this Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value in excess of the amount set
forth in Paragraph 1(b) of Section C of this Article SEVENTH. Any such
determination made in good faith shall be binding and conclusive on all parties.
E. Nothing contained in this Article SEVENTH shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
EIGHTH: When considering a merger, consolidation, Business Combination or
similar transaction, the Board of Directors, committees of the Board, individual
directors and individual officers may, in considering the best interests of the
Corporation and its stockholders, consider the effects of any such transaction
upon the employees, customers and suppliers of the Corporation, and upon
communities in which offices of the Corporation are located.
NINTH: Notwithstanding any other provisions of this Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Certificate of Incorporation or the By-Laws of the Corporation), (i) the
affirmative vote of the holders of not less than eighty percent (80%) of the
votes entitled to be cast by the holders of all outstanding shares of Voting
Stock, voting together as a single class, shall be required to amend or repeal,
or adopt any provisions inconsistent with, Articles FIFTH and SIXTH, and (ii)
the affirmative vote of the holders of (x) not less than eighty percent (80%) of
the votes entitled to be cast by the holders of all outstanding shares of Voting
Stock voting together as a single class, and (y) not less than a majority of the
votes entitled to be cast by the holders of all outstanding shares of Voting
Stock which are beneficially owned by persons other than Interested
Stockholders, if any, voting together as a single class, shall be required to
amend or repeal, or adopt any provisions inconsistent with, Articles SEVENTH and
NINTH; PROVIDED, HOWEVER, that, with respect to Articles FIFTH, SIXTH, SEVENTH
and NINTH such special voting requirements shall not apply to, and such special
votes shall not be required for, any amendment, repeal or adoption recommended
by the Board if a majority of the directors then in office are persons who would
be eligible to serve as Continuing Directors.
TENTH: No director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability (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) pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper personal
benefit. Any repeal of modification of this Article TENTH by the stockholders of
the Corporation shall not adversely affect any right of protection of a director
of the Corporation existing at the time of such repeal or modification with
respect to acts or omissions occurring prior to such repeal or modification.
ELEVENTH: Subject to the provisions of this Certificate of Incorporation,
the Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
thereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
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AMENDED AND RESTATED BYLAWS
OF
UNUMPROVIDENT CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meetings, at which
meetings the stockholders shall elect by a plurality vote the directors to be
elected at such meetings, and transact such other business as may properly be
brought before the meetings. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
SECTION 3. SPECIAL MEETINGS. Unless otherwise prescribed by law or by the
Certificate of Incorporation, Special Meetings of Stockholders, for any purpose
or purposes, may be called by either (i) the Chairman, if there be one, (ii) the
Chief Executive Officer or (iii) the President, and shall be called by any such
officer at the request in writing of a majority of the Board of Directors. Such
request shall state the purpose or purposes of the proposed meeting. Written
notice of a Special Meeting stating the place, date and hour of the meeting and
the purpose or purposes for which the meeting is called shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
SECTION 4. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting. The foregoing provisions shall be subject to the voting rights of
holders of any Preferred Stock of the Corporation and any quorum requirements
relating thereto.
<PAGE>
SECTION 5. VOTING. Unless otherwise required by law, applicable stock
exchange rules or regulations, the Certificate of Incorporation or these
By-Laws, any question brought before any meeting of stockholders shall be
decided by a majority of the votes entitled to be cast by the holders of stock
represented and entitled to vote thereat and each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may
be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
SECTION 6. PROPER BUSINESS AT ANNUAL MEETINGS. At any annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before such meeting. To be properly brought before an annual
meeting, business must be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, or otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or otherwise properly brought before the meeting by a stockholder.
For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, must be a stockholder of the Corporation of record
at the time of the delivery of said notice and must be entitled to vote at the
meeting. To be timely, a stockholder's notice must be delivered to, or mailed
and received at, the principal executive offices of the Corporation, not less
than 60 days nor more than 90 days prior to the annual meeting; PROVIDED,
HOWEVER, that in the event that less than 75 days' notice or prior public
disclosure of the date of such meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close of
business on the 15th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was first made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting, including the
complete text of any resolutions to be presented at the meeting with respect to
such business, and the reasons for conducting such business at the annual
meeting, (ii) the name and address of record of the stockholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made,
(iii) the class and number of shares of the Corporation which are beneficially
owned by the stockholder and such beneficial owner, (iv) any material interest
of the stockholder and such beneficial owner in such business and (v) a
representation that the stockholder is a holder of record of shares of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business. The chairman of an annual
meeting shall, if the facts warrant, determine and declare to the meeting that
such business was not properly brought before the meeting in accordance with
these provisions, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
SECTION 7. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
SECTION 8. STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 7 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
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SECTION 9. (a) ORGANIZATION. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the Chief Executive Officer,
or in his absence by the President, or in his absence by a Vice President, or in
the absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his absence
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
(b) CONDUCT OF MEETINGS. The date and time of the opening and the closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting by the person presiding over the meeting. The
Board of Directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board
of Directors, the chairman of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. Subject to Article III,
Section 11 of these By-laws, the number of directors constituting the Board of
Directors shall be fixed from time to time by the Board of Directors in the
manner prescribed in the Certificate of Incorporation and shall initially be 15,
eight of whom shall be designated by UNUM Corporation and seven of whom shall be
designated by Provident Companies, Inc. Except as provided in Section 3 of this
Article, the directors to be elected at each Annual Meeting of Stockholders
shall be elected by a plurality of the votes cast at such Annual Meeting of
Stockholders, and each director so elected shall hold office until the third
Annual Meeting following such election and until his successor is duly elected
and qualified, or until his earlier resignation, retirement or removal. No
person elected or re-elected a director shall, after such person's
seventy-second birthday, serve as a director of the Corporation beyond the date
of the Corporation's annual meeting ending the term for which such person has
been elected; PROVIDED, that, no person shall be required to retire because of
their age prior to such date. Any director may resign at any time upon notice to
the Corporation. Directors need not be stockholders.
SECTION 2. NOMINATION PROCEDURES. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors, by any nominating committee or person appointed by the
Board of Directors or by any stockholder of the Corporation entitled to vote for
the election of Directors at the meeting. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation by a stockholder of
the Corporation of record at the time of the delivery of said notice who is
entitled to vote at the meeting. To be timely, a stockholder's notice shall be
delivered to, or mailed and received at, the principal executive
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offices of the Corporation not less than 60 days nor more than 90 days prior to
the meeting; PROVIDED, HOWEVER, that in the event that less than 75 days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was first
made. Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of the Corporation which are beneficially owned by the person, (iv) a
description of all arrangements, understandings or relationships between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder and (v) any other information relating to the person that is
required to be disclosed in solicitations of proxies for election of Directors
pursuant to Rule 14(a) under the Securities Exchange Act of 1934, as amended
(the "Act"), and any other applicable laws or rules or regulations of any
governmental authority or of any national securities exchange or similar body
overseeing any trading market on which shares of the Corporation are traded, and
(b) as to the stockholder giving the notice (i) the name and address of record
of the stockholder and the beneficial owner, if any, on whose behalf the
nomination is made, and (ii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder and such beneficial owner and
(iii) a representation that the stockholder is a holder of record of shares of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the
notice. No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The chairman of the meeting shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
SECTION 3. VACANCIES. Subject to the provisions of the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors, which increase shall be subject
to Article III, Section 11, shall only be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and qualified, or until their earlier
resignation or removal.
SECTION 4. DUTIES AND POWERS. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
SECTION 5. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the state of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the Chief Executive Officer, the President, or
any three directors. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than forty-eight
(48) hours before the date of the meeting, by telephone or telegram on
twenty-four (24) hours' notice, or on much shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
SECTION 6. QUORUM. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may
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adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
SECTION 7. ACTIONS OF BOARD. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 8. MEETINGS BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Unless otherwise provided by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 8 shall constitute presence in person at such
meeting.
SECTION 9. COMMITTEES. (a) The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when required.
(b) The Corporation shall have an Executive Committee which, among any other
powers which shall from time to time be granted to such committee by resolution
of the Board of Directors, shall have the sole power and authority to recommend
nominees on behalf of the Corporation to the Board of Directors (i) for election
to the Board of Directors at the stockholders meetings at which directors are to
be elected, (ii) to fill vacancies on the Board of Directors of the Corporation
in between such stockholders meetings and (iii) to serve on, and fill vacancies
in, any committee of the Board of Directors.
(c) Notwithstanding anything to the contrary contained in these By-laws,
until July 1, 2001, the Executive Committee will consist of three directors
which were initially designated by UNUM Corporation, which will include the
Chief Executive Officer initially serving the Corporation (who will serve as
Chairman of such committee), and three directors which were initially designated
by Provident Companies, Inc., which will include the President initially serving
the Corporation, in each case in accordance with the Agreement and Plan of
Merger, dated as of November 22, 1998, between UNUM Corporation and Provident
Companies, Inc. (the "Merger Agreement").
SECTION 10. INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or
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committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
shareholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the shareholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
SECTION 11. CERTAIN MODIFICATIONS. Notwithstanding anything to the
contrary contained in these By-laws, until July 1, 2001, the following actions
taken either directly or indirectly by the Board of Directors shall, when a
quorum is present, require the affirmative vote of not less than seventy-five
percent of the directors voting at a meeting for which proper notice of the
actions taken was duly given: (i) any change in the size of the Board of
Directors or in the size of any class of directors; (ii) any change in the
composition or power and authority of the Executive Committee of the Board of
Directors or the chairmanship thereof; (iii) any change or amendment to these
By-laws; and (iv) any proposals to be submitted to the stockholders of the
Corporation by the Board of Directors. From and after July 1, 2001, any of the
actions set forth in clauses (i) through (iv) of the immediately preceding
sentence may be taken upon the affirmative vote of the number of directors which
shall constitute, under the terms of these By-laws, the action of the Board of
Directors.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a Chief Executive Officer, a President, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may also
choose a Chairman of the Board of Directors (who must be a director) and one or
more Vice-Presidents, Assistant Secretaries, Assistant Treasurers and other
officers. Any number of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these By-Laws. The
officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
SECTION 2. ELECTION. The Board of Directors shall elect the officers of
the Corporation who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors; and all officers of the Corporation shall hold office
until their successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chief Executive Officer, the President or any
Vice-President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. Except where by law
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the signature of the Chief Executive Officer or the President is required, the
Chairman of the Board of Directors shall possess the same power as the Chief
Executive Officer or the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the Chief Executive Officer and
the President, the Chairman of the Board of Directors shall exercise all the
powers and discharge all the duties of the Chief Executive Officer or the
President. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as from time to time may be assigned
to him by these By-Laws or by the Board of Directors.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the control of the Board of Directors, have general supervision of
the business of the Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. He shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these By-Laws,
the Board of Directors, the Chief Executive Officer or the President. In the
absence or disability of the Chairman of the Board of Directors, or if there be
none, the Chief Executive Officer shall preside at all meetings of the
stockholders and the Board of Directors. The Chief Executive Officer shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him by these By-Laws or by the Board of Directors.
SECTION 6. PRESIDENT. The President shall, subject to the control of the
Board of Directors and the Chief Executive Officer (provided that until July 1,
2000, the President and the Chief Executive Officer will participate equally in
setting the overall strategic direction of the Corporation), have general
supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He shall execute
all bonds, mortgages, contracts and other instruments of the Corporation
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so authorized by
these By-Laws, the Board of Directors, the Chief Executive Officer or the
President. In the absence or disability of the Chairman of the Board of
Directors and the Chief Executive Officer, or if neither shall exist, the
President shall preside at all meetings of the stockholders and the Board of
Directors. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these By-Laws
or by the Board of Directors. From the Effective Time until July 1, 2000, the
President initially serving the Corporation shall also be the Chief Operating
Officer.
SECTION 7. VICE-PRESIDENTS. At the request of the Chief Executive Officer
or the President or in the event of either of their absences or inability or
refusal to act (and if there be no Chairman of the Board of Directors), the
Vice-President or the Vice-Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the Chief
Executive Officer and President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Chief Executive Officer and
President. Each Vice-President shall perform such other duties and have such
other powers as the Board of Directors from time to time may prescribe. If there
be no Chairman of the Board of Directors and no Vice-President, the Board of
Directors shall designate the officer of the Corporation who, in the absence of
the Chief Executive Officer and President or in the event of the inability or
refusal of the Chief Executive Officer and President to act, shall perform the
duties of the Chief Executive Officer and President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Chief
Executive Officer and President.
SECTION 8. SECRETARY. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of
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the Board of Directors, and shall perform such other duties as may be prescribed
by the Board of Directors, the Chief Executive Officer or President, under whose
supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then
either the Board of Directors, the Chief Executive Officer or the President may
choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary
shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
SECTION 9. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer, the President
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
SECTION 10. ASSISTANT SECRETARIES. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chief Executive Officer, the President, any Vice-President, if
there be one, or the Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
SECTION 11. ASSISTANT TREASURERS. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Vice-President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act,
shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION 12. OTHER OFFICERS. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
SECTION 13. CERTAIN ACTIONS. Notwithstanding anything to the contrary
contained in these By-laws and other than in accordance with their respective
employment contracts, until July 1, 2001, the removal of the current Chairman
and Chief Executive Officer or the current President and Chief
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Operating Officer as of the effective date of the merger contemplated by the
Merger Agreement, any modification to the provisions of either of their
respective employment contracts which provide their respective terms of office
or any modification to either of their respective roles, duties or authority
shall, when a quorum is present, require the affirmative vote of seventy-five
percent of the directors voting at a meeting for which proper notice of the
actions taken was duly given. From and after July 1, 2001, any of the actions
set forth in the immediately preceding sentence may be taken upon the
affirmative vote of the number of directors which shall constitute, under the
terms of these By-laws, the action of the Board of Directors.
ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the Chief Executive Officer, the
President or a Vice-President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued.
SECTION 5. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty days nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
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ARTICLE VI
NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 4. CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION IN ACTIONS, SUITS, OR PROCEEDINGS OTHER THAN
THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify each person who is or was, or is
threatened to be made, a party to or witness in any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative (other than one by or in the right of the
Corporation), by reason of the fact that he is or was a director, officer or
employee of the Corporation or of Union Mutual Life Insurance Company, a Maine
mutual insurance company (the "Mutual Company"), or is or was serving at the
request of the Corporation or the Mutual Company as a director, officer,
employee or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorney's fees and expenses), judgments,
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fines, penalties, and amounts paid in settlement, incurred by him in connection
with defending, investigating, preparing to defend, or being or preparing to be
a witness in, such action, suit, proceeding or claim, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
SECTION 2. INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify each person who is or was, or is threatened to be
made, a party to or witness in any threatened, pending or completed action,
suit, proceeding or claim by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer or employee of the Corporation or of the Mutual Company or is or was
serving at the request of the Corporation or the Mutual Company as a director,
officer, employee or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorney's fees and expenses), and, if and to the extent permitted by applicable
law, judgments, penalties and amounts paid in settlement, incurred by him in
connection with defending, investigating, preparing to defend, or being or
preparing to be a witness in, such action, suit, proceeding or claim, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; PROVIDED, HOWEVER, that no
indemnification shall be made in respect of any such claim or any issue or
matter in any such action, suit or proceeding as to which such person shall have
been adjudged to be liable to the Corporation unless (and only to the extent
that) the Court of Chancery or the court in which such claim, action, suit or
proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such expenses
and amounts which the Court of Chancery or such other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. (a) Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the person seeking indemnification is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article VIII, as the case may be. Such determination (and
determinations under Sections 5 and 6 of this Article VIII) shall be made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the action, suit, proceeding or claim with respect to
which indemnification is sought ("disinterested directors"), or (ii) if such a
quorum is not obtainable, or if a quorum of disinterested directors so directs,
in a written opinion of independent legal counsel chosen by the Board of
Directors, or (iii) by the stockholders; PROVIDED, HOWEVER, that if a Change in
Control (as defined in this Section 3) has occurred and the person seeking
indemnification so requests, such determination (and determination under
Sections 5 and 6 of this Article VIII) shall be made in a written opinion
rendered by independent legal counsel chosen by the person seeking
indemnification and not reasonably objected to by the Board of Directors (whose
fees and expenses shall be paid by the Corporation). To the extent, however,
that a director, officer, employee or trustee or former director, officer,
employee or trustee has been successful on the merits or otherwise in defense of
any action, suit, proceeding or claim described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorney's fees and expenses) incurred by him in connection
therewith, without the necessity of authorization in the specific case.
(b) For purposes of the proviso to the second sentence of Section 3(a),
"independent legal counsel" shall mean legal counsel other than an attorney, or
a firm having associated with it an attorney, who has been retained by or who
has performed services for the Corporation, the Mutual Company or the person
seeking indemnification within the previous three years.
(c) A "Change in Control" shall mean a change in control of the Corporation
of a nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the Act, whether or not the
Corporation is then subject to such reporting requirement; provided that,
without limitation, such a change in control shall be deemed to have occurred if
(i) any "person" (as such
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term is used in sections 13(d) and 14(d) of the Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Corporation representing 35% or more of the
combined voting power of the Corporation's then outstanding securities without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such acquisition, or (ii) the
Corporation is a party to a merger, consolidation, sale of assets or other
reorganization, or proxy contest, as a consequence of which members of the Board
of Directors in office immediately prior to such transaction or event constitute
less than a majority of the Board of Directors thereafter, or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new director
whose election or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period) cease for any reason to
constitute at least a majority of the Board of Directors.
SECTION 4. GOOD FAITH DEFINED, ETC. (a) For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if such person relied on the records or books of account of the Corporation, the
Mutual Company or another enterprise, or on information supplied to him by the
officers of the Corporation, the Mutual Company or another enterprise, or on
information or records given or reports made to the Corporation, the Mutual
Company or another enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the
Corporation, the Mutual Company or another enterprise. The term "another
enterprise" as used in this Section 4(a) shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation or the
Mutual Company as a director, officer, employee or trustee.
(b) The termination of any action, suit, proceeding or claim by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, that he had no reasonable cause to believe that
his conduct was unlawful.
(c) References in this Article VIII to "penalties" include any excise taxes
assessed on a person with respect to an employee benefit plan; references in
this Article VIII to "serving at the request of the Corporation or the Mutual
Company" include any service as a director, officer or employee or former
director, officer or employee of the Corporation or the Mutual Company which
imposes duties on, or involves services by, such person with respect to an
employee benefit plan or its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the participants or beneficiaries of such an
employee benefit plan shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation.
(d) The provisions of this Section 4 shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be.
SECTION 5. RIGHT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE UPON
APPLICATION; ETC. Except as otherwise provided in the proviso to Section 2 of
this Article VIII:
(a) Any indemnification under Section 1 or 2 of this Article VIII shall be
made no later than 45 days after receipt by the Corporation of the written
request of the director, officer, employee or trustee or former director,
officer, employee or trustee unless a determination is made within said 45-day
period in accordance with Section 3 of this Article VIII that such person has
not met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII.
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(b) The right to indemnification under Section 1 or 2 of this Article VIII
or advances under Section 6 of this Article VIII shall be enforceable by the
director, officer, employee or trustee or former director, officer, employee or
trustee in any court of competent jurisdiction. Following a Change in Control,
the burden of proving that indemnification is not appropriate shall be on the
Corporation. Neither the absence of any prior determination that indemnification
is proper in the circumstances, nor a prior determination that indemnification
is not proper in the circumstances, shall be a defense to the action or create a
presumption that the director, officer, employee or trustee or former director,
officer, employee or trustee has not met the applicable standard of conduct. The
expenses (including attorney's fees and expenses) incurred by the director,
officer, employee or trustee or former director, officer, employee or trustee in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action (or in any action or claim brought by him to
recover under any insurance policy or policies referred to in Section 9 of this
Article VIII) shall also be indemnified by the Corporation.
(c) If any person is entitled under any provision of this Article VIII to
indemnification by the Corporation for some or a portion of expenses, judgments,
fines, penalties or amounts paid in settlement incurred by him, but not,
however, for the total amount thereof, the Corporation shall nevertheless
indemnify such person for the portion of such expenses, judgments, fines,
penalties and amounts to which he is entitled.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including attorney's
fees and expenses) incurred by a director, officer, employee or trustee or a
former director, officer, employee or trustee in defending, investigating,
preparing to defend, or being or preparing to be a witness in, a threatened or
pending action, suit, proceeding or claim against him, whether civil or
criminal, may be paid by the Corporation in advance of the final disposition of
such action, suit, proceeding or claim upon receipt by the Corporation of a
written request therefor and a written undertaking by or on behalf of the
director, officer, employee or trustee or former director, officer, employee or
trustee to repay such amounts if it shall be determined in accordance with
Section 3 of this Article VIII that he is not entitled to be indemnified by the
Corporation; PROVIDED, HOWEVER, that if he seeks to enforce his rights in a
court of competent jurisdiction pursuant to Section 5(b) of this Article VIII,
said undertaking to repay shall not be applicable or enforceable unless and
until there is a final court determination that he is not entitled to
indemnification as to which all rights of approval have been exhausted or have
expired.
SECTION 7. CERTAIN PERSONS NOT ENTITLED TO
INDEMNIFICATION. Notwithstanding any other provision of this Article VIII, no
person shall be entitled to indemnification under this Article VIII or to
advances under Section 6 of this Article VIII with respect to any action, suit,
proceeding or claim brought or made by him against the Corporation or the Mutual
Company, other than an action, suit, proceeding or claim seeking, or defending
such person's right to, indemnification and/or expense advances pursuant to this
Article VIII or otherwise.
SECTION 8. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION. The provisions
of this Article VIII shall not be deemed exclusive of any other rights to which
the person seeking indemnification or expense advances may be entitled under any
agreement, contract, or vote of stockholders or disinterested directors, or
pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. Except as otherwise
provided in Section 7 of this Article VIII, but notwithstanding any other
provision of this Article VIII, it is the policy of the Corporation that
indemnification of and expense advances to the persons specified in Sections 1
and 2 of this Article VIII shall be made to the fullest extent permitted by law,
and, accordingly, in the event of any change in law, by legislation or
otherwise, permitting greater indemnification of and/or expense advances to any
such person, the provisions of this Article VIII shall be construed so as to
require such greater indemnification and/or expense advances. The provisions of
this Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or 2 of this Article VIII but whom the
Corporation has the power to indemnify under the provisions of the General
Corporation Law of the State of Delaware or otherwise. The provisions of this
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Article VIII shall continue as to a person who has ceased to be a director,
officer, employee or trustee and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 9. INSURANCE. The Corporation may purchase and maintain at its
expense insurance on behalf of any person who is or was a director, officer or
employee of the Corporation or the Mutual Company or is or was serving at the
request of the Corporation or the Mutual Company as a director, officer,
employee or trustee of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability or expense
asserted against or incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability or expense under the
provisions of this Article VIII or the provisions of Section 145 of the General
Corporation Law of the State of Delaware. The Company shall not be obligated
under this Article VIII to make any payment in connection with any claim made
against any person if and to the extent that such person has actually received
payment therefor under any insurance policy or policies.
SECTION 10. SUCCESSORS; MEANING OF "CORPORATION". This Article VIII shall
be binding upon and enforceable against any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Corporation. For purposes of this Article VIII,
but subject to the provisions of any agreement relating to any merger or
consolidation of the kind referred to in clause (i) below or of any agreement
relating to the acquisition of any corporation of the kind referred to in clause
(ii) below, references to "the Corporation" shall include (i) any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger with the Corporation which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers and employees, so that any person who is or was a director, officer or
employee of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the Corporation as he would have with respect to
such constituent corporation if its separate existence had continued; and (ii)
any corporation of which at least a majority of the voting power (as represented
by its outstanding stock having voting power generally in the election of
directors) is owned directly or indirectly by the Corporation.
SECTION 11. SEVERABILITY. The provisions of this Article VIII shall be
severable in the event that any provision hereof (including any provision within
a single section, subsection, clause, paragraph or sentence) is held invalid,
void or otherwise unenforceable on any ground by any court of competent
jurisdiction. In the event of any such holding, the remaining provisions of this
Article VIII shall continue in effect and be enforceable to the fullest extent
permitted by law.
ARTICLE IX
AMENDMENTS
SECTION 1. POWER TO AMEND. The Board of Directors shall have concurrent
power with the stockholders as set forth in the By-Laws and the Certificate of
Incorporation to make, alter, amend, change, add to or repeal the By-Laws.
SECTION 2. REQUIRED VOTE. The Board of Directors may amend the By-Laws
upon the affirmative vote of the number of directors which shall constitute,
under the terms of the By-Laws, the action of the Board of Directors.
Notwithstanding anything to the contrary contained in these By-laws including,
without limitation, the last preceding sentence, until July 1, 2001, the
amendment of Article III, Section 11 or Article IV, Section 13 of these By-laws,
shall, when a quorum is present, require the affirmative vote of seventy-five
percent of the directors voting at a meeting for which proper notice of the
actions taken was duly given. Stockholders may not amend the By-Laws except upon
the affirmative vote of at least eighty percent (80%) of the votes entitled to
be cast by the holders of all outstanding shares of Voting Stock (as such term
is defined in the Certificate of Incorporation) voting together as a single
class.
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