SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HUBCO, INC.
(Exact name of registrant as specified in its charter)
NEW JERSEY
(State of Incorporation or Organization)
22-2405746
(I.R.S. Employer Identification No.)
3100 Bergenline Avenue, Union City, New Jersey 07087
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
(Title of each class (Name of each exchange on which
to be registered) each class is to be registered)
None
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Securities to be registered pursuant to Section 12(g) of the Act:
Series A Preferred Stock
(Title of class)
<PAGE>
ITEM 1. Description of Registrant's Securities to be Registered.
HUBCO, Inc's ("HUBCO's") securities to be registered will
be a series of cumulative convertible preferred stock designated
"Series A Preferred Stock" (the "HUBCO Preferred Stock"). The
HUBCO Preferred Stock will have a stated value of $24.00 per share.
HUBCO Preferred Stock was created for the purpose of the acquisi-
tion of Washington Bancorp, Inc. by HUBCO (the "Merger") and, when
issued, will be fully paid and non-assessable. Upon the reacquisi-
tion of any of the HUBCO Preferred Stock, through redemption,
conversion or otherwise, such reacquired shares will be canceled
and will become part of the authorized and unissued preferred stock
of HUBCO, but will not be authorized and unissued HUBCO Preferred
Stock -- that is, Series A Preferred Stock. The HUBCO Preferred
Stock will have the dividend, liquidation, redemption, voting and
conversion rights set forth below.
Rank
The HUBCO Series A Preferred Stock will be senior to any other
class or series of Preferred Stock in respect of (1) payment of
dividends, (2) payment upon dissolution, liquidation or winding up
and (3) redemption.
Dividends
The holders of HUBCO Preferred Stock, in preference to the holders
of HUBCO Common Stock and any other class or series of preferred
stock, will be entitled to receive, when and if declared by the
Board of Directors of HUBCO, out of funds legally available
therefor, cumulative cash dividends at the annual rate per share of
$1.44, and no more, payable in quarter-annual installments on the
15th day of February, May, August and November in each year, from
the date of issuance.
Liquidation Preference
Upon the voluntary or involuntary liquidation, dissolu-
tion, or winding up of the affairs of HUBCO, the holders of HUBCO
Preferred Stock will be entitled to receive out of the assets of
HUBCO $24.00 per share, together with cumulative dividends accrued
and unpaid to the date of payment of such $24.00 distribution
preference before any amount will be paid to the holders of HUBCO
Common Stock or any other class or series of preferred stock of
HUBCO. Such dividends will be deemed to accrue on a daily basis.
The merger or consolidation of HUBCO into or with any other
corporation, or the merger of any other corporation into HUBCO, or
the sale, lease or conveyance of all or substantially all of the
property or business of HUBCO, will not be deemed to be a dissolu-
tion, liquidation or winding up for purposes of such a distribution
preference.
Redemption
The HUBCO Preferred Stock may be redeemed by HUBCO for
$24.00 per share at any time after the later of (i) one year from
the date of Closing and (ii) the date on which the market price for
the HUBCO Common Stock is $24.00 or more for twenty (20) consecu-
tive business days. Each share of HUBCO Preferred Stock is
convertible into one share of HUBCO Common Stock (the "Conversion
Ratio"). The $24.00 market price will be adjusted each time the
Conversion Ratio is required to be adjusted for certain capital
changes as described below. As a consequence, the $24.00 price
will be reduced by stock splits or stock dividends effected with
respect to the HUBCO Common Stock. The HUBCO Preferred Stock may
also be redeemed in connection with a merger, consolidation or sale
of all or substantially all the assets of HUBCO which otherwise
requires a vote of the holders of HUBCO Preferred Stock. Less than
all the outstanding shares of the HUBCO Preferred Stock may be
redeemed in such manner as the Board of Directors of HUBCO
prescribes. The redemption price for shares of the HUBCO Preferred
Stock will be $24.00 per share, plus all accrued and unpaid
dividends through the date fixed for redemption. Such dividends
will be deemed to accrue on a daily basis.
HUBCO will not redeem any other class or series of
preferred stock unless and until all shares of the HUBCO Preferred
Stock have been redeemed. HUBCO cannot redeem any shares of HUBCO
Preferred Stock without the approval of the Federal Reserve Board.
There are restrictions on HUBCO's ability to redeem while there is
an arrearage in the payment of dividends. However, HUBCO may
repurchase in the market or in private transactions shares of its
Common Stock or shares of HUBCO Preferred Stock at any time while
the HUBCO Preferred Stock is outstanding.
Written notice of redemption will be given to each holder
of record of the shares of HUBCO Preferred Stock to be redeemed, in
each case at least 15 days and not more than 45 days prior to the
date fixed for redemption. If fewer than 25 days prior notice is
given to holders, then at least one follow-up written notice must
be sent to holders who have not converted by 7 days prior to the
redemption date. Each such notice must specify the shares of stock
to be redeemed, the redemption price, the date fixed for redemp-
tion, the place for payment of the redemption price and for
surrender of the certificate or certificates representing the
shares to be redeemed, and if less than the total number of shares
held by such holder are to be redeemed, the number of shares of
such holder to be redeemed.
If notice of redemption has been given and if, on or
before the date fixed for redemption, the redemption price has been
provided and set aside by HUBCO with a bank with trust powers for
the pro rata benefit of the holders of the shares so called for
redemption, then, from and after the date fixed for redemption, (i)
the shares of HUBCO Preferred Stock called for redemption will no
longer be deemed outstanding, (ii) the dividends thereon will cease
to accumulate, and (iii) all rights with respect to such shares
will forthwith cease. The only right of the holders of the
redeemed shares after such date will be the right to receive the
redemption price for the shares called for redemption, without
interest.
HUBCO will not be obligated to make payments into or to
maintain any sinking fund for the redemption of HUBCO Preferred
Stock.
Conversion Into Common Stock
Subject to the adjustment provisions described herein, the
holder of any shares of HUBCO Preferred Stock at any time prior to
the date fixed for any redemption of the HUBCO Preferred Stock will
have the right to surrender the certificates evidencing such shares
and receive, in conversion of each share of HUBCO Preferred Stock,
one share of HUBCO Common Stock.
The conversion privilege may be exercised at any time including
from and after the date on which a notice of redemption was given and
prior to the close of business on the last day before the date of
redemption stated in the notice. To exercise the conversion privilege,
the holder of HUBCO Preferred Stock must surrender the certificates
representing the shares to be converted at the office of the transfer
agent of HUBCO and give written notice to HUBCO at such office that the
holder elects to convert such shares. Such certificates must be duly
endorsed or assigned to HUBCO, or endorsed in blank. Conversion will be
deemed to have been effected immediately prior to the close of business
on the date upon which such surrender is made, and such date is referred
to as the "Conversion Date." On the Conversion Date or as promptly
thereafter as practicable, HUBCO will deliver to the holder of the stock
surrendered for conversion, or as otherwise directed by him in writing,
a certificate for the number of full shares of HUBCO Common Stock
deliverable upon conversion of such HUBCO Preferred Stock and, if
applicable, a check in respect to any fraction of a share.
HUBCO will not deliver fractional shares of HUBCO Common Stock
upon conversion of shares of HUBCO Preferred Stock. In lieu of any
fractional share of HUBCO Common Stock that would otherwise be deliver-
able upon conversion, HUBCO will pay an amount in cash equal to the
current market value of the fractional share, computed on the basis of
the market price on the last business day before the Conversion Date.
For this purpose, the "market price" on any business day will be the
closing price per share of HUBCO Common Stock on the NASDAQ National
Market System or, if the shares of HUBCO Common Stock are then listed or
admitted to trading on any national securities exchange, the reported
closing price per share of HUBCO Common Stock on such exchange on such
day.
The Conversion Ratio for the HUBCO Preferred Stock will be
adjusted from time to time in certain circumstances upon a stock
dividend, stock split, dividend payment (other than a cash dividend),
combination, reclassification or issuance of rights or warrants with
respect to HUBCO Common Stock. No adjustment will be made if (i) HUBCO
takes the same action with respect to the HUBCO Preferred Stock in the
same proportion as if each share of HUBCO Preferred Stock had been
converted into shares of HUBCO Common Stock at the then applicable
Conversion Ratio immediately before the record date for the determina-
tion of holders of HUBCO Common Stock entitled to receive the dividends,
rights, warrants, or distributions or (ii) such adjustment would not
require a change of at least 1% to the Conversion Ratio, except that any
change of less than 1% shall be carried forward to any subsequent
change.
Voting Rights
Except as otherwise required by New Jersey corporate law and as
otherwise provided in HUBCO's certificate of incorporation, the holders
of HUBCO Preferred Stock will have no voting rights.
Under the New Jersey Business Corporation Act, holders of HUBCO
Preferred Stock are entitled to vote as a class (i) on certain amend-
ments to HUBCO's certificate of incorporation, including any amendment
which subordinates or otherwise adversely affects the rights or
preferences of the HUBCO Preferred Stock and (ii) upon any merger which
requires a shareholder vote and if the plan of merger contains any
provision which, if contained in a proposed amendment to the certificate
of incorporation, would entitle the holder to vote as a class.
Under the terms of HUBCO's certificate of incorporation
creating the HUBCO Preferred Stock, holders of HUBCO Preferred Stock are
entitled to vote as a separate class on any merger, consolidation or
sale of all or substantially all of the assets of HUBCO if the transac-
tion requires the approval of the holders of the HUBCO Common Stock,
except as explained below. The affirmative vote of a majority of the
outstanding HUBCO Preferred Stock would be required to approve any such
merger, consolidation or sale of assets. However, if in connection with
such a transaction the HUBCO Preferred Stock will be redeemed prior to
or simultaneously with the consummation of any such transaction, then
the approval of the holders of the HUBCO Preferred Stock would not be
required and any vote by the HUBCO Preferred Stock holders may be
disregarded. Also, in general, under the terms of HUBCO's certificate of
incorporation creating the HUBCO Preferred Stock, any amendment to any
provision of Section C of Article V of the certificate of incorporation
of HUBCO, which are the provisions creating the HUBCO Preferred Stock,
would require the affirmative vote of a majority of the outstanding
shares of HUBCO Preferred Stock.
Finally, if at any time HUBCO fails to pay for 2 quarters,
whether or not consecutive, the full quarter-annual dividends payable on
the HUBCO Preferred Stock, the holders of the HUBCO Preferred Stock will
have the right, voting as a separate class, to elect a total of two
directors to the class of directors elected at the next annual meeting
of shareholders (the "Preferred Directors"). A dividend default with
respect to the HUBCO Preferred Stock, giving rise to the right to elect
the Preferred Directors, will be deemed to continue to exist until all
accrued dividends on all outstanding shares of the HUBCO Preferred Stock
have been paid to the end of the past preceding quarterly dividend
period. The Preferred Directors will continue to serve only until the
first meeting of shareholders after which the dividend default has been
fully cured.
ITEM 2. Exhibits
a) * The description of HUBCO's Common Stock set forth
in HUBCO's Registration Statement on Form 8-A filed
by HUBCO pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act"), and any
amendment or report filed for the purpose of
updating any such description.
b) ** The HUBCO's Certificate of Incorporation, as
amended.
c) *** The HUBCO's By-laws, as amended.
d) **** Certificate of Amendment of HUBCO's Certificate of
Incorporation creating the HUBCO Series A Preferred
Stock filed with the New Jersey Secretary of State
on June 30, 1994.
* Filed by HUBCO (File No. 0-10699) and hereby incor-
porated by reference.
** Incorporated by reference from Exhibit 4(b) to
HUBCO's Registration Statement on Form 5-3 (No. 33-
72330) filed with the SEC on December 2, 1993.
*** Incorporated by reference from HUBCO's Annual Report
on Form 10-K for the fiscal year ended December 31,
1993.
**** Filed with this Amendment No. 1 to HUBCO's
registration statement on Form 8-A.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this Amendment No. 1 to HUBCO, Inc.'s registration statement on
Form 8-A to be signed on its behalf by the undersigned, thereto
duly authorized.
HUBCO, Inc.
Date: July 6, 1994 /s/ Kenneth T. Neilson
Kenneth T. Neilson
President and Chief Executive
Officer
<PAGE>
EXHIBIT 2(d)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
HUBCO, INC.
The undersigned, organized under the laws of the State of
New Jersey, to amend its Certificate of Incorporation in accordance
with Chapter 9 of the New Jersey Business Corporation Act, hereby
certifies:
FIRST: The name of the corporation is HUBCO, INC.
SECOND: The following resolution, establishing and
designating a series of preferred shares and fixing and determining
the relative rights and preferences thereof, unanimously adopted by
the Board of Directors of the Corporation on the 14th day of June,
1994, pursuant to the authority vested in it by the Certificate of
Incorporation:
"RESOLVED, a series of Cumulative Convertible Preferred
Stock designated "Series A Preferred Stock" be hereby established
by amending the Certificate of Incorporation to add Section C to
Article V as follows:
ARTICLE V
SECTION C-SERIES A PREFERRED STOCK
(C) The Series A Preferred Stock, shall have a stated value
of $24.00 per share, and the shares therefore, when issued for such
amount, shall be fully paid and non-assessable. The Series A
Preferred Stock shall consist of 938,690 shares, which number may
be increased (but only in connection with a stock split or stock
dividend) or decreased from time to time (but not below the number
thereof then outstanding) by the Board of Directors. Upon the
reacquisition of any of the Series A Preferred Stock, through
redemption, conversion or otherwise, such reacquired Shares shall
be canceled and shall become part of the authorized and unissued
Preferred Stock, but shall not be authorized and unissued Series A
Preferred Stock. The rights, preferences and limitations of the
Series A Preferred Stock are as follows:
(a) Rank. The Series A Preferred Stock shall be senior to
any other class or series of Preferred Stock in respect of (1)
payment of dividends, (2) payment upon dissolution, liquidation or
winding up and (3) redemption.
(b) Dividends. The holders of Series A Preferred Stock, in
preference to the holders of the Common Stock and any other class
or series of Preferred Stock, shall be entitled to receive, when
as, and if declared by the Board of Directors, out of funds legally
available therefor, cumulative cash dividends at the annual rate
per share of $1.44, and no more, payable in quarter-annual
installments on the 15th day of February, May, August and November
in each year, from the date of issuance. If the dividends on the
Series A Preferred Stock for any quarter-annual dividend period
shall not have been paid or declared for payment to the holders of
Series A Preferred Stock by the last day of such quarter-annual
dividend period, the aggregate deficiency shall be cumulative and
shall be fully paid or declared and set apart for payment before
any cash dividends or other distribution shall be paid or set apart
for payment to the holders of the Common Stock or any other class
or series of Preferred Stock of the Corporation. Accumulations of
dividends on the Series A Preferred Stock shall not bear interest.
(c) Liquidation Preference. Upon the voluntary or
involuntary liquidation, dissolution, or winding up of the affairs
of the Corporation, the holders of Series A Preferred Stock shall
be entitled to receive out of the assets of the Corporation $24.00
per share, together with cumulative dividends accrued and unpaid to
the date of payment of such $24.00 distribution preference, and no
more, before any amount shall be paid to, or distributed among the
holders of Common Stock or any other class or series of Preferred
Stock. For the purpose of this paragraph (c), dividends shall be
deemed to accrue on a daily basis. The merger or consolidation of
the Corporation into or with any other corporation, or the merger
of any other corporation into the Corporation, or the sale, lease
or conveyance of all or substantially all of the property or
business of the Corporation, shall not be deemed to be a
dissolution, liquidation or winding up for purposes of this
paragraph (c).
(d) Redemption.
(i) Option to Redeem. The Corporation shall not redeem
any other class or series of Preferred Stock unless and until all
shares of the Series A Preferred Stock have been redeemed. The
Corporation shall not redeem the Series A Preferred Stock without
the prior approval of the Board of Governors of the Federal Reserve
System. Outstanding shares of Series A Preferred Stock may be
redeemed, as a whole (or in part but only with the consent of the
holder of the Shares to be redeemed) at the option of the
Corporation by vote of its Board of Directors at any time from and
after one year from the date of original issuance and after the
date on which the market price (as defined in subparagraph
(e)(iii)) for the Corporation's Common Stock is $24.00 or more for
20 consecutive business days, or pursuant to paragraph (e)(v)
hereof. The $24.00 market price referred to in the previous
sentence shall be adjusted appropriately each time the Conversion
Ratio is required to be adjusted under subparagraph (e)(iv) and in
the same proportion as the Conversion Ratio is adjusted. Without
limiting the foregoing, the $24.00 market price of the Common Stock
referred to herein will be reduced to reflect stock splits and
stock dividends effected with respect to the Common Stock. If less
than all the outstanding shares of the Series A Preferred Stock are
to be redeemed, the shares to be redeemed shall be determined in
such manner as the Board of Directors may prescribe. The
redemption price for shares of the Series A Preferred Stock shall
be $24.00 per share, plus all accrued and unpaid dividends through
the date fixed for redemption. For the purpose of this paragraph
(d), dividends shall be deemed to accrue on a daily basis.
(ii) Notice. Written notice of redemption shall be given
to each holder of record of the shares of Series A Preferred Stock
to be redeemed, by mailing a notice of redemption to such holder by
first class mail, at such holder's address as it shall appear on
the stock books of the Corporation, in each case at least 15 days
and not more than 45 days prior to the date fixed for redemption;
provided however, if fewer than 25 days prior notice is given to
holders, then at least one follow-up written notice must be sent to
holders who have not converted by 7 days prior to the redemption
date. Each such notice shall specify the shares of stock to be
redeemed, the redemption price, the date fixed for redemption, the
place for payment of the redemption price and for surrender of the
certificate or certificates representing the shares to be redeemed,
and if less than the total number of shares held by such holder are
to be redeemed, the number of shares of such holder to be redeemed.
No defect in such notice nor any defect in the mailing thereof
shall in and of itself affect the validity of the proceedings for
redemption, except as to any holder to whom the corporation has
failed to mail such notice, or as to whom the notice was defective.
(iii) Deposit of Redemption Funds. If notice of
redemption shall have been given as herein provided and if, on or
before the date fixed for redemption, the redemption price shall
have been provided and set aside by the Corporation with a bank
with trust powers for the pro rata benefit of the holders of the
shares so called for redemption, then, from and after the date
fixed for redemption, the shares of Series A Preferred Stock called
for redemption shall no longer be deemed outstanding, the dividends
thereon shall cease to accumulate, and all rights with respect to
such shares shall forthwith cease. The only right of the holders
of the redeemed shares after such date shall be the right to
receive the redemption price for the shares called for redemption,
without interest. If the Board of Directors designates a bank with
trust powers as a depository of the funds to be used for redemption
and as agent of the Corporation for the giving of the notices of
redemption, the receipt of the shares and the payment of the
redemption price, the acts of such designated agent on behalf of
the Corporation shall have the same effect as if all such acts were
done by the Corporation.
Any monies deposited by the Corporation with such designated
bank which shall not be required for the redemption of shares
because of the conversion of such shares subsequent to the date of
deposit, shall be promptly repaid to the Corporation. Any other
monies so deposited by the Corporation with a designated bank and
unclaimed at the end of one year from the date fixed for redemption
shall be repaid to the Corporation upon its request, after which
the holders of the shares called for redemption shall look only to
the Corporation for payment of the redemption price.
The Corporation may use one of its subsidiary banks with
trust powers as the depository and agent for such redemption.
(iv) No Sinking Fund. The Corporation shall not be
obligated to make payments into or to maintain any sinking fund for
the Series A Preferred Stock.
(e) Conversion.
(i) Conversion Privilege. The holder of any shares of
Series A Preferred Stock at any time prior to the date fixed for
redemption as provided in paragraph (d), shall have the right to
surrender the certificates evidencing such shares and receive, in
conversion of each share of Series A Preferred Stock, one share
(the "Conversion Ratio") of the Common Stock, no par value of the
Corporation.
(ii) Manner of Exercising Conversion Privilege. The
conversion privilege may be exercised at any time including from
and after the date on which a notice of redemption was given and
prior to the close of business on the last day before the date of
redemption stated in the notice. To exercise the conversion
privilege, the holder of Series A Preferred Stock shall surrender
the certificates representing the shares to be converted at the
office of the Transfer Agent of the Corporation and shall give
written notice to the Corporation at such office that the holder
elects to convert such shares. Such certificates shall be duly
endorsed or assigned to the Corporation, or in blank. Conversion
shall be deemed to have been effected immediately prior to the
close of business on the date upon which such surrender is made,
and such date is referred to in this paragraph (e) as the
"Conversion Date." On the Conversion Date or as promptly
thereafter as practicable, the Corporation shall deliver to the
holder of the stock surrendered for conversion, or as otherwise
directed by him in writing, a certificate for the number of full
shares of Common Stock deliverable upon conversion of such Series
A Preferred Stock and, if applicable, a check in respect to any
fraction of a share as provided in subparagraph (e) (iii).
(iii) Cash Adjustment for Fractional Share Upon
Conversion. The Corporation shall not deliver fractional shares of
Common Stock upon conversion of shares of Series A Preferred Stock.
In lieu of any fractional share of Common Stock that would
otherwise be deliverable upon conversion, the Corporation shall pay
an amount in cash equal to the current market value of the
fractional share, computed on the basis of the market price on the
last business day before the Conversion Date. For purposes of this
section, the "market price" on any business day shall be the
closing price per share of Common Stock in the NASDAQ National
Market System or, if the shares of Common Stock are listed or
admitted to trading on any national securities exchange, the
reported closing price per share of Common Stock on such exchange
on such day.
(iv) Adjustment of Conversion Ratio. The Conversion
Ratio of the Series A Preferred Stock shall be adjusted from time
to time as follows:
(A) If at any time while any of the Series A Preferred
Stock is outstanding the Corporation shall (i) pay a dividend on
its Common Stock in shares of its capital stock, including Common
Stock and Preferred Stock, (ii) subdivide its outstanding shares of
Common Stock into a greater number of shares, (iii) combine the
outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its shares of Common Stock any
shares of stock of the Corporation, the Conversion Ratio in effect
immediately prior thereto shall be adjusted so that the holder of
any share of Series A Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares of
Common Stock or other securities of the Corporation which he would
have owned or have been entitled to receive after the happening of
any of the events described above had such share of Series A
Preferred Stock been converted immediately prior to the happening
of such event. An adjustment made pursuant to this subparagraph
(e) (iv) (A) shall become effective in the case of a dividend
immediately after the opening of business on the day following the
record date for the determination of shareholders entitled to
receive such dividend, and shall become effective in the case of a
subdivision, combination or reclassification immediately after the
opening of business on the day following the day when such
subdivision, combination, or reclassification becomes effective.
(B) If while any of the Series A Preferred Stock is
outstanding, the Corporation shall issue rights or warrants ratably
to the holders of shares of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per
share less than the market price per share of Common Stock on the
record date for the determination of shareholders entitled to
receive such rights and warrants, the Conversion Ratio in effect
immediately before that record date shall be adjusted as of the day
following that record date so that it shall equal the ratio
determined by multiplying the Conversion Ratio in effect
immediately before that record date by a fraction, of which the
numerator shall be the number of shares of Common Stock outstanding
on that record date plus the number of shares of Common Stock
offered for subscription or purchase and the denominator shall be
the number of shares of Common Stock outstanding on that record
date plus the number of shares of Common Stock that the aggregate
offering price of the total number of shares so offered would
purchase at such current market price per share of Common Stock.
To the extent that such rights or warrants are not exercised before
the expiration thereof, the Conversion Ratio shall be readjusted as
of the close of business on the expiration date to the Conversion
Ratio that would then be in effect based upon the number of shares
of Common Stock actually delivered upon the exercise of such rights
or warrants.
(C) If the Corporation shall distribute, to all holders of
shares of its Common Stock, evidences of its indebtedness or of its
assets (excluding cash distributions made out of current or
retained earnings) the Conversion Ratio in effect immediately
before the record date for the determination of shareholders
entitled to receive such distribution shall be adjusted immediately
after the opening of business on the day following that record date
so that it shall equal the ratio determined by multiplying the
Conversion Ratio in effect immediately prior thereto by a fraction,
of which the numerator shall be the total number of shares of
Common Stock outstanding on that record date multiplied by such
current market price per share on that record date, and of which
one denominator shall be determined by subtracting the aggregate
face value of evidences of indebtedness or the aggregate fair
market value of evidences of its assets from an amount equal to the
total number of shares of Common Stock outstanding on such record
date multiplied by the current market price per share of Common
Stock on that record date.
(D) For the purpose of any computation under subparagraphs
(e) (iv) (B) and (C) above, the current market price per share of
Common Stock at any date shall be deemed to be the average of the
market prices for the thirty consecutive business days terminating
fifteen calendar days before the day in question. The market price
for each day shall be determined as provided in subparagraph (e)
(iii) hereof.
(E) No adjustment in the Conversion Ratio for the Series A
Preferred Stock shall be made if, at the same time that the
Corporation takes an action with respect to the Common Stock that
would otherwise require adjustment under subparagraphs (A) through
(C) above, the Corporation shall take the same action with respect
to the Series A Preferred Stock in the same proportion as if each
share of Series A Preferred Stock had been converted into shares of
Common Stock at the then applicable Conversion Ratio immediately
before the record date for the determination of holders of Common
Stock entitled to receive the dividends, rights, warrants, or
distributions.
(F) Except as herein otherwise provided, no adjustment in
the Conversion Ratio shall be made by reason of the issuance of
shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or any securities carrying
the right to purchase any of the foregoing or for any other reason
whatsoever.
(G) No adjustment in the Conversion Ratio shall be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) of such Ratio; provided,
however, that any adjustments which by reason of this subparagraph
(e) (iv) (G) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All
calculations under this subparagraph (e) (iv) shall be made to the
nearest hundredth of a share.
(H) Whenever the Conversion Ratio is adjusted as provided
in this subparagraph (e) (iv), the Corporation shall promptly file
with the Transfer Agent for the Series A Preferred Stock a
statement signed by the Chairman of the Board, President or Vice
President of the Corporation and by its Treasurer or its Secretary
showing in detail the facts requiring such adjustment and shall
exhibit the statement to any holder of Series A Preferred Stock
desiring to inspect the statement. In addition, with respect to
adjustments made while any Series A Preferred Stock is outstanding,
the Corporation shall state to the Transfer Agent and in the next
quarterly and annual report that an adjustment has been effected
and give the adjusted Conversion Ratio in the Corporation's next
quarterly and annual report to shareholders. Such quarterly and
annual report shall be mailed to all holders of record of the
Series A Preferred Stock on the record date used for mailing such
quarterly and annual report to holders of Common Stock.
(v) Effect of Consolidations, Mergers or Sales on
Conversion Privilege. If at any time while any shares of the
Series A Preferred Stock are outstanding, the Corporation is
consolidated or merged with or into any other corporation or sells
or conveys all or substantially all of its assets, and pursuant to
the provisions of the New Jersey Business Corporation Act or the
Corporation's certificate of incorporation the approval of the
holders of the Common Stock of the Corporation is required for such
transaction, then such transaction shall also require for approval
the affirmative vote of a majority of the outstanding Series A
Preferred Stock, voting as a separate class. Notwithstanding the
foregoing, the Corporation shall be entitled to redeem the Series
A Preferred Stock pursuant to the provisions of paragraph (d) prior
to or simultaneously with the consummation of any such transaction
and if such redemption does take place, the consent of the holders
of the Series A Preferred Stock shall not be required and if any
vote upon such a transaction by the holders of Series A Preferred
Stock has been taken, such vote shall be disregarded.
(vi) Notice of Certain Transactions Required. In
addition to any other notice required by this Article V, if at any
time while Series A Preferred Shares are outstanding the
Corporation shall (i) declare a dividend (or any other
distribution) on its Common Stock other than a cash dividend out of
current retained earnings or surplus; or (ii) authorize the
issuance to all holders of its Common Stock of rights or warrants
to subscribe for or purchase shares of its Common Stock or of any
other subscription rights or warrants; or (iii) reclassify its
Common Stock (other than through a subdivision or combination or by
changing the par value); or (iv) take any other action which
requires the Conversion Ratio to be adjusted under paragraph (e)
(iv); or (v) become a party to any consolidation or merger or sell
or transfer all or substantially all of the assets of the
Corporation, then the Corporation shall notify by regular mail the
holders of record of the Series A Preferred Shares at least 15 days
prior to the appropriate record date. The notice shall briefly
describe the transaction and state (i) the record date which will
be used for the purpose of determining which holders will receive
such dividend or distribution, of rights or warrants, or (ii) the
date on which any such reclassification, consolidation, merger,
sale or transfer is expected to become effective, and the record
date as of which it will be determined which holders shall be
entitled to exchange their Common Stock for securities or other
property delivered upon such reclassification, consolidation,
merger, sale or transfer. The Corporation shall mail a notice of
all meetings of shareholders (and any accompanying proxy statement)
to the holders of Series A Preferred Stock at the same time the
notice (and proxy statement) is mailed to holders of Common Stock
and shall mail all other notices and financial statements to the
holders of Preferred Stock at the same time such notices and
financial statements are mailed to holders of Common Stock. If any
action is taken by means of consent, notice of such action by
consent shall be sent to the holders of Series A Preferred Stock at
least 20 days prior to the effective date of such consent. Failure
to give or receive the notice required by this subparagraph (e)
(vi) or any defect therein shall not affect the legality or
validity or any such dividend, distribution, right or warrant or
other action but such failure shall not affect the rights of the
holders of Series A Preferred Stock to obtain an appropriate remedy
on account of such failure.
(vii) Corporation to Reserve Stock for Conversion.
As long as any Series A Preferred Stock remains outstanding, the
Corporation shall reserve out of its authorized but unissued Common
Stock the full number of shares of Common Stock deliverable upon
the conversion of all outstanding Series A Preferred Stock.
(f) Voting Rights.
(i) Except as otherwise required by the New Jersey
Business Corporation Act and as otherwise provided in subparagraph
(e) (v) and in this paragraph (f), the holders of Series A
Preferred Stock shall have no voting rights.
(ii) Any other provisions herein notwithstanding, if at
any time the Corporation shall have failed to pay for 2 quarters,
whether or not consecutive, the full quarter-annual dividends
payable on the Series A Preferred Stock, the holders of the Series
A Preferred Stock shall have the right, voting as a separate class,
to elect a total of two directors to the class of directors elected
at the next annual meeting of shareholders (the "Preferred
Directors"). A dividend default with respect to the Series A
Preferred Stock, giving rise to the right to elect the Preferred
Directors, shall be deemed to continue to exist until all accrued
dividends on all outstanding shares of the Series A Preferred Stock
shall have been paid to the end of the past preceding quarterly
dividend period.
(A) Subject to the limitations set forth in subparagraph
(B) below, the Preferred Directors shall be elected to a term of
office the same as the term of office of the other directors in the
class to which they are elected. At each subsequent annual meeting
of shareholders at which directors of such class are elected, until
all dividends in default on the Series A Preferred Stock shall have
been paid or declared and set apart for payment, the holders of
Series A Preferred Stock shall have the right to vote for the
election of Preferred Directors in the manner described in this
subparagraph (ii).
(B) The Preferred Directors shall hold office only until
the first meeting of shareholders following the payment, or the
declaration and setting apart for payment, of all dividends in
default on the Series A Preferred Stock, notwithstanding that the
term of the other directors in the class to which they are a member
does not expire at the time of such meeting. The successors to the
Preferred Directors shall be elected by the shareholders at such
meeting to a term of office which shall expire at the same time as
the term of office of the other directors in the class to which
they are elected.
(C) At any meeting of shareholders held while holders of
Series A Preferred Stock have the voting power to elect Preferred
Directors, the holders of a majority of the then outstanding Series
A Preferred Stock who are present in person or by proxy shall be
sufficient to constitute a quorum for the election of the Preferred
Directors as herein provided.
(D) Any vacancy caused by the death, resignation, or
removal of a Preferred Director may be filled by the remaining
Preferred Director, or if there is no remaining Preferred Director,
by a majority of the holders of Series A Preferred Stock. In the
event there is no remaining Preferred Director to fill a vacancy,
a holder(s) of 10% or more of the outstanding Series A Preferred
Stock shall have the right to require the Corporation to hold a
meeting of shareholders within 20 days (or such greater time as
shall be required by law) to fill the vacancy, unless when so
requested a shareholders' meeting is scheduled to occur in 60 days
or less. Any Preferred Director so elected shall hold office until
the next annual meeting of shareholders, at which time the holders
of the Series A Preferred Stock shall elect a Preferred Director to
fill the vacancy if the term of office of the Preferred Director
who was replaced does not expire at the time of such meeting.
(iii) While any Series A Preferred Stock is outstanding,
the amendment of any provision of this Section C of Article V of
the Certificate of Incorporation (except amendments relating to a
stock split or reduction in the authorized shares of the series
that the New Jersey Business Corporation Act authorizes the Board
of Directors to adopt without shareholder approval) shall require
the affirmative vote of a majority of the outstanding Series A
Preferred Stock.
(iv) On any matter on which the holders of Series A
Preferred Stock shall be entitled to vote, they shall be entitled
to one vote for each share held. The holders of Series A Preferred
Stock shall vote only as a separate class; their votes shall not be
counted together with the holders of the Common Stock or any other
class or series of Preferred Stock as a single class."
THIRD: The Resolution was adopted by the Board of Directors
at a meeting duly called and held on June 14, 1994, at which time
a quorum was present throughout.
FOURTH: The Certificate of Incorporation is amended so that
the designation and number of shares of each class and series acted
upon in the resolution, and the relative rights, preferences and
limitations of each such class and series, are as amended in the
resolution.
<PAGE>
IN WITNESS WHEREOF, HUBCO, INC. caused its duly authorized
officer to execute this Certificate this 29th day of June, 1994.
HUBCO, INC.
BY:/s/ Kenneth T. Neilson
KENNETH T. NEILSON
President
