SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM 8-K
CURRENT REPORT
_________________________
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 29, 1994
SHAWMUT NATIONAL CORPORATION
Delaware 1-10102 06-1212629
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
777 Main Street, Hartford, Connecticut 06115
One Federal Street, Boston, Massachusetts 02211
(Address of principal executive offices) (Zip Code)
(203) 728-2000
Registrant's telephone number, including area code: (617) 292-2000
Not Applicable
(Former name or former address, if changed since last report)
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
The following exhibits are filed with this Current
Report on Form 8-K:
EXHIBIT
NUMBER DESCRIPTION
3(i).1 Restated Certificate of Incorporation of
Shawmut National Corporation.
3(i).2 Certificate of Amendment to the Restated
Certificate of Incorporation of Shawmut
National Corporation.
3(i).3 Certificate of Designation, Preferences
and Rights of Series A Junior
Participating Preferred Stock of Shawmut
National Corporation.
3(i).4 Certificate of Designation of 9.30%
Cumulative Preferred Stock of Shawmut
National Corporation.
3(i).5 Amended Certificate of Designation of
9.30% Cumulative Preferred Stock of
Shawmut National Corporation.
3(i).6 Certificate of Correction Filed to
Correct a Certain Error in the
Certificate of Designation of 9.30%
Cumulative Preferred Stock of Shawmut
National Corporation.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
SHAWMUT NATIONAL CORPORATION
By: /s/ Joel B. Alvord
__________________________________
Joel B. Alvord
Chairman and Chief Executive Officer
Dated: December 29, 1994
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
3(i).1 Restated Certificate of Incorporation
of Shawmut National Corporation.........
3(i).2 Certificate of Amendment to the Restated
Certificate of Incorporation of Shawmut
National Corporation...................
3(i).3 Certificate of Designation, Preferences
and Rights of Series A Junior
Participating Preferred Stock of Shawmut
National Corporation....................
3(i).4 Certificate of Designation of 9.30%
Cumulative Preferred Stock of Shawmut
National Corporation...................
3(i).5 Amended Certificate of Designation of
9.30% Cumulative Preferred Stock of
Shawmut National Corporation...........
3(i).6 Certificate of Correction Filed to
Correct a Certain Error in the
Certificate of Designation of 9.30%
Cumulative Preferred Stock of Shawmut
National Corporation...................
EXHIBIT 3(i).1
RESTATED CERTIFICATE OF INCORPORATION
OF
SHAWMUT NATIONAL CORPORATION
SHAWMUT NATIONAL CORPORATION, a corporation organized and
existing under the laws of the State of Delaware, does
hereby certify that, pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware, the
Certificate of Incorporation, originally filed with the
Secretary of State of Delaware on September 1, 1987, is
amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation is Shawmut National
Corporation (hereinafter the "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 its 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 the State
of Delaware as set forth in Title 8 of the Delaware Code
(the "GCL").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 160,000,000,
of which 150,000,000 shares with a par value of $.01
shall be common stock and of which 10,000,000 shares
without par value shall be preferred stock.
The Board of Directors of the Corporation is authorized,
subject to limitations prescribed by law and the provisions
of this Article, to provide for the issuance from time to
time in one or more series of any number of the preferred
shares, and, by filing a certificate pursuant to the GCL, to
establish the number of shares to be included in each such
series, and to fix the designation, relative rights,
preferences, qualifications and limitations of the shares of
each such series. The authority of the Board of Directors
with respect to each series shall include, but not be
limited to, determination of the following:
a. The number of shares constituting that series and
the distinctive designation of that series;
b. The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from
which date or dates, and whether they shall be payable in
preference to, or in another relation to, the dividends
payable to any other class or classes or series of stock;
c. Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if
so, the terms of such voting rights;
d. Whether that series shall have conversion or
exchange privileges, and, if so, the terms and conditions
of such conversion or exchange, including provision for
adjustment of the conversion or exchange rate in such
events as the Board of Directors shall determine;
e. Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case of
redemption, which amount may vary under different
conditions and at different redemption dates;
f. Whether that series shall be entitled to the
benefit of a sinking fund to be applied to the purchase
or redemption of shares of that series, and, if so, the
terms and amounts of such sinking fund;
g. The right of the shares of that series to the
benefit of conditions and restrictions upon the creation
of indebtedness of the Corporation or any subsidiary,
upon the issue of any additional stock (including
additional shares of such series or of any other series)
and upon the payment of dividends or the making of other
distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation;
h. The right of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation and whether such rights
shall be in preference to, or in another relation to, the
comparable rights of any other class or classes or series
of stock; and
i. Any other relative, participating, optional or
other special rights, qualifications, limitations or
restrictions of that series.
Shares of any series of preferred stock which have been
redeemed (whether through the operation of a sinking fund or
otherwise) or which, if convertible or exchangeable, have
been converted into or exchanged for shares of stock of any
other class or classes shall have the status of authorized
and unissued shares of preferred stock of the same series
and may be reissued as a part of the series of which they
were originally a part or may be reclassified and reissued
as part of a new series of preferred stock to be created by
resolution or resolutions of the Board of Directors or as
part of any other series of preferred stock, all subject to
the conditions and the restrictions adopted by the Board of
Directors providing for the issue of any series of preferred
stock.
Subject to the provisions of any applicable law, or
except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
preferred stock, the holders of outstanding shares of common
stock shall exclusively possess voting power for the
election of directors and for all other purposes, each
holder of record of shares of common stock being entitled to
one vote for each share of common stock standing in his name
on the books of the Corporation.
Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
preferred stock, after payment shall have been made to the
holders of preferred stock of the full amount of dividends
to which they shall be entitled pursuant to the resolution
or resolutions providing for the issue of any other series
of preferred stock, the holders of common stock shall be
entitled, to the exclusion of the holders of preferred stock
of any and all series, to receive such dividends as from
time to time may be declared by the Board of Directors.
Except as otherwise provided by the resolution or
resolutions providing for the issue of any series of
preferred stock, in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made
to the holders of preferred stock of the full amount to
which they shall be entitled pursuant to the resolution or
resolutions providing for the issue of any series of
preferred stock the holders of common stock shall be
entitled, to the exclusion of the holders of preferred stock
of any and all series, to share, ratable according to the
number of shares of common stock held by them, in all
remaining assets of the Corporation available for
distribution to its shareholders.
The number of authorized shares of any class may be
increased or decreased by the affirmative vote of the
holders of a majority of the stock of the Corporation
entitled to vote.
SERIES OF ADJUSTABLE RATE PREFERRED STOCK
(a) Designation. The designation of the series of
Preferred Stock created by this resolution shall be
"Preferred Stock with Cumulative and Adjustable Dividends"
(hereinafter called this "Series") and the number of shares
constituting this Series is 700,000. Shares of this Series
shall have a stated value of $50 per share. The number of
authorized shares of this Series may be reduced by further
resolution duly adopted by the Board and by the filing of a
certificate pursuant to the provisions of the GCL stating
that such reduction has been so authorized, but the number
of authorized shares of this Series shall not be increased.
(b) Dividend Rate. (1) The dividend rate on the shares
of this Series shall be $.8875 per share for the period (the
"Initial Dividend Period") from the date of their original
issue to and including March 31, 1988. Dividend rates on
the shares of this Series shall be for each quarterly
dividend period (hereinafter referred to as a "Quarterly
Dividend Period"; and the Initial Dividend Period or any
Quarterly Dividend Period being hereinafter individually
referred to as a "Dividend Period" and collectively referred
to as "Dividend Periods") thereafter, which Quarterly
Dividend Periods shall commence on January 1, April 1, July
1, and October 1, in each year and shall end on and include
the day next preceding the first day of the next Quarterly
Dividend Period, at a rate per annum of the stated value
thereof of 2.25% below the Applicable Rate (as defined in
paragraph (2) of this Section (b)) in respect of such
Quarterly Dividend Period. Anything to the contrary herein
notwithstanding, the dividend rate for any Quarterly
Dividend Period shall in no event be less than 6% or greater
than 12% per annum. Such dividends shall be cumulative from
the date of original issue of such shares and shall be
payable, when and as declared by the Board, on January 1,
April 1, July 1, and October 1, of each year, commencing on
April 1, 1988. Each such dividend shall be paid to the
holders of record of shares of this Series as they appear on
the stock register of the Corporation on such record date,
not exceeding 30 days preceding the payment date thereof, as
shall be fixed by the Board. Dividends on account of
arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend
payment date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof, as may
be fixed by the Board.
(2) Except as provided below in this paragraph, the
"Applicable Rate" for any Quarterly Dividend Period shall be
the highest of the Treasury Bill Rate, then Ten Year
Constant Maturity Rate or the Twenty Year Constant Maturity
Rate (each as hereinafter defined) for such Dividend Period.
In the event that the Corporation determines in good faith
that for any reason one or more of such rates cannot be
determined for any Quarterly Dividend Period, then the
Applicable Rate for such Quarterly Dividend Period shall be
the higher of whichever of such rates can be so determined.
In the event that the Corporation determines in good faith
that none of such rates can be determined for any Quarterly
Dividend Period, then the Applicable Rate in effect for the
preceding Dividend Period shall be continued for such
Dividend Period.
(3) Except as provided below in this paragraph, the
"Treasury Bill Rate" for each Quarterly Dividend Period
shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as provided
below) for three-month U.S. Treasury bills, as published
weekly by the Federal Reserve Board during the Calendar
Period immediately prior to the last ten calendar days of
the March, June, September or December, as the case may be,
prior to the Quarterly Dividend Period for which the
dividend rate on this Series is being determined. In the
event that the Federal Reserve Board does not publish such a
weekly per annum market discount rate during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly
per annum market discount rate, if only one such rate shall
be published during the relevant Calendar Period as provided
below) for three-month U.S. Treasury bills, as published
weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that a per annum market
discount rate for three-month U.S. Treasury bills shall not
be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Treasury Bill Rate for
such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum market discount rates (or
the one weekly per annum market discount rate, if only one
such rate shall be published during the relevant Calendar
Period as provided below) for all of the U.S. Treasury bills
then having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board shall
not publish such rates, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines
in good faith that for any reason no such U.S. Treasury Bill
Rates are published as provided above during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
noninterest-bearing U.S. Treasury securities with a maturity
of not less than 80 nor more than 100 days from the date of
each such quotation, as quoted daily for each business day
in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers
selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the
Corporation cannot determine the Treasury Bill Rate for any
Quarterly Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such Dividend Period
shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of
each such quotation, as quoted daily for each business day
in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers
selected by the Corporation.
(4) Except as provided in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period
shall be the arithmetic average of the two most recent
weekly per annum Ten Year Average Yields (or the one weekly
per annum Ten Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period as
provided below), as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the
last ten calendar days of the March, June, September or
December, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series
is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum
Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided
below), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the
event that a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Ten Year Constant
Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly average yield
to maturity, if only one such yield shall be published
during the relevant Calendar Period as provided below) for
all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities)
then having maturities of not less than eight nor more than
twelve years, as published during such Calendar Period by
the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by
the Corporation. In the event that the Corporation
determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the per
annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final
maturity date not less than eight nor more than twelve years
form the date of each such quotation, as quoted daily for
each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the
Corporation by at lest three recognized U.S. Government
securities dealers selected by the Corporation.
(5) Except as provided below in the paragraph, the
"Twenty Year Constant Maturity Rate" for each Quarterly
Dividend Period shall be the arithmetic average of the two
most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only
one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly by
the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days of the
March, June, September or December, as the case may be,
prior to the Quarterly Dividend Period for which the
dividend rate on this Series is being determined. In the
event that the Federal Reserve Board does not publish such a
weekly per annum Twenty Year Average Yield during such
Calendar Period, then the Twenty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum Twenty Year Average
Yields (or the one weekly per annum Twenty Year Average
Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published
weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that a per annum Twenty
Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period,
then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two
most recent weekly per annum average yields to maturity (or
the one weekly average yield to maturity, if only one such
yield shall be published during the relevant Calendar Period
as provided below) for all of the actively trade marketable
U.S. Treasury fixed interest securities (other than Special
Securities) then having maturities of not less than eighteen
nor more than twenty-two years, as published during such
Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant
Maturity Rate for any Quarterly Dividend Period as provided
above in this paragraph, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
eighteen nor more than twenty-two years from the date of
each such quotation, as quoted daily for each business day
in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at
least three recognized U.S. Government securities dealers
selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate
shall each be rounded to the nearest five hundredths of a
percentage point.
(7) The dividend rate with respect to each Quarterly
Dividend Period will be calculated as promptly as
practicable by the Corporation according to the appropriate
method described herein. The mathematical accuracy of each
such calculation will be confirmed in writing by independent
accountants of recognized standing. The Corporation will
cause each dividend rate to be published in a newspaper of
general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which
it applies and will cause notice of such dividend rate to be
enclosed with the dividend payment checks next mailed to the
holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which
can, at the option of the holder, be surrendered at face
value in payment of any Federal estate tax or which
provide tax benefits to the holder and are priced to
reflect such tax benefits or which were originally issued
at a deep or substantial discount.
(iii) "Ten Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to
constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the
average yield to maturity for actively traded marketable
U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set
apart for payment on Preferred Stock of any series ranking,
as to dividends, on a parity with or junior to this Series
for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such
payment on this Series for all dividend payment periods
terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full,
as aforesaid, upon the shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with
this Series, all dividends declared upon shares of this
Series and any other Preferred Stock ranking on a parity as
to dividends with this Series shall be declared pro rata so
that the amount of dividends declared per share on this
Series and such other Preferred Stock shall in all cases
bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other Preferred
Stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividend, whether payable in
cash, property or stocks, in excess of full cumulative
dividends, as herein provided, on this Series. No interest,
or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series
which may be in arrears.
(10) So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common
Stock or in any other stock ranking junior to this Series as
to dividends and upon liquidation and other than as provided
in paragraph (9) of this Section (b)) shall be declared or
paid or set aside for payment or other distribution declared
or made upon the Common Stock or upon any other stock
ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the Corporation ranking junior to or
on a parity with this Series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys paid to or made available
for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation) unless, in each
case, the full cumulative dividends on all outstanding
shares of this Series shall have been paid for all past
dividend payment periods.
(11) Dividends payable on each share of this Series for
each full Quarterly Dividend Period shall be computed by
dividing the dividend rate for such Quarterly Dividend
Period by four and applying such rate against the stated
value per share of this Series. Dividends payable on this
Series for any period less than a full Quarterly Dividend
Period shall be computed on the basis of a 360-day year
consisting of 30-day months.
(c) Redemption. (1) The shares of this Series shall
not be redeemable prior to April 1, 1988. On and after
April 1, 1988, the Corporation, at its option, may redeem
shares of this Series, as a whole or in part, at any time or
from time to time, at a redemption price (i) in the case of
any redemption on a redemption date occurring on or after
April 1, 1988, and prior to April 1, 1993, of $51.50 per
share, and (ii) in the case of any redemption on a
redemption date occurring on or after April 1, 1993, of
$50.00 per share, plus, in each case, accrued and unpaid
dividends thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding
shares of this Series are to be redeemed, the number of
shares to be redeemed shall be determined by the Board and
the shares to be redeemed shall be determined by lot or pro
rata as may be determined by the Board or by any other
method as may be determined by the Board in its sole
discretion to be equitable.
(3) In the event the Corporation shall redeem shares of
this Series, notice of such redemption shall be given by
first class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such
holder's address as the same appears on the stock register
of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to
be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption price; (iv)
the place or places where certificates for such shares are
to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the
redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights
of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so
redeemed (properly endorsed or assigned for transfer, if the
Board shall so require and the notice shall so state), such
shares shall be redeemed by the Corporation at the
redemption price aforesaid. In case fewer than all the
shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
(5) Any shares of this Series which shall at any time
have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once
more designated as part of a particular series by the Board.
(6) Notwithstanding the foregoing provisions of this
Section (c), if any dividends on this Series are in arrears,
no shares of this Series shall be redeemed unless all
outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of this Series; provided,
however, that the foregoing shall not prevent the purchase
or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders
of all outstanding shares of this Series.
(d) Conversion or Exchange. The holders of shares of
this Series shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other
class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(e) Voting. The shares of this Series shall not have
any voting powers either general or special, except that
(1) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law,
the consent of the holders of at least 66 % of all of the
shares of this Series at the time outstanding, given in
person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of
shares of this Series shall vote together as a separate
class, shall be necessary for authorizing, effecting or
validating the amendment, alteration or repeal of any of
the provisions of this Restated Certificate of
Incorporation or of any certificate amendatory thereof or
supplemental thereto (including any Certificate of
Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which
would adversely affect the preferences, rights, powers or
privileges of this Series;
(2) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law,
the consent of the holders of at least 66 % of all of the
shares of this Series and all other series of Preferred
Stock ranking on a parity with shares of this Series,
either as to dividends or upon liquidation, at the time
outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose
at which the holders of shares of this Series and such
other series of Preferred Stock shall vote together as a
single class without regard to series, shall be necessary
for authorizing, effecting or validating the creation,
authorization or issue of any shares of any class of
stock of the Corporation ranking prior to the shares of
this Series as to dividends or upon liquidation, or the
reclassification of any authorized stock of the
Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security
convertible into or evidencing the right to purchase any
such prior shares;
(3) If at the time of any annual meeting of
stockholders for the election of directors a default in
preference dividends on the Preferred Stock shall exist,
the number of directors constituting the Board of
Directors of the Corporation shall be increased by two,
and the holders of the Preferred Stock of all series
shall have the right at such meeting, voting together as
a single class without regard to series, to the exclusion
of the holders of Common Stock, to elect two directors of
the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in
arrears upon the Preferred Stock. Each director elected
by the holders of shares of Preferred Stock (herein
called a "Preferred Director") shall continue to serve as
such director for the full term for which he shall have
been elected, notwithstanding that prior to the end of
such term a default in preference dividends shall cease
to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders
of record of the outstanding shares of Preferred Stock,
voting together as a single class without regard to
series, at a meeting of the stockholders, or of the
holders of shares of Preferred Stock, called for that
purpose. So long as a default in any preference
dividends on the Preferred Stock shall exist, (A) any
vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (B))
by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B)
in the case of the removal of any Preferred Director, the
vacancy may be filled by the vote of the holders of the
outstanding shares of Preferred Stock, voting together as
a single class without regard to series, at the same
meeting at which such removal shall be voted. Each
director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. Whenever the term of
office of the Preferred Directors shall end and a default
in preference dividends shall no longer exist, the number
of directors constituting the Board of Directors of the
Corporation shall be reduced by two. For the purposes
hereof, a "default in preference dividends" on the
Preferred Stock shall be deemed to exist whenever the
amount of accrued dividends upon any series of the
Preferred Stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such
default shall be deemed to exist thereafter until, but
only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding
shall have been paid to the end of the last preceding
quarterly dividend period.
(f) Liquidation Rights. (1) Upon the dissolution,
liquidation or winding up of the Corporation, the holders of
the shares of this Series shall be entitled to receive out
of the assets of the Corporation, before any payment or
distribution shall be made on the Common Stock or on any
other class of stock ranking junior to the Preferred Stock
upon liquidation, the amount of $50.00 per share, plus a sum
equal to all dividends (whether or not earned or declared)
on such shares accrued and unpaid thereon to the date of
final distribution.
(2) Neither the sale of all or substantially all the
property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other
corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to
be a dissolution, liquidation or winding up, voluntary or
involuntary, for the purpose of this Section (f).
(3) After the payment to the holders of the shares of
this Series of the full preferential amounts provided for in
this Section (f), the holders of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
(4) In the event the assets of the Corporation available
for distribution to the holders of shares of this Series
upon any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph 1 of this Section
(f), no such distribution shall be made on account of any
shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such
dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares
of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity
shares are respectively entitled upon such dissolution,
liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of
the Corporation, the holders of the shares of this Series
then outstanding shall be entitled to be paid out of the
assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f) before any
payment shall be made to the holders of any class of capital
stock of the Corporation ranking junior upon liquidation of
this Series.
(g) Ranking of Classes of Stock. For purposes of this
resolution, any stock of any class or classes of the
Corporation shall be deemed to rank:
(1) prior to the shares of this Series, either as to
dividends or upon liquidation, if the holders of such
class or classes shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case
may be, in preference or priority to the holders of
shares of this Series;
(2) on a parity with shares of this Series, either as
to dividends or upon liquidation, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share or sinking fund provisions,
if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates
or liquidation prices, without preference or priority,
one over the other, as between the holders of such stock
and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to
dividends or upon liquidation, if such class shall be
Common Stock or if the holders of shares of this Series
shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up
of the Corporation, as the case may be, in preference or
priority to the holders of shares of such class or
classes.
FIFTH: The following provisions are inserted from 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 its
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 directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or
repeal the By-Laws of the Corporation. Notice of any
such action, specifying or describing the same shall be
contained in or accompany the notice of the meeting at
which the same is to be taken.
(3) The number of directors of the Corporation shall
be as from time to time fixed by, or in the manner
provided in, the By-Laws of the Corporation. Election of
directors need not be by written ballot unless the By-
Laws so provide.
(4) No director shall be personally liable to the
Corporation or any of its stockholders for monetary
damages for 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 GCL or (iv) for
any transaction from which the director derived an
improper personal benefit. If the GCL is amended after
approval by the stockholders of this Article FIFTH to
authorize further elimination or limitation of the
personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or
limited to the full extent permitted by the GCL, as so
amended. Any repeal or modification of this Article
FIFTH by the stockholders of the Corporation shall not
adversely affect any right or 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.
(5) 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 GCL, this Restated
Certificate of Incorporation, and any By-Laws adopted by
the stockholders; provided, however, that no By-Laws
hereafter adopted by the stockholders shall invalidate
any prior act of the directors which would have been
valid if such By-Laws had not been adopted.
SIXTH: I. A. In addition to any affirmative vote
required by law or the Restated Certificate of Incorporation
or By-Laws of the Corporation, and except as otherwise
expressly provided in paragraph II of this Article SIXTH:
(i) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (a) any
interested Stockholder (as hereinafter defined) or (b)
any other corporation (whether or not itself an
Interested Stockholder) which is or after such merger or
consolidation would be an Affiliate or Associate (as
hereinafter defined) of an Interested Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of transactions) with 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 that have a Fair Market Value as hereinafter
defined), as determined by a majority of the Continuing
Directors (as hereinafter defined), equal to ten percent
(10%) or more of the total stockholders' equity of the
Corporation as of the end of its most recent fiscal year
ended prior to the determination being made; or
(iii) the adoption of a plan or proposal or the
liquidation or dissolution of the Corporation proposed by
or on behalf of an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
(iv) 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 of equity or convertible securities of the
Corporation or any Subsidiary that is directly or
indirectly beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(v) any agreement, contract, or other arrangement
providing for any one or more of the actions specified in
clauses (i) to (iv) of this subparagraph A
shall require the affirmative vote of at least eighty
percent (80%) of the votes entitled to be cast by the
holders of the outstanding shares of Voting Stock (as
hereinafter defined), voting together as a single class.
B. The term "Business Combination" as used in this
Article SIXTH shall mean any transaction that is referred to
in any one or more of clauses (i) through (v) of
subparagraph A of paragraph (I). As used in this
definition, a "series of transactions" shall be deemed to
include not only a series of transactions with the same
Interested Stockholder but also a series of separate
transactions with an Interested Stockholder or any Affiliate
or Associate of such Interested Stockholder.
II. The provisions of paragraph (I) of this Article
SIXTH shall not be applicable to any particular Business
Combination, and such Business Combination shall require
only such affirmative vote, if any, as required by law and
any other provision of the Amended and Restated Certificate
of Incorporation or the By-Laws of the Corporation, or any
agreement with any national securities exchange, if all of
the conditions specified in either of the following sub-
paragraph A or B are met:
A. The Business Combination shall have been approved
by a majority (whether such approval is made prior to or
subsequent to the acquisition of beneficial ownership of
the Voting Stock that caused the Interested Stockholder
to become an Interested Stockholder) of the Continuing
Directors (as hereinafter defined).
B. All of the following conditions shall have been
met:
(i) The aggregate amount of (x) cash and (y) the
Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than
cash to be received per share by holders of common
stock in such Business Combination shall be at least
equal to the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Stockholder for any share of common stock in connection
with the acquisition by the Interested Stockholder of
beneficial ownership of such share (1) within the two-
year period immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested
Stockholder, whichever is higher.
(ii) The aggregate amount of (x) cash and (y) the
Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than
cash to be received per share by holders of shares of
any class or, if there be more than one series in a
class, any series of outstanding Preference Stock (as
hereinafter defined), shall be at least equal to the
highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested
Stockholder for any share of such class or, if there be
more than one series in a class, such series of
Preference Stock in connection with the acquisition by
the Interested Stockholder of beneficial ownership of
such share (1) within the two-year period immediately
prior to the Announcement Date or (2) in the
transaction in which it became an Interested
Stockholder, whichever is higher.
(iii) The consideration to be received by holders
of a particular class or series of outstanding Capital
Stock (as hereinafter defined) shall be in cash or in
the same form as previously has been paid by or on
behalf of the Interested Stockholder in connection with
its direct or indirect acquisition of beneficial
ownership of shares of such class or series of Capital
Stock. If the consideration so paid for shares of any
class or series of Capital Stock varied as to form, the
form of consideration for such class or series of
Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of
shares of such class or series of Capital Stock
previously acquired by the Interested Stockholder.
(iv) After such Interested Stockholder has become
an Interested Stockholder and prior to the consummation
of such Business Combination: (a) except as approved
by a majority of the Continuing Directors, there shall
have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or
not cumulative) on the outstanding Preference Stock;
(b) there shall have been (1) no reduction in the
annual rate of dividends paid on the common stock
(except as necessary to reflect any subdivision of the
common stock), except as approved by a majority of the
Continuing Directors, and (2) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar
transaction that has the effect of reducing the number
of outstanding shares of the common stock, unless the
failure so to increase such annual rate is approved by
a majority of the Continuing Directors; and (c) such
Interested Stockholder shall not have become the
beneficial owner of any additional shares of Capital
Stock except as part of the transaction that results in
such Interested Stockholder becoming an Interested
Stockholder and except in a transaction that, after
giving effect thereto, would not result in any increase
in the Interested Stockholder's percentage beneficial
ownership of any class of Capital Stock.
(v) After such Interested Stockholder has become an
Interested Stockholder, such Interested Stockholder
shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder of
the Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax
credits or other tax advantages provided by the
Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(vi) A proxy or information statement describing
the proposed Business Combination and complying with
the requirements of the Securities Exchange Act of 1934
and the rules and regulations thereunder (the "Act")
(or any subsequent provisions replacing such Act, rules
or regulations) shall be mailed to all stockholders of
the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or
not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent
provisions). The proxy statement shall contain on the
first page thereof, in a prominent place, any
recommendation as to the advisability (or
inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to
state and, if deemed advisable by a majority of the
Continuing Directors, the opinion of an investment
banking firm selected by a majority of the Continuing
Directors, as to the fairness (or not) of the terms of
the Business Combination, from a financial point of
view, to the holders of the outstanding shares of
Capital Stock of the Corporation other than the
Interested Stockholder and its Affiliates or Associates
(such investment banking firm to be paid a reasonable
fee for its services by the Corporation).
(vii) Such Interested Stockholder shall not have
made any major change in the Corporation's business or
equity capital structure without the approval of the
majority of the Continuing Directors.
III. For the purposes of this Article SIXTH:
A. 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 Restated
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.
B. The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group
composed of any person and any other 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 of the Corporation.
C. 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 when acting in such capacity) who:
(i) is the beneficial owner (as hereinafter
defined), directly or indirectly, of ten percent (10%)
or more of the outstanding Voting Stock; or
(ii) is an Affiliate or Associate (as hereinafter
defined) of the Corporation and at any time within the
two-year period immediately prior to the date in
question was the beneficial owner of ten percent (10%)
or more of the outstanding Voting Stock.
D. A person shall be a "beneficial owner" of any
Capital Stock:
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly,
within the meaning of Rule 13d-3 under the Act;
(ii) which such person or any of its Affiliates or
Associates has, directly or indirectly, (a) the right
to acquire (whether such right is exercisable
immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the
right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) 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 or any
shares of Capital Stock.
E. For the purposes of determining whether a person is
an Interested Stockholder pursuant to subparagraph C of
this paragraph III, the number of shares of Capital Stock
deemed to be outstanding shall include shares deemed
owned through application of sub-paragraph D of this
paragraph III 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.
F. The terms "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
under the Act, as in effect at the date of the adoption
by the Board of Directors of this Article SIXTH (the term
"registrant" in said Rule 12b-2 meaning in this case the
Corporation).
G. The term "Subsidiary" means any corporation of
which a majority of any class of equity security is
owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the
definition of Interested Stockholder set forth in
subparagraph C of this paragraph III, the term
"Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
H. The term "Continuing Director" means any member of
the Board of Directors of the Corporation (the "Board"),
while such person is a member of the Board, who is
unaffiliated with, and not a 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, who is unaffiliated with, and not a
representative of, the Interested Stockholder and is
recommended or elected to succeed a Continuing Director
by a majority of Continuing Directors.
I. The term "Fair Market Value" means (1) 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-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities
exchange registered under the Act on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing sales price 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 Quotations System or
any system then in use or, if no such closing sales
prices are available, the fair market value on the date
in question of a share of such stock as determined in
good faith by a majority of the Continuing Directors; and
(ii) in the case of property other than cash or stock,
the fair market value of such property on the date in
question as determined in good faith by a majority of the
Continuing Directors.
J. The term "Preference Stock" shall mean the
preferred stock and any other class of stock that has a
preference as to dividends and/or upon liquidation that
may from time to time be authorized in or by the
Certificate of Incorporation of the Corporation.
K. In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other
than cash to be received" as used in subparagraphs B(i)
and (ii), of paragraph II of Article SIXTH shall include
the shares of common stock and/or the shares of any class
or series of Preference Stock retained by the holders of
such shares.
IV. The provisions of this Article SIXTH shall also
apply to a Business Combination with any person who at any
time has been an Interested Stockholder notwithstanding the
fact that such person is no longer an Interested Stockholder
if, at the time the definitive agreement or other
arrangement relating to a Business Combination with such
person was entered into, it was an Interested Stockholder.
V. The Board of Directors shall have the power and duty
to determine for the purposes of this Article SIXTH, on the
basis of information known to it after reasonable inquiry,
(a) whether a person is an Interested Stockholder, (b) the
number of shares of Capital Stock beneficially owned by any
person, (c) whether a person is an Affiliate or Associate of
another, (d) whether any person has an agreement, contract
or other arrangement with another, (e) whether two or more
transactions constitute a "series of transactions," and (f)
whether the assets or securities that are the subject of any
Business Combination have a Fair Market Value equal to ten
percent (10%) or more of the total stockholders' equity of
the Corporation as of the end of its most recent fiscal year
ended prior to the determination being made. Any such
determination made in good faith shall be binding and
conclusive on all parties.
VI. Nothing contained in this Article SIXTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
VII. The fact that any Business Combination complies
with the provisions of paragraph II of this Article SIXTH
shall not be construed to impose any fiduciary duty,
obligation or responsibility on the Board of Directors, or
any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of
the Corporation, nor shall such compliance limit, prohibit
or otherwise restrict, in any manner the Board of Directors,
or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business
Combination.
VIII. Notwithstanding any other provisions of this
Restated Certificate of Incorporation or the By-Laws of the
Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of
Incorporation or the By-Laws of the Corporation), the
affirmative vote of at least eighty percent (80%) of the
votes entitled to be cast by the holders of the outstanding
shares of Voting Stock, voting together as a single class,
shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article SIXTH, provided,
that, this paragraph VIII shall not apply to, and such
eighty percent (80%) vote shall not be required for, any
amendment, repeal or adoption unanimously recommended by the
Board of Directors of the Corporation if all of such
directors are persons who would be eligible to serve as
Continuing Directors within the meaning of paragraph III of
this Article SIXTH.
SEVENTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide.
The books of the Corporation may be kept (subject to any
provision contained in the GCL) outside the State of
Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of
the Corporation.
EIGHTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of
them and/or between this Corporation and its stockholders or
any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or
receivers appointed for this Corporation under the
provisions of Section 291 of the GCL or on the application
of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of
Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be
summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation,
as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as a
consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganizations
shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or
class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
NINTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this
Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this
reservation.
IN WITNESS WHEREOF, SHAWMUT NATIONAL CORPORATION has
caused this Restated Certificate of Incorporation of SHAWMUT
NATIONAL CORPORATION to be executed on its behalf by its
Chairman of the Board, and attested to by its Secretary and
its corporate seal to be hereunto affixed this __ day of
February, 1988.
SHAWMUT NATIONAL CORPORATION
By:
President and Chief Executive Officer
(SEAL)
Attest:
General Counsel and Secretary
EXHIBIT 3(i).2
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
SHAWMUT NATIONAL CORPORATION
______________________________________
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
______________________________________
Shawmut National Corporation, a Delaware corporation
(hereinafter called the "Corporation"), does hereby certify
as follows:
FIRST: The first sentence of Article FOURTH of the
Corporation's Certificate of Incorporation is hereby amended
to read in its entirety as set forth below:
FOURTH: The total number of shares of
stock which the Corporation shall have
authority to issue is 310,000,000, of which
300,000,000 shares with a par value of $.01
shall be common stock and of which 10,000,000
shares without par value shall be preferred
stock.
SECOND: The foregoing amendment was duly adopted in
accordance with Section 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, Shawmut National Corporation has
caused this Certificate to be duly executed in its corporate
name this 1st day of September, 1994.
By:
Joel B. Alvord
Chairman and Chief Executive Officer
EXHIBIT 3(i).3
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES
A JUNIOR PARTICIPATING PREFERRED STOCK
OF
SHAWMUT NATIONAL CORPORATION
Pursuant to Section 151 of the General Corporation Law of
the State of Delaware
We, Joel B. Alvord, Chairman and Chief Executive
Officer, and Raymond A. Guenter, Secretary, of Shawmut
National Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware
(the "Corporation"), in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Restated Certificate of Incorporation
of the said Corporation, the said Board of Directors on
February 28, 1989, adopted the following resolution creating
a series of 1,500,000 shares of Preferred Stock designated
as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with
the provisions of its Restated Certificate of Incorporation,
a series of Junior Preferred Stock of the Corporation be and
it hereby is created, and that the designation and amount
thereof and the voting power, preferences and relative,
participating, optional and other special rights of the
shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
SECTION 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock" and the number of shares constituting such
series shall be 1,500,000.
SECTION 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the
first day of January, April, July and October in each year
(each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $2.00 and (b)
subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on
the Common Stock, par value $0.01 per share, of the
Corporation (the "Common Stock") since the immediately
preceding Quarterly Dividend Payment Date, or, with respect
to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the Corporation
shall at any time after February 28, 1989 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in paragraph (A) above immediately after
it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend
of $2.00 per share on the Series A Junior Participating
Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating
Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A
Junior Participating Preferred Stock, unless the date of
issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in
among less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Junior Participating Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the
number of votes per share to which holders of shares of
Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) If at any time a "default in preference
dividends" (as defined in Article FOURTH of the
Corporation's Restated Certificate of Incorporation) on any
Series A Junior Participating Preferred Stock exists, during
the period while such default in preference dividends
exists, all holders of Series A Junior Participating
Preferred Stock shall, in accordance with the provisions of
said Article FOURTH, have the right, voting together with
the holders of shares of all other series of Preferred Stock
as one class, irrespective of series, to elect two (2)
Directors.
(D) Except as set forth herein, holders of Series A
Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders
of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distribution, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series
A Junior Participating Preferred Stock, provided that
the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective rights and preferences of
the respective series and classes, shall determining in
good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the corporation unless
the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation Dissolution or Winding Up. (A)
Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be
made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Series
A Junior Participating Preferred Stock shall have received
$100 per share, plus an amount equal to accrued an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such
payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the
holders of shares of Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Common
Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i)
the Series A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in subparagraph C below
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such
number in clause (ii) being referred to as the "Adjustment
Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of the Series A
Junior Participating Preferred Stock and of such parity
shares in proportion to their respective liquidation
preferences. In the event, however, that after payment in
full of the Series A Liquidation Preference and the
liquidation preferences of all other series of preferred
stock, if any, that rank on a party with the Series A Junior
Participating Preferred Stock, there are not sufficient
assets remaining to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of Series A Junior Participating
Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating Preferred
Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 8. Optional Redemption. (A) The Corporation
shall have the option to redeem the whole or any part of the
Series A Junior Participation Preferred Stock at any time at
a redemption price equal to, subject to the provisions for
adjustment hereinafter set forth, 100 times the "current per
share market price" of the Common Stock on the date of the
mailing of the notice of redemption, together with unpaid
accumulated dividends to the date of such redemption. In
the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series A
Junior Participating Preferred Stock were otherwise entitled
immediately prior to such event under the preceding sentence
shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
The "current per share market price" on any date shall be
deemed to be the average of the closing price per share of
such Common Stock for the 10 consecutive Trading Days (as
such term is hereinafter defined) immediately prior to such
date. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or,
if the Common Stock is not listed or admitted to trading on
any national securities exchange, the last quoted price or,
if not so quoted the average of the high bid and low asked
prices in the over-the counter marker, as reported by the
National Associations of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use
or, if on any such date the Common Stock is not quoted by
any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of
Directors of the Corporation. If on such date no such
market maker is making a market in the Common Stock, the
fair value of the Common Stock on such date as determined in
good faith by the Board of Directors of the Corporation
shall be used. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which
the Common Stock is listed or admitted to trading is open
for the transaction of business or, if the Common Stock is
not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday or Friday
on which banking institutions in the State of New York are
not authorized or obligated by law or executive order to
close.
(B) Notice of any such redemption shall be given by
mailing to the holders of the Series A Junior Participating
Preference Stock a notice of such redemption, first class
postage prepaid, not later than the thirtieth day and not
earlier than the sixtieth day before the date fixed for
redemption, at their last address as the same shall appear
upon the books of the Corporation. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the
shareholder received such notice, and failure duly to give
such notice by mail, or any defect in such notice, to any
holder of Series A Junior Participating Preferred Stock
shall not affect the validity of the proceedings for the
redemption of such Series A Junior Participating Preferred
Stock. If less than all the outstanding shares of Series A
Junior Participating Preferred Stock are to be redeemed, the
redemption shall be made by lot as determined by the Board
of Directors.
(C) The notice of redemption of each holder of Series
A Participating Junior Preferred Stock shall specify (a) the
number of shares of Series A Participating Junior Preferred
Stock of such holder to be redeemed, (b) the date fixed for
redemption, (c) the redemption price and (d) the place of
payment of the redemption price.
(D) If any such notice of redemption shall have been
duly given or if the Corporation shall have given to the
bank or trust company hereinafter referred to irrevocable
written authorization promptly to give or complete such
notice, and if on or before the redemption date specified
therein the funds necessary for such redemption shall have
been deposited by the Corporation with the bank or trust
company designated in such notice, doing business in the
United States of America and having a capital, surplus and
undivided profits aggregating at least $25,000,000 according
to its last published statement of condition, in trust for
the benefit of the holders of Series A Junior Participating
Preferred Stock called for redemption, then, notwithstanding
that any certificate for such shares so called for
redemption shall not have been surrendered for cancellation,
from and after the time of such deposit all such shares
called for redemption shall no longer be deemed outstanding
and all rights with respect to such shares no longer be
deemed outstanding and all rights with respect to such
shares shall forthwith cease and terminate, except the right
of the holders thereof to receive from such bank or trust
company at any time after the time of such deposit the funds
so deposited, without interest, and the right to exercise,
up to the close of business on the fifth day before the date
fixed for redemption, all privileges of conversion or
exchange if any. In case less than all the shares
represented by any surrendered certificate are redeemed, a
new certificate shall be issued representing the unredeemed
shares. Any interest accrued on such funds shall be paid to
the Corporation from time to time. Any funds so deposited
and unclaimed at the end of six years from such redemption
date shall be repaid to the Corporation, after which the
holders of shares of Series A Junior Participating Preferred
Stock called for redemption shall look only to the
Corporation for payment thereof; provided that any funds so
deposited which shall not be required for redemption because
of the exercise of any privilege of conversion or exchange
subsequent to the date of deposit shall be repaid to the
Corporation forthwith.
Section 9. Ranking. The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of dividends
and the distribution of assets, unless the terms of any such
series shall provide otherwise.
Section 10. Amendment. So long as any shares of
Series A Junior Participating Preferred Stock are
outstanding, the Restated Certificate of Incorporation of
the Corporation shall not be further amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior
Participating Preferred Stock may be issued in fractions of
a share which shall entitle the holder, in proportion to
such holders fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A
Junior Participating Preferred Stock.
WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the
penalties of perjury this 28th day of February, 1989.
Joel B. Alvord
President and Chief Executive Officer
Attest:
Raymond A. Guenter
Secretary
EXHIBIT 3(i).4
CERTIFICATE OF DESIGNATION
OF
9.30% CUMULATIVE PREFERRED STOCK
(WITHOUT PAR VALUE,
$250 STATED VALUE)
OF
SHAWMUT NATIONAL CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
SHAWMUT NATIONAL CORPORATION, a corporation
organized and existing under the laws of the State of
Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of
Directors of the Corporation and by the Preferred Stock
Committee of the Board of Directors, respectively, pursuant
to authority conferred upon the Board of Directors by the
provisions of the Certificate of Incorporation of the
Corporation which authorize the issuance of up to 10,000,000
shares of preferred stock, without par value ("Preferred
Stock") and which expressly grants to the Board of Directors
of the Corporation, subject to the limitations prescribed by
law and the provisions of the Certificate of Incorporation,
as amended, the authority to provide for the issuance from
time to time in one or more series of any number of
preferred shares and to establish the number of shares to be
included in each series, and to fix the designation,
relative rights, preferences, qualifications and limitations
of the shares, of each such series as shall be stated in the
Certificate of Incorporation or any amendment thereto or in
the resolutions providing for the issue of such stock
adopted by the Board of Directors, and pursuant to authority
conferred upon the Preferred Stock Committee of the Board of
Directors by Section 141(c) of the General Corporation Law
of the State of Delaware, by the By-Laws of the Corporation
and by the resolutions of the Board of Directors set forth
herein, at a meeting of the Board of Directors duly held on
October 27, 1992:
The Board of Directors on October 27, 1992 adopted
the following resolutions designating a Preferred Stock
Committee of the Board of Directors and authorizing such
committee to act on behalf of the Board of Directors in
connection with the issuance from time to time of 690,000
shares of preferred stock, without par value, $250 stated
value, of the Corporation (the "Preferred Shares"):
"VOTED: That the Board of Directors deems it in
the best interests of the Corporation to constitute and
appoint a special committee of the Board of Directors to be
designated the Preferred Stock Committee, which Committee
shall be comprised at all times of not less than two members
of the Board of Directors; and be it further
VOTED: That the initial members of the Preferred
Stock Committee shall be Joel B. Alvord and Gunnar S.
Overstrom, Jr.; and be it further
VOTED: That the Preferred Stock Committee be and
hereby is authorized and empowered to act on behalf and in
the stead of the Board of Directors in connection with the
issuance of one or more series of the Preferred Shares and,
in connection therewith, is hereby authorized, to the
fullest extent permitted by the Delaware General Corporation
Law as it now exists or is hereafter amended, to determine
the price and dividend rate at which the Preferred Shares of
each such series will be sold by the Corporation and to
determine the designation, preferences and rights of such
shares relating to dividends, redemption, dissolution, and
any distribution of assets of the corporation;"
1. The Board of Directors, on October 27, 1992,
and the Preferred Stock Committee, on November 3, 1992,
adopted the following resolutions:
"VOTED: That the Preferred Shares shall have the
designations, preferences, rights, qualifications and
limitations as follows:
(a) Designation. The Preferred Shares shall be
designated the "9.30% Cumulative Preferred Stock" and
the number of shares constituting this series shall be
690,000. Such Preferred Shares shall have a stated
value of $250 per share. The number of authorized
Preferred Shares may be reduced by further resolution
duly adopted by the Board and by the filing of a
certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number
of authorized Preferred Shares shall not be increased.
(b) Dividends.
(1) Dividend periods ("Dividend Periods")
shall commence on January 1, April 1, July 1 and
October 1 in each year and shall end on and
include the day next preceding the first day of
the next Dividend Period. The dividend rate on
the Preferred Shares from November 3, 1992 to and
including December 31, 1992 (the "Initial Dividend
Period") and for each Dividend Period thereafter
will be 9.30% per annum of the stated value
thereof. Such dividends shall be cumulative from
November 3, 1992 and shall be payable when and as
declared by the board, on January 15th, April
15th, July 15th and October 15th of each year,
commencing January 15, 1993. Each such dividend
shall be paid to the holders of record of
Preferred Shares as they appear on the stock
register of the Corporation on such record date,
not exceeding 30 days preceding the payment date
thereof, as shall be fixed by the Board.
Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any
time, without reference to any regular dividend
payment date, to holders of record on such date,
not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board.
(2) No full dividends shall be declared or
paid or set apart for payment on Preferred Stock
of any series ranking, as to dividends, on a
parity with or junior to the Preferred Shares for
any period unless full cumulative dividends have
been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment
thereof set apart for such payment on the
Preferred Shares for all dividend payment periods
terminating on or prior to the date of payment of
such full cumulative dividends. When dividends
are not paid in full, as aforesaid, upon the
Preferred Shares and any other Preferred Stock
ranking on a parity as to dividends with the
Preferred Shares, all dividends declared upon
shares of the Preferred Shares and any other
Preferred Stock ranking on a parity as to
dividends with the Preferred Shares shall be
declared pro rata so that the amount of dividends
declared per share on the Preferred Shares and
such other Preferred Stock shall in all cases bear
to each other the same ratio that accrued
dividends per share on the Preferred Shares and
such other Preferred Stock bear to each other.
Holders of the Preferred Shares shall not be
entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative
dividends, as herein provided, on the Preferred
Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any
dividend payment or payments on the Preferred
Shares which may be in arrears.
(3) So long as any of the Preferred Shares
are outstanding, no dividend (other than a
dividend in Common Stock or in any other stock
ranking junior to the Preferred Shares as to
dividends and upon liquidation and other than as
provided in paragraph (2) of this Section (b))
shall be declared or paid or set aside for payment
or other distribution declared or made upon the
Common Stock or upon any other stock ranking
junior to or on a parity with the Preferred Shares
as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with
the Preferred Shares as to dividends or upon
liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by
the Corporation (except by conversion into or
exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and
upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding Preferred
Shares shall have been paid for all past dividend
payment periods.
(4) Dividends payable on each Preferred
Share for each Dividend Period shall be computed
by annualizing the applicable dividend rate and
dividing by four. Dividends payable on the
Preferred Shares for any period less than a full
Dividend Period shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
(c) Redemption.
(1) The Preferred Shares shall not be
redeemable prior to October 15, 1997. On and
after October 15, 1997, the Corporation, at its
option, may redeem the Preferred Shares, as a
whole or in part, at any time or from time to time
at a redemption price equal to $250 per share plus
accrued and unpaid dividends thereon to the date
fixed for redemption.
(2) In the event that fewer than all the
outstanding Preferred Shares are to be redeemed,
the number of shares to be redeemed shall be
determined by the Board and the shares to be
redeemed shall be determined by lot or pro rata as
may be determined by the Board of Directors of the
Corporation or by any duly authorized committee
thereof or by any other method as may be
determined by the Board of Directors of the
Corporation or by any duly authorized committee
thereof in its sole discretion to be equitable,
provided that such method satisfies any applicable
requirements of any securities exchange on which
the Preferred Shares are listed.
(3) In the event the Corporation shall
redeem Preferred Shares, notice of such redemption
shall be given by first class mail, postage
prepaid, mailed not less that 30 nor more than 60
days prior to the redemption date, to each holder
of record of the shares to be redeemed, at such
holder's address as the same appears on the stock
register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the
number of Preferred Shares to be redeemed and, if
fewer than all the shares held by such holder are
to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates
for such shares are to be surrendered for payment
of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on
such redemption date.
(4) Notice having been mailed as aforesaid,
from and after the redemption date (unless default
shall be made by the Corporation in providing
money for the payment of the redemption price)
dividends on the Preferred Shares so called for
redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders
of the Corporation (except the right to receive
from the Corporation the redemption price) shall
cease. Upon surrender in accordance with said
notice of the certificates for any shares so
redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the
Corporation or any duly authorized committee
thereof shall so require and the notice shall so
state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. In
case fewer than all the shares represented by any
such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares
without cost to the holder thereof.
(5) Any of the Preferred Shares which shall
at any time have been redeemed shall, after such
redemption, have the status of authorized but
unissued shares of Preferred Stock, without
designation as to series until such shares are
once more designated as part of a particular
series by the Board of Directors of the
Corporation or any duly authorized committee
thereof.
(6) Notwithstanding the foregoing provisions
of this Section (c), if any dividends on the
Preferred Shares are in arrears, no Preferred
Shares shall be redeemed unless all outstanding
Preferred Shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase
or otherwise acquire any Preferred Shares;
provided, however, that the foregoing shall not
prevent the purchase or acquisition of Preferred
Shares pursuant to a purchase or exchange offer
made on the same terms to holders of all
outstanding Preferred Shares.
(d) Conversion or Exchange. The holders of the
Preferred Shares shall not have any rights herein to
convert such shares into or exchange such shares for
shares of any other class or classes or of any other
series of any class or classes of capital stock of the
Corporation.
(e) Voting. The Preferred Shares shall not have
any voting powers, either general or special, except
that
(i) Unless the vote or consent of the
holders of a greater number of shares shall then
be required by law, the consent of the holders of
at least 66 2/3% of all of the Preferred Shares at
the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called
for the purpose at which the holders of Preferred
Shares shall vote together as a separate class,
shall be necessary for authorizing, effecting or
validating the amendment, alteration or repeal of
any of the provisions of the Restated Certificate
of Incorporation or of any certificate amendatory
thereof or supplemental thereto (including any
Certificate of Designation, Preferences and Rights
or any similar document relating to any series of
Preferred Stock) which would adversely affect the
preferences, rights, powers or privileges of the
Preferred Shares;
(ii) Unless the vote or consent of the
holders of a greater number of shares shall then
be required by law, the consent of the holders of
at least 66 2/3% of all of the Preferred Shares
and all other series of Preferred Stock ranking on
a party with the Preferred Shares, either as to a
parity with the Preferred Shares, either as to
dividends or upon liquidation, at the time
outstanding, given in person or by proxy, either
in writing or by a vote at a meeting called for
the purpose at which the holders of Preferred
Shares and such other series of Preferred Stock
shall vote together as a single class without
regard to series, shall be necessary for
authorizing, effecting or validating the creation,
authorization or issue of any shares of any class
of stock of the Corporation ranking prior to the
Preferred Shares as to dividends or upon
liquidation, or the reclassification of any
authorized stock of the Corporation into any such
prior shares, or the creation, authorization or
issue of any obligation or security convertible
into or evidencing the right to purchase any such
prior shares;
(iii) If at the time of any annual meeting
of stockholders for the election of directors a
default in preference dividends (as defined below)
on the Preferred Stock shall exist, the number of
directors constituting the Board of Directors of
the Corporation shall be increased by two, and the
holders of the Preferred Stock of all series shall
have the right at such meeting, voting together as
a single class without regard to series, to the
exclusion of the holders of common stock, to elect
two directors of the Corporation to fill such
newly created directorships. Such right shall
continue until there are no dividends in arrears
upon the Preferred Stock. Each director elected
by the holders of shares of Preferred Stock
(herein called a "Preferred Director") shall
continue to serve as such director for the full
term for which he or she shall have been elected,
notwithstanding that prior to the end of such term
a default in preference dividends shall cease to
exist. Any Preferred Director may be removed by,
and shall not be removed except by, the vote of
the holders of record of the outstanding shares of
Preferred Stock, voting together as a single class
without regard to series, at a meeting of the
stockholders, or of the holders of shares of
Preferred Stock, called for the purpose. So long
as a default in any preference dividends on the
Preferred Stock shall exist, (a) any vacancy in
the office of a Preferred Director may be filled
(except as provided in the following clause (b))
by an instrument in writing signed by the
remaining Preferred Director and filed with the
Corporation and (b) in case of the removal of any
Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding shares
of Preferred Stock, voting together as a single
class without regard to series, at the same
meeting at which such removal shall be voted.
Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for
all purposes hereof, to be a Preferred Director.
Whenever the term of office of the Preferred
Directors shall end and a default in preference
dividends shall no longer exist, the number of
directors constituting the Board of Directors of
the Corporation shall be reduced by two. For the
purposes hereof, a "default in preference
dividends" on the Preferred Stock shall be deemed
to exist whenever the amount of accrued dividends
upon any series of Preferred Stock shall be
equivalent to six full quarter-yearly dividends or
more, and, having so occurred, such default shall
be deemed to exist thereafter until, but only
until, all accrued dividends on all shares of
Preferred Stock of each and every series then
outstanding shall have been paid to the end of the
last preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, the holders of the Preferred Shares
shall be entitled to receive, before any payment
or distribution shall be made on the Common Stock
or on any other class of stock ranking junior to
the Preferred Shares upon liquidation, the amount
of $250 per share, plus a sum equal to all
dividends (whether or not earned or declared) on
such shares accrued and unpaid thereon to the date
of final distribution.
(2) Neither the sale of all or substantially
all of the property or business of the
Corporation, nor the merger or consolidation of
the Corporation into or with any other
corporation, nor the merger or consolidation of
any other corporation into or with the
Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or
involuntary, for the purpose of this Section (f).
(3) After the payment to the holders of the
Preferred Shares of the full preferential amounts
provided for in this Section (f), the holders of
the Preferred Shares as such shall have no right
or claim to any of the remaining assets of the
Corporation.
(4) In the event the assets of the
Corporation available for distribution to the
holders of the Preferred Shares upon any
dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts
to which such holders are entitled pursuant to
paragraph (1) of this Section (f), no such
distribution shall be made on account of any
shares of any other class or series of Preferred
Stock ranking on a parity with the Preferred
Shares upon such dissolution, liquidation or
winding up unless proportionate distributive
amounts shall be paid on account of the Preferred
Shares, ratably, in proportion to the full
distributable amounts for which holders of all
such parity shares are respectively entitled upon
such dissolution, liquidation or winding up.
(5) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation, the holders of the Preferred Shares
then outstanding shall be entitled to be paid out
of the assets of the Corporation available for
distribution to its stockholders all amounts to
which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any
payment shall be made to the holders of any class
of capital stock of the Corporation ranking
junior upon liquidation to the Preferred Shares.
(g) Ranking of Classes of Stock. For purposes of
this resolution, any stock of any class or classes of the
Corporation shall be deemed to rank:
(1) prior to the Preferred Shares, either as
to dividends or upon liquidation, if the holders
of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable
upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the
holders of the Preferred Shares;
(2) on a parity with the Preferred Shares,
either as to dividends or upon liquidation,
whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices
per share or sinking fund provisions, if any, be
different from those of the Preferred Shares, if
the holders of such stock shall be entitled to the
receipt of dividends or of amounts distributable
upon voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, as
the case may be, in proportion to their respective
dividend rates or liquidation prices, without
preference or priority, one over the other, as
between the holders of such stock and the holders
of the Preferred Shares; and
(3) junior to the Preferred Shares, either
as to dividends or upon liquidation, if such class
shall be Common Stock or if the holders of the
Preferred Shares shall be entitled to receipt of
dividends or of amounts distributable upon
voluntary or involuntary dissolution, liquidation
or winding up of the Corporation, as the case may
be, in preference or priority to the holders of
shares of such class or classes.
IN WITNESS WHEREOF, Shawmut National Corporation
has caused its corporate seal to be hereunto affixed and
this Certificate to be signed by its Chairman and Chief
Executive Officer, Joel B. Alvord, and attested by its
Secretary, Raymond A. Guenter, this 3rd day of November,
1992.
SHAWMUT NATIONAL CORPORATION
By:
Name: Joel B. Alvord
Title: Chairman and Chief
Executive Officer
[Corporate Seal]
Attest:
Secretary
EXHIBIT 3(i).5
SHAWMUT NATIONAL CORPORATION
____________________________
AMENDED CERTIFICATE OF DESIGNATION
OF 9.30% CUMULATIVE PREFERRED STOCK
Pursuant to Section 151 of the
General Corporation Law of the
State of Delaware
We, Joel B. Alvord and Raymond A. Guenter, being
the Chairman and Chief Executive Officer and Secretary,
respectively, of Shawmut National Corporation, a Delaware
Corporation (the Corporation ), pursuant to resolutions of
the Board of Directors of the Corporation adopted November
24, 1992 at a duly constituted meeting, hereby certify:
FIRST: That the Corporation filed a Certificate
of Designation on November 4, 1992 designating 690,000 of
the authorized preferred stock as 9.30% Cumulative
Preferred Stock.
SECOND: That the Corporation s Certificate of
Designation is hereby amended to reduce the number of shares
constituting the series from 690,000 to 575,000.
THIRD: That only 575,000 of the Corporation s
9.30% Cumulative Preferred Stock have been issued.
FOURTH: That said Amended Certificate of
Designation has been duly adopted in accordance with the
provisions of Section 151 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, we have caused this
Certificate to be signed and attested by the Corporation s
duly authorized officers this 24th day of November, 1992.
CORPORATE SEAL ______________________________
Joel B. Alvord
Chairman and Chief Executive Officer
ATTEST:
_________________________
Raymond A. Guenter
Secretary
EXHIBIT 3(i).6
CERTIFICATE OF CORRECTION
CERTIFICATE OF CORRECTION FILED
TO CORRECT A CERTAIN ERROR IN THE
CERTIFICATE OF DESIGNATION OF
9.30% CUMULATIVE PREFERRED STOCK OF
SHAWMUT NATIONAL CORPORATION
FILED IN THE OFFICE OF THE SECRETARY OF
STATE OF DELAWARE ON NOVEMBER 4, 1992, AND
RECORDED IN THE OFFICE OF THE RECORDER
OF DEEDS FOR NEW CASTLE COUNTY, DELAWARE
ON NOVEMBER 4, 1992
Shawmut National Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law
of the State of Delaware,
DOES HEREBY CERTIFY:
(v) The name of the corporation is Shawmut
National Corporation.
(vi) A Certificate of Designation of 9.30%
Cumulative Preferred Stock (the Certificate ) was
filed by the Secretary of State of Delaware on
November 4, 1992 and recorded in the office of the
Recorder of Deeds of New Castle County on November
4, 1992, and said Certificate requires correction
as permitted by subsection (f) of Section 103 of
the General Corporation Law of the State of
Delaware.
(vii) The inaccuracy or defect of said
Certificate is as follows: The dates January 1,
April 1, July 1 and October 1" in the second and
third lines of Section 2(b)(1) of the Certificate
should be deleted and the dates January 16, April
16, July 16 and October 16 should be inserted in
lieu thereof. The date December 31, 1992" in the
seventh line of the same subsection should be
deleted and the subsection should be deleted and
the date January 15, 1993 should be inserted in
lieu thereof.
(viii) The first two sentences of Section 2(b)(1)
of the Certificate are corrected to read as
follows:
(1) Dividend periods ( Dividend Periods ) shall
commence on January 16, April 16, July 16 and
October 16 in each year and shall end on and
include the day next preceding the first day of
the next Dividend Period. The dividend rate on
the Preferred Shares from November 3, 1992 to and
including January 15, 1993 (the Initial Dividend
Period ) and for each Dividend Period thereafter
will be 9.30% per annum of the stated value
thereof.
IN WITNESS WHEREOF, Shawmut National Corporation has
caused its corporate seal to be hereunto affixed and this
Certificate to be signed by its Chairman and Chief Executive
Officer, Joel B. Alvord, and attested by its Secretary,
Raymond A. Guenter, this 13th day of November, 1992.
SHAWMUT NATIONAL CORPORATION
By: ______________________________
Name: Joel Alvord
Title: Chairman and Chief
Executive Officer
[Corporate Seal]
Attest:
______________________________
Secretary
