EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
INTER-REGIONAL FINANCIAL GROUP, INC.
FIRST: The name of this Corporation is Inter-Regional
Financial Group, Inc.
SECOND: The registered office of the Corporation in the
State of Delaware is to be located at The Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801. The name
of the registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any part
of the world in any capacity in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware, and the Corporation shall be
authorized to exercise and enjoy all powers, rights and
privileges which corporations organized under the General
Corporation Law of Delaware may have under the laws of the
State of Delaware as in force from time to time, including
without limitation all powers, rights and privileges
necessary or convenient to carry out all those acts and
activities in which it may lawfully engage.
FOURTH: Section 1. Shares, Classes and Series
Authorized. The total number of shares of stock which this
Corporation is authorized to issue is 22,501,940 shares, of
which 20,000,000 shares of the par value of $.125 per share are
designated Common Stock, and 2,000,000 shares of the par value of
$1.00 per share are designated $1 Par Value Preferred
Stock, 1,940 shares of the par value of $100 per share are
designated 7% Convertible Preferred Stock and 500,000 shares
of the par value of $16.00 per share are designated as $16
Par Value Preferred Stock. The $1 Par Value Preferred Stock,
the 7% Convertible Preferred Stock and the $16 Par Value
Preferred Stock are herein collectively referred to as the
"Preferred Stock".
The Preferred Stock is hereby authorized to be issued from time
to time in one or more series, the shares of each series to
have such voting powers, full or limited, or no voting power,
and such designations, preferences and relative,
participating, optional or other special rights and
qualifications, limitations or restrictions thereof and may be
convertible into, or exchangeable for, at the option of either
the holder or the Corporation or upon the happening of a
specified event, shares of any other class or classes or any
other series of the same or any other class or classes of
capital stock of the Corporation at such price or prices or at
such rate or rates of exchange and with such adjustments as
shall be stated and expressed in the Certificate of
Incorporation or any amendment thereto or in the resolution or
resolutions adopted by the Board of Directors providing for
the issue thereof.
Section 2. Description of Capital Stock. The following is a
description of each of the classes of capital stock which the
Corporation has authority to issue with the
designations, preferences, voting powers and participating,
optional or other special rights and the qualifications,
limitations or restrictions thereof:
PREFERRED STOCK
A. Rights and Restrictions of Preferred Stock.
Authority is hereby expressly vested in the Board of
Directors of the Corporation, subject to the provisions of this
Article FOURTH and to the limitations prescribed by law,
to authorize the issue from time to time of one or more series
of Preferred Stock and with respect to each such series to fix
by resolution or resolutions adopted by the affirmative
vote of a majority of the whole Board of Directors providing
for the issue of such series the voting powers, full or
limited, if any, of the shares of such series and the
designations, preferences and relative, participating, optional
or other special rights and qualifications, limitations or
restrictions thereof. The authority of
the Board of Directors with respect to each series
shall include, but not be limited to:
(1) The designation of such series.
(2) The dividend rate of such series, the
conditions and dates upon which such dividends shall be
payable, the relation which such dividends shall bear to
the dividends payable on any other class or classes or
series of the Corporation's capital stock, and whether
such dividends shall be cumulative or non-cumulative.
(3) Whether the shares of such series shall be
subject to redemption by the Corporation or the holder or
both or upon the happening of a specified event, and, if
made subject to any such redemption, the times or events, prices
and other terms and conditions of such redemption.
(4) The terms and amount of any sinking fund
provided for the purchase or redemption of the shares of such
series.
(5) Whether or not the shares of such series
shall be convertible into, or exchangeable for, at the option of
either the holder or the Corporation or upon the happening of a
specified event, shares of any other class or classes or of
any other series of the same or any other class or classes of
the Corporation's capital stock, and, if provision be
made for conversion or exchange, the times or events, prices,
rates, adjustments, and other terms and conditions of such
conversions or exchanges.
(6) The restrictions, if any, on the issue or
reissue of any additional Preferred Stock.
(7) The rights of the holders of the shares of such
series upon the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
(8) The provisions as to voting, optional
and/or other special rights and preferences, if any.
7% CONVERTIBLE PREFERRED STOCK
B. Dividends. The holders of 7% Convertible Preferred
Stock shall be entitled to receive, when and as declared
by the Board of Directors, out of any funds legally available
for such purpose, cash dividends at the rate of $7.00 per
annum per share, payable semi-annually on the first day of June
and December of each year. Such dividends shall be cumulative
on the 7% Convertible Preferred Stock from the date of original
issue and shall be cumulative whether or not earned. In no event shall
any dividend (other than dividends payable in Common Stock of
the Corporation) be paid or declared nor shall any distribution
be made on the Common Stock nor shall any Common Stock be
purchased, redeemed or otherwise acquired by the Corporation
for value nor shall any monies be paid to or set aside or made
available for a purchase fund or sinking fund for the purchase
or redemption of any Common Stock unless all dividends on the 7%
Convertible Preferred Stock for all past semi-annual dividend periods
and for the then current semi-annual dividend period shall have been paid
or declared and a sum sufficient for the payment thereof set apart for payment.
C. Dissolution, Liquidation and Winding Up. In the
event of any dissolution, liquidation or winding up of the
affairs of the Corporation, whether voluntary or involuntary,
the holders of 7% Convertible Preferred Stock shall be
entitled to receive in cash out of the assets of the
Corporation an amount equal to $100 per share, together with
an amount equal to dividends accumulated and unpaid thereon
to the date of distribution before any payment shall be made or any
assets distributed to the holders of Common Stock as a
distribution of assets on such liquidation, dissolution or
winding up. If the assets available are not sufficient
to pay in full the amounts so payable to the holders of all 7%
Convertible Preferred Stock, the holders of 7% Convertible
Preferred Stock shall share ratably in any distribution of
assets in proportion to the full amounts to which they would
otherwise be entitled. The consolidation or merger of
the Corporation into or with any other corporation or
corporations pursuant to the statutes of the State of Delaware
shall not be deemed liquidation, dissolution or winding up of
the Corporation with the meaning of any of the provisions of
this section.
D. Voting Rights. The holders of 7% Convertible
Preferred Stock shall be entitled to one vote per share.
E. Redemption. From and after June 30, 1977, the 7%
Convertible Preferred Stock may be redeemed as a whole at any
time or in part from time to time at the option of the
Corporation by resolution of the Board of Directors at the
redemption price of $100 per share together with an amount
equal to accrued and unpaid dividends thereon to the redemption
date. If less than all of the outstanding shares of 7%
Convertible Preferred Stock are to be redeemed pursuant to
this paragraph, the shares to be redeemed shall be
determined either by lot or pro rata in such manner as the Board
of Directors may prescribe.
If at any time (whether before or after June 30, 1977) a
holder of 7% Convertible Preferred Stock shall not be approved by
the New York Stock Exchange, Inc. (the "NYSE") or by the
Board of Governors of the NYSE, and such approval shall be
required, the Corporation may redeem all, but not less than all,
of the shares of 7% Convertible Preferred Stock held by such holder
at the redemption price of $100 per share together with an amount
equal to accrued and unpaid dividends thereon to the redemption
date.
Notice of every redemption of 7% Convertible Preferred
Stock shall be mailed, addressed to the holders of record of
the shares to be redeemed at their respective addresses as they
appear on the stock books of the Corporation, not less than
one month and not more than three months prior to the date
fixed for redemption. Notice of such redemption shall
simultaneously be given to the NYSE.
If notice of redemption shall have been duly given as
aforesaid, and if, on or before the redemption date specified
in the notice, all funds necessary for the redemption shall
have been deposited in trust with a bank or trust company in
good standing and doing business at any place within the
United States of America, having capital, surplus and
undivided profits aggregating at least $1,000,000, and
designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption,
so as to be and continue to be available therefor, then from and
after the date of such deposit, notwithstanding that any
certificate for 7% Convertible Preferred Stock so called for
redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no longer
be deemed outstanding, the dividends thereon shall cease to
accumulate from and after the date fixed for redemption, and
all rights with respect to the 7% Convertible Preferred Stock
so called for redemption shall forthwith on the date of such
deposit cease and terminate, except only the right
of the holders thereof to receive the redemption price of shares
so redeemed, including accrued dividends to the redemption
date, but without interest, and, in the case of such deposit,
any conversion rights not theretofore expired shall cease
and terminate. Any funds deposited by the Corporation
pursuant to this paragraph and unclaimed at the end of six
years after the date fixed for redemption shall be repaid to
the Corporation upon its request expressed in a resolution of
its Board of Directors, after which repayment, the holders of
the shares so called for redemption shall look only to the
Corporation for the payment thereof.
F. Conversion Rights. The 7% Convertible Preferred
Stock shall be convertible into Common Stock at the option of
the holder thereof at any time after June 30, 1977 as
hereinafter in this Section F provided. Each share of 7%
Convertible Preferred Stock shall be convertible into
the number of whole shares of Common Stock obtained by dividing
the sum of $100 by the market value of the Common Stock of
the Corporation as hereinafter defined. Upon conversion no
payment or adjustment on account of dividends accrued for the
then current semi-annual dividend period on 7% Convertible Preferred
Stock surrendered for conversion shall be made, but the
Corporation shall make a cash payment equal to all dividends
accrued but unpaid for all past dividend periods.
The market value of the Common Stock of the
Corporation shall be determined as follows, whichever is
applicable: (a) If the Common Stock of the Corporation
shall be listed upon a stock exchange registered under the
Securities Exchange Act of 1934, the market value shall equal
the average of the closing price on that exchange for the
ten business days preceding the date on which the notice of
election to convert is given; (b) If the Common Stock of
the Corporation is not listed on such an exchange but is
traded in the over-the-counter market, the market value shall be
the average of the high closing bid quotation on the ten business
days preceding the date on which notice of election to convert is
given, as reported by the National Quotations Bureau, Incorporated
or by any other source agreeable to the Corporation and the
holder of the 7% Convertible Preferred Stock to be converted;
(c) If the Common Stock of the Corporation is not listed on such
an exchange or traded in the over-the-counter market, the market
value shall be the book value of the Common Stock of the Corporation
determined as of the last day of the month preceding the month in which the
notice of election to convert shall be given.
Any holder of 7% Convertible Preferred Stock desiring to
convert the same into Common Stock shall given written
notice to the Corporation at its principal office stating
the number of shares of 7% Convertible Preferred Stock which he
elects to convert accompanied by a certificate or
certificates representing the number of shares to be
converted duly endorsed to the Corporation or in blank or
accompanied by proper instruments of transfer. Subject to the
Corporation's right to redeem the 7% Convertible Preferred
Stock so surrendered, the Corporation shall within not less than
one month and not more than three months thereafter
issue and deliver certificates for the number of whole shares of
Common Stock into which the 7% Convertible Preferred Stock has
been converted to the person for whose account the 7%
Convertible Preferred Stock was surrendered, together with cash
in lieu of any fraction of a share of Common Stock otherwise
issuable upon such conversion on the basis of the market value
of the Common Stock determined for such conversion.
Upon surrender of any 7% Convertible Preferred Stock for
conversion, the Corporation shall have the right, in lieu of
issuing Common Stock as herein provided, to redeem the 7%
Convertible Preferred Stock so surrendered for conversion
in accordance with Section E of this Article FOURTH except
that no notice of redemption need be given. Payment of the
redemption price shall be made within not less than one month
nor more than three months of the date of giving notice of
election to convert the 7% Convertible Preferred Stock.
COMMON STOCK
G. Rights and Restrictions of Common Stock. The
powers, preferences, rights, qualifications and limitations
or restrictions thereof in respect to the Common Stock are as
follows:
(1) Subject to provisions of this Article
FOURTH with respect to the 7% Convertible Preferred
Stock and to the provisions of a resolution or
resolutions of the Board of Directors establishing a
series of Preferred Stock, dividends may be declared by the
Board of Directors and paid from time to time out of any
funds legally available therefor upon the then outstanding
shares of Common Stock, and holders of 7% Convertible Preferred
Stock and Preferred Stock shall not be entitled to participate
in any such dividends.
(2) In the event of any dissolution,
liquidation or winding up of the affairs of the Corporation,
all assets and funds of the Corporation remaining after
paying all amounts payable to the holders of 7% Convertible
Preferred Stock and the holders of Preferred Stock shall be
distributed to the holders of Common Stock ratably according to
the number of shares of Common Stock held.
(3) The holders of Common Stock shall be
entitled to one vote per share.
OTHER PROVISIONS
H. Limitation on Distributions to Stockholders. No
dividend shall be declared or paid which shall impair the
capital of the Corporation nor shall any distribution
of assets be made to any stockholder unless the value of
the assets of the Corporation remaining after such payment
or distribution is at least equal to the aggregate of
its debts and liabilities, including capital.
I. Preemptive Rights. No holders of shares of any
class or series of this Corporation shall have any
preemptive rights to subscribe for any shares of any class or
series of stock of the Corporation, whether now or hereafter
authorized, or for any obligations convertible into shares of
any class or series of stock of this Corporation, whether now
or hereafter authorized.
J. Voting by Classes. All matters shall be voted upon
without distinction as to classes or series of stock.
FIFTH: Reserved.
SIXTH: Reserved.
SEVENTH: (a) Any person who was or is a part or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified by the Corporation, unless
similar indemnification is provided by such other corporation,
partnership, joint venture, trust or other enterprise (any funds
received by any person as a result of the provisions of this
Article being deemed an advance against his receipt of
any such other indemnification from any such other corporation,
partnership, joint venture, trust or other enterprise),
against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; provided however, that,
except as provided in paragraph (k) of this Article, the
Corporation shall not be required to indemnify any such
person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person unless the
initiation of such proceeding (or part thereof) by such person
was authorized by the Board of Directors of the
Corporation. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person seeking
indemnification did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall be
indemnified by the Corporation, unless similar indemnification is
provided by such other corporation, partnership, joint venture,
trust or other enterprise (any funds received by any person as a
result of the provisions of this Article being deemed an advance
against his receipt of any such other indemnification from any such
other corporation, partnership, joint venture, trust or
other enterprise), against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation and except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of
all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
The termination of any action or suit by judgment, order or
settlement shall not, of itself, create a presumption that the
person seeking indemnification did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation. Entry of a judgment by
consent as part of a settlement shall not be deemed a final
adjudication of liability nor of any other issue or matter.
(c) To the extent that a director, officer, employee or agent
of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in paragraphs (a) or (b), or in defense of any
claim, issue or matter therein, he shall be indemnified by the
Corporation against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith
without the necessity of any action being taken by the
Corporation other than the determination, in good faith, that
such defense has been successful.
(d) Except as set forth in paragraph (c) of this Article, any
indemnification under paragraphs (a) and (b) of this Article
(unless ordered by the court), shall be made by the Corporation
only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (a) and (b) of
this Article. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the holders of a majority
of the shares of Common Stock outstanding.
(e) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to
be indemnified by the Corporation.
(f) The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any
other rights to which those seeking indemnification or seeking
advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as
to action in another capacity while holding such office.
(g) By action of the Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may
purchase and maintain insurance, in such amounts as the Board of
Directors deems appropriate, on behalf of any person who is
or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation shall have the
power to indemnify him against such liability under the
provisions of this Article.
(h) For purposes of this Article, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this
Article with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had
continued.
(i) For purposes of this Article, references to "other
enterprises" shall include employee benefit plans and any
exchange, board of trade, clearing corporation or similar
institution on which the Corporation or any other
corporation a majority of the stock of which is owned
directly or indirectly by the Corporation had membership
privileges at the relevant time during which any such
position was held; references to "fines" shall include any
excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries or with
respect to any exchange, board of trade, clearing
corporation or similar institution on which the Corporation or
any other corporation a majority of the stock of which is owned
directly or indirectly by the Corporation had membership
privileges at the relevant time during which any such position
was held; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article.
(j) The indemnification and advancement of expenses
hereby provided shall be a contract right and shall continue as
to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
(k) If a claim under paragraph (a), (b) or (c) of this
Article is not paid in full by the Corporation within thirty days
after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses pursuant to
paragraph (c) where the required undertaking has been
tendered to the Corporation) that the claimant has not met the
standards of conduct set forth in paragraphs (a) and (b), but
the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of
conduct, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or
its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met
the applicable standard of conduct.
EIGHTH: In furtherance, and not in limitation of the
powers conferred by statute, the Board of Directors is
expressly authorized:
(a) To fix, determine and vary from time to time the amount to
be maintained as surplus and the amount or amounts to be set
apart as working capital.
(b) To make, amend, alter, change, add to or repeal by-
laws of this Corporation, without any action on the part of the
stockholders. The by-laws made by the directors may be
amended, altered, changed, added to or repealed by the
stockholders.
(c) By resolution passed by a majority of the whole
board, to designate two or more directors to constitute an
Executive Committee, which committee shall have and exercise
(except when the Board of Directors shall be in session) such
powers and rights of the Board of Directors in the management
of the business and affairs of this Corporation as may be
provided in the by-laws or in said resolution, and shall
have power to authorize the seal of this Corporation to be
affixed to all papers which may require it.
(d) To authorize and cause to be executed mortgages and
liens, without limit as to amount, upon the real and personal
property of this Corporation.
(e) From time to time to determine whether and to what
extent, at what time and place, and under what conditions and
regulations the accounts and books of this Corporation, or any
of them, shall be open to the inspection of any stockholder; and
no stockholder shall have any right to inspect any account
or book or document of this Corporation except as conferred
by statute or the by-laws, or as authorized by a
resolution of the stockholders or Board of Directors.
(f) To sell, assign, convey or otherwise dispose of a
part of the property, assets and effects of this
Corporation less than the whole or less than
substantially the whole thereof, on such terms and
conditions as they shall deem advisable, without the assent of
the stockholders in writing or otherwise; and also to sell,
assign, transfer, convey and otherwise
dispose of the whole or substantially the whole of the property,
assets, effects, franchises and good will of this Corporation
on such terms and conditions as they will deem advisable, but
only with the written consent or pursuant to the affirmative
vote of the holders of at least a majority in amount of the
stock then having voting power at the time issued and
outstanding, but in any event not less than the amount required
by law.
(g) By resolution passed by a majority of the whole
board, to designate a committee, to consist of two or more
persons who may, but need not, be directors of the Corporation,
which shall have such power and authority as the Board of
Directors may authorize to administer any or all employee stock
option, purchase and bonus plans which may from time to time
be adopted by the Corporation. Without limiting the
generality of the foregoing, such committee may be authorized
to select the employees to receive options, determine the number
of shares to be covered by each option, determine the option
price, determine the form of option and the other terms
thereof and issue the options.
(h) All of the powers of this Corporation, insofar as the
same lawfully may be vested by this Certificate in the Board of
Directors, are hereby conferred upon the Board of Directors of
this Corporation.
NINTH: No contract or transaction between the Corporation and
one or more of its directors or officers, or between the
Corporation and any other corporation, partnership,
association, or other organization in which one or more of its
directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present
at or participates in the meeting of the board of committee
thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such
purpose if, (a) the material facts as to his relationship or
interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or the committee in good
faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less
than a quorum, or (b) the material facts as to his relationship
or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and
the contract or transaction is specifically approved in good
faith by vote of the stockholders, or (c) the contract or
transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
TENTH: This Corporation may in its by-laws make any other
provisions or requirements for the management or conduct of the
business of this Corporation, provided the same not be
inconsistent with the provisions of this Certificate or
contrary to the laws of the State of Delaware or of the
United States.
ELEVENTH: This Corporation reserves the right to amend,
alter, change, add to or repeal any provision contained in this
Certificate of Incorporation in the manner now or
hereafter prescribed by the statute, and all rights
conferred upon officers, directors and stockholders herein are
granted subject to this reservation.
TWELFTH: A director of this Corporation shall have no
personal liability to this Corporation or its stockholders for
monetary damages for breach of his fiduciary duty as a
director; provided, however, that this Article shall not
eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to this 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) for the unlawful payment of dividends or
unlawful stock repurchases under Section 174 of the General
Corporation Law of the State of Delaware; or (iv) for any
transaction from which the director derived an improper personal
benefit. This Article shall not eliminate or limit the liability
of a director for any act or omission occurring prior to the
effective date of this Article.
THIRTEENTH: The Board of Directors of the Corporation, when
evaluating any offer of another party to (a) make a tender
offer or exchange offer for any equity security of the
Corporation, (b) merge or consolidate the Corporation with
another corporation, or (c) purchase or otherwise acquire
all or substantially all of the properties and assets of
the Corporation, shall, in connection with the exercise of
its judgment in determining what is in the best interests of the
Corporation and its stockholders, give due consideration to all
relevant factors, including without limitation the social and
economic effects on the employees, customers, suppliers and
other constituents of the Corporation and its subsidiaries
and on the communities in which the Corporation and its
subsidiaries operate or are located.
FOURTEENTH: SECTION 1. Special Vote Required for Certain
Business Combinations. In addition to any affirmative vote
required by law or this Certificate of Incorporation or the
Bylaws of the Corporation, and except as otherwise expressly
provided in SECTION 2 of this Article FOURTEENTH, a Business
Combination (as hereinafter defined) with, or proposed by or
on behalf of, any Interested Stockholder (as hereinafter
defined) or any Affiliate or Associate (as hereinafter
defined) of any Interested Stockholder or any person who
after such Business Combination would be an Affiliate or
Associate of such Interested Stockholder shall require the
affirmative vote of not less than two-thirds of the votes
entitled to be cast by the holders of all of the then
outstanding shares of Voting Stock (as hereinafter defined),
voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Stockholder. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage or separate
class vote may be specified, by law, by any other provision of
this Certificate of Incorporation or the Bylaws of the
Corporation, by any agreement with any national securities
exchange or otherwise.
SECTION 2. When Special Vote Not Required. The
provisions of SECTION 1 of this Article FOURTEENTH shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only such
affirmative vote, if any, as is required by law, by any
other provision of this Certificate of Incorporation or the
Bylaws of the Corporation, by any agreement with any
national securities exchange or otherwise, if, in the case of
a Business Combination involving the receipt of
consideration by the holders of the Corporation's
outstanding Capital Stock (as hereinafter defined), the
condition specified in paragraph (a) below is met or all of
the conditions specified in paragraph (b) below are met or if,
in the case of a Business Combination not involving the receipt
of consideration by the holders of the Corporation's
outstanding Capital Stock, the condition specified in
paragraph (a) below is met:
(a) Approval by Continuing Directors. The Business
Combination (either specifically or as a transaction which is
within an approved category of transactions) shall have been
approved by a majority of the Continuing Directors (as
hereinafter defined).
(b) Minimum Price and Other Requirements. All of the
following conditions shall have been met:
(1) Minimum Price Requirements. With respect to
every class or series of outstanding Capital Stock of the
Corporation, whether or not the Interested Stockholder has
previously acquired beneficial ownership of any shares of such
class or series of Capital Stock:
(A) The aggregate amount of cash plus the Fair
Market Value (as hereinafter defined), 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 higher of the amounts determined pursuant to clauses (i)
and (ii) below:
(i) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder of beneficial ownership of shares of
Common Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of shares of
Common Stock (x) within the two-year period immediately prior
to the Announcement Date (as hereinafter defined) or (y)
in the transaction or series of related transactions in
which it became an Interested Stockholder, whichever is
higher, in either case as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to Common Stock; and
(ii) the Fair Market Value per share of
Common Stock (x) on the Announcement Date or
(y) on the Determination Date (as hereinafter defined),
whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to Common Stock.
(B) The aggregate amount of cash plus 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 series of outstanding Capital Stock, other
than Common Stock, shall be at least equal to the highest of
the amounts determined pursuant to clauses (i), (ii) and
(iii) below:
(i) 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 series of
Capital Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of such class or series of
Capital Stock (x) within the two-year period immediately prior
to the Announcement Date or (y) in the transaction or
series of related transactions in which it became an
Interested Stockholder, whichever is higher, in either case
as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such
class or series of Capital Stock;
(ii) the Fair Market Value per share of
such class or series of Capital Stock (x) on
the Announcement Date or (y) on the Determination Date,
whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock; and
(iii) the highest preferential amount per
share, if any, to which the holders of shares
of such class or series of Capital Stock would be entitled
in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation regardless of whether the Business Combination
to be consummated constitutes such an event.
(2) Other Requirements.
(A) The consideration to be received by
holders of a particular class or series of outstanding Capital
Stock 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 varies as to form, the
form of consideration for such class or series of Capital Stock shall
be either cash or the form paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect acquisition of
beneficial ownership of the largest number of shares of such
class or series of Capital Stock.
(B) After the Determination Date and prior to
the consummation of such Business Combination:
(i) there shall have been no failure to
declare and pay at the regular date therefor
any full regular dividends (whether or not cumulative)
payable in accordance with the terms of any outstanding
Capital Stock, other than the Common Stock, except as
approved by a majority of the Continuing Directors;
(ii) there shall have been no
reduction in the amount, or change in the
frequency of payment, of any dividends regularly paid on
the Common Stock (except as necessary to
reflect any stock split, stock dividend, subdivision or
reclassification of the Common Stock), except as approved by a
majority of the Continuing Directors;
(iii) there shall have been an
increase in the amount of any dividends regularly paid on the
Common Stock as necessary to reflect any reverse stock split
or reclassification of the Common Stock, or any split,
recapitalization, reorganization or any similar
transaction that has the effect of reducing the number
of outstanding shares of Common Stock, unless the failure
so to increase the amount of such dividends is approved by a
majority of the Continuing Directors; and
(iv) such Interested Stockholder shall
not have become the beneficial owner of
any additional shares of Capital Stock except as part of
or otherwise in connection with the transaction or
series of related transactions that resulted in such
Interested Stockholder becoming an Interested Stockholder
(including the exercise of any right to purchase
additional shares of Capital Stock granted to any
Interested Stockholder by the Corporation in connection with
such transaction or series of related transactions) and
except in a transaction or series of related transactions
that, after giving effect thereto, would
not result in any increase in the Interested Stockholder's
percentage beneficial ownership of any class or series of
Capital Stock.
(C) After the Determination Date, 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 Combinations or otherwise.
(D) A proxy or information statement
describing the proposed Business Combination and complying with
the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the "Act")
(or any subsequent provisions replacing such
Act), 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). Such proxy or information
statement shall contain, in a prominent place, any
statement as to the advisability (or inadvisability) of the
Business Combination that the Continuing Directors, or any of
them, may choose to make 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 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.
(E) After the Determination Date, such
Interested Stockholder shall not have made any major change
in the Corporation's business or capital structure without
the approval of a majority of the Continuing
Directors.
SECTION 3. Certain Definitions. The following
definitions shall apply with respect to this Article
FOURTEENTH:
(a) The term "Business Combination" shall mean:
(1) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with
(A) any Interested Stockholder or (B) any other company
(whether or not itself an Interested Stockholder) that is or
after such merger or consolidation would be an Affiliate or
Associate of an Interested Stockholder; or
(2) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition, or any security
arrangement, investment, loan, advance, guarantee agreement to
purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement, in one transaction or in a
series of transactions, with or for the benefit of any Interested
Stockholder of any Affiliate or Associate of any Interested
Stockholder involving any assets, securities or commitments
of the Corporation, any Subsidiary, any Interested
Stockholder or any Affiliate or Associate or any Interested
Stockholder that, together with all other such arrangements,
has an aggregate Fair Market Value and/or involves aggregate
commitments
equal to 10% or more of the book value of the total assets
(in the case of transactions involving assets or
commitments other than capital stock) or 10% or more of the
stockholders' equity (in the case of transactions in capital
stock) of the entity in question (the "Substantial Part"), as
reflected in the most recent fiscal year-end consolidated
balance sheet of such entity existing at the time the
stockholders of the Corporation would be required to approve
or authorize the Business Combination involving the
assets, securities and/or commitments constituting any
Substantial Part; or
(3) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation which any
Interested Stockholder votes for or consents to; or
(4) any issuance or reclassification of
securities (including any stock dividend, split or reverse split
or any other distribution of securities in respect
of stock), any recapitalization of the
Corporation, any merger or consolidation of the Corporation
with any of its Subsidiaries or any other transaction (whether
or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of
increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into or rights,
options or warrants to acquire Capital Stock or equity
securities of any Subsidiary, that is beneficially owned by
any Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder; or
(5) any agreement, arrangement or other
understanding providing for any one or more of the actions
specified in the foregoing clauses (1) to (4).
(b) The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time to
time under Article FOURTH of this Certificate of Incorporation,
and the term "Voting Stock" shall mean all Capital Stock
which by its terms may be voted on all matters submitted to
stockholders of the Corporation generally.
(c) The term "person" shall mean any individual,
firm, company or other entity and shall include any group
comprised of any person and any other person with whom such
person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or
disposing of Capital Stock.
(d) 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 (1) is, or has
publicly disclosed a plan or intention to become, the
beneficial owner of Voting Stock representing 10% or more of
the votes entitled to be cast by the holders of all
then outstanding shares of Voting Stock or (2) is an
Affiliate or Associate of the Corporation and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner of Voting Stock representing
10% or more of the votes entitled to be cast by the holders of
all then outstanding shares of Voting Stock.
(e) A person shall be a "beneficial owner" of, shall
"beneficially own" and shall have "beneficial
ownership" of any Capital Stock (1) that such person or any of
its Affiliates or Associates owns, directly or indirectly; (2)
that 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 subject
only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options,
or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or (3) which is
beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
shares of Capital Stock. For the purposes of determining
whether a person is an Interested Stockholder pursuant to
paragraph (d) of this SECTION 3, the number of shares of
Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of
this paragraph (e) of SECTION 3, 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" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 under
the Act as in effect on the date that this Article FOURTEENTH
is approved by the Board of Directors of the Corporation
(the term "registrant" in Rule 12b-2 meaning in this case the
Corporation).
(g) The term "Subsidiary" means any company of which a
majority of any class of equity securities are
beneficially owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in paragraph
(d) of this SECTION 3, the term "Subsidiary" shall mean
only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
(h) The term "Continuing Director," with respect to any
particular Business Combination with, or proposed by or on
behalf of, any Interested Stockholder or any Affiliate or
Associate of any Interested Stockholder or any person who
thereafter would be an Affiliate or Associate of any
Interested Stockholder, means any member of the Board of
Directors of the Corporation (the "Board of Directors"),
while such person is a member of the Board of Directors,
who is not an Affiliate, Associate or representative of
such Interested Stockholder and was a member of the Board of
Directors prior to the time such Interested Stockholder became an
Interested Stockholder, and any successor of a Continuing
Director while such successor is a member of the Board of
Directors, who is not an Affiliate or Associate or
representative of such Interested Stockholder and is
recommended or elected to succeed the Continuing Director by
a majority of Continuing Directors.
(i) The term "Fair Market Value" means (1) in the case
of cash, the amount of such cash; (2) 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 sale price with respect to a share of such stock
during the 30-day period preceding the date in question as
reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or any similar system
then in use, or if no such sale prices are available, the
highest of the means between the last reported bid and asked
price with respect to a share of such stock on each day during
the 30-day period preceding the date in question as reported by
the National Association of Securities Dealers, Inc. Automated
Quotation System, or if not so reported, as determined by a
member firm of the National Association of Securities Dealers,
Inc. selected by the Continuing Directors, or if no such bid and
asked 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
(3) 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) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than
cash to be received" as used in paragraphs (b) (1) (A) and (b)
(1) (B) of SECTION 2 of this Article FOURTEENTH shall
include the shares of Common Stock and/or the shares of any
other class or series of Capital Stock retained by the holders of
such shares.
(k) The term "Announcement Date" means the date on
which the proposed Business Combination is first publicly
announced, disclosed or reported.
(l) The term "Determination Date" means with respect to
any Interested Stockholder the later of the date that this
Article FOURTEENTH is approved by the Board of Directors of the
Corporation or the date on which such Interested Stockholder
became an Interested Stockholder.
SECTION 4. Powers of Directors. For the purpose of this
Article FOURTEENTH, a majority of the Continuing Directors
shall have the power and duty to determine in good faith, on the
basis of information known to them after reasonable inquiry,
all questions arising under this Article FOURTEENTH,
including, without limitation, (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 a
Business Combination or any proposal to amend, repeal or adopt
any provision of this Certificate of Incorporation inconsistent
with this Article FOURTEENTH (collectively, a "Proposed
Action") is with, or proposed by or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested
Stockholder or a person who thereafter would be an
Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, and (e) whether any transaction
specified in paragraph (a) (2) of SECTION 3 of this Article
FOURTEENTH meets the Substantial Part test set forth therein;
except that a majority of the entire Board of Directors shall
have the power and duty to determine in good faith, on the
basis of information known to them after reasonable
investigation, whether a director is a "Continuing Director" as
defined in paragraph (h) of SECTION 3 of this Article
FOURTEENTH. Any such determination made in good faith
shall be binding and conclusive on all parties.
SECTION 5. No Effect on Fiduciary Obligations.
(a) Nothing contained in this Article FOURTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
(b) The fact that any Business Combination complies with the
provisions of SECTION 2 of this Article FOURTEENTH 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.
SECTION 6. Amendment, Repeal, etc. Notwithstanding any
other provisions of this Certificate of Incorporation or the
Bylaws of the Corporation (and notwithstanding the fact that
a lesser percentage or separate class vote may be specified by
law, this Certificate of Incorporation or the Bylaws of the
Corporation), any proposal to amend, repeal or adopt any
provision of this Certificate of Incorporation inconsistent with
this Article FOURTEENTH which is proposed by or on behalf of
an Interested Stockholder or an Affiliate or
Associate of an Interested Stockholder or any person who
would thereafter be an Interested Stockholder or Affiliate or
Associate of an Interested Stockholder shall require the
affirmative vote of the holders of not less than two-thirds of
the votes entitles to be cast by the holders of all of the
then outstanding shares of Voting Stock, voting together as a
single class, excluding Voting Stock beneficially owned by such
Interested Stockholder, unless such amendment, repeal or
adoption is declared advisable by the affirmative vote of (a)
two-thirds of the entire Board of Directors and (b) a majority of
the Continuing Directors.
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INTER-REGIONAL FINANCIAL GROUP, INC.
The undersigned, the Senior Vice President, General
Counsel and Secretary of Inter-Regional Financial Group, Inc.
(the "Corporation") does hereby certify that in accordance
with the requirements of Section 242 of the Delaware General
Corporation Law, the stockholders of the Corporation adopted the
following resolution on May 1, 1996, amending Article Fourth,
Section 1 of the Restated Certificate of Incorporation as
follows:
RESOLVED, that Article Fourth of the Restated Certificate
of Incorporation be amended to increase the number of shares of
Common Stock of the Company from 20,000,000 shares to 30,000,000
shares, so that the first paragraph of Section 1 of Article
Fourth, as amended, will read as follows:
FOURTH: Section 1. Shares, Classes and Series
Authorized. The total number of shares of stock which this
Corporation has the authority to issue is 32,501,940 shares of
stock, of which
30,000,000 shares of the par value of $.125 per share are
designated Common Stock, and 2,000,000 shares of the par value of
$1.00 per share are designated $1 Par Value Preferred Stock,
1,940 shares of the par value of $100 per share are designated 7%
Convertible Preferred Stock and 500,000 shares of the par value
of $16.00 per share are designated as $16 Par Value Preferred
Stock. The $1 Par Value Preferred Stock, the 7% Convertible
Preferred Stock and the
$16 Par Value Preferred Stock are herein collectively referred to
as the "Preferred Stock."
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed by Carla J. Smith, its Senior Vice
President, General Counsel and Secretary, and attested by
Bentley J. Anderson, its Assistant Secretary, this 2nd day of
May, 1996.
Carla J. Smith
---------------------------
Carla J. Smith
Senior Vice President, General
Counsel and Secretary
Attest:
Bentley J. Anderson
- ----------------------
Bentley J. Anderson
Assistant Secretary
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
INTERRA FINANCIAL INCORPORATED
The undersigned hereby certifies that the Board of Directors
of Interra Financial Incorporated (the "Corporation"), a
corporation organized and existing under the Delaware General
Corporation Law, duly adopted the following resolution on April
30, 1997:
RESOLVED, that a series of preferred stock of the
Corporation is hereby created, and the designation and
amount thereof and the relative rights and preferences of
the shares of such series, are as set forth in Annex 1
appended hereto.
IN WITNESS WHEREOF, I have subscribed my name this 30th day
of April, 1997.
INTERRA FINANCIAL INCORPORATED
By Carla J. Smith
-------------------------------------
Carla J. Smith
Its Senior Vice President, Secretary and
General Counsel
Annex 1
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock" (the "Preferred Shares") and the number of
shares constituting the Preferred Shares shall be 200,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors and any necessary stockholder approval;
provided, however, that no decrease shall reduce the number of
shares of Preferred Shares to a number less than the number of
shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Preferred Shares.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares
of any series of preferred stock (or any similar stock) ranking
prior and superior to the Preferred Shares with respect to
dividends, the holders of Preferred Shares, in preference to the
holders of Common Stock, par value $.125 (the "Common Stock"), of
the Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Preferred
Shares, in an amount per share (rounded to the nearest cent)
equal to the greater of (i) $1.00 or (ii) subject to the
provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Preferred Shares. In the event
the Corporation shall at any time after April 30, 1997, declare
or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to
which holders of shares of Preferred Shares were entitled
immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Preferred Shares as provided in paragraph (a)
of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of
$1.00 per share on the Preferred Shares shall nevertheless be
payable, out of funds legally available for such purpose, on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Preferred Shares from their date of
issue. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Preferred Shares in an amount
less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of Preferred Shares entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights.
(a) Subject to the provision for adjustment
hereinafter set forth, each Preferred Share 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 April 30, 1997, declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to
which holders of shares of Preferred Shares 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 Preferred Shares and the holders of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(c) Except as set forth herein or required by law,
holders of Preferred Shares 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 Preferred Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Preferred Shares outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Preferred Shares;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Preferred Shares, except dividends paid
ratably on the Preferred Shares and all such parity stock on
which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up)
to the Preferred Shares; provided, however, that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding up) to the Preferred Shares; or
(iv) redeem or purchase or otherwise acquire for
consideration any Preferred Shares, or any stock ranking on
a parity with the Preferred Shares, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective
series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective
series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any Preferred Shares
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of preferred
stock and may be reissued as part of a new series of preferred
stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any
other certificate of designation creating a series of preferred
stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Preferred Shares
unless, prior thereto, the holders of Preferred Shares shall have
received the greater of (i) $100 per share, plus an amount equal
to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (ii) an
aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Preferred Shares, except distributions made ratably on
the Preferred Shares and all such parity stock in proportion to
the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time after April 30, 1997,
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Preferred Shares were
entitled immediately prior to such event under clause (1)(ii) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Preferred Shares shall at the same time be
similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into
which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after
April 30, 1997, declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Preferred Shares shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The Preferred Shares shall
not be redeemable.
Section 9. Rank. The Preferred Shares shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all other series of the Corporation's $1 Par
Value Preferred Stock and any other class of the Corporation's
Preferred Stock.
Section 10. Fractional Shares. Preferred Shares may
be issued in fractions of a share which are integral multiples of
one one-hundredth of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to receive
dividends, participate in distributions and to have the benefit
of all other rights of holders of Preferred Shares.
Section 11. Amendment. The Certificate of
Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers,
preferences or rights of the Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Preferred Shares,
voting together as a single class.
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
INTERRA FINANCIAL INCORPORATED
INTO
INTER-REGIONAL FINANCIAL GROUP, INC.
Pursuant to Section 253 of the Delaware General Corporation
Law, INTER-
REGIONAL FINANCIAL GROUP, INC., a corporation organized and
existing under the laws of the State of Delaware, does hereby
certify:
FIRST, that this Corporation owns all of the outstanding
shares of stock of INTERRA FINANCIAL INCORPORATED, a corporation
incorporated on this 4th day of February, 1997, pursuant to the
laws of the State of Delaware.
SECOND, that this Corporation by the following resolutions
duly adopted by it's Board of Directors at a meeting held on this
4th day of February, 1997 determined to and did merge into itself
INTERRA FINANCIAL INCORPORATED:
RESOLVED, that INTER-REGIONAL FINANCIAL GROUP, INC.
does hereby merge into itself it's wholly owned subsidiary,
INTERRA FINANCIAL INCORPORATED, and does hereby assumes all
of the liabilities and obligations of such subsidiary.
FURTHER RESOLVED, that said merger shall become
affective upon the filing of a Certification of Ownership
and Merger with the Secretary of State of the State of
Delaware.
FURTHER RESOLVED, that upon the effectiveness of said
merger all of the outstanding shares of stock of INTERRA
FINANCIAL INCORPORATED owned by this Corporation shall be
canceled, and no securities of this Corporation or any other
Corporation nor any money or other property shall be issued
to this Corporation in exchange therefor.
FURTHER RESOLVED, that upon effectiveness of said
merger, the name of this Corporation shall be "INTERRA
FINANCIAL INCORPORATED."
FURTHER RESOLVED, that the proper officers of this
Corporation be, and they are hereby, directed to make and
execute a Certificate of Ownership and Merger setting forth
a copy of these resolutions and the date of their adoption
to cause the same to be filed with the Secretary of State of
the State of Delaware and a certified copy to be recorded in
the office of the Recorder of Deeds of New Castle County and
to do all acts and things whatsoever, whether within or
without the State of Delaware, which may be necessary or
proper to effect said merger and change of name.
IN WITNESS WHEREOF, this Corporation has caused this Certificate
to be signed by its Chairman and Chief Executive Officer and
attested by its Secretary this 4th day of February, 1997.
INTER-REGIONAL FINANCIAL GROUP, INC.
By Irving Weiser
-----------------------------------
Irving Weiser
Chairman and Chief Executive Officer
Carla J. Smith
- -------------------------------
Carla J. Smith, Secretary
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
DAIN RAUSCHER CORPORATION
The undersigned, the Senior Vice President, General Counsel
and Secretary of Dain Rauscher Corporation (the "Corporation")
does hereby certify that in accordance with the requirements of
Section 242 of the Delaware General Corporation Law, the
stockholders of the Corporation adopted the following resolution
on May 6, 1998, amending Article Fourth, Section 1 of the
Restated Certificate of Incorporation as follows:
RESOLVED, that Article Fourth of the Restated
Certificate of Incorporation be amended to increase the
number of shares of Common Stock of the Company from
30,000,000 shares to 60,000,000 shares, so that the
first paragraph of Section 1 of Article Fourth, as
amended, will read as follows:
FOURTH: Section 1. Shares, Classes and Series
Authorized. The total number of shares of stock which
this Corporation has the authority to issue is
62,501,940 shares of stock, of which 60,000,000 shares
of the par value of $.125 per share are designated
Common Stock, and 2,000,000 shares of the par value of
$1.00 per share are designated $1 Par Value Preferred
Stock, 1,940 shares of the par value of $100 per share
are designated 7% Convertible Preferred Stock and
500,000 shares of the par value of $16.00 per share are
designated as $16 Par Value Preferred Stock. The $1
Par Value Preferred Stock, the 7% Convertible Preferred
Stock and the $16 Par Value Preferred Stock are herein
collectively referred to as the "Preferred Stock."
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed by Carla J. Smith, its Senior Vice
President, General Counsel and Secretary, and attested by Bentley
J. Anderson, its Assistant Secretary, this 20th day of May, 1998.
Carla J. Smith
_____________________________
Carla J. Smith
Senior Vice President, General
Counsel and Secretary
Attest:
Bentley J. Anderson
____________________________
Bentley J. Anderson
Assistant Secretary