1
EXHIBIT 3.1
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of Chapter 23B.10 of the Washington Business
Corporation Act, WASHINGTON MUTUAL, INC., a Washington corporation, hereby
adopts the following articles of amendment to its restated articles of
incorporation, as previously amended (the "Restated Articles"):
FIRST: The name of the corporation is:
WASHINGTON MUTUAL, INC.
SECOND: Article VIII of the Restated Articles governing Dealings with
Interested Persons is hereby eliminated in its entirety.
THIRD: Article IX of the Restated Articles governing Shareholder Vote
Required to Approve Plan of Merger is hereby deleted in its entirety and
replaced with the following provision:
If pursuant to the Washington Business Corporation Act the
Company's shareholders are required to approve a plan of merger, share
exchange or sale, lease, exchange, or other disposition of all, or
substantially all of the Company's property, otherwise than in the usual
and regular course of business (each of the foregoing, a "Substantial
Business Transaction"), then (a) if two-thirds of the directors vote to
recommend the Substantial Business Transaction to the shareholders, the
Substantial Business Transaction shall be approved by each voting group
entitled to vote thereon by a simple majority of all votes entitled to
be cast by that group; (b) in all other cases where a shareholder vote
is required by the Washington Business Corporation Act, such Act, as it
may be amended, will control.
-1-
2
FOURTH: Article X of the Restated Articles governing Indemnification is
hereby deleted in its entirety and replaced with the following provision:
The Company shall indemnify any individual made a party to a
proceeding because that individual is or was a director of the Company
and shall advance or reimburse the reasonable expenses incurred by such
individual in advance of final disposition of the proceeding, without
regard to the limitations in RCW 23B.08.510 through 23B.08.550 of the
Washington Business Corporation Act, or any other limitation that may
hereafter be enacted to the extent such limitation may be disregarded if
authorized by the articles of incorporation, to the full extent and
under all circumstances permitted by applicable law.
FIFTH: Article XII of the Restated Articles governing Amendment of the
Restated Articles is hereby deleted in its entirety and replaced with the
following provision:
The Company may amend these Articles of Incorporation if
approved by each voting group entitled to vote thereon by a simple
majority of all the votes entitled to be cast by that voting group at
any regular meeting or special meeting duly called for that purpose in
the manner prescribed by its Bylaws, provided, however, that Article XI
may not be repealed or amended in any respect unless such action is
approved by at least a ninety-five percent (95%) vote of the outstanding
Voting Stock beneficially owned by shareholders other than any Major
Stockholder, and provided further, that the Board of Directors may,
without shareholder approval, amend these Articles (i) to the extent
permitted under the Washington Business Corporation Act or (ii) as
necessary to designate the preferences, limitations, and relative rights
of a class or series of shares of the Company prior to issuance of any
shares in that class or series.
SIXTH: The foregoing amendments to the Restated Articles do not provide
for an exchange, reclassification or cancellation of any issued shares.
SEVENTH: The foregoing amendments to the Restated Articles were adopted
by the board of directors of the corporation in accordance with the provisions
of RCW 23B.10.030 at a duly called meeting of the directors held on February 16,
1999.
EIGHTH: The foregoing amendments to the Restated Articles were approved
by the shareholders at a duly called annual meeting of the shareholders held on
April 20, 1999, in accordance with the provisions of RCW 23B.10.030 and RCW
23B.10.040.
-2-
3
EXECUTED this 16th day of June, 1999.
WASHINGTON MUTUAL, INC.
By: /s/ Fay L. Chapman
-------------------------------
Fay L. Chapman
Executive Vice President and
General Counsel
-3-
4
FILED
State of Washington
Sep 17 1998
Ralph Munro
Secretary of State
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of chapter 23B.10 of the Washington Business
Corporation Act, Washington Mutual, Inc., a Washington corporation, hereby
adopts the following articles of amendment to its restated articles of
incorporation, as previously amended (the "Restated Articles of Incorporation"):
FIRST: The name of the corporation is:
WASHINGTON MUTUAL, INC.
SECOND: The first sentence of Article IIA. of the Restated Articles of
Incorporation, "Capital Stock - Issuance of and Payment for Stock", is amended
to read in its entirety as follows:
"The total number of shares of capital stock which the Company has
authority to issue is 1,610,000,000 shares of which 1,600,000,000 shares
shall be shares of common stock with no par value per share and 10,000,000
shares shall be shares of preferred stock with no par value per share."
THIRD: The amendment does not provide for an exchange, reclassification or
cancellation of any issued shares.
FOURTH: The foregoing amendment to the Restated Articles of Incorporation
was adopted by unanimous written consent of the board of directors dated June
30, 1998 of the corporation in accordance with the provisions of RCW 23B.10.030.
FIFTH: The foregoing amendment to the Restated Articles of Incorporation
was duly approved by the shareholders on August 28, 1998, in accordance with
the provisions of RCW 23B.10.030 and RCW 23B.10.040.
EXECUTED this 16th day of September, 1998.
WASHINGTON MUTUAL, INC.
By: /s/ Kerry K. Killinger
-----------------------------
Kerry K. Killinger
President and Chief Executive Officer
5
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of Chapter 23B.10 of the Washington
Business Corporation Act, WASHINGTON MUTUAL, INC., a Washington corporation,
hereby adopts the following articles of amendment to its restated articles of
incorporation:
FIRST: The name of the corporation is:
WASHINGTON MUTUAL, INC.
SECOND: Article II.D is amended by adding to the end of Article
II.D the following section:
(3) The terms of the 8.30% Cumulative Preferred
Stock, Series F shall be as follows:
1. Designation. The designation of the series of Preferred Stock shall
be 8.30% Cumulative Preferred Stock, Series F, no par value, of Company
(hereinafter referred to as "Cumulative Preferred Stock"), and the number of
shares constituting such series shall be 660,000, which number may be increased
(but not above the total number of authorized but unissued shares of Preferred
Stock of the Company) or decreased (but not below the number of shares then
outstanding) from time to time by the Board of Directors or any authorized
committee thereof.
2. Dividend Rights.
(a) The holders of shares of Cumulative Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors, out of
funds legally available therefor, cash dividends, accruing from May 2, 1997 at
the annual rate of 8.30% per annum, and no more, payable, when, as and if
declared by the Board of Directors, quarterly on February 1, May 1, August 1,
and November 1 of each year (each quarterly period ending on any such date being
hereinafter referred to as a "dividend period"), commencing August 1, 1997, at
such annual
-1-
6
rate. Each dividend will be payable to holders of record as they appear on the
stock books of the Company on such record dates, not exceeding 45 days preceding
the payment dates thereof, as shall be fixed by the Board of Directors of the
Company. The date of initial issuance of shares of Cumulative Preferred Stock is
hereinafter referred to as the "Issue Date". Dividends payable on the Cumulative
Preferred Stock (i) for any period other than a full dividend period, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months and
(ii) for each full dividend period, shall be computed by dividing the annual
dividend rate by four.
(b) Dividends on shares of Cumulative Preferred Stock shall be
cumulative from the Issue Date whether or not there shall be funds legally
available for the payment thereof. If there shall be outstanding shares of any
other series of Preferred Stock ranking on a parity with the Cumulative
Preferred Stock as to dividends, no full dividends shall be declared or paid or
set apart for payment on any such other 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 the Cumulative Preferred Stock for all dividend periods terminating on or
prior to the data of payment of such dividends. If dividends on the Cumulative
Preferred Stock and on any other series of Preferred Stock ranking on a parity
as to dividends with the Cumulative Preferred Stock are in arrears, in making
any dividend payment on account of such arrears, the Company shall make payments
ratably upon all outstanding shares of the Cumulative Preferred Stock and shares
of such other series of Preferred Stock in proportion to the respective amounts
of dividends in arrears on the Cumulative Preferred Stock and on such other
series of Preferred Stock to the data of such dividend payment. Holders of
shares of the Cumulative Preferred Stock shall not be entitled to any dividend,
whether payable in cash, property or stock, in excess of full cumulative
dividends on such shares. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments which may be in
arrears.
(c) Unless full cumulative dividends on all outstanding shares of
the Cumulative Preferred Stock shall have been paid or declared and set aside
for payment for all past dividend periods and the Company is not in default or
in arrears in respect to the optional redemption of any shares of Cumulative
Preferred Stock, no dividend shall be declared upon the Common Stock or upon any
other stock ranking junior to the Cumulative Preferred Stock as to dividends or
the distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company (the Common Stock and any other such stock being herein
referred to as "Junior Stock"), nor shall the Company make any payment on
account of, or set apart money for, the purchase, redemption or other retirement
of, or for a sinking or other analogous fund for any shares of Junior Stock or
make any distribution in respect thereof, whether in cash or property or in
obligations or stock of the Company, other than Junior Stock which is neither
convertible into, nor exchangeable or exercisable for, any securities of the
Company other than Junior Stock and other than the rights (the "Rights")
distributed pursuant to the Rights Agreement previously entered into by and
between Washington Mutual Savings Bank ("WMSB") and First Interstate Bank of
Washington, N.A. ("First Interstate") dated as of October 16, 1990, as amended
by the Amendment No. 1 to Rights Agreement dated as of October 31, 1994 by and
between WMSB and First Interstate and as supplemented by the Supplement to
Rights Agreement dated as of
-2-
7
November 29, 1994 by and between WMHC and First Interstate (as so amended and
supplemented, the "Rights Agreement").
3. Liquidation Preferences.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Company, whether voluntary or involuntary, the holders of
Cumulative Preferred Stock shall be entitled to receive out of the assets of the
Company available for distribution to stockholders an amount equal to $250 per
share of Cumulative Preferred Stock plus an amount equal to any accrued and
unpaid dividends thereon to and including the data of such distribution, and no
more, before any distribution shall be made to the holders of Common Stock or
any other class of stock of the Company ranking junior to the Cumulative
Preferred Stock as to the distribution of assets upon any such liquidation,
dissolution or winding up. After payment of such liquidating distributions, the
holders of shares of Cumulative Preferred Stock will not be entitled to any
further participation in any distribution of assets by the Company.
(b) In the event the assets of the Company available for
distribution to stockholders upon any liquidation, dissolution or winding up of
the affairs of the Company, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Cumulative
Preferred Stock and any other shares of Preferred Stock ranking on a parity with
the Cumulative Preferred Stock as to the distribution of assets upon any such
liquidation, dissolution or winding up, the holders of Cumulative Preferred
Stock and the holders of such other Preferred Stock shall share ratably in any
distribution of assets of the Company in proportion to the full respective
preferential amounts to which they are entitled.
(c) The merger or consolidation of the Company into or with any
other corporation, the merger or consolidation of any other corporation into or
with the Company or the sale of the assets of the Company substantially as an
entirety shall not be deemed a liquidation, dissolution or winding up of the
affairs of the Company within the meaning of this Section 3.
4. Redemption.
(a) The Company, at its option, may redeem any or all shares of
Cumulative Preferred Stock, at any time or from time to time, on or after
November 1, 1997, at a redemption price of $250.00 per share, plus an amount
equal to accrued and unpaid dividends thereon to and including the date of
redemption (the "Redemption Price").
(b) If less than all the outstanding shares of Cumulative
Preferred Stock are to be redeemed, the shares to be redeemed shall be selected
pro rata (subject to rounding to avoid fractional shares) as nearly as
practicable or by lot, or by such other method as the Board of Directors may
determine to be equitable.
(c) Notice of any redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the date
fixed for redemption to
-3-
8
the holders of record of the shares of Cumulative Preferred Stock to be
redeemed, at their respective addresses appearing on the stock books of the
Company. Notice so mailed shall be conclusively presumed to have been duly given
whether or not actually received. Such notice shall state: (i) the date fixed
for redemption; (ii) the Redemption Price; (iii) the number of shares of
Cumulative Preferred Stock to be redeemed and if less than all the shares held
by such holder are to be redeemed, the number of such shares to be so redeemed
from such holder; (iv) the place where certificates for such shares are to be
surrendered for payment of the Redemption Price; and (v) that after the close of
business on such data fixed for redemption the shares to be redeemed shall not
accrue dividends. If such notice is mailed as aforesaid, and if on or before the
date fixed for redemption funds sufficient to redeem the shares called for
redemption are set aside by the Company in trust for the account of the holders
of the shares to be redeemed, notwithstanding the fact that any certificate for
shares called for redemption shall not have been surrendered for cancellation,
from and after the related redemption date the shares represented thereby so
called for redemption shall be deemed to be no longer outstanding, dividends
thereon shall cease to accrue, and all rights of the holder of such shares of
the Company shall cease, except the right to receive the Redemption Price,
without interest, upon surrender of the certificate representing such shares.
Upon surrender in accordance with the aforesaid notice of the certificate for
any shares so redeemed (duly endorsed or accompanied by appropriate instruments
of transfer, if so required by the Company in such notice), the holders of
record of such shares shall be entitled to receive the Redemption Price, without
interest. 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.
(d) At the option of the Company, if notice of redemption is
mailed as aforesaid, and if prior to the date fixed for redemption funds
sufficient to pay in full the Redemption Price are deposited in trust, for the
account of the holders of the shares to be redeemed, with a bank or trust
company named in such notice doing business in the Borough of Manhattan, The
City of New York, State of New York or The City of Los Angeles, State of
California and having capital surplus and undivided profits of at least $50
million (which bank or trust company also may be the transfer agent and/or
paying agent for the Cumulative Preferred Stock), notwithstanding the fact that
any certificate(s) for shares called for redemption shall not have been
surrendered for cancellation, on and after such date of deposit the shares
represented thereby so called for redemption shall be deemed to be no longer
outstanding, and all rights of the holders of such shares as stockholders of the
Company shall cease, except the right of the holders thereof to receive out of
the funds so deposited in trust the Redemption Price, without interest, upon
surrender of the certificate(s) representing such shares. Any funds so deposited
with such bank or trust company which shall remain unclaimed by the holders of
shares called for redemption at the end of two years after the related
redemption date shall be repaid to the Company, on demand, and thereafter the
holder of any such shares shall look only to the Company for the payment,
without interest thereon, of the Redemption Price.
(e) Any provision of this Section 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable on the
Cumulative Preferred Stock or any dividend on any other series of Preferred
Stock of the Company ranking on a parity with the Cumulative
-4-
9
Preferred Stock as to dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Company (the "Parity Preferred
Stock") shall be in arrears and until all such dividends shall have been paid or
declared and set apart for payment, the Company shall not redeem any shares of
Cumulative Preferred Stock or Parity Preferred Stock unless all outstanding
shares of Cumulative Preferred Stock and Parity Preferred Stock are
simultaneously redeemed and shall not purchase or otherwise acquire any shares
of Cumulative Preferred Stock or the Parity Preferred Stock except in accordance
with a purchase or exchange offer made on the same terms to all holders of
record of Cumulative Preferred Stock and Parity Preferred Stock for the purchase
of all outstanding shares thereof.
5. Voting Rights. Other than as required by applicable law, the
Cumulative Preferred stock shall not have any voting powers either general or
special, except that:
(a) Unless the vote or consent of the holders of a greater number
of shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Cumulative Preferred
Stock, and any ones or more other series of Parity Preferred Stock which by its
terms provides for similar voting rights (the "Other Preferred Stock") and is
similarly affected, 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 the Cumulative Preferred Stock and any such other series of Other
Preferred Stock shall vote together as a separate and single class, shall be
necessary for authorizing, effecting or validating the amendment, alteration or
repeal of, or any other change in, any of the provisions of the Restated
Certificate of Incorporation or of any amendment or supplement thereto
(including any Certificate of Designations or any similar document relating to
any series of Preferred Stock) of the Company, which would adversely affect the
preferences, rights, powers or privileges, qualifications, limitations and
restrictions of the Cumulative Preferred Stock and any such other series of
Other Preferred Stock.
(b) Unless the vote or consent of the holders of a greater number
of shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Cumulative Preferred
Stock and any series of other Preferred Stock of the Company 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 the Cumulative
Preferred Stock and any such series of Other Preferred Stock of the Company
shall vote together as a single class without regard to series, shall be
necessary to create, authorize or issue, or reclassify any authorized stock of
the Company into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, or increase the authorized
amount of, any shares of any class of stock of the Company ranking prior to the
Cumulative Preferred Stock and any series of Other Preferred Stock. Subject to
the foregoing, the Company's Restated Articles of Incorporation may be amended
to increase the number of authorized shares of Preferred Stock without the vote
of the holders of Preferred Stock, including the Cumulative Preferred Stock.
(c) Whenever, at any time or times, dividends payable on the
shares of Cumulative Preferred Stock shall be in arrears in an amount equal to
at least six full quarterly
-5-
10
dividends on shares of the Cumulative Preferred Stock at the time outstanding,
the holders of the outstanding shares of Cumulative Preferred Stock shall have
the exclusive right, voting separately as a class together with holders of
shares of any one or more series of Other Preferred Stock to elect two directors
of the Company at the Company's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders at which such directors or their
successors are to be elected. At elections for such directors, each holder of
Cumulative Preferred Stock shall be entitled to one vote for each share held
(the holders of shares of any series of Other Preferred Stock being entitled to
such number of votes, if any, for each such share of Other Preferred Stock held
as may be granted to them). Upon the vesting of such right of the holders of
Cumulative Preferred Stock, the maximum authorized number of members of the
Board of Directors shall automatically be increased by two and the two vacancies
so created shall be filled by vote of the holders of the outstanding shares of
Cumulative Preferred Stock (either alone or together with the holders of shares
of any series of Other Preferred Stock) as hereinafter set forth. The right of
the holders of Cumulative Preferred Stock, voting separately as a class to elect
(either alone or together with the holders of shares of any series of Other
Preferred Stock) members of the Board of Directors of the Company as aforesaid
shall continue until such time as all dividends accumulated on the Cumulative
Preferred Stock shall have been paid in full or declared and set apart for
payment, at which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
(d) Each director elected by the holders of shares of Cumulative
Preferred Stock (either alone or together with the holders of shares of any
series of Other Preferred Stock) 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 all dividends on the Cumulative Preferred Stock
shall have been paid in full. If the office of any director elected by the
holders of Cumulative Preferred Stock voting as a class becomes vacant by reason
of death, resignation, retirement, disqualification, removal from office, or
otherwise, such vacancy shall be filled as provided in the Restated Articles of
Incorporation of the Company and the applicable provisions of the Washington
Business Corporation Act. Whenever the term of office of the directors selected
by the holders of the Cumulative Preferred Stock and the special voting powers
vested in the holders of Cumulative Preferred Stock as provided in this
subsection (d) shall have expired, the number of directors shall be such number
as may be provided for in the Restated Articles of Incorporation or the By-Law,
as amended, irrespective of any increase made pursuant to the provisions of this
subsection (d).
6. Reacquired Shares. Shares of Cumulative Preferred Stock redeemed or
otherwise purchased or acquired by the Company shall be restored to the status
of authorized but unissued shares of Preferred Stock without designation as to
series.
7. No Sinking Fund. Shares of Cumulative Preferred Stock are not subject
to the operation of a sinking fund or other obligation of the Company to redeem
or retire the Cumulative Preferred Stock.
-6-
11
8. Rank. The Cumulative Preferred Stock shall rank on a parity, both as
to the payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the affairs of the Company, with the Company's
7.60% Noncumulative Perpetual Preferred Stock, Series E and with the Company's
9.12% Noncumulative Perpetual Preferred Stock, Series C. The Cumulative
Preferred Stock shall rank prior, both as to the payment of dividends and the
distribution of assets upon dissolution, liquidation or winding up of the
affairs of the Company, to the Common Stock of the Company."
THIRD: These amendments do not provide for an exchange, reclassification
or cancellation of any issued shares.
FOURTH: The foregoing amendments of the Restated Articles of
Incorporation were adopted by the Board of Directors of the Company on March 5,
1997. SHAREHOLDER ACTION WAS NOT REQUIRED.
EXECUTED this 30th day of June, 1997.
WASHINGTON MUTUAL, INC.
By: /s/ Kerry K. Killinger
-------------------------------
Kerry K. Killinger
Its: President and Chief Executive
Officer
-7-
12
Filed
State of Washington
Jul 09 1997
Ralph Munro
Secretary of State
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of Chapter 23B.10 of the Washington Business
Corporation Act, WASHINGTON MUTUAL, INC., a Washington corporation, hereby
adopts the following articles of amendment to its restated articles of
incorporation, as previously amended (the "Restated Articles of Incorporation"):
FIRST: The name of the corporation is:
WASHINGTON MUTUAL, INC.
SECOND: The first sentence of Article IIA. of the Restated Articles of
Incorporation, "Capital Stock -- Issuance of and Payments for Stock", is
amended to read in its entirety as follows:
"The total number of shares of capital stock which the Company
has authority to issue is 810,000,000 shares of which 800,000,000
shares shall be shares of common stock with no par value per share
and 10,000,000 shares shall be shares of preferred stock with no
par value per share."
THIRD: The amendment does not provide for an exchange,
reclassification or cancellation of any issued shares.
FOURTH: The following amendment to the Restated Articles of
Incorporation was adopted on March 5, 1997, by the board of directors of the
corporation in accordance with the provisions of RCW 23B.10.030.
-1-
13
FIFTH: The foregoing amendment to the Restated Articles of Incorporation
was duly approved by the shareholders on July 8, 1997, in accordance with the
provisions of RCW 23B.10.030 and RCW 23B.10.040.
EXECUTED this 8th day of July, 1997.
WASHINGTON MUTUAL, INC.
By: /s/ KERRY K. KILLINGER
--------------------------------------
Kerry K. Killinger
President and Chief Executive Officer
-2-
14
FILED
State of Washington
Dec 18 1996
Ralph Munro
Secretary of State
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of Chapter 23B.10 of the Washington Business
Corporation Act, Washington Mutual, Inc., a Washington corporation, hereby
adopts the following articles of amendment to its restated articles of
incorporation:
FIRST: The name of the corporation is:
WASHINGTON MUTUAL, INC.
SECOND: The first sentence of Article IIA. of the Restated Articles of
Incorporation, "Capital Stock--Issuance of and Payment for Stock", is amended
to read in its entirety as follows:
"The total number of shares of capital stock which the Company has
authority to issue is 360,000,000 shares of which 350,000,000 shares shall
be shares of common stock with no par value per share and 10,000,000 shares
shall be shares of preferred stock with no par value per share."
THIRD: The amendment does not provide for an exchange, reclassification or
cancellation of any issued shares.
FOURTH: The foregoing amendment of the Articles of Incorporation was
adopted October 16, 1996 by the board of directors of the corporation in
accordance with the provisions of RCW 23B.10.030, and duly approved by the
shareholders on December 18, 1996, in accordance with the provisions of RCW
23B.10.030 and RCW 23B.10.040.
EXECUTED this 18th day of December, 1996.
WASHINGTON MUTUAL, INC.
By: /s/ KERRY KILLINGER
-------------------------------------
ITS: President and Chief Executive Officer
15
EXHIBIT 3.1
RESTATED ARTICLES OF INCORPORATION
OF
WASHINGTON MUTUAL, INC.
Pursuant to the provisions of RCW 23B.10.070 of the Washington
Business Corporation Act, WASHINGTON MUTUAL, INC., hereby certifies that these
Restated Articles of Incorporation correctly set forth without change the
provisions of the Articles of Incorporation of the corporation, as amended.
These Restated Articles of Incorporation supersede the original Articles of
Incorporation and all amendments thereto.
ARTICLE I
Name
The name of this corporation is WASHINGTON MUTUAL, INC. (the
"Company").
ARTICLE II
Capital Stock
A. Issuance of and Payment for Stock. The total number
of shares of capital stock which the Company has authority to issue is
110,000,000 shares of which 100,000,000 shares shall be shares of common stock
with no par value per share and 10,000,000 shares shall be shares of preferred
stock with no par value per share. The shares may be issued by the Company
from time to time as approved by its Board of Directors without the approval of
the shareholders. The consideration for issuance of the shares shall be paid
in full before their issuance. Neither promissory notes nor the promise of
future services shall constitute payment or part payment for the issuance of
shares of the Company. The consideration for the shares shall be cash,
tangible or intangible property, labor or services actually performed for the
Company or any combination of the foregoing. In the absence of actual fraud
-1-
16
in the transaction, the value of such property, labor or services, as
determined by the Board of Directors of the Company, shall be conclusive. Upon
payment of such consideration, such shares shall be deemed to be fully paid and
non-assessable.
B. Voting by Class or Series. Except as expressly
provided in these Articles or in any resolutions of the Board of Directors
designating and establishing the terms of any series of preferred stock, no
holders of any class or series of capital stock shall have any right to vote as
a separate class or series or to vote more than one vote per share.
Notwithstanding the foregoing, the restriction on voting separately by class or
series shall not apply to the extent that applicable law requires such voting,
nor shall this restriction apply to any amendment to these Articles which would
adversely change the specific terms of any class or series of capital stock as
set forth in this Article II or in any resolution of the Board of Directors
designating and establishing the terms of any series of preferred stock. For
purposes of the preceding sentence, an amendment which increases the number of
authorized shares of any class or series of capital stock, or substitutes the
surviving institution in a merger or consolidation for the Company, shall not
be such an adverse change.
C. Common Stock. On matters on which holders of common
stock are entitled to vote, each holder of shares of common stock shall be
entitled to one vote for each share held by such holder.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full
amount of dividends and of sinking fund or retirement fund or other retirement
payments, if any, to which such holders are respectively entitled in preference
to the common stock, then dividends may be paid on the common stock and on any
class or series of stock entitled to participate therewith as to dividends, out
of any assets legally available for the payment of dividends; but only when and
as declared by the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Company, after there shall have been paid to or set aside for the holders of
any class having preferences over the common stock in the event of liquidation,
dissolution or winding up of the full preferential amounts to which they are
respectively entitled, the holders of the common stock, and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets, shall be entitled, after payment or provision for
payment of all debts and liabilities of the Company, to receive pro rata the
remaining assets of the Company available for distribution, in cash or in kind.
-2-
17
Each share of common stock shall have the same relative rights as and
be identical in all respects with all the other shares of common stock.
D. Preferred Stock.
(1) The authorized Preferred Stock shall be
comprised of 10,000,000 shares no par value per share, which authorized
Preferred Stock shall initially consist of 2,800,000 shares of 9.12%
Noncumulative Perpetual Preferred Stock, Series C, 1,400,000 shares of $6.00
Noncumulative Convertible Perpetual Preferred Stock, Series D, and 2,000,000
shares of 7.60% Noncumulative Perpetual Preferred Stock, Series E. The Board
of Directors of the Company is authorized by resolution or resolutions from
time to time adopted, to provide for the issuance of preferred stock in one or
more additional series by designating and establishing the terms of such a
series. With respect to any such series, the Board of Directors is authorized
to fix and state the voting powers, designations, preferences and relative,
participating, optional or other special right of the shares of each such
series and the qualifications, limitations and restrictions thereon, including,
but not limited to, determination of any of the following:
(a) The distinctive serial designation
and the number of shares constituting such series;
(b) The dividend rates or the amount of
dividends to be paid on the shares of such series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment date or dates for
dividends, and the participating or other special rights, if any, with respect
to dividends;
(c) The voting powers, full, special or
limited, if any, of shares of such series;
(d) Whether the shares of such series
shall be redeemable and, if so, the price or prices at which, and the terms and
conditions on which, such shares may be redeemed;
(e) The amount or amounts payable upon
the shares of such series in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Company;
(f) Whether the shares of such series
shall be entitled to the benefit of a sinking or retirement fund to be applied
to the purchase or redemption of such shares, and if so entitled, the amount of
such fund and the manner of its application, including the price or prices at
which such shares may be redeemed or purchased through the application of such
fund;
-3-
18
(g) Whether the shares of such series
shall be convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or classes of
stock of the Company and, if so convertible or exchangeable, the conversion
price or prices, or the rate of exchange, and the adjustments thereof, if any,
at which such conversion or exchange may be made, and any other terms and
conditions of such conversion or exchange; and
(h) Whether the shares of such series
which are redeemed or converted shall have the status of authorized but
unissued shares of serial preferred stock and whether such shares may be
reissued as shares of the same or any other series of serial preferred stock.
Each share of each series of preferred stock shall have the same
relative rights as and be identical in all respects with all the other shares
of the same series.
While the foregoing authorizes the Board of Directors, in establishing
the terms of a series of preferred stock, to permit holders of that series of
preferred stock to elect separately one or more directors, in no event shall
the total number of directors separately elected by holders of one or more
series of preferred stock equal or exceed fifty percent (50%) of the total
number of authorized directors.
(2) The terms and designations of the initially
authorized series of Preferred Stock shall be as follows:
(A) 9.12% Noncumulative Perpetual Preferred
Stock, Series C.
1. Designation. There shall initially
be a series of preferred stock whose designation shall be "9.12% Noncumulative
Perpetual Preferred Stock, Series C" ("Series C"). The number of shares of
Series C shall be 2,800,000. The liquidation preference of Series C shall be
$25.00 per share (plus accrued and unpaid dividends for the then-current
dividend period up to the date fixed for liquidation, dissolution or winding
up).
2. Rank. The shares of Series C shall,
with respect to dividend rights and rights on liquidation, winding up and
dissolution of the Company, rank prior to the Company's common stock (the
"Common Stock") and to all other classes and series of equity securities of the
Company now or hereafter authorized, issued or outstanding, other than any
classes or series of equity securities of the Company either (a) ranking on a
parity with shares of Series C as to dividend rights and rights upon
liquidation, winding up or dissolution of the Company (the "Series C Parity
Stock"), or (b) ranking senior to shares of
-4-
19
Series C as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company (the Common Stock and such other classes and series
of equity securities other than those described in (a) or (b) collectively may
be referred to herein as the "Series C Junior Stock"). The shares of Series C
shall be subject to the creation of such Series C Parity Stock and such Series
C Junior Stock to the extent not expressly prohibited by these Articles.
Any class or classes of stock of the Company shall be deemed to rank
prior to Series C as to dividends and as to distribution of assets upon
liquidation, dissolution or winding up if the holders of such class shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in preference or priority to the holders
of shares of Series C.
3. Noncumulative Dividends and Dividend
Rate. Holders of shares of Series C shall be entitled to receive, when, as and
if declared by the Board of Directors, or a duly authorized committee thereof,
out of funds legally available therefor, cash dividends from the date of issue
thereof at the annual rate of $2.28 per share, payable quarterly in arrears, on
February 15, May 15, August 15 and November 15 (each a "Series C Dividend
Payment Date") of each year, commencing on the first Series C Dividend Payment
Date after issuance of the shares of Series C; provided, however, that if any
such day is a non-business day, the Series C Dividend Payment Date will be the
next business day. Each declared dividend shall be payable to holders of
record as they appear at the close of business on the stock books of the
Company on such record dates, not more than 30 calendar days and not less than
10 calendar days preceding the payment dates therefor, as are determined by the
Board of Directors of the Company or a duly authorized committee thereof (each
of such dates a "Series C Record Date"). Quarterly dividend periods (each a
"Series C Dividend Period") shall commence on and include the fifteenth day of
February, May, August and November of each year (except as set forth above with
respect to the initial Series C Dividend Period) and shall end on and include
the day next preceding the next following Series C Dividend Payment Date.
Dividends on the shares of Series C shall be noncumulative so that if
a dividend on the shares of Series C with respect to any Series C Dividend
Period is not declared by the Board of Directors of the Company, or any duly
authorized committee thereof, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series C in respect of such Series C
Dividend Period. Holders of the shares of Series C shall not be entitled to
any dividends, whether payable in cash, property or stock, in excess of the
noncumulative dividends declared by the Board of Directors, or a duly
authorized committee thereof, as set forth herein.
-5-
20
Any Series C Parity Stock issued by the Company shall only have
dividend periods which end on the same date as a Series C Dividend Period. No
full dividends shall be declared or paid or set apart for payment on any Series
C Parity Stock in respect of any such dividend period unless full dividends on
Series C for the Series C Dividend Period ending on the same date as such
dividend period shall have been paid or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for such
payment.
If at any time with respect to any Series C Dividend Period dividends
are not declared and paid in full (or declared and a sum sufficient for such
full payment so set apart) upon the shares of Series C, dividends upon shares
of Series C and dividends on any shares of Series C Parity Stock outstanding
shall only be declared by the Board of Directors or a duly authorized committee
thereof pro rata with respect thereto, so that the amount of dividends declared
per share on Series C and such Series C Parity Stock shall bear to each other
the same ratio that accrued dividends per share on the shares of Series C for
such Series C Dividend Period (which shall not include any accumulation in
respect of unpaid dividends for prior Series C Dividend Periods) and full
dividends, including accumulations, if any, on shares of Series C Parity Stock,
bear to each other.
Unless full dividends have been declared and paid (or declared and a
sum sufficient for such full payment set apart for payment) on all outstanding
shares of Series C for the immediately preceding Series C Dividend Period, the
Company shall not declare or pay any dividends (other than in Common Stock or
other Series C Junior Stock) or set any amount aside for payment thereof or
make any other distribution on the Common Stock or on any other Series C Junior
Stock, nor shall any Common Stock nor any Series C Junior Stock be redeemed (or
any moneys be paid to or made available for a sinking fund for the redemption
of any shares of any such stock), or any Series C Junior Stock or Series C
Parity Stock be purchased or otherwise acquired by the Company for any
consideration except by conversion into or exchange for Series C Junior Stock.
Regardless of the length of the initial Series C Dividend Period and
whether or not the time period from the date of issue of the shares of Series C
to the Series C Dividend Payment Date constitutes a full quarter, a full
quarterly dividend of $.57 per share shall be paid on the initial Series C
Dividend Payment Date. Dividends payable for any other period shorter than a
full Series C Dividend Period shall be computed on the basis of twelve 30-day
months and a 360-day year. Dividends payable for each full quarterly dividend
period shall be computed by dividing the annual dividend rate by four.
-6-
21
4. Voting Rights. Except as indicated
below and except as otherwise required by applicable law, the holders of shares
of Series C will not be entitled to vote for any purpose.
As long as any shares of Series C remain outstanding, the consent of
the holders of at least two-thirds of the shares of Series C at the time
outstanding (unless the vote or consent of the holders of a greater number of
shares shall then be required by law), given in person by proxy, by a vote at a
meeting of the holders of Series C called for such purpose at which the holders
of shares of Series C shall vote together as a separate class, shall be
necessary (i) to issue or authorize any additional class of equity stock (it
being understood that subordinated debt instruments, including mandatory
convertible debt, are not for these purposes equity stock) ranking prior to
Series C as to dividends or upon liquidation, winding up or dissolution or
which possess rights to vote separately as one class with Series C on a basis
of more than one vote for each $25.00 of stated liquidation preference thereof
(excluding any liquidation preference for accrued but unpaid dividends) or to
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, or to reclassify any authorized stock of the Company into,
any such additional class of equity stock or (ii) to repeal, amend or otherwise
change any of the provisions of these Articles in any manner which adversely
affects the powers, preferences, voting power or other rights or privileges of
Series C; provided, however, that amending these Articles to increase the
number of authorized shares of common or preferred stock shall not be deemed to
be included within the scope of (ii) above.
In connection with any matter on which holders of Series C are
entitled to vote including, without limitation, the election of directors as
set forth below or any matter on which the holders of Series C are entitled to
vote as one class or otherwise pursuant to law or the provisions of these
Articles, each holder of Series C shall be entitled to one vote for each share
of Series C held by such holder.
To the extent permitted by law, if the equivalent of six full
quarterly dividends on Series C, whether or not consecutive, are not declared
and paid, the holders of shares of Series C, together with the holders of any
Series C Parity Stock as to which the payment of dividends is in arrears and
unpaid in an aggregate amount equal to or exceeding the amount of dividends
payable for six quarterly dividend periods (or if dividends are payable other
than on a quarterly basis the number of dividend periods, whether or not
consecutive, containing in the aggregate not less than 540 calendar days) and
which by its terms provides for voting rights similar to those of the shares of
Series C (the "Series C Voting Parity Stock"), shall have the exclusive right
at the next annual meeting of shareholders for the election of directors or at
a
-7-
22
special meeting called as described below, voting separately as one class, to
elect two directors for newly created directorships of the Company, each
director to be in addition to the number of directors constituting the Board of
Directors of the Company immediately prior to the accrual of such right (the
remaining directors to be elected by the other class or classes of stock
entitled to vote therefor). At any time when the right to elect such directors
shall have so vested, the Company may, and upon written request of the holders
of record of not less than 20% of the total number of shares of Series C and
such Series C Voting Parity Stock then outstanding shall, call a special
meeting of the holders of such shares to fill such newly created directorships.
In the case of such a written request, such special meeting shall be held
within 90 days after delivery of such request and in either case, at the place
and upon the notice provided by law and the Bylaws of the Company, provided
that the Company shall not be required to call such a special meeting if such
request is received less than 120 days before the date fixed for the next
annual meeting of shareholders. The right of holders of shares of Series C to
elect directors shall continue until dividends on the shares of Series C, have
been declared and paid in full for four consecutive Series C Dividend Periods,
at which time such voting right of the holders of the shares of Series C and
the Series C Voting Parity Stock shall, without further action, terminate,
subject to revesting in the event of each and every subsequent failure of the
Company to pay such dividends for the requisite number of periods as described
above.
The term of office of all directors elected by the holders of the
shares of Series C and the Series C Voting Parity Stock in office at any time
when the aforesaid voting right is vested in such holders shall terminate upon
the election of their successors at any meeting of shareholders for the purpose
of electing directors; provided however, that without further action and unless
otherwise required by law, any director who shall have been elected by holders
of the shares of Series C and the Series C Voting Parity Stock as provided
herein may be removed at any time, either with or without cause, by the
affirmative vote of the holders of record of a majority of the outstanding
shares of Series C and the Series C Voting Parity Stock, voting separately as
one class, at a duly held shareholders' meeting. Upon termination of the
aforesaid voting right in accordance with the foregoing provisions, the term of
office of all directors elected by the holders of the shares of Series C and
the Series C Voting Parity Stock pursuant thereto then in office shall, without
further action, thereupon terminate unless otherwise required by law. Upon
such termination the number of directors constituting the Board of Directors of
the Company shall, without further action, be reduced by two, subject always to
the increase of the number of directors pursuant to the foregoing provisions in
the case of the future right of holders of the shares
-8-
23
of Series C and the Series C Voting Parity Stock to elect directors as provided
above.
Unless otherwise required by law, in case of any vacancy occurring
among the directors so elected, the remaining director who shall have been so
elected may appoint a successor to hold office for the unexpired term of the
director whose place shall be vacant, and if all directors so elected by the
holders of the shares of Series C and the Series C Voting Parity Stock shall
cease to serve as directors before their term shall expire, the holders of the
shares of Series C and the Series C Voting Parity Stock then outstanding may,
at a meeting of such holders duly held, elect successors to hold office of the
unexpired terms of the directors whose places shall be vacant.
The directors to be elected by the shares of Series C and the Series C
Voting Parity Stock, voting together as a class, shall not become members of
any of the three classes of directors otherwise required by these Articles. If
these Articles and applicable law were construed to require classification of
such directors and as a result, or if for any other reason, the holders of the
shares of Series C and the Series C Voting Parity Stock are not able to elect
the specified number of directors at the next annual meeting of shareholders in
the manner described above, the Company shall use its best efforts to take all
actions necessary to permit the full exercise of such voting rights (including,
if necessary, taking action to increase the authorized number of directors
standing for election at such next annual meeting of shareholders or seeking to
amend, alter or change these Articles and bylaws of the Company).
5. Optional Redemption. The shares of
Series C will not be redeemable before December 31, 1997. On or after December
31, 1997, the shares of Series C are redeemable at the option of the Company
for cash, in whole or in part, at any time and from time to time, at $25.00 per
share, to the extent that the Company has funds legally available therefor,
plus unpaid dividends (whether or not declared) for the then-current Series C
Dividend Period up to the date fixed for redemption (without accumulation of
accrued and unpaid dividends for prior Series C Dividend Periods) (the "Series
C Redemption Price") without interest.
The Company shall not redeem or set aside funds for the redemption of
any Series C Parity Stock unless prior to or contemporaneously therewith it
redeems, or sets aside funds for the redemption of, a number of shares of
Series C whose liquidation preference bears the same relationship to the
aggregate liquidation preference of all shares of Series C then outstanding as
the liquidation preference of such Series C Parity Stock to be redeemed bears
to the aggregate liquidation preference of all Series C Parity Stock then
outstanding. In addition, notwithstanding the
-9-
24
foregoing, the Company may redeem Series C Parity Stock without redeeming a
proportional amount of Series C in the event (i) such Series C Parity Stock is
convertible into Common Stock and (ii) the average of the daily closing prices
of Common Stock for the 30-day period ending 15 days prior to the date of the
notice of redemption is in excess of the conversion price of such Series C
Parity Stock.
In the event that fewer than all the outstanding shares of Series C
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be determined by lot
or pro rata as may be determined by the Board of Directors or by any other
method as may be determined by the Board of Directors in its sole discretion to
be equitable.
In the event the Company shall redeem shares of Series C, notice of
such redemption (a "Series C Notice of 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 Company. Each Notice of Redemption shall include the following
information: (1) the redemption date; (2) the number of shares of Series C 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; (3) the
Series C Redemption Price (specifying the amount of unpaid dividends to be
included therein); (4) the place or places where certificates for such shares
are to be surrendered for payment of the Series C Redemption Price; (5) that
dividends on the shares to be redeemed will cease to accrue as of such
redemption date; and (6) the provision hereunder pursuant to which such
redemption is being made.
On or after a redemption date, each holder of shares of Series C that
were called for redemption shall surrender the certificate or certificates
evidencing such shares to the Company at any place designated for such
surrender in the Notice of Redemption and shall then be entitled to receive
payment of the Series C Redemption Price for each share. If less than all the
shares represented by one share certificate are to be redeemed, the Company
shall issue a new share certificate for the shares not redeemed.
By noon of the business day immediately preceding the redemption date,
the Company shall irrevocably deposit with First Interstate Company of
Washington, N.A., in its capacity as paying agent with respect to the shares of
Series C or any successor paying agent (the "Paying Agent"), an aggregate
amount of immediately available funds or short-term money market instruments or
U.S. Treasury Securities sufficient to pay the Series C Redemption Price
specified herein for the shares of Series C to be
-10-
25
redeemed on such date and shall give the Paying Agent irrevocable instructions
to pay such Series C Redemption Price to the holders of record of the shares of
Series C called for redemption.
If a Notice of Redemption shall have been given and the deposit
referred to in the preceding paragraph made, then dividends shall cease, as of
the redemption date, to accumulate on the shares of Series C called for
redemption and all other rights of holders of the shares so called for
redemption shall cease on and after the redemption date, except the right of
holders of such shares to receive the Series C Redemption Price against
delivery of such shares, but without interest, and such shares shall cease to
be outstanding. The Company shall be entitled to receive, from time to time,
from the Paying Agent the interest, if any, earned on such monies deposited
with the Paying Agent, and the holders of any shares to be redeemed with such
monies shall have no claim to any such interest. With regard to any other
funds so deposited that are unclaimed by holders of shares at the end of two
years from such redemption date, the Paying Agent shall, upon demand, pay over
to the Company such amount remaining on deposit, the Paying Agent shall
thereupon be relieved of all responsibility to the holders of such shares and
the holders of shares of Series C so called for redemption shall thereafter be
entitled to look only to the Company for payment thereof.
Any shares of Series C which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of preferred stock of the Company, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors.
6. No Conversion Rights. Holders of
shares of Series C will have no right to convert shares of Series C into Common
Stock or any other security of the Company.
7. Liquidation Preference. In the
event of any liquidation, dissolution or winding up of the Company, voluntary
or involuntary, the holders of the outstanding shares of Series C shall be
entitled to receive out of the assets of the Company, or the proceeds thereof,
available for distribution to shareholders, before any distribution of assets
is made to the holders of Common Stock or other Series C Junior Stock,
liquidating distributions in the amount of $25.00 per share plus dividends
accrued and unpaid for the then-current Series C Dividend Period (without
accumulation of accrued and unpaid dividends for prior Series C Dividend
Periods) to the date fixed for such liquidation, dissolution or winding up.
After payment of the full amount of the liquidating distribution to which they
are entitled, the holders of shares of Series C will not be entitled to any
further participation in any distribution of assets of the Company. All
-11-
26
distributions made with respect to the shares of Series C in connection with
such liquidation, dissolution or winding up of the Company shall be made pro
rata to the holders entitled thereto.
If, upon any liquidation, dissolution or winding up of the Company,
the assets of the Company, and proceeds thereof, available for distribution
among the holders of the shares of Series C and of any Series C Parity Stock,
shall be insufficient to pay in full the preferential amount set forth in the
preceding paragraph above to the holders of the shares of Series C and
liquidating payments on all such Series C Parity Stock, then such assets and
proceeds shall be distributed among the holders of Series C and all such Series
C Parity Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series C and any such Series C Parity Stock if all
amounts payable thereon were paid in full.
8. Payments on Stock Ranking Junior.
In the event of any such liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, unless and until payment in full is made to
the holders of all outstanding shares of Series C of the liquidation
distribution to which they are entitled, no dividend or other distribution
shall be made to the holders of the Common Stock or any other Series C Junior
Stock, and no purchase, redemption or other acquisition for any consideration
by the Company shall be made in respect of the shares of the Common Stock or
such other class of junior Stock.
Neither a consolidation or merger of the Company into or with another
entity or entities nor the sale, transfer or exchange (for cash, shares of
equity stock, securities or other consideration) of all or substantially all of
the property and assets of the Company, shall be deemed to be a liquidation,
dissolution or winding up of the Company within the meaning of this Section
D.(2)(A).
9. Sinking Fund. No sinking fund shall
be provided for the purchase of redemption of shares of Series C.
10. Preemptive Rights. No holder of
shares of Series C shall have any preemptive right to subscribe to stock,
obligations, warrants, rights to subscribe to stock, or other securities of
this corporation of any class, whether now or hereafter authorized.
-12-
27
(B) $6.00 Noncumulative Convertible Perpetual
Preferred Stock, Series D
1. Designation. There shall initially
be a series of preferred stock whose designation shall be "$6.00 Noncumulative
Convertible Perpetual Preferred Stock, Series D" ("Series D"). The number of
shares of Series D shall be 1,400,000. The liquidation preference of Series D
shall be $100.00 per share (plus accrued and unpaid dividends for the
then-current dividend period up to the date fixed for liquidation, dissolution
or winding up).
2. Rank. The shares of Series D shall,
with respect to dividend rights and rights on liquidation, winding up and
dissolution of the Company, rank prior to the Common Stock and to all other
classes and series of equity securities of the Company now or hereafter
authorized, issued or outstanding, other than any classes or series of equity
securities of the Company either (a) ranking on a parity with shares of Series
D as to dividend rights and rights upon liquidation, winding up or dissolution
of the Company (the "Series D Parity Stock"), or (b) ranking senior to shares
of Series D as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company (the Common Stock and such other classes and series
of equity securities other than those described in (a) or (b) collectively may
be referred to herein as the "Series D Junior Stock"). The shares of Series D
shall be subject to the creation of such Series D Parity Stock and such Series
D Junior Stock to the extent not expressly prohibited by these Articles.
Any class or classes of stock of the Company shall be deemed to rank
prior to Series D as to dividends and as to distribution of assets upon
liquidation, dissolution or winding up if the holders of such class shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in preference or priority to the holders
of shares of Series D.
3. Noncumulative Dividends and Dividend
Rate. Holders of shares of Series D shall be entitled to receive, when, as and
if declared by the Board of Directors, or a duly authorized committee thereof,
out of funds legally available therefor, cash dividends from the date of issue
thereof at the annual rate of $6.00 per share, payable quarterly in arrears, on
February 15, May 15, August 15 and November 15 (each a "Series D Dividend
Payment Date") of each year, commencing on the first Series D Dividend Payment
Date after issuance of the shares of Series D; provided, however, that if any
such day is a non-business day, the Series D Dividend Payment Date will be the
next business day. Each declared dividend shall be payable to holders of
record as they appear at the close of business on the stock books of the
-13-
28
Company on such record dates, not more than 30 calendar days and not less than
10 calendar days preceding the payment dates therefor, as are determined by the
Board of Directors of the Company or a duly authorized committee thereof (each
of such dates a "Series D Record Date"). Quarterly dividend periods (each a
"Series D Dividend Period") shall commence on and include the fifteenth day of
February, May, August and November of each year (except as set forth above with
respect to the initial Series D Dividend Period) and shall end on and include
the day next preceding the next following Series D Dividend Payment Date.
Dividends on the shares of Series D shall be noncumulative so that if
a dividend on the shares of Series D with respect to any Series D Dividend
Period is not declared by the Board of Directors of the Company, or any duly
authorized committee thereof, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series D in respect of such Series D
Dividend Period. Holders of the shares of Series D shall not be entitled to
any dividends, whether payable in cash, property or stock, in excess of the
noncumulative dividends declared by the Board of Directors, or a duly
authorized committee thereof, as set forth herein.
Any Series D Parity Stock issued by the Company shall only have
dividend periods which end on the same date as a Series D Dividend Period. No
full dividends shall be declared or paid or set apart for payment on any Series
D Parity Stock in respect of any such dividend period unless full dividends on
Series D for the Series D Dividend Period ending on the same date as such
dividend period shall have been paid or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for such
payment.
If at any time with respect to any Series D Dividend Period dividends
are not declared and paid in full (or declared and a sum sufficient for such
full payment so set apart) upon the shares of Series D, dividends upon shares
of Series D and dividends on any shares of Series D Parity Stock outstanding
shall only be declared by the Board of Directors or a duly authorized committee
thereof pro rata with respect thereto, so that the amount of dividends declared
per share on Series D and such Series D Parity Stock shall bear to each other
the same ratio that accrued dividends per share on the shares of Series D for
such Series D Dividend Period (which shall not include any accumulation in
respect of unpaid dividends for prior Series D Dividend Periods) and full
dividends, including accumulations, if any, on shares of Series D Parity Stock,
bear to each other.
Unless full dividends have been declared and paid (or declared and a
sum sufficient for such full payment set apart for payment) on all outstanding
shares of Series D for the immediately preceding Series D Dividend Period, the
Company shall not declare or pay any
-14-
29
dividends (other than in Common Stock or other Series D Junior Stock) or set
any amount aside for payment thereof or make any other distribution on the
Common Stock or on any other Series D Junior Stock, nor shall any Common Stock
nor any Series D Junior Stock be redeemed (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock), or any Series D Junior Stock or Series D Parity Stock be purchased or
otherwise acquired by the Company for any consideration except by conversion
into or exchange for Series D Junior Stock.
Regardless of the length of the initial Series D Dividend Period and
whether or not the time period from the date of issue of the shares of Series D
to the Series D Dividend Payment Date constitutes a full quarter, a full
quarterly dividend of $1.50 per share shall be paid on the initial Series D
Dividend Payment Date. Dividends payable for any other period shorter than a
full Series D Dividend Period shall be computed on the basis of twelve 30-day
months and a 360-day year. Dividends payable for each full quarterly dividend
period shall be computed by dividing the annual dividend rate by four.
4. Voting Rights. Except as indicated
below and except as otherwise required by applicable law, the holders of shares
of Series D will not be entitled to vote for any purpose.
As long as any shares of Series D remain outstanding, the consent of
the holders of at least two-thirds of the shares of Series D at the time
outstanding (unless the vote or consent of the holders of a greater number of
shares shall then be required by law), given in person by proxy, by a vote at a
meeting of the holders of Series D called for such purpose at which the holders
of shares of Series D shall vote together as a separate class, shall be
necessary (i) to issue or authorize any additional class of equity stock (it
being understood that subordinated debt instruments, including mandatory
convertible debt, are not for these purposes equity stock) ranking prior to
Series D as to dividends or upon liquidation, winding up or dissolution or
which possess rights to vote separately as one class with Series D on a basis
of more than one vote for each $25.00 of stated liquidation preference thereof
(excluding any liquidation preference for accrued but unpaid dividends) or to
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, or to reclassify any authorized stock of the Company into,
any such additional class of equity stock or (ii) to repeal, amend or otherwise
change any of the provisions of these Articles in any manner which adversely
affects the powers, preferences, voting power or other rights or privileges of
Series D; provided, however, that amending these Articles to increase the
number of authorized shares of common or preferred stock shall not be deemed to
be included within the scope of (ii) above.
-15-
30
In connection with any matter on which holders of Series D are
entitled to vote including, without limitation, the election of directors as
set forth below or any matter on which the holders of Series D are entitled to
vote as one class or otherwise pursuant to law or the provisions of these
Articles, each holder of Series D shall be entitled to one vote for each share
of Series D held by such holder.
To the extent permitted by law, if the equivalent of six full
quarterly dividends on Series D, whether or not consecutive, are not declared
and paid, the holders of shares of Series D, together with the holders of any
Series D Parity Stock as to which the payment of dividends is in arrears and
unpaid in an aggregate amount equal to or exceeding the amount of dividends
payable for six quarterly dividend periods (or if dividends are payable other
than on a quarterly basis the number of dividend periods, whether or not
consecutive, containing in the aggregate not less than 540 calendar days) and
which by its terms provides for voting rights similar to those of the shares of
Series D (the "Series D Voting Parity Stock"), shall have the exclusive right
at the next annual meeting of shareholders for the election of directors or at
a special meeting called as described below, voting separately as one class, to
elect two directors for newly created directorships of the Company, each
director to be in addition to the number of directors constituting the Board of
Directors of the Company immediately prior to the accrual of such right (the
remaining directors to be elected by the other class or classes of stock
entitled to vote therefor). At any time when the right to elect such directors
shall have so vested, the Company may, and upon written request of the holders
of record of not less than 20% of the total number of shares of Series D and
such Series D Voting Parity Stock then outstanding shall, call a special
meeting of the holders of such shares to fill such newly created directorships.
In the case of such a written request, such special meeting shall be held
within 90 days after delivery of such request and in either case, at the place
and upon the notice provided by law and in the Bylaws of the Company, provided
that the Company shall not be required to call such a special meeting if such
request is received less than 120 days before the date fixed for the next
annual meeting of shareholders. The right of holders of shares of Series D to
elect directors shall continue until dividends on the shares of Series D, have
been declared and paid in full for four consecutive Series D Dividend Periods,
at which time such voting right of the holders of the shares of Series D and
the Series D Voting Parity Stock shall, without further action, terminate,
subject to revesting in the event of each and every subsequent failure of the
Company to pay such dividends for the requisite number of periods as described
above.
The term of office of all directors elected by the holders of the
shares of Series D and the Series D Voting Parity Stock in
-16-
31
office at any time when the aforesaid voting right is vested in such holders
shall terminate upon the election of their successors at any meeting of
shareholders for the purpose of electing directors; provided however, that
without further action and unless otherwise required by law, any director who
shall have been elected by holders of the shares of Series D and the Series D
Voting Parity Stock as provided herein may be removed at any time, either with
or without cause, by the affirmative vote of the holders of record of a
majority of the outstanding shares of Series D and the Series D Voting Parity
Stock, voting separately as one class, at a duly held shareholders' meeting.
Upon termination of the aforesaid voting right in accordance with the foregoing
provisions, the term of office of all directors elected by the holders of the
shares of Series D and the Series D Voting Parity Stock pursuant thereto then
in office shall, without further action, thereupon terminate unless otherwise
required by law. Upon such termination the number of directors constituting
the Board of Directors of the Company shall, without further action, be reduced
by two, subject always to the increase of the number of directors pursuant to
the foregoing provisions in the case of the future right of holders of the
shares of Series D and the Series D Voting Parity Stock to elect directors as
provided above.
Unless otherwise required by law, in case of any vacancy occurring
among the directors so elected, the remaining director who shall have been so
elected may appoint a successor to hold office for the unexpired term of the
director whose place shall be vacant, and if all directors so elected by the
holders of the shares of Series D and the Series D Voting Parity Stock shall
cease to serve as directors before their term shall expire, the holders of the
shares of Series D and the Series D Voting Parity Stock then outstanding may,
at a meeting of such holders duly held, elect successors to hold office of the
unexpired terms of the directors whose places shall be vacant.
The directors to be elected by the shares of Series D and the Series D
Voting Parity Stock, voting together as a class, shall not become members of
any of the three classes of directors otherwise required by these Articles. If
these Articles and applicable law were construed to require classification of
such directors and as a result, or if for any other reason, the holders of the
shares of Series D and the Series D Voting Parity Stock are not able to elect
the specified number of directors at the next annual meeting of shareholders in
the manner described above, the Company shall use its best efforts to take all
actions necessary to permit the full exercise of such voting rights (including,
if necessary, taking action to increase the authorized number of directors
standing for election at such next annual meeting of shareholders or seeking to
amend, alter or change these Articles and Bylaws of the Company).
-17-
32
5. Optional Redemption. The shares of
Series D will not be redeemable before December 31, 1996. On or after December
31, 1996, the shares of Series D are redeemable at the option of the Company
for cash, in whole or in part, at any time and from time to time, at the
following redemption prices per share if redeemed during the 12-month period
ending December 31 in each of the following years to the extent that the
Company has funds legally available therefor:
redemption price redemption price
per share of per share of
Year Series D Year Series D
---- -------- ---- --------
1997 $103.60 2001 $101.20
1998 $103.00 2002 $100.60
1999 $102.40 2003 and
2000 $101.80 thereafter $100.00
plus in each case accrued and unpaid dividends (whether or not declared) for
the last complete Series D Dividend Period immediately preceding the date fixed
for redemption (without accumulation of accrued and unpaid dividends for prior
Series D Dividend Periods) (the "Series D Redemption Price") without interest.
The Company shall not redeem or set aside funds for the redemption of
any Series D Parity Stock unless prior to or contemporaneously therewith it
redeems, or sets aside funds for the redemption of, a number of shares of
Series D whose liquidation preference bears the same relationship to the
aggregate liquidation preference of all shares of Series D then outstanding as
the liquidation preference of such Series D Parity Stock to be redeemed bears
to the aggregate liquidation preference of all Series D Parity Stock then
outstanding. In addition, notwithstanding the foregoing, the Company may
redeem Series D Parity Stock without redeeming a proportional amount of Series
D in the event (i) such Series D Parity Stock is convertible into Common Stock
and (ii) the average of the daily Closing Prices (as defined in 6(a) below) of
Common Stock for the 30-day period ending 15 days prior to the date of the
notice of redemption is in excess of the conversion price of such Series D
Parity Stock.
In the event that fewer than all the outstanding shares of Series D
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be determined by lot
or pro rata as may be determined by the Board of Directors or by any other
method as may be determined by the Board of Directors in its sole discretion to
be equitable.
-18-
33
In the event the Company shall redeem shares of Series D, notice of
such redemption (a "Series D Notice of 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 Company. Each Series D Notice of Redemption shall include the following
information: (1) the redemption date; (2) the number of shares of Series D 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; (3) the
Series D Redemption Price (specifying the amount of accrued and unpaid
dividends to be included therein); (4) the place or places where certificates
for such shares are to be surrendered for payment of the Series D Redemption
Price; (5) that dividends on the shares to be redeemed will cease or ceased to
accrue as of the end of the Series D Dividend Period immediately preceding such
redemption date; and (6) the provision hereunder pursuant to which such
redemption is being made.
On or after a redemption date, each holder of shares of Series D that
were called for redemption shall surrender the certificate or certificates
evidencing such shares to the Company at any place designated for such
surrender in the Series D Notice of Redemption and shall then be entitled to
receive payment of the Series D Redemption Price for each share. If less than
all the shares represented by one share certificate are to be redeemed, the
Company shall issue a new share certificate for the shares not redeemed.
By noon of the business day immediately preceding the redemption date,
the Company shall irrevocably deposit with First Interstate Company of
Washington, N.A., in its capacity as paying agent with respect to the shares of
Series D or any successor paying agent (the "Series D Paying Agent"), an
aggregate amount of immediately available funds or short-term money market
instruments or U.S. Treasury Securities sufficient to pay the Series D
Redemption Price specified herein for the shares of Series D to be redeemed on
such date and shall give the Series D Paying Agent irrevocable instructions to
pay such Series D Redemption Price to the holders of record of the shares of
Series D called for redemption.
If a Series D Notice of Redemption shall have been given and the
deposit referred to in the preceding paragraph made, then dividends shall cease
after the end of the complete Series D Dividend Period immediately preceding
the redemption date, to accumulate on the shares of Series D called for
redemption and all other rights of holders of the shares so called for
redemption shall cease on and after the redemption date, except the right of
-19-
34
holders of such shares to receive the Series D Redemption Price against
delivery of such shares, but without interest, and such shares shall cease to
be outstanding. The Company shall be entitled to receive, from time to time,
from the Series D Paying Agent the interest, if any, earned on such monies
deposited with the Series D Paying Agent, and the holders of any shares to be
redeemed with such monies shall have no claim to any such interest. The
Company shall be entitled to receive upon demand any amounts so deposited which
exceed the total obtained by multiplying the Series D Redemption Price times
the difference between the number of shares called for redemption and the
number of such shares converted on or before the redemption date. With regard
to any other funds so deposited that are unclaimed by holders of shares at the
end of two years from such redemption date, the Series D Paying Agent shall,
upon demand, pay over to the Company such amount remaining on deposit, the
Series D Paying Agent shall thereupon be relieved of all responsibility to the
holders of such shares and the holders of shares of Series D so called for
redemption shall thereafter be entitled to look only to the Company for payment
thereof.
Any shares of Series D which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of preferred stock of the Company, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors.
-20-
35
6. Conversion Rights.
(a) Holders of shares of Series D
will have the right, at their option at any time and from time to time, to
convert any or all of such shares into the number of shares of Common Stock of
the Company determined by dividing $100.00 for each share of Series D to be
converted by the then effective conversion price, except that if any shares of
Series D are called for redemption, the conversion rights pertaining thereto
will terminate at the close of business on the date fixed for redemption,
unless the Company defaults in the payment of the Series D Redemption Price.
The market value of a share of Common Stock (the "Series D Market Price") on
any date shall be deemed to be the average of the daily Closing Prices for the
30-day period ending 15 days prior to the date in question. The term "Series D
Closing Price," with respect to any day, shall mean (i) the last sales price in
the over-the-counter market, as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or a similar accepted
reporting service for the date of any such determination, or (ii) if the Common
Stock is listed or admitted for trading on the New York Stock Exchange, the
last reported sales price per share of Common Stock on such date on the New
York Stock Exchange, or (iii) if the Common Stock is not listed or admitted for
trading on the New York Stock Exchange, the last reported sales price on the
principal national securities exchange on which the Common Stock is admitted
for trading, or (iv) if no such quotations are available and the Common Stock
is not so listed or admitted, the fair market value on the date in question of
a share of Common Stock as determined in good faith by the Board of Directors.
If more than one share of Series D is surrendered for conversion at one time by
the same holder, the number of full shares of Common Stock which shall be
issuable on conversion thereof shall be computed on the basis of all such
shares so surrendered.
(b) The holders of shares of Series
D at the close of business on a dividend payment Series D Record Date shall be
entitled to receive the dividend payable on such shares (except that holders of
shares of Series D subject to redemption on a redemption date between such
Series D Record Date and the Series D Dividend Payment Date shall not be
entitled to receive such dividend on such Series D Dividend Payment Date) on
the corresponding Series D Dividend Payment Date notwithstanding the conversion
thereof or the Company's default on payment of the dividend due on such Series
D Dividend Payment Date. However, shares of Series D surrendered for
conversion during the period after any dividend payment Series D Record Date
and before such Series D Dividend Payment Date (except shares subject to
redemption on a redemption date during such period) must be accompanied by
payment of an amount equal to the dividend payable on such shares on such
Series D Dividend Payment Date. Holders of shares of Series D on a dividend
payment Series D Record Date who (or whose
-21-
36
transferees) convert shares of Series D on a Series D Dividend Payment Date
will receive the dividend payable on such Series D by the Company on such date,
and the converting holder need not include payment in the amount of such
dividend upon surrender of shares of Series D for conversion.
(c) The initial conversion price
for each share of Series D is $25.8338. The initial conversion price or other
conversion price then in effect shall be subject to adjustment from time to
time as follows:
(i) In case the Company shall declare
a dividend or other distribution on any class of capital stock of the Company
payable in shares of Common Stock, the conversion price in effect at the
opening of business on the day following the date fixed for the determination
of stockholders entitled to receive such dividend or other distribution shall
be reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination.
(ii) In case the Company shall
subdivide the outstanding shares of the Common Stock into a greater number of
shares, the conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case the outstanding shares of
Common Stock shall be combined into a smaller number of shares, the conversion
price in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately increased.
(iii) In case the Common Stock
issuable upon the conversion of Series D shall be changed into the same or a
different number of shares of any class or classes of stock, whether by capital
reorganization, reclassification, or otherwise (other than a stock dividend or
a subdivision or combination of shares provided for in subclause (i) or (ii),
or a reorganization, merger, consolidation or sale of assets provided for in
(d)), then and in each such event the holders of shares of Series D shall have
the right thereafter to convert such shares into the kind and amount of shares
of stock and other securities and property receivable upon such reorganization,
reclassification or other change, by holders of the number of shares of Common
Stock into which such shares of Series D might have been converted
-22-
37
immediately prior to such reorganization, reclassification or change.
(iv) In case the Company shall issue
to all holders of the Common Stock rights or warrants entitling them (within a
45 calendar-day period after the date fixed for the determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at less than the Series D Market Price on the
date fixed for such determination, the conversion price in effect at the
opening of business on the day following the date fixed for such determination
shall be reduced by multiplying such conversion price by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or purchase would
purchase at such current Series D Market Price and the denominator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination.
(v) In case the Company shall, by
dividend or otherwise, distribute to all holders of shares of Common Stock
evidences of indebtedness or assets (including rights or warrants to purchase
capital stock, or any other securities, but excluding any dividend or
distribution referred to in (i), any rights or warrants referred to in (iv) and
any dividend or distribution paid in cash out of the retained earnings or
consolidated net income of the Company), the conversion price shall be adjusted
by multiplying the conversion price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current Series D Market Price of the Common Stock on the date fixed for such
determination less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the
assets or evidences of indebtedness so distributed allocable to one share of
Common Stock and the denominator shall be such current Series D Market Price of
the Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination
of stockholders entitled to receive such distribution. In the event that the
Company shall distribute or shall have distributed to all holders of shares of
Common Stock rights or warrants to purchase capital stock that are not
initially detachable from the Common Stock (whether or not such distribution
shall have occurred prior to the date of issuance of Series D),
-23-
38
then the distribution of separate certificates representing such rights or
warrants subsequent to their initial distribution shall be deemed to be the
distribution of such rights or warrants for purposes of this subclause (v).
Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants to purchase capital stock (other than those
referred in (iv) above) ("Series D Rights") to holders of Common Stock, the
Company may, in lieu of making the foregoing adjustment pursuant to this
subclause (v), make proper provision so that each holder of shares of Series D
who converts such shares of Series D before the record date for such
distribution shall be entitled to receive upon such conversion shares of Common
Stock issued with Series D Rights and after the record date for such
distribution and prior to the expiration or redemption of the Series D Rights
shall be entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion, the same number of Series D Rights
to which a holder of the number of shares of Common Stock into which the shares
of Series D so converted were convertible immediately prior to the record date
for such distribution would have been entitled on the record date for such
distribution in accordance with the terms and provisions of and applicable to
the Series D Rights.
(vi) No adjustment in the conversion
price shall be required unless such adjustment would require an increase or
decrease of at least 1% of the conversion price then in effect; provided,
however, that any adjustments which by reason of this subsection (vi) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.
(d) In case of any (i)
consolidation or merger of the Company with or into another entity (other than
a consolidation or merger in which the Company is the surviving entity), (ii)
sale, transfer, lease or conveyance of all or substantially all the assets of
the Company, (iii) reclassification, capital reorganization or change in the
Company's Common Stock (other than solely a change in par value, or from par
value to no par value), or (iv) consolidation or merger of another entity into
the Company and in which there is a reclassification or change of the Company's
Common Stock (other than solely a change in par value or from par value to no
par value), then each holder of shares of Series D then outstanding shall have
the right thereafter to convert each share of Series D held by such holder into
the same kind and amount of shares of stock, other securities, cash or other
property (or any combination thereof) which the holder would have received had
the holder converted such holder's shares of Series D to Common Stock
immediately prior to the occurrence of such event. If the consideration into
which Series D is convertible following any such event consists of common stock
of the Company or the surviving
-24-
39
entity (as the case may be), then from and after the occurrence of such event
the conversion price for each share of Series D into such common stock shall be
subject to the same anti-dilution and other adjustments described herein,
applied as if such common stock were Common Stock of the Company.
No fractional shares of Common Stock shall be issued upon any
conversion, but, in lieu thereof, there shall be paid to each holder of shares
of Series D surrendered for conversion who, but for the provisions of this
paragraph would be entitled to receive a fraction of a share of Common Stock on
such conversion, as soon as practicable after the date shares of Series D are
surrendered for conversion an amount in cash equal to the same fraction of the
Market Value on the date of surrender of a full share of Common Stock, unless
the Board of Directors or a duly authorized committee thereof shall determine
to adjust fractional shares by the issue of fractional scrip certificates or in
some other manner. If more than one share of Series D is surrendered for
conversion at one time by the same holder, the number of full shares of Common
Stock which shall be issuable on conversion thereof shall be computed on the
basis of all such shares so surrendered.
(e) In addition to the foregoing
adjustments, the Company may, but shall not be required to, make such
reductions in the conversion price as it considers to be advisable in order
that any event treated for federal income tax purposes as a dividend of stock
or stock rights will be taxable to the recipients to the minimum extent
determined to be reasonable under the circumstances as determined by the Board
of Directors.
(f) Whenever any adjustment is
required in the conversion price of Series D, the Company shall forthwith (A)
keep available at each of its offices and agencies at which shares of Series D
are convertible a statement describing in reasonable detail the adjustment and
the method of calculation used; and (B) cause a copy of such statement to be
mailed to the holders of record of the shares of Series D.
(g) If in any case a state of facts
occurs wherein in the opinion of the Board of Directors the other provisions of
this Section D.(2)(B) with respect to conversion rights are not strictly
applicable or if strictly applied would not fairly protect the conversion
rights of the shares of Series D in accordance with essential intent and
principles of such provisions, then the Board shall make an adjustment in the
application of such provisions, in accordance with the essential intent and
principles so as to protect such conversion rights aforesaid, all as the Board
in its discretion shall determine.
(h) The Company shall at all times
reserve and keep available out of the authorized but unissued
-25-
40
shares of Common Stock the maximum number of shares of Common Stock into which
all shares of Series D from time to time outstanding are convertible, but
shares of Common Stock held in the treasury of the Company may in its
discretion be delivered upon any conversion of shares of Series D.
(i) Shares of Series D converted
into Common Stock shall have the status of authorized but unissued shares of
Series D provided that the Board has the authority to declare at any time that
such converted shares shall, after conversion, have the status of authorized
but unissued shares of preferred stock of the Company without designation as to
series (until once more designated as a part of a particular series by the
Board of Directors) and provided that in the event a Series D Notice of
Redemption for all outstanding shares of Series D is made, then all shares
converted prior to the redemption date shall as of the redemption date
automatically have the status of such authorized but unissued shares of
preferred stock of the Company without designation as to series.
_ 7. Liquidation Preference. In the
event of any liquidation, dissolution or winding up of the Company, voluntary
or involuntary, the holders of the outstanding shares of Series D shall be
entitled to receive out of the assets of the Company, or the proceeds thereof,
available for distribution to shareholders, before any distribution of assets
is made to the holders of Common Stock or other Series D Junior Stock,
liquidating distributions in the amount of $100.00 per share plus dividends
accrued and unpaid for the then-current Series D Dividend Period (without
accumulation of accrued and unpaid dividends for prior Series D Dividend
Periods) to the date fixed for such liquidation, dissolution or winding up.
After payment of the full amount of the liquidating distribution to which they
are entitled, the holders of shares of Series D will not be entitled to any
further participation in any distribution of assets of the Company. All
distributions made with respect to the shares of Series D in connection with
such liquidation, dissolution or winding up of the Company shall be made pro
rata to the holders entitled thereto.
If, upon any liquidation, dissolution or winding up of the Company,
the assets of the Company, and proceeds thereof, available for distribution
among the holders of the shares of Series D and of any Series D Parity Stock,
shall be insufficient to pay in full the preferential amount set forth in the
preceding paragraph above to the holders of the shares of Series D and
liquidating payments on all such Series D Parity Stock, then such assets and
proceeds shall be distributed among the holders of Series D and all such Series
D Parity Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series D and any such Series D Parity Stock if all
amounts payable thereon were paid in full.
-26-
41
8. Payments on Stock Ranking Junior.
In the event of any such liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, unless and until payment in full is made to
the holders of all outstanding shares of Series D of the liquidation
distribution to which they are entitled, no dividend or other distribution
shall be made to the holders of the Common Stock or any other Series D Junior
Stock, and no purchase, redemption or other acquisition for any consideration
by the Company shall be made in respect of the shares of the Common Stock or
such other class of junior Stock.
Neither a consolidation or merger of the Company into or with another
entity or entities nor the sale, transfer or exchange (for cash, shares of
equity stock, securities or other consideration) of all or substantially all of
the property and assets of the Company, shall be deemed to be a liquidation,
dissolution or winding up of the Company within the meaning of this Section
D.(2)(B).
9. Sinking Fund. No sinking fund shall
be provided for the purchase of redemption of shares of Series D.
10. Preemptive Rights. No holder of
shares of Series D shall have any preemptive right to subscribe to stock,
obligations, warrants, rights to subscribe to stock, or other securities of
this corporation of any class, whether now or hereafter authorized.
(C) 7.60% Noncumulative Perpetual Preferred
Stock, Series E.
1. Designation. There shall initially
be a series of preferred stock whose designation shall be "7.60% Noncumulative
Perpetual Preferred Stock, Series E" ("Series E"). The number of shares of
Series E shall be 2,000,000. The liquidation preference of Series E shall be
$25.00 per share (plus accrued and unpaid dividends for the then-current
dividend period up to the date fixed for liquidation, dissolution or winding
up).
2. Rank. The shares of Series E shall,
with respect to dividend rights and rights on liquidation, winding up and
dissolution of the Company, rank prior to the Common Stock and to all other
classes and series of equity securities of the Company now or hereafter
authorized, issued or outstanding, other than any classes or series of equity
securities of the Company either (a) ranking on a parity with shares of Series
E as to dividend rights and rights upon liquidation, winding up or dissolution
of the Company (the "Series E Parity Stock"), or (b) ranking senior to shares
of Series E as to dividend rights and rights upon liquidation, winding up or
dissolution of the Company (the Common Stock and such other classes and series
of equity securities other
-27-
42
than those described in (a) or (b) collectively may be referred to herein as
the "Series E Junior Stock"). The shares of Series E shall be subject to the
creation of such Series E Parity Stock and such Series E Junior Stock to the
extent not expressly prohibited by these Articles.
Any class or classes of stock of the Company shall be deemed to rank
prior to Series E as to dividends and as to distribution of assets upon
liquidation, dissolution or winding up if the holders of such class shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in preference or priority to the holders
of shares of Series E.
3. Noncumulative Dividends and Dividend
Rate. Holders of shares of Series E shall be entitled to receive, when, as and
if declared by the Board of Directors, or a duly authorized committee thereof,
out of funds legally available therefor, cash dividends from the date of issue
thereof at the annual rate of $1.90 per share, payable quarterly in arrears, on
February 15, May 15, August 15 and November 15 (each a "Series E Dividend
Payment Date") of each year, commencing on the first Series E Dividend Payment
Date after issuance of the shares of Series E; provided, however, that if any
such day is a non-business day, the Series E Dividend Payment Date will be the
next business day. Each declared dividend shall be payable to holders of
record as they appear at the close of business on the stock books of the
Company on such record dates, not more than 30 calendar days and not less than
10 calendar days preceding the payment dates therefor, as are determined by the
Board of Directors of the Company or a duly authorized committee thereof (each
of such dates a "Series E Record Date"). Quarterly dividend periods (each a
"Series E Dividend Period") shall commence on and include the fifteenth day of
February, May, August and November of each year (except as set forth above with
respect to the initial Series E Dividend Period) and shall end on and include
the day next preceding the next following Series E Dividend Payment Date.
Dividends on the shares of Series E shall be noncumulative so that if
a dividend on the shares of Series E with respect to any Series E Dividend
Period is not declared by the Board of Directors of the Company, or any duly
authorized committee thereof, then the Company shall have no obligation at any
time to pay a dividend on the shares of Series E in respect of such Series E
Dividend Period. Holders of the shares of Series E shall not be entitled to
any dividends, whether payable in cash, property or stock, in excess of the
noncumulative dividends declared by the Board of Directors, or a duly
authorized committee thereof, as set forth herein.
Any Series E Parity Stock issued by the Company shall only have
dividend periods which end on the same date as a Series E Dividend Period. No
full dividends shall be declared or paid or
-28-
43
set apart for payment on any Series E Parity Stock in respect of any such
dividend period unless full dividends on Series E for the Series E Dividend
Period ending on the same date as such dividend period shall have been paid or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment.
If at any time with respect to any Series E Dividend Period dividends
are not declared and paid in full (or declared and a sum sufficient for such
full payment so set apart) upon the shares of Series E, dividends upon shares
of Series E and dividends on any shares of Series E Parity Stock outstanding
shall only be declared by the Board of Directors or a duly authorized committee
thereof pro rata with respect thereto, so that the amount of dividends declared
per share on Series E and such Series E Parity Stock shall bear to each other
the same ratio that accrued dividends per share on the shares of Series E for
such Series E Dividend Period (which shall not include any accumulation in
respect of unpaid dividends for prior Series E Dividend Periods) and full
dividends, including accumulations, if any, on shares of Series E Parity Stock,
bear to each other.
Unless full dividends have been declared and paid (or declared and a
sum sufficient for such full payment set apart for payment) on all outstanding
shares of Series E for the immediately preceding Series E Dividend Period, the
Company shall not declare or pay any dividends (other than in Common Stock or
other Series E Junior Stock) or set any amount aside for payment thereof or
make any other distribution on the Common Stock or on any other Series E Junior
Stock, nor shall any Common Stock nor any Series E Junior Stock be redeemed (or
any moneys be paid to or made available for a sinking fund for the redemption
of any shares of any such stock), or any Series E Junior Stock or Series E
Parity Stock be purchased or otherwise acquired by the Company for any
consideration except by conversion into or exchange for Series E Junior Stock.
Regardless of the length of the initial Series E Dividend Period and
whether or not the time period from the date of issue of the shares of Series E
to the Series E Dividend Payment Date constitutes a full quarter, a full
quarterly dividend of $.475 per share shall be paid on the initial Series E
Dividend Payment Date. Dividends payable for any other period shorter than a
full Series E Dividend Period shall be computed on the basis of twelve 30-day
months and a 360-day year. Dividends payable for each full quarterly dividend
period shall be computed by dividing the annual dividend rate by four.
4. Voting Rights. Except as indicated
below and except as otherwise required by applicable law, the holders of shares
of Series E will not be entitled to vote for any purpose.
-29-
44
As long as any shares of Series E remain outstanding, the consent of
the holders of at least a majority of the shares of Series E at the time
outstanding (unless the vote or consent of the holders of a greater number of
shares shall then be required by law), given in person by proxy, by a vote at a
meeting of the holders of Series E called for such purpose at which the holders
of shares of Series E shall vote together as a separate class, shall be
necessary (i) to issue or authorize any additional class of equity stock (it
being understood that subordinated debt instruments, including mandatory
convertible debt, are not for these purposes equity stock) ranking prior to
Series E as to dividends or upon liquidation, winding up or dissolution or
which possess rights to vote separately as one class with Series E on a basis
of more than one vote for each $25.00 of stated liquidation preference thereof
(excluding any liquidation preference for accrued but unpaid dividends) or to
issue or authorize any obligation or security convertible into or evidencing a
right to purchase, or to reclassify any authorized stock of the Company into,
any such additional class of equity stock or (ii) to repeal, amend or otherwise
change any of the provisions of these Articles in any manner which adversely
affects the powers, preferences, voting power or other rights or privileges of
Series E; provided, however, that amending these Articles to increase the
number of authorized shares of common or preferred stock shall not be deemed to
be included within the scope of (ii) above.
In connection with any matter on which holders of Series E are
entitled to vote including, without limitation, the election of directors as
set forth below or any matter on which the holders of Series E are entitled to
vote as one class or otherwise pursuant to law or the provisions of these
Articles, each holder of Series E shall be entitled to one vote for each share
of Series E held by such holder.
To the extent permitted by law, if the equivalent of six full
quarterly dividends on Series E, whether or not consecutive, are not declared
and paid, the holders of shares of Series E, together with the holders of any
Series E Parity Stock as to which the payment of dividends is in arrears and
unpaid in an aggregate amount equal to or exceeding the amount of dividends
payable for six quarterly dividend periods (or if dividends are payable other
than on a quarterly basis the number of dividend periods, whether or not
consecutive, containing in the aggregate not less than 540 calendar days) and
which by its terms provides for voting rights similar to those of the shares of
Series E (the "Series E Voting Parity Stock"), shall have the exclusive right
at the next annual meeting of shareholders for the election of directors or at
a special meeting called as described below, voting separately as one class, to
elect two directors for newly created directorships of the Company, each
director to be in addition to the number of directors constituting the Board of
Directors of the Company
-30-
45
immediately prior to the accrual of such right (the remaining directors to be
elected by the other class or classes of stock entitled to vote therefor). At
any time when the right to elect such directors shall have so vested, the
Company may, and upon written request of the holders of record of not less than
20% of the total number of shares of Series E and such Series E Voting Parity
Stock then outstanding shall, call a special meeting of the holders of such
shares to fill such newly created directorships. In the case of such a written
request, such special meeting shall be held within 90 days after delivery of
such request and in either case, at the place and upon the notice provided by
law and in the Bylaws of the Company, provided that the Company shall not be
required to call such a special meeting if such request is received less than
120 days before the date fixed for the next annual meeting of shareholders.
The right of holders of shares of Series E to elect directors shall continue
until dividends on the shares of Series E, have been declared and paid in full
for four consecutive Series E Dividend Periods, at which time such voting right
of the holders of the shares of Series E and the Series E Voting Parity Stock
shall, without further action, terminate, subject to revesting in the event of
each and every subsequent failure of the Company to pay such dividends for the
requisite number of periods as described above.
The term of office of all directors elected by the holders of the
shares of Series E and the Series E Voting Parity Stock in office at any time
when the aforesaid voting right is vested in such holders shall terminate upon
the election of their successors at any meeting of shareholders for the purpose
of electing directors; provided however, that without further action and unless
otherwise required by law, any director who shall have been elected by holders
of the shares of Series E and the Series E Voting Parity Stock as provided
herein may be removed at any time, either with or without cause, by the
affirmative vote of the holders of record of a majority of the outstanding
shares of Series E and the Series E Voting Parity Stock, voting separately as
one class, at a duly held shareholders' meeting. Upon termination of the
aforesaid voting right in accordance with the foregoing provisions, the term of
office of all directors elected by the holders of the shares of Series E and
the Series E Voting Parity Stock pursuant thereto then in office shall, without
further action, thereupon terminate unless otherwise required by law. Upon
such termination the number of directors constituting the Board of Directors of
the Company shall, without further action, be reduced by two, subject always to
the increase of the number of directors pursuant to the foregoing provisions in
the case of the future right of holders of the shares of Series E and the
Series E Voting Parity Stock to elect directors as provided above.
Unless otherwise required by law, in case of any vacancy occurring
among the directors so elected, the remaining director
-31-
46
who shall have been so elected may appoint a successor to hold office for the
unexpired term of the director whose place shall be vacant, and if all
directors so elected by the holders of the shares of Series E and the Series E
Voting Parity Stock shall cease to serve as directors before their term shall
expire, the holders of the shares of Series E and the Series E Voting Parity
Stock then outstanding may, at a meeting of such holders duly held, elect
successors to hold office of the unexpired terms of the directors whose places
shall be vacant.
The directors to be elected by the shares of Series E and the Series E
Voting Parity Stock, voting together as a class, shall not become members of
any of the three classes of directors otherwise required by these Articles. If
these Articles and applicable law were construed to require classification of
such directors and as a result, or if for any other reason, the holders of the
shares of Series E and the Series E Voting Parity Stock are not able to elect
the specified number of directors at the next annual meeting of shareholders in
the manner described above, the Company shall use its best efforts to take all
actions necessary to permit the full exercise of such voting rights (including,
if necessary, taking action to increase the authorized number of directors
standing for election at such next annual meeting of shareholders or seeking to
amend, alter or change these Articles and bylaws of the Company).
5. Optional Redemption. The shares of
Series E will not be redeemable before September 15, 1998. On or after
September 15, 1998, the shares of Series E are redeemable at the option of the
Company for cash, in whole or in part, at any time and from time to time, at
$25.00 per share, to the extent that the Company has funds legally available
therefor, plus unpaid dividends (whether or not declared) for the then-current
Series E Dividend Period up to the date fixed for redemption (without
accumulation of accrued and unpaid dividends for prior Series E Dividend
Periods) (the "Series E Redemption Price") without interest.
The Company shall not redeem or set aside funds for the redemption of
any Series E Parity Stock unless prior to or contemporaneously therewith it
redeems, or sets aside funds for the redemption of, a number of shares of
Series E whose liquidation preference bears the same relationship to the
aggregate liquidation preference of all shares of Series E then outstanding as
the liquidation preference of such Series E Parity Stock to be redeemed bears
to the aggregate liquidation preference of all Series E Parity Stock then
outstanding. Notwithstanding the foregoing, the Company may redeem Series E
Parity Stock without redeeming a proportional amount of Series E in the event
(i) such Series E Parity Stock is convertible into Common Stock and (ii) the
average of the daily closing prices of Common Stock for the 30-day period
-32-
47
ending 15 days prior to the date of the notice of redemption is in excess of
the conversion price of such Series E Parity Stock.
In the event that fewer than all the outstanding shares of Series E
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be determined by lot
or pro rata as may be determined by the Board of Directors or by any other
method as may be determined by the Board of Directors in its sole discretion to
be equitable.
In the event the Company shall redeem shares of Series E, notice of
such redemption (a "Series E Notice of 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 Company. Each Series E Notice of Redemption shall include the following
information: (1) the redemption date; (2) the number of shares of Series E 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; (3) the
Series E Redemption Price (specifying the amount of unpaid dividends to be
included therein); (4) the place or places where certificates for such shares
are to be surrendered for payment of the Series E Redemption Price; (5) that
dividends on the shares to be redeemed will cease to accrue as of such
redemption date; and (6) the provision hereunder pursuant to which such
redemption is being made.
On or after a redemption date, each holder of shares of Series E that
were called for redemption shall surrender the certificate or certificates
evidencing such shares to the Company at any place designated for such
surrender in the Series E Notice of Redemption and shall then be entitled to
receive payment of the Series E Redemption Price for each share. If less than
all the shares represented by one share certificate are to be redeemed, the
Company shall issue a new share certificate for the shares not redeemed.
By noon of the business day immediately preceding the redemption date,
the Company shall irrevocably deposit with First Interstate Company of
Washington, N.A., in its capacity as paying agent with respect to the shares of
Series E or any successor paying agent (the "Series E Paying Agent"), an
aggregate amount of immediately available funds or short-term money market
instruments or U.S. Treasury Securities sufficient to pay the Series E
Redemption Price specified herein for the shares of Series E to be redeemed on
such date and shall give the Series E Paying Agent irrevocable instructions to
pay such Series E Redemption Price to the holders of record of the shares of
Series E called for redemption.
-33-
48
If a Series E Notice of Redemption shall have been given and the
deposit referred to in the preceding paragraph made, then dividends shall
cease, as of the redemption date, to accumulate on the shares of Series E
called for redemption and all other rights of holders of the shares so called
for redemption shall cease on and after the redemption date, except the right
of holders of such shares to receive the Series E Redemption Price against
delivery of such shares, but without interest, and such shares shall cease to
be outstanding. The Company shall be entitled to receive, from time to time,
from the Series E Paying Agent the interest, if any, earned on such monies
deposited with the Series E Paying Agent, and the holders of any shares to be
redeemed with such monies shall have no claim to any such interest. With
regard to any other funds so deposited that are unclaimed by holders of shares
at the end of two years from such redemption date, the Series E Paying Agent
shall, upon demand, pay over to the Company such amount remaining on deposit,
the Series E Paying Agent shall thereupon be relieved of all responsibility to
the holders of such shares and the holders of shares of Series E so called for
redemption shall thereafter be entitled to look only to the Company for payment
thereof.
Any shares of Series E which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of preferred stock of the Company, without designation as to series until such
shares are once more designated as part of a particular series by the Board of
Directors.
6. No Conversion Rights. Holders of
shares of Series E will have no right to convert shares of Series E into Common
Stock or any other security of the Company.
7. Liquidation Preference. In the event
of any liquidation, dissolution or winding up of the Company, voluntary or
involuntary, the holders of the outstanding shares of Series E shall be entitled
to receive out of the assets of the Company, or the proceeds thereof, available
for distribution to shareholders, before any distribution of assets is made to
the holders of Common Stock or other Series E Junior Stock, liquidating
distributions in the amount of $25.00 per share plus dividends accrued and
unpaid for the then-current Series E Dividend Period (without accumulation of
accrued and unpaid dividends for prior Series E Dividend Periods) to the date
fixed for such liquidation dissolution or winding up. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of shares of Series E will not be entitled to any further participation in any
distribution of assets of the Company. All distributions made with respect to
the shares of Series E in connection with such liquidation, dissolution or
winding up of the Company shall be made pro rata to the holders entitled
thereto.
-34-
49
If, upon any liquidation, dissolution or winding up of the Company,
the assets of the Company, and proceeds thereof, available for distribution
among the holders of the shares of Series E and of any Series E Parity Stock,
shall be insufficient to pay in full the preferential amount set forth in the
preceding paragraph above to the holders of the shares of Series E and
liquidating payments on all such Series E Parity Stock, then such assets and
proceeds shall be distributed among the holders of Series E and all such Series
E Parity Stock ratably in accordance with the respective amounts which would be
payable on such shares of Series E and any such Series E Parity Stock if all
amounts payable thereon were paid in full.
8. Payments on Stock Ranking Junior.
In the event of any such liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, unless and until payment in full is made to
the holders of all outstanding shares of Series E of the liquidation
distribution to which they are entitled, no dividend or other distribution
shall be made to the holders of the Common Stock or any other Series E Junior
Stock, and no purchase, redemption or other acquisition for any consideration
by the Company shall be made in respect of the shares of the Common Stock or
such other class of junior Stock.
Neither a consolidation or merger of the Company into or with another
entity or entities nor the sale, transfer or exchange (for cash, shares of
equity stock, securities or other consideration) of all or substantially all of
the property and assets of the Company, shall be deemed to be a liquidation,
dissolution or winding up of the Company within the meaning of this Section
D.(A)(3).
9. Sinking Fund. No sinking fund shall
be provided for the purchase of redemption of shares of Series E.
10. Preemptive Rights. No holder of
shares of Series E shall have any preemptive right to subscribe to stock,
obligations, warrants, rights to subscribe to stock, or other securities of
this corporation of any class, whether now or hereafter authorized.
ARTICLE III
Preemptive Rights
The shareholders of the Company have no preemptive rights to acquire
additional shares of the Company.
-35-
50
ARTICLE IV
Board of Directors
The Company shall be managed by a Board of Directors. The number of
directors shall be stated in the Company's Bylaws, provided, however, that such
number shall be not less than five (5). In the absence of such a provision in
the Bylaws, the board shall consist of the number of directors constituting the
initial Board of Directors. The initial directors shall be five (5) in number.
There shall be three classes of elected directors designated as Class 1, Class
2, and Class 3 directors. Each class shall contain one-third of the total
number of directors, as near as may be. The terms of the Class 1 directors
shall expire at the first annual shareholders' meeting after their election.
The terms of the Class 2 directors shall expire at the second annual
shareholders' meeting after their election. The terms of the Class 3 directors
shall expire at the third annual shareholders' meeting after their election.
At each annual shareholders' meeting held thereafter, directors shall be chosen
for a term of three years to succeed those whose terms expire. A vacancy on
the Board of Directors may be filled by the Board in accordance with the
applicable provisions of the Company's Bylaws. A director elected to fill a
vacancy shall be elected for a term of office continuing only until the next
election of directors by shareholders.
ARTICLE V
Removal of Directors
Any director may be removed by the shareholders only with good cause
and in accordance with the applicable provisions of the Company's Bylaws.
ARTICLE VI
Cumulative Voting
The right to cumulate votes in the election of directors shall not
exist with respect to shares of stock of the Company.
ARTICLE VII
Bylaws
The Board of Directors has the power to adopt, amend or repeal the
Bylaws of the Company, subject to the concurrent power of the shareholders, by
at least two-thirds affirmative vote of the shares of the Company entitled to
vote thereon, to adopt, amend or repeal the Bylaws.
-36-
51
ARTICLE VIII
Dealings With Interested Persons
The Company may enter into contracts and otherwise transact business
as vendor, purchaser, or otherwise, with its directors, officers, and
shareholders and with corporations, associations, firms, and entities in which
they are or may become interested as directors, officers, shareholders,
members, or otherwise, as freely as though such interest did not exist;
provided, however, that no director or officer shall become an indorser, surety
or guarantor or in any manner an obligor for any loan made by the Company, and
provided further that no director or officer shall, for himself or as agent or
partner of another, directly or indirectly borrow any of the funds or deposits
held by the Company or become the owner of real property upon which the Company
holds a mortgage. A loan to or a purchase by a corporation in which a director
or officer of the Company is a stockholder of fifteen percent (15%) or more of
the total outstanding stock, or in which such director or officer and other
directors of the Company are collectively stockholders of twenty-five percent
(25%) or more of the total outstanding stock, shall be deemed a loan to or a
purchase by such director or officer within the meaning of this Article, except
when the loan to or purchase by such corporation occurred without his or her
knowledge or against his or her protest. Except as otherwise provided in this
Article and in the absence of fraud, the fact that any director, officer,
shareholder, or any corporation, association, firm or other entity of which any
director, officer, or shareholder is interested, is in any way interested in
any transaction or contract shall not make the transaction or contract void or
voidable, or require the director, officer, or shareholder to account to the
Company for any profits therefrom if the transaction or contract is or shall be
authorized, ratified, or approved by (i) vote of a majority of a quorum of the
Board of Directors excluding any interested director or directors, (ii) the
written consent of the holders of a majority of the shares entitled to vote, or
(iii) a general resolution approving the acts of the directors and officers
adopted at a shareholders meeting by vote of the holders of the majority of the
shares entitled to vote. Nothing herein contained shall create any liability
in the events described or prevent the authorization, ratification or approval
of such transactions or contracts in any other manner.
-37-
52
ARTICLE IX
Shareholder Vote Required to Approve Plan of Merger
If pursuant to the Washington Business Corporation Act the Company's
shareholders are required to approve a plan of merger, then (a) if two-thirds
of the directors vote to recommend the plan of merger to the shareholders, the
plan of merger shall be approved by a vote of the holders of a majority of the
outstanding voting shares of the Company; (b) in all other cases where a
shareholder vote is required by the Washington Business Corporation Act, such
Act, as it may be amended, will control.
ARTICLE X
Indemnification
The Company has the power to indemnify, and to purchase and maintain
insurance for, its directors, officers, employees, and other persons and agents
against all liability, damage, and expenses arising from or in connection with
service for or at the request of, employment by, or other affiliation with the
Company or other firms or entities.
ARTICLE XI
Business Combinations
I
B. For the purposes of this Article XI:
(1) The terms "Affiliate" and "Associate" shall have the
meanings attached to them by Rule 12b-2 under the Securities Exchange Act of
1934, as amended, or any similar successor rule.
(2) The term "beneficial owner" and correlative terms
shall have the meaning as set forth in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended, or any similar successor rule. Without limitation and
in addition to the foregoing, any shares of Voting Stock of the Company which
any Major Stockholder has the right to vote or to acquire (i) pursuant to any
agreement, (ii) by reason of tenders of shares by shareholders of the Company
in connection with or pursuant to a tender offer made by such Major Stockholder
(whether or not any tenders have been accepted, but excluding tenders which
have been rejected), or (iii) upon the exercise of conversion rights, warrants,
options or otherwise, shall be deemed "beneficially owned" by such Major
Stockholder.
(3) The term "Business Combination" shall mean:
-38-
53
(a) any merger or consolidation (whether in a
single transaction or a series of related transactions, including a series of
separate transactions with a Major Stockholder, any Affiliate or Associate
thereof or any Person acting in concert therewith) of the Company or any
Subsidiary with or into a Major Stockholder or of a Major Stockholder into the
Company or a Subsidiary;
(b) any sale, lease, exchange, transfer,
distribution to stockholders or other disposition, including without
limitation, a mortgage, pledge or any other security device, to or with a Major
Stockholder by the Company or any of its Subsidiaries (in a single transaction
or a series of related transactions) of all, substantially all or any
Substantial Part of the assets of the Company or a Subsidiary (including,
without limitation, any securities of a Subsidiary);
(c) the purchase, exchange, lease or other
acquisition by the Company or any of its Subsidiaries (in a single transaction
or a series of related transactions) of all, substantially all or any
Substantial Part of the assets or business of a Major Stockholder;
(d) the issuance of any securities, or of any
rights, warrants or options to acquire any securities, of the Company or a
Subsidiary to a Major Stockholder or the acquisition by the Company or a
Subsidiary of any securities, or of any rights, warrants or options to acquire
any securities, of a Major Stockholder;
(e) any reclassification of Voting Stock,
recapitalization or other transaction (other than a redemption in accordance
with the terms of the security redeemed) which has the effect, directly or
indirectly, of increasing the proportionate amount of Voting Stock of the
Company or any Subsidiary which is beneficially owned by a Major Stockholder,
or any partial or complete liquidation, spin off, split off or split up of the
Company or any Subsidiary; provided, however, that this Section A(2)(e) shall
not relate to any transaction of the types specified herein that has been
approved by a majority of the Continuing Directors; and
(f) any agreement, contract or other arrangement
providing for any of the transactions described herein.
(4) The term "Continuing Director" shall mean (i)
a person who was a member of the Board of Directors of the Company immediately
prior to the time that any then-existing Major Stockholder became a Major
Stockholder, or (ii) a person designated (before initially becoming a director)
as a Continuing Director by a majority of the then Continuing Directors. All
references to a
-39-
54
vote of the Continuing Directors shall mean a vote of the total number of
Continuing Directors.
(5) The term "Major Stockholder" shall mean any Person
which, together with its Affiliates and Associates and any Person acting in
concert therewith, is the beneficial owner of five percent (5%) or more of the
votes held by the holders of the outstanding shares of the Voting Stock of the
Company, and any Affiliate or Associate of a Major Stockholder, including a
Person acting in concert therewith. The term "Major Stockholder" shall not
include a Subsidiary.
(6) The term "other consideration to be received" shall
include, without limitation, Voting Stock retained by the Company's existing
shareholders in the event of a Business Combination which is a merger or
consolidation in which the Company is the surviving corporation.
(7) The term "Person" shall mean any individual,
corporation, partnership or other person, group or entity (other than the
Company, any Subsidiary or a trustee holding stock for the benefit of employees
of the Company or its Subsidiaries, or any one of them, pursuant to one or more
employee benefit plans or arrangements). When two or more persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such
partnerships, syndicate, association or group will be deemed a "Person."
(8) The term "Subsidiary" shall mean any business entity
fifty percent (50%) or more of which is beneficially owned by the Company.
(9) The term "Substantial Part," as used in reference to
the assets of the Company or any Subsidiary or of any Major Stockholder means
assets having a value of more than five percent (5%) of the total consolidated
assets of the Company and its Subsidiaries as of the end of the Company's most
recent fiscal year ending prior to the time the determination is made.
(10) The term "Voting Stock" shall mean the stock or other
securities entitled to vote upon any action to be taken in connection with any
Business Combination or entitled to vote generally in the election of
directors, including stock or other securities convertible into Voting Stock.
B. Notwithstanding any other provisions of these Articles of
Incorporation and except as set forth in Section C of this Article XI, neither
the Company nor any Subsidiary shall be a party to a Business Combination
unless:
-40-
55
(1) The Business Combination was approved by the Board of
Directors of the Company prior to the Major Stockholder involved in the
Business Combination becoming such; or
(2) The Major Stockholder involved in the Business
Combination sought and obtained the unanimous prior approval of the Board of
Directors to become a Major Stockholder and the Business Combination was
approved by a majority of the Continuing Directors; or
(3) The Business Combination was approved by at least
eighty percent (80%) of the Continuing Directors of the Company; or
(4) The Business Combination was approved by at least
ninety-five percent (95%) of the outstanding Voting Stock beneficially owned by
shareholders other than any Major Stockholder.
C. The approval requirements of Section B shall not apply if:
(1) The Business Combination is approved by at least the
majority vote of the shares of the Voting Stock and the majority vote of the
shares of the Voting Stock beneficially owned by shareholders other than any
Major Stockholder; and
(2) All of the following conditions are satisfied:
(a) The aggregate of the cash and the fair market
value of other consideration to be received per share (as adjusted for stock
splits, stock dividends, reclassification of shares into a lesser number and
similar events) by holders of the common stock of the Company in the Business
Combination is not less than the higher of (i) the highest per share price
(including brokerage commissions, soliciting dealers' fees, dealer-management
compensation, and other expenses, including, but not limited to, costs of
newspaper advertisements, printing expenses and attorneys' fees) paid by the
Major Stockholder in acquiring any of the Company's common stock; or (ii) an
amount which bears the same or a greater percentage relationship to the market
price of the Company's common stock immediately prior to the announcement of
such Business Combination as the highest per share price determined in (i)
above bears to the market price of the Company's common stock immediately prior
to the commencement of acquisition of the Company's common stock by such Major
Stockholder, but in no event in excess of two times the highest per share price
determined in (i) above; and
(b) The consideration to be received in such
Business Combination by holders of the common stock of the Company
-41-
56
shall be, except to the extent that a stockholder agrees otherwise as to all or
a part of his or her shares, in the same form and of the same kind as paid by
the Major Stockholder in acquiring his Voting Stock.
(c) After becoming a Major Stockholder and prior
to the consummation of such Business Combination, (i) such Major Stockholder
shall not have acquired any newly issued shares of capital stock, directly or
indirectly, from the Company or a Subsidiary (except upon conversion of
convertible securities acquired by it prior to becoming a Major Stockholder or
upon compliance with the provisions of this Article XI or as a result of a pro
rata stock dividend or stock split), and (ii) such Major Stockholder shall not
have received the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other financial
assistance or tax credits provided by the Company or a Subsidiary, or made any
major changes in this Company's business or equity capital structure; and
(d) A proxy statement responsive to the
requirements of the Securities Exchange Act of 1934, whether or not the Company
is then subject to such requirements, shall be mailed to all shareholders of
the Company for the purpose of soliciting shareholder approval of such Business
Combination and shall contain on the front thereof, in a prominent place, (i)
any recommendations as to the advisability (or inadvisability) of the Business
Combination which the Continuing Directors may choose to state, and (ii) the
opinion of a reputable national investment banking firm as to the fairness (or
lack thereof) of the terms of such Business Combination, from the point of view
of the remaining shareholders of the Company. Such investment banking firm
shall be engaged solely on behalf of the remaining shareholders, be paid a
reasonable fee for their services by the Company upon receipt of such opinion,
and be one of the so-called major bracket investment banking firms which has
not previously been associated with such Major Stockholder and to be selected
by a majority of the Continuing Directors.
D. During the time a Major Stockholder exists, a resolution to
voluntarily dissolve the Company shall be adopted only upon: (1) the consent
of all of the Company's shareholders; or (2) the affirmative vote of at least
two-thirds of the total number of directors, the affirmative vote of the
holders of at least two-thirds of the shares of the Company entitled to vote
thereon, and the affirmative vote of the holders of at least two-thirds of the
shares of each class of shares entitled to vote thereon as a class, if any.
E. As to any particular transaction, the Continuing Directors
shall have the power and duty to determine, on the basis of information known
to them:
-42-
57
(1) The amount of Voting Stock beneficially held by any
Person;
(2) Whether a Person is an Affiliate or an Associate of
another;
(3) Whether a Person is acting in concert with another;
(4) Whether the assets subject to any Business
Combination constitute a Substantial Part;
(5) Whether a proposed transaction is subject to the
provisions of this Article; and
(6) Such other matters with respect to which a
determination is required under this Article.
Any such determination shall be conclusive and binding for all
purposes of this Article.
F. The affirmative vote required by this Article is in addition
to the vote of the holders of any class or series of stock of the Company
otherwise required by law, these Articles of Incorporation, any resolution
which has been adopted by the Board of Directors providing for the issuance of
a class or series of stock or any agreement between the Company and any
national securities exchange.
-43-
58
ARTICLE XII
Amendment
The Company may increase or decrease its capital stock or otherwise
amend these Articles of Incorporation by a vote of the stockholders
representing two-thirds of its issued capital stock at any regular meeting or
special meeting duly called for that purpose in the manner prescribed by its
Bylaws, provided, however, that Article XI may not be repealed or amended in
any respect unless such action is approved by at least a ninety-five percent
(95%) vote of the outstanding Voting Stock beneficially owned by shareholders
other than any Major Stockholder, and provided further, that the Board of
Directors may amend these Articles without stockholder action as necessary to
designate the preferences, limitations, and relative rights of a class or
series of shares of the Company prior to issuance of any shares in that class
or series. Notice of a meeting to increase or decrease authorized capital
stock shall first be published once a week for four weekly issues in a
newspaper published in Seattle, Washington, of if there is no newspaper
published in Seattle, then in some newspaper published in King County,
Washington. The notice shall state the purpose of the meeting, the amount of
the present authorized capital stock of the Company and the proposed new
authorized capital stock.
ARTICLE XIII
Limitation of Liability
A director of the Company shall not be personally liable to the
Company or its shareholders for monetary damages for conduct as a director
("Protected Conduct"). However, Protected Conduct shall exclude (i) acts or
omissions which involve intentional misconduct by the director or a knowing
violation of law by the director, (ii) any conduct violating Section 23B.08.310
of the Revised Code of Washington, and (iii) any transaction from which the
director will personally receive a benefit in money, property or services to
which the director is not legally entitled. If Washington law is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Company shall
be eliminated or limited to the fullest extent permitted by Washington law, as
so amended. Any repeal or modification of this Article XIII by the
shareholders of the Company shall not adversely affect any right or protection
of a director of the Company existing at the time of such repeal or
modification.
-44-
59
ARTICLE XIV
The street address of the initial registered office of the Company is:
1201 Third Avenue
15th Floor
Seattle, WA 98101
and the name of the initial registered agent at that address is:
Marc R. Kittner
ARTICLE XV
The name and address of the incorporator is:
William L. Lynch
Washington Mutual Savings Bank
1201 Third Ave. 15th Floor
Seattle, WA 98101
ARTICLE XVI
Special Meeting of the Shareholders
Special meetings of the shareholders for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the board of directors
or by any other person or persons authorized to do so in the Company's Bylaws.
Notwithstanding RCW 23B.07.020(1)(b) or any other provision in these Articles
or the Company's Bylaws, a special meeting of the shareholders may be called by
the shareholders only if the holders of at least twenty-five percent of all the
votes to be cast on any issue proposed to be considered at the proposed special
meeting sign, date and deliver to the Company's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to
be held.
Executed this 28th day of November 1994.
/s/ William L. Lynch
--------------------------------------
William L. Lynch,
Corporate Secretary
-45-