EXHIBIT 3
CERTIFICATE OF DESIGNATIONS
OF RIGHTS AND PREFERENCES
OF THE
8-1/4% CUMULATIVE PREFERRED STOCK
PAR VALUE $1.00 PER SHARE
OF
GREAT WESTERN FINANCIAL CORPORATION
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Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
___________________________________
GREAT WESTERN FINANCIAL CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Certificate of Incorporation of the Corporation
authorizes the issuance of 10,000,000 shares of preferred stock, par value $1.00
per share, of the Corporation ("Preferred Stock") in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers, preferences and
privileges and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof.
SECOND: The Board of Directors of the Corporation, at a meeting duly held
and called on September 26, 1995, authorized, among other things, the Securities
Committee of the Board of Directors (the "Committee") to authorize the issuance
of shares of Preferred Stock of the Corporation upon the conversion of a series
of the Debt Securities of the Corporation.
THIRD: The Committee, by unanimous written consent in lieu of a meeting
dated December 6, 1995, did duly adopt the following resolutions providing for
the designation, powers, preferences and rights, and the qualifications,
limitations and/or restrictions thereof, of the 8-1/4% Cumulative Preferred
Stock, $1.00 par value, of the Corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Committee, pursuant to authority
vested in it by the Board of Directors and in accordance with the provisions of
the Restated Certificate of Incorporation of the Corporation, hereby approves
the issuance of a series of Preferred Stock and hereby fixes the designation of
such series and the powers, preferences, privileges, and
relative, participating, optional or other special rights, and qualifications,
limitations and restrictions thereof in addition to those set forth in said
Restated Certificate of Incorporation as follows:
1. Designation. The designation of the series of Preferred Stock
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created by this resolution shall be 8-1/4% Cumulative Preferred Stock, $1.00 par
value, of Great Western Financial Corporation (the "Corporation") (hereinafter
referred to as "Cumulative Preferred Stock"), and the number of shares
constituting such series shall be 412,000, which number may be increased (but
not above the total number of authorized but unissued shares of Preferred Stock
of the Corporation) 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.
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(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 the date of issuance,
at the annual rate of 8-1/4% 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"), at such annual rate. Each
dividend will be payable to holders of record as they appear on the stock books
of the Corporation on such record dates, not exceeding 45 days preceding the
payment dates thereof, as shall be fixed by the Board of Directors of the
Corporation. 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 date of payment of
such dividends. If dividends on the Cumulative Preferred Stock and on any other
series of Preferred
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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
Corporation 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 date 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 Corporation 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 Corporation (the Common Stock and any other such stock being
herein referred to as "Junior Stock"), nor shall the Corporation 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 Corporation, other than Junior Stock which is
neither convertible into, nor exchangeable or exercisable for, any securities of
the Corporation other than Junior Stock and other than the redemption of Rights
(the "Rights") distributed pursuant to a Rights Agreement, dated as of June 24,
1986, as amended, between the Corporation and Morgan Shareholder Services Trust
Company (the "Rights Agreement").
3. Liquidation Preferences.
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(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Cumulative Preferred Stock shall be entitled to receive out of the assets of the
Corporation 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 date 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 Corporation 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
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Cumulative Preferred Stock will not be entitled to any further participation in
any distribution of assets by the Corporation.
(b) In the event the assets of the Corporation available for distribution
to stockholders upon any liquidation, dissolution or winding up of the affairs
of the Corporation, 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 Corporation in proportion to the full respective preferential
amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or with any other
corporation, the merger or consolidation of any other corporation into or with
the Corporation or the sale of the assets of the Corporation substantially as an
entirety shall not be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this Section 3.
4. Redemption.
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(a) The Corporation, at its option, may redeem any or all shares of
Cumulative Preferred Stock, at any time or from time to time, on or after
December 31, 2000, 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"). In addition, during a period of 90 days
after the occurrence of a Regulatory Redemption Event (as defined below), the
Corporation may elect to redeem any or all shares of Cumulative Preferred Stock
at the Redemption Price. Redemption of any or all shares of Cumulative
Preferred Stock will require the prior consent of the Corporation's then banking
supervisory authority if such consent is required by applicable law, regulation
or interpretation then in effect in order for one hundred percent of the
Cumulative Preferred Stock to constitute Tier 1 capital (as that concept is used
in the guidelines or regulations issued by the Board of Governors of the Federal
Reserve System as of December 6, 1995) or its then equivalent ("Tier 1
Capital"). "Regulatory Redemption Event" means that (i) a bank, savings and
loan association, savings bank, or bank or savings and loan holding company
(each a "Depository Institution") has issued or has been the sponsor of a trust
or other entity (including but not limited to a general or limited partnership
or limited liability company) that has issued securities that constitute Tier 1
Capital and which issued securities, or the securities underlying such issued
securities, are to be treated by such Depository Institution as indebtedness for
U.S. federal income tax purposes, as evidenced by the disclosure document
pursuant to which such securities
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were offered, and (ii) the Company (or its successor) has within 90 days of such
issuance, received an opinion of independent counsel experienced in such matters
that securities having substantially identical terms (except for rate, maturity
and payment dates), if issued by the Company (or its successor) or by a Company
(or its successor) sponsored trust or other entity, at least 66-2/3% of which
should constitute Tier 1 Capital for the Company (or its successor) if the
securities issued by such Depository Institution constituted Tier 1 Capital and
such securities should be treated as indebtedness for U.S. federal income tax
purposes.
(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 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 Corporation. 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 date 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 Corporation 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 holders of such shares as stockholders of the Corporation 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 Corporation in such notice), the holders of record of such
shares shall be entitled to receive the Redemption Price, without interest. In
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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 Corporation, 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 Corporation 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 Corporation, on demand, and thereafter the holder of any such
shares shall look only to the Corporation 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 Corporation ranking
on a parity with the Cumulative Preferred Stock as to dividends and distribution
of assets upon liquidation, dissolution or winding up of the affairs of the
Corporation (the "Parity Preferred Stock") shall be in arrears and until all
such dividends in arrears shall have been paid or declared and set apart for
payment, the Corporation 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.
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5. Voting Rights. Other than as required by applicable law, the
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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 one 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 Corporation, 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 Corporation 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 Corporation
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 Corporation 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 Corporation ranking prior to
the Cumulative Preferred Stock and any series of Other Preferred Stock. Subject
to the foregoing, the Corporation's Restated Certificate 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 dividends on shares of the Cumulative Preferred Stock at the
time outstanding, the holders of the outstanding shares of Cumulative
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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 Corporation at the Corporation'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 Corporation 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 Certificate
of Incorporation of the Corporation and the applicable provisions of the General
Corporation Law of the State of Delaware. Whenever the term of office of the
directors elected 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 Certificate of
Incorporation or the By-Laws, as amended, irrespective of any increase made
pursuant to the provisions of this subsection (d).
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6. Reacquired Shares. Shares of Cumulative Preferred Stock redeemed or
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otherwise purchased or acquired by the Corporation 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
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to the operation of a sinking fund or other obligation of the Corporation to
redeem or retire the Cumulative Preferred Stock.
8. Rank. The Cumulative Preferred Stock shall rank on a parity, both as
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to the payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the affairs of the Corporation, with the Company's
8-3/4% Cumulative Convertible Preferred Stock and 8.30% Cumulative Preferred
Stock. 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 Corporation, to the Common Stock and the Series
A Junior Participating Preferred Stock, par value $1.00 per share, of the
Corporation.
FURTHER RESOLVED, that the Chairman of the Board, the Vice Chairman, the
President, any Executive or Senior Vice President, or any Vice President are,
and each of them is hereby, authorized and directed, in the name and on behalf
of the Corporation, to execute and file a copy of this Certificate of
Designations in accordance with the provisions of Sections 103 and 151(g) of the
General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, GREAT WESTERN FINANCIAL CORPORATION, has caused this
Certificate of Designations to be signed by Bruce F. Antenberg, its Senior Vice
President and Treasurer and attested to by Stephen F. Adams, its First Vice
President and Assistant Secretary, and its corporate seal to be hereunder
affixed this 6th day of December, 1995.
GREAT WESTERN FINANCIAL CORPORATION
[Seal]
By /s/ Bruce F. Antenberg
Bruce F. Antenberg
Senior Vice President and
Treasurer
Attest: /s/ Stephen F. Adams
Stephen F. Adams
First Vice President
and Assistant Secretary
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