Microfilm Number________ Filed with the Department of
State on__________________________
Entity Number___________ ___________________________________
STATEMENT WITH RESPECT TO SHARES-DOMESTIC BUSINESS CORPORATION
DSCB:15-1522 (Rev 90)
In compliance with the requirements of 15 Pa.C.S.
Section 1522(b) (relating to statement with respect to shares),
the undersigned corporation, desiring to state the designation
and voting rights, preferences, limitations, and special rights,
if any, of a class or series of its shares, hereby states that:
1. The name of the corporation is: Sovereign Bancorp, Inc.
2. (Check and complete one of the following):
___ The resolution amending the Articles under 15 Pa.C.S.
Section 1522(b) (relating to divisions and
determinations by the board), set forth in full, is as
follows:
X The resolution amending the Articles under 15 Pa.C.S.
Section 1522(b) is set forth in full in Exhibit A
attached hereto and made a part hereof.
3. The aggregate number of shares of such class or series
established and designated by (a) such resolution, (b) all
prior statements, if any, filed under 15 Pa.C.S.
Section 1522 or corresponding provisions of prior law with
respect thereto, and (c) any other provision of the Articles
is 2,000,000 shares.
4. The resolution was adopted by the Board of Directors or an
authorized committee thereof on: May 9, 1995.
5. (Check, and if appropriate complete, one of the following):
X The resolution shall be effective upon the filing this
statement with respect to shares in the Department of
State.
___ The resolution shall be effective on:
____________________ at _____________________
Date Hour
IN TESTIMONY WHEREOF, the undersigned corporation has
caused this statement to be signed by a duly authorized officer
thereof this 10th day of May, 1995.
SOVEREIGN BANCORP, INC.
(Name of Corporation)
By:/s/ Jay S. Sidhu
(Signature)
TITLE: President and Chief
Executive Officer
Exhibit A
TERMS OF
6-1/4% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES B
OF
SOVEREIGN BANCORP, INC.
RESOLVED that, pursuant to the authority vested in the
Board of Directors of the Corporation by the Articles of
Incorporation, the Board of Directors does hereby provide for the
issue of a series of Preferred Stock, without par value, of the
Corporation, to be designated "6-1/4% Cumulative Convertible
Preferred Stock, Series B" (hereinafter referred to as the
"Series B Preferred Stock" or "this Series"), initially
consisting of 2,000,000 shares, and to the extent that the
designations, powers, preferences and relative and other special
rights and the qualifications, limitations and restrictions of
the Series B Preferred Stock are not stated and expressed in the
Articles of Incorporation, does hereby fix and herein state and
express such designations, powers, preferences and relative and
other special rights and the qualifications, limitations and
restrictions thereof, as follows (all terms used herein which are
defined in the Articles of Incorporation shall be deemed to have
the meanings provided therein):
1. Designation and Amount. The designation of the
series of Preferred Stock created by this resolution shall be
"6-1/4% Cumulative Convertible Preferred Stock, Series B" and the
number of shares constituting such Series is Two Million
(2,000,000). Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that no
decrease shall reduce the number of shares of Series B Preferred
Stock to a number less than the number of shares then
outstanding.
2. Dividends.
(a) The holders of record of Series B Preferred
Stock shall be entitled to receive, as and if declared by the
Board of Directors of the Corporation, out of any funds legally
available for the purpose, cumulative cash dividends on each
share of Series B Preferred Stock in the amount of 6-1/4% per
annum (calculated as a percentage of the liquidation preference
applicable to the Series B Preferred Stock as provided herein).
Dividends shall accrue from the date of original issuance and
shall be payable, as and if declared by the Board of Directors,
on February 15, May 15, August 15, and November 15 of each year,
commencing August 15, 1995. Each such dividend shall be paid to
the holders of record of shares of Series B Preferred Stock as
they appear on the stock register of the Corporation on the
applicable record date, which shall be a date not more than
30 days nor less than 10 days preceding the dividend payment
date, as shall be fixed by the Board of Directors of the
Corporation.
(b) If there shall be outstanding shares of any
other series of Preferred Stock ranking on a parity as to
dividends with the Series B Preferred Stock, the Corporation, in
making any dividend payment on account of arrears on the Series B
Preferred Stock or such other series of Preferred Stock, shall
make payments ratably upon all outstanding shares of Series B
Preferred Stock and such other series of Preferred Stock in
proportion to the respective amounts of dividends in arrears upon
all such outstanding shares of Series B Preferred Stock and such
other series of Preferred Stock to the date of such dividend
payment.
(c) 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.
(d) Dividends payable on the Series B Preferred
Stock for any period less than a full quarterly dividend period,
and for any portion of the initial dividend period occurring
prior to August 15, 1995, shall be computed on the basis of a
360-day year of four 90-day quarters and the actual number of
days elapsed in the period for which payable.
3. Redemption.
(a) The Corporation, at its option, may redeem
shares of the Series B Preferred Stock, in whole or in part, at
any time or from time to time, at a redemption price as set forth
below, plus accrued and unpaid dividends thereon to the date
fixed for redemption:
If Redeemed During the Twelve Months Redemption
Beginning May 15, Price
1998 . . . . . . . . . . . . . . . . . . . . . . . . $52.188
1999 . . . . . . . . . . . . . . . . . . . . . . . . 51.875
2000 . . . . . . . . . . . . . . . . . . . . . . . . 51.563
2001 . . . . . . . . . . . . . . . . . . . . . . . . 51.250
2002 . . . . . . . . . . . . . . . . . . . . . . . . 50.938
2003 . . . . . . . . . . . . . . . . . . . . . . . . 50.625
2004 . . . . . . . . . . . . . . . . . . . . . . . . 50.313
2005 and thereafter. . . . . . . . . . . . . . . . . 50.000
Notwithstanding the foregoing, no shares of Series B Preferred
Stock shall be redeemed hereunder prior to May 15, 1998.
If the Corporation shall redeem shares of Series B
Preferred Stock pursuant to this subparagraph (a), notice of such
redemption shall be mailed by first class mail, postage prepaid,
not less than 30 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register
of the Corporation. Each such notice shall state: (a) the
redemption date; (b) the number of shares of Series B 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
redeemed from such holder; (c) the redemption price; (d) the
place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (e) that
dividends on the shares to be redeemed will cease to accrue on
such redemption date. Notice having been mailed as aforesaid,
from and after the redemption date (unless default shall be made
by the Corporation in providing money for the payment of the
redemption price) dividends on the shares of the Series B
Preferred Stock so called for redemption shall cease to accrue,
and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as shareholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation
at the redemption price aforesaid. If less than all the
outstanding shares of Series B Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by
the Corporation from outstanding shares of Series B Preferred
Stock not previously called for redemption by lot or pro rata (as
nearly as may be) in any method determined by the Corporation in
its sole discretion to be equitable.
(b) In no event shall the Corporation redeem or
purchase any shares of Series B Preferred Stock pursuant to this
Section 4 unless full cumulative dividends shall have been paid
or declared and set apart for payment upon all outstanding shares
of Series B Preferred Stock, or any other series of Preferred
Stock then outstanding ranking on a parity with or prior to the
Series B Preferred Stock as to dividends, for all past dividend
periods, and unless all matured obligations of the Corporation
with respect to all sinking funds, retirement funds or purchase
funds for all series of Preferred Stock then outstanding have
been met.
(c) All shares of Series B Preferred Stock
redeemed by the Corporation shall be restored to the status of
authorized but unissued shares of Preferred Stock, without
designation as to series, and may thereafter be reissued by the
Corporation as shares of one or more series of Preferred Stock
other than Series B Preferred Stock.
4. Conversion Rights.
(a) The holder of any share or shares of Series B
Preferred Stock shall have the right, at any time, to convert any
shares of Series B Preferred Stock (except any share of Series B
Preferred Stock which shall have been called for redemption
pursuant to the provisions hereof, the conversion right with
respect thereto shall terminate on the close of business of the
date fixed for redemption) into fully paid and non-assessable
shares of the Common Stock of the Corporation, at a conversion
rate of 4.752 shares of Common Stock for each share of Series B
Preferred Stock, subject to adjustment as hereinafter provided.
The conversion right herein granted shall be exercised by the
surrender of a certificate or certificates for Series B Preferred
Stock to be so converted at the office of any transfer agent for
the Series B Preferred Stock, at any time during its usual
business hours, together with written notice that the holder
elects to convert the same, or a stated number of shares thereof,
which notice shall state the name or names (with addresses) in
which the certificate or certificates of Common Stock shall be
issued. Every such notice of election to convert shall
constitute a contract between the holder of such Series B
Preferred Stock and the Corporation, whereby such holder shall be
deemed to subscribe for the amount of Common Stock which he will
be entitled to receive upon such conversion and, in payment and
satisfaction of such subscription (and any cash adjustment to
which he may be entitled), to surrender such Series B Preferred
Stock and to release the Corporation from all obligation on the
shares to be converted and whereby the Corporation shall be
deemed to agree that the surrender of such shares and the
extinguishment of obligation thereon shall constitute full
payment for the Common Stock so subscribed for and to be issued
upon such conversion.
(b) As promptly as practicable after the
conversion of any Series B Preferred Stock and the payment in
cash of any amount required by paragraph (h) of this Section 4,
the Corporation shall deliver or cause to be delivered to or upon
the written order of the holder of such Series B Preferred Stock
certificates representing the number of shares of Common Stock
issuable upon such conversion, issued in such name or names as
such holder shall have directed, together with cash in respect of
any fractional interest in a share of Common Stock issuable upon
such conversion and, if only a part of such Series B Preferred
Stock is converted, a certificate or certificates for the
unconverted shares of Series B Preferred Stock. Such conversion
shall be deemed to have been made at the close of business on the
day of surrender of the Series B Preferred Stock for conversion,
and the rights of the holder of such stock as a Series B
Preferred Shareholder, in respect of the stock surrendered for
conversion, shall cease at such time and the person or persons in
whose name or names the certificates for such shares are to be
issued shall be treated for all purposes as having become the
record holder or holders of Common Stock at such time and such
conversion shall be at the conversion rate in effect at such
time; provided, however, that no such surrender on any date when
the stock transfer books of the Corporation shall be closed shall
be effective to constitute the person or persons entitled to
receive the shares of Common Stock upon such conversion as the
record holder or holders of such shares on such date, but such
surrender shall be effective to constitute the person or persons
entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the opening of
business on the next succeeding day on which such stock transfer
books are open and such conversion shall be at the conversion
rate in effect at the opening of business on such next succeeding
day.
If the last day for the exercise of the conversion is a
legal holiday in the city in which the transfer agent to which
shares are presented for conversion is located, then such
conversion right may be exercised (at the conversion rate in
effect on such last day) upon the next succeeding day not in such
city a legal holiday.
(c) No payment or adjustment shall be made upon
any conversion in respect of dividends accrued and unpaid on the
Series B Preferred Stock to the date of conversion or in respect
of any dividends on the Common Stock issued upon such conversion.
(d) The conversion rate shall be subject to
adjustment from time to time as follows:
(i) In case the Corporation shall at any
time (A) pay a dividend or make a distribution on shares of
its Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other
class), (B) subdivide or reclassify its outstanding shares
of Common Stock into a greater number of securities
(including shares of Common Stock), or (c) combine or
reclassify its outstanding shares of Common Stock into a
smaller number of shares (including shares of Common Stock),
the conversion rate in effect immediately prior thereto
shall be adjusted so that the holder of record of any shares
of Series B Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares
of the Corporation which he would have owned or have been
entitled to receive after the happening of any of the event
described above had such shares of Series B Preferred Stock
been converted immediately prior to the happening of such
event. An adjustment made pursuant to this subparagraph (i)
shall become effective immediately after the record date in
the case of a dividend and shall become effective
immediately after the effective date in the case of a
subdivision or combination; provided, however, that in the
event no record date is specified for any dividend, such
adjustment shall become effective on the payment date for
such dividend. If, as a result of an adjustment made
pursuant to this subparagraph (i), the holder of any
Series B Preferred Stock thereafter converted shall become
entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors of the
Corporation (whose determination shall be conclusive) shall
determine the allocation of the adjusted conversion rate
between or among shares of such classes of capital stock.
In the event that any time, as a result of an adjustment
made to this subparagraph (i), the holder of any Series B
Preferred Stock thereafter converted shall become entitled
to receive any shares or other securities of the Corporation
other than shares of Common Stock, thereafter the number of
such other shares so received upon conversion of any
Series B Preferred Stock shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the shares
of Common Stock contained in this paragraph 4(d), and other
provisions of this Section 4 with respect to the shares of
Common Stock shall apply on like term to any such other
shares or other securities.
(ii) In case the Corporation shall fix a
record date for the issuance of rights or warrants to all
holders of its Common Stock (or securities convertible into
Common Stock) entitling them (for a period expiring within
45 days after such record date) to subscribe for or purchase
Common Stock at a price per share (or a conversion price per
share) less than the current market price per share of
Common Stock (as defined in subparagraph (iv) below) at such
record date, the conversion rate in effect immediately prior
thereto shall be adjusted so that the same shall equal the
rate determined by multiplying the conversion rate in effect
immediately prior to such record date by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of
additional shares of Common Stock offered for subscription
or purchase (or into which the convertible securities so
offered are initially convertible), and of which the
denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares
which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price
of the convertible securities so offered) would purchase at
such current market price. Such adjustment shall be made
successively whenever such a record date is fixed, and
become effective immediately after such record date;
provided, however, that, in the event no record date is
fixed, such adjustment shall be made successively and shall
become effective on the distribution date. In determining
whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less
than such current market price, and in determining the
aggregate offering price of such shares, there shall be
taken into account any consideration received by the
Corporation for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the
Board of Directors of the Corporation. Common stock owned
by or held for the account of the Corporation or any
majority owned subsidiary shall not be deemed outstanding
for the purpose of any adjustment required under this
subparagraph (ii).
(iii) In case the Corporation shall fix a
record date for making a distribution to all holders of its
Common Stock evidences of its indebtedness or assets
(excluding regular quarterly or other periodic or recurring
cash dividends or distributions and cash dividends or
distributions paid from retained earnings or referred to in
subparagraph (i) above) or rights or warrants to subscribe
or purchase (excluding those referred to in
subparagraph (ii) above), then in each such case the
conversion rate shall be adjusted so that the same shall
equal the rate determined by multiplying the conversion rate
in effect immediately prior to such record date by a
fraction of which the numerator shall be the current market
price (as defined in subparagraph (iv) below) per share of
the Common Stock on such record date, and the denominator of
which shall be such current market price per share of Common
Stock, less the then fair market value (as determined in
good faith by the Board of Directors, whose determination
shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such rights
or warrants applicable to one share of Common Stock. Such
adjustment shall be made successively whenever such a record
date is fixed and shall become effective immediately after
such record date. Notwithstanding the foregoing, in the
event that the Corporation shall distribute any rights or
warrants to acquire capital stock ("Rights") pursuant to
this subparagraph (iii), the distribution of separate
certificates representing such Rights subsequent to their
initial distribution (whether or not such distribution shall
have occurred prior to the date of the issuance of such
Series B Preferred Stock) shall be deemed to be the
distribution of such Rights for purposes of this
subparagraph (iii); provided that the Corporation may, in
lieu of making any adjustment pursuant to this
subparagraph (iii) upon a distribution of separate
certificates representing such Rights, make proper provision
so that each holder of such Series B Preferred Stock who
converts such Series B Preferred Stock (or any portion
thereof) (A) before the record date for such distribution of
separate certificates shall be entitled to receive upon such
conversion shares of Common Stock issued with Rights and
(B) after such record date and prior to the expiration,
redemption or termination of such 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 such Rights as would a holder of the number of
shares of Common Stock that such Series B Preferred Stock so
converted would have entitled the holder thereof to purchase
in accordance with the terms and provisions of and
applicable to the Rights if such Series B Preferred Stock
were converted immediately prior to the record date for such
distribution; provided, however, that, in the event no
record date is fixed, such adjustment shall be made
successively and shall become effective on the distribution
date. Common stock owned by or held for the account of the
Corporation or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment
required under this subparagraph (iii).
(iv) For the purpose of any computation
under subparagraph (ii) and (iii) above, the current market
price per share of Common Stock at any date shall be deemed
to be the average of the daily closing prices for the thirty
consecutive business days commencing forty-five business
days before the day in question. The closing price for any
day shall be (A) if the Common Stock is listed or admitted
for trading on any national securities exchange, the last
sale price (regular way), or the average of the closing bid
and ask prices, if no sale occurred, of Common Stock on the
principal securities exchange on which the Common Stock is
listed, (B) if not listed as described in (A) but if quoted
on the Nasdaq Stock Market (formerly the National Market
System of the National Association of Securities Dealers,
Inc. Automated Quotation System) the last sale price, or the
average of the closing bid and ask prices, if no sale
occurred, of Common Stock on the Nasdaq Stock Market, (C) if
not quoted as described in clause (B), the mean between the
closing high bid and low asked quotations of Common Stock on
the National Association of Securities Dealers, Inc.
Automated Quotation System, or any similar system or
automated dissemination of quotations of securities prices
then in common use, if so quoted, or (D) if not quoted as
described in clauses (B) or (C), the mean between the high
bid and low asked quotations for Common Stock as reported by
the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked
quotations for common stock on at least 5 of the
10 preceding days. If none of the conditions set forth
above is met, the closing price of Common Stock on any day
or the average of such closing prices for any period shall
be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by
the Corporation.
(v) (A) Nothing contained herein shall be
construed to require an adjustment in the conversion
rate as a result of the issuance of Common Stock
pursuant to, or the granting or exercise of any rights
under, the Corporation's Dividend Reinvestment and
Stock Purchase Plan, the Corporation's Employee Stock
Purchase Plan, the Corporation's Stock Option Plan or
any successor or similar plans providing for the
purchase of shares of Common Stock by the Corporation's
shareholders or employees at a price not less than 90%
of the "average market price" during the "pricing
period" as such terms, or equivalent terms, are defined
in, and as calculated pursuant to, such plans from time
to time.
(B) In addition, no adjustment in the
conversion rate shall be required unless such
adjustment would require an increase or decrease of at
least 1% in such rate; provided, however, that any
adjustments which by reason of this subparagraph (v)(B)
are not required to be made shall be carried forward
and taken into account in any subsequent adjustment;
further provided, however, that any adjustments which
by reason of this subparagraph (v)(B) are not otherwise
required to be made shall be made no later than 3 years
after the date on which occurs an event that requires
an adjustment to be made or carried forward.
(C) All calculations under this
Section 4 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
Anything in this Section 4 to the contrary
notwithstanding, the Corporation shall be entitled to
make such increases in the conversion rate, in addition
to those required by this paragraph (d), as it in its
discretion shall determine to be advisable in order
that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities,
or distribution of securities convertible into or
exchangeable for stock hereafter made by the
Corporation to its shareholders shall not be taxable.
(vi) In any case in which this paragraph (d)
provides that an adjustment shall become effective after a
record date for an event, the Corporation may defer until
the occurrence of such event (A) delivering to the holder of
any Series B Preferred Stock converted after such record
date and before the occurrence of such event the additional
shares of stock deliverable upon such conversion by reason
of the adjustment required by such event over and above the
Common Stock deliverable upon such conversion before giving
effect to such adjustment and (B) paying to such holder any
amount in cash in lieu of any fraction pursuant to
paragraph (a), provided, however, that the Corporation shall
deliver to such holder a due bill or other appropriate
instrument evidencing such holder's rights to receive such
additional shares, and such cash, upon the occurrence of the
event requiring such adjustment. If such event does not
occur, no adjustments shall be made pursuant to this
paragraph (d).
(e) No fractional shares of stock shall be issued
upon the conversion of any Series B Preferred Stock. If more
than one share of Series B Preferred Stock shall be surrendered
for conversion at one time by the same holder, the number of full
shares of stock which shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares
of Series B Preferred Stock so surrendered. Instead of any
fractional share of stock which would otherwise be issuable upon
conversion of any Series B Preferred Stock, the Corporation shall
pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the closing price per share of
Common Stock on the business day which immediately precedes the
day of conversion. The closing price for such business day shall
be (A) if the Common Stock is listed or admitted for trading on
any national securities exchange, the last sale price (regular
way), or the average of the closing bid and ask prices, if no
sale occurred, of Common Stock on the principal securities
exchange on which the Common Stock is listed, (B) if not listed
as described in (A) but if quoted on the Nasdaq Stock Market
(formerly the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotation System) the last
sale price, or the average of the closing bid and ask prices, if
no sale occurred, of Common Stock on the Nasdaq Stock Market,
(C) if not quoted as described in clause (B), the mean between
the closing high bid and low asked quotations of Common Stock on
the National Association of Securities Dealers, Inc. Automated
Quotation System, or any similar system or automated
dissemination of quotations of securities prices then in common
use, if so quoted, or (D) if not quoted as described in
clauses (B) or (C), the mean between the high bid and low asked
quotations for Common Stock as reported by the National Quotation
Bureau Incorporated if at least two securities dealers have
inserted both bid and asked quotations for common stock on at
least 5 of the 10 preceding days. If none of the conditions set
forth above is met, the closing price of Common Stock on any day
or the average of such closing prices for any period shall be the
fair market value of Common Stock as determined by a member firm
of the New York Stock Exchange, Inc. selected by the Corporation.
(f) In case any of the following shall occur
while any Series B Preferred Stock is outstanding: (i) any
reclassification or change of the outstanding shares of Common
Stock deliverable upon conversion of the Series B Preferred Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change in the
shares of Common Stock into two or more classes or series of
securities); or (ii) any consolidation or merger to which the
Corporation is a party (other than a consolidation or a merger in
which the Corporation is the continuing corporation and which
does not result in any reclassification of, or change other than
a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or
combination in, the outstanding shares of Common Stock issuable
upon conversion of the Series B Preferred Stock); or (iii) any
sale or conveyance to another corporation of the properties and
assets of the Corporation as an entirety or substantially as an
entirety; then the Corporation, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision
in its charter or otherwise so that the holders of the Series B
Preferred Stock then outstanding shall have the right at any time
thereafter to convert such Series B Preferred Stock into the kind
and amount of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation,
merger, sale or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Series B Preferred
Stock immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such provision shall
provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Section 4. The above provisions of this paragraph (f) shall
similarly apply to successive reclassifications, changes,
consolidations, mergers, sales or conveyances.
(g) The Corporation will at all times reserve and
keep available out of its authorized but unissued or treasury
stock, solely for the purpose of issue upon conversion of the
Series B Preferred Stock as provided in this Section 4, such
number of shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all outstanding Series B
Preferred Stock.
(h) The issuance of certificates for shares of
Common Stock upon conversion of Series B Preferred Stock shall be
made without charge to the converting shareholder for such
certificates or for any tax in respect of the issuance of such
certificates, and such certificates shall be issued in the name
of, or in such name or names as may be directed by, the holder of
the Series B Preferred Stock converted. However, if any such
certificate is to be issued in a name other than that of the
holder of the converted Series B Preferred Stock, the Corporation
shall not be required to issue or deliver any stock certificate
or certificates unless and until the holder has paid to the
Corporation the amount of any tax which may be payable in respect
of any transfer involved in such issuance or shall establish to
the satisfaction of the Corporation that such tax has been paid.
(i) Whenever the conversion rate then in effect
is adjusted as herein provided, the Corporation shall mail to
each holder of the Series B Preferred Stock at such holder's
address as it shall appear on the books of the Corporation a
statement setting forth the adjusted conversion rate, then and
thereafter effective under the provisions hereof together with
the facts, in reasonable detail, upon which such adjustment is
based.
(j) In case any of the following shall occur
while any Series B Preferred Stock is outstanding: (i) the
Corporation shall declare a dividend (or any other distribution)
on its Common Stock other than in cash out of its current or
retained earnings; or (ii) other than pursuant to the shareholder
or employee plans, or any successor plans, in accordance with
paragraph (d)(v)(A) above, the Corporation shall authorize the
granting to the holders of its Common Stock of rights or warrants
to subscribe for or purchase any shares of capital stock of any
class or of any other rights or warrants; or (iii) any
reclassification or change of the outstanding shares of Common
Stock deliverable upon conversion of the Series B Preferred Stock
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination, but including any changes in the
shares of Common Stock into two or more classes or series of
securities); or any consolidation or merger to which the
Corporation is a party (other than a consolidation or a merger in
which the Corporation is the continuing corporation and which
does not result in any reclassification of, or change other than
a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or
combination in, the outstanding shares of Common Stock issuable
upon conversion of the Series B Preferred Stock); or (iv) any
sale or conveyance to another corporation of the properties and
assets of the Corporation as an entirety or substantially as an
entirety; or (v) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation; then the
Corporation shall mail to each holder of Series B Preferred Stock
at such holder's address as it shall appear on the books of the
Corporation, at least fifteen days prior to the applicable record
date hereinafter specified, a notice stating (x) the record date
for such dividend, distribution or rights, or, if a record is not
to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights
are to be determined, or (y) the date on which such
reclassification, consolidation, merger, dissolution, liquidation
or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, consolidation, merger, dissolution, liquidation
or winding up. No failure to mail ouch notice nor any defect
therein or in the mailing thereof shall affect the legality or
validity of an any such transaction or any adjustment in the
conversion rate or conversion price required by this Section 4.
5. Voting. (a) Except as hereinafter in this
Section 5 expressly provided or as otherwise required by law, the
Series B Preferred Stock shall have no voting power.
(b) Whenever and as often as dividends payable on
any share or shares of the Preferred Stock of the Corporation at
the time outstanding shall be accumulated and unpaid in an amount
equivalent to or exceeding six quarterly dividends (whether or
not declared and whether or not consecutive), the number of
directors constituting the full Board of Directors shall be
increased by two in the manner prescribed by law and the Articles
of Incorporation and Bylaws of the Corporation and the holders of
record of the Preferred Stock of all series shall thereafter have
the right, voting noncumulatively separately as a single class,
to elect two directors to the Board of Directors. In any
election of directors, the holders of shares of Series B
Preferred Stock shall be entitled to cast one vote per share.
(c) At any time when the right of holders of
Series Stock to elect two additional directors shall have so
vested, the Corporation may, and upon the written request of the
holders of record of not less than 10% of the Series B Preferred
Stock then outstanding (or 10% of all Preferred Stock having the
right to vote for such directors in case holders of shares of
other series of Preferred Stock shall also have the right to
elect directors in such circumstances) shall, call a special
meeting of holders of such Series B Preferred Stock (and other
series of Preferred Stock, if applicable) for the election of
directors. In the case of such a written request, such special
meeting shall be held within 60 days after the delivery of such
request, and, in either case, at the place and upon the notice
provided by law and in the bylaws of the Corporation; except that
the Corporation shall not be required to call such a special
meeting if the request is received less than 120 days before the
date fixed for the next ensuing annual meeting of shareholders of
the Corporation. At all meetings of shareholders at which
holders of Preferred Stock shall be entitled to vote for
directors as a single class, the holders of a majority of the
outstanding shares of each class or series of capital stock of
the Corporation having the right to vote as a single class shall
be necessary to constitute a quorum, whether present in person or
by proxy, for the election by that class or series of its
designated directors. Directors to be elected by shareholders
voting as a class shall be elected by the vote of at least a
plurality of votes cast by such shareholders present in person or
proxy at the meeting.
(d) The two directors elected as provided in this
subsection shall serve until the next annual meeting of
shareholders of the Corporation at which directors of the class
in which such directors are serving are to be elected and until
their respective successors shall be elected and qualified or the
earlier expiration of their terms as provided in this subsection.
No such director may be removed without the vote or consent of
holders of a majority of the shares of Series B Preferred Stock
(or holders of a majority of shares of Preferred Stock having the
right to vote in the election of such director in case holders of
shares of other series of Preferred Stock shall also have the
right to elect such director). In case any vacancy shall occur
among the directors elected by such shareholders voting as a
class, such vacancy may be filled by the remaining director so
elected, or his successor then in office, and the director so
elected to fill such vacancy shall serve for the unexpired term
of the director for which the vacancy is being filled.
(e) Such voting rights of the holders of
Preferred Stock as a single class, once effective, shall continue
only until all arrears in dividends (whether or not declared) on
the Preferred Stock shall have been paid or declared and set
apart for payment at which time the right of the Preferred Stock
to vote as a single class for the election of directors, as
herein set forth, shall terminate.
(f) The consent of the holders of at least two-
thirds of the number of shares of Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or at
a meeting of stockholders at which the holders of the Preferred
Stock shall vote separately as a class without regard to series,
the holders of shares of Series B Preferred Stock being entitled
to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) any change in the Articles of
Incorporation or By-laws of the Corporation which would
materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the
Preferred Stock, provided, that if one or more but not all
series of Preferred Stock at the time outstanding are so
affected, only the consent of the holders of at least two-
thirds of each series so affected, voting separately as a
class, shall be required; or
(ii) the issuance of any shares of any other
class of stock of the Corporation ranking prior to the
Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in
respect of which the rights of the holders thereof as to the
payment of dividends or at to distributions in the event of
a voluntary or an involuntary liquidation, dissolution or
winding up of the corporation, are given preference over the
rights of the holders of the Preferred Stock.
6. Liquidation Rights. (a) In the event of any
liquidation, dissolution or winding up of the Corporation,
voluntary or involuntary, the holders of all shares of Series B
Preferred Stock shall be entitled to be paid in full out of the
assets of the Corporation available for distribution to
shareholders, before any distribution of assets shall be made to
the holders of Common Stock or of any other shares of stock of
the Corporation ranking an to such distribution junior to the
Series B Preferred Stock, an amount equal to $50 per share plus
an amount equal to any accrued and unpaid dividends thereon to
the date fixed for payment of such distribution. If, upon any
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the amounts payable with respect to the
Series B Preferred Stock and any other shares of stock of the
Corporation ranking as to any such distribution on a parity with
the Series B Preferred Stock are not paid in full, the holders of
the Series B Preferred Stock and of such other shares shall share
ratably in any such distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which
they are entitled. After payment to the holders of the Series B
Preferred Stock of the full preferential amounts provided for in
this Section 6, the holders of the Series B Preferred Stock shall
be entitled to no further participation in any distribution of
assets by the Corporation.
(b) None of the following shall be considered a
liquidation, dissolution or winding up of the Corporation within
the meaning of this section:
(i) a consolidation or merger of the
Corporation with or into any other corporation;
(ii) a merger of any other corporation into
the Corporation;
(iii) a reorganization of the Corporation;
(iv) the purchase or redemption of all or
part of the outstanding shares of any class or classes of
the Corporation;
(v) a sale or transfer of all or any part of
its assets;
(vi) a share exchange to which the
Corporation is a party; or
(vii) a division of the Corporation.
7. Limitation on Dividends on Junior Stock. So long
as any Series B Preferred Stock shall be outstanding, the
Corporation shall not declare any dividends on the Common Stock
of the Corporation or any other stock of the Corporation ranking
as to dividends or distribution of assets junior to the Series B
Preferred Stock (the Common Stock and any such other stock being
herein referred to as "Junior Stock"), or make any payment an
account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of 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 (such dividends,
payments, setting apart and distributions being herein called
"Junior Stock Payments"), unless all of the conditions set forth
in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of
such setting apart in that case of any such fund, or the date of
such payment or distribution in the case of any other Junior
Stock Payment:
A. Full cumulative dividends shall have been
paid or declared and set apart for payment upon all
outstanding shares of Preferred Stock other than Junior
Stock.
B. The Corporation shall not be in default or in
arrears with respect to any sinking or other analogous fund
or any call for tenders, obligation or other agreement for
the purchase, redemption or other retirement of any shares
of Preferred Stock other than Junior Stock.