Certificate of Incorporation and Bylaws
of
Northeast Federal Corp.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:15 PM 05/14/1993
931345387 - 2218304
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHEAST FEDERAL CORP.
(Pursuant to 8 Del. C. Section 242)
Northeast Federal Corp., a corporation organized and existing under and by
virtue of the Delaware General Corporation Law (the "Corporation") does hereby
certify that:
FIRST, an Amended Certificate of Designation of the $2.25 Cumulative
Convertible Preferred Stock, Series A of the Corporation was filed by the
Corporation on July 6, 1990, with the Office of the Secretary of State of the
State of Delaware.
SECOND, that the Board of Directors of the Corporation in accordance with
the provisions of Section 242 of the Delaware General Corporation Law, duly
adopted the following resolution setting forth a proposed amendment to the
Amended Certificate of Designation of the $2.25 Cumulative Convertible
Preferred Stock, Series A of the Corporation, declaring said amendment to be
advisable and calling a meeting of stockholders of the Corporation for
consideration thereof:
BE IT RESOLVED, that the amendment to the Amended Certificate of
Designation governing the $2.25 Cumulative Convertible Preferred Stock,
Series A, in the form attached hereto as Exhibit A, is declared to be
advisable for adoption by the Corporation and shall be submitted to the
Corporation's stockholders entitled to vote in respect thereof for their
consideration.
THIRD, that thereafter, a Special Meeting of the Stockholders of the
Corporation was duly called and held, upon notice and in accordance with
Section 222 of the Delaware General Corporation Law, at which meeting the
necessary number of shares as required by the Delaware General Corporation Law
were voted in favor of the amendment substantially in the form attached hereto
as Exhibit A.
FOURTH, the amendment was duly adopted in accordance with the provisions of
Section 242 of the Delaware General Corporation Law.
Exhibit A
The following sections refer to sections of the Amended Certificate of
Designation of the $2.25 Cumulative Convertible Preferred Stock, Series A:
I. Section 1. Designation shall be amended to delete the period at the
end of Section 1 and to add thereto the following:
"then outstanding."
II. Section 3. Preference on Liquidation shall be amended by the following
change to the first sentence of the third paragraph of Section 3:
delete the period at the end of such sentence and add thereto:
"or conversion pursuant to Section 7 below."
III. Section 6. Convertibility shall be amended as follows:
(i) The caption "6. Convertibility" shall be deleted and in its place
the following caption shall be inserted:
"6. Convertibility at the Option of the Holder."
(ii) There shall be inserted in the first sentence of Section 6 after
"Common Stock" and before "on the following terms" the following:
"at the option of the holder of such Shares"
(iii) Subsection 6(E) shall be revised to read in its entirety as
follows:
"E. No fractional shares or scrip representing fractional shares
shall be issued upon the conversion pursuant to this Section 6 of any
Shares. If more than one Share shall be surrendered for conversion
pursuant to this Section 6 at one time by the same holder, the number
of full shares issuable upon conversion thereof shall be computed on
the basis of the aggregate number of such Shares so surrendered. If
the conversion pursuant to Section 6 of any Shares results in a
fraction, an amount equal to such fraction multiplied by the closing
price (determined as provided in the last sentence of subsection
(D)(5) of this Section 6 of the Common Stock on the business day next
preceding the date of conversion shall be paid to such holder in cash
by the Corporation.
IV. A new section 7 shall be added to read as follows:
"7. Automatic Conversion. Shares of the Series A Preferred Stock
(hereinafter in this Section 7 called the "Series A Shares") shall be
converted into shares of Common Stock on the following terms and
conditions:
(A) Upon the Effective Date as defined below and subject to and
upon compliance with the provisions of this Section 7. Series A Shares
shall cease to be Series A Shares and shall represent the right to
receive fully paid and non-assessable shares of Common Stock, at the
rate (the "Company Conversion Rate" for purposes of this Section 7),
of 4.75 shares of Common Stock for each outstanding Series A Share
(the "Conversion"). No allowance of adjustment shall be made for
accumulated or accrued and unpaid dividends on the Series A Shares
converted or for dividends on the Common Stock that shall be issuable
upon the Conversion of the Series A Shares. Any accumulated or accrued
and unpaid dividends on the Series A Shares shall be eliminated and
any right to payment of dividends shall cease upon the Effective Date
as defined in subsection (B).
(B) The Effective Date shall be the date upon which this
Certificate of Amendment is filed with the Secretary of State of the
State of Delaware.
(C) Upon the Effective Date, the right of any holder of the Series A
Shares to convert such Series A Shares pursuant to Section 6 hereof shall
terminate and be of no further force and effect, notwithstanding anything to the
contrary in Section 6. The Series A shall be converted automatically into
the right to receive the number of shares of Common Stock determined by the
Company Conversion Rate on the Effective Date. All Series A Shares shall cease
to be outstanding on the Effective Date. The Corporation will send before or
promptly after the Effective Date transmittal forms to holders of the Series A
Shares to be used in forwarding certificates formerly representing Series A
Shares for surrender and exchange for certificates representing the number of
shares of Common Stock into which such Series A Shares have been converted,
and thereafter will distribute, to the holders of record of the Series A Shares
on the close of business on the Effective Date, the certificates representing
the number of shares of Common Stock into which such Series A Shares have been
converted.
(D) Until a certificate representing Series A Shares is presented and
surrendered, such certificate on and after the Effective Date shall, except as
provided in the following sentence, be deemed for all purposes to evidence the
ownership of a number of whole shares of Common Stock into which such Series A
Shares shall have been converted pursuant to the provisions of paragraph (A)
hereof. Until surrender of such certificate representing Series A Shares in
exchange for a certificate representing shares of Common Stock, the holder
thereof shall not be entitled to receive any dividends or other distributions,
if any, payable on the shares of Common Stock which such holder is entitled to
receive from the Company upon surrender of such certificate, provided that upon
surrender of such certificate, there shall be paid to such holder the amount of
dividends or other distributions (without interest) which became payable and
were not paid to such holder with respect to the shares of Common Stock issued
upon such surrender.
(E) If more than one certificate representing Series A Shares at the
Effective Date shall be surrendered at one time for the account of the same
stockholder, the number of whole shares of Common Stock for which certificates
shall be issued shall be computed on the basis of the aggregate number of
shares represented by the certificates representing Series A Shares so
surrendered. In the event that the Company (or its transfer agent) determines
that a holder of Series A Shares has not tendered all his certificates for
exchange, the Company (or its transfer agent) shall carry forward any
fractional share until all certificates of that holder have been presented for
exchange, such that fractional shares to any one person shall not exceed the
value (as determined pursuant to paragraph (G))of one share. If any
certificate representing shares of Common Stock is to be issued in a name
other than that in which the certificate representing Series A Shares
surrendered for exchange is issued, the certificate representing Series A
Shares so surrendered shall be properly endorsed and otherwise in proper form
for transfer, and the person or persons requesting such exchange shall affix
any requisite stock transfer tax stamps to such certificate, or provide funds
for their purchase, or establish to the satisfaction of the Company (or its
transfer agent) that such taxes are not payable.
(F) Fractional shares or scrip representing fractional shares may be
issued upon the Conversion pursuant to Section 7 of the Series A Shares. The
number of full shares of Common Stock issuable upon Conversion pursuant to
Section 7 to any one holder of Series A Shares shall be computed on the basis
of the aggregate number of such Series A Shares held of record by such holder
as of the close of business on the day immediately prior to the Effective
Date. If the Conversion pursuant to Section 7 of any Series A Shares results
in a fraction of a share of Common Stock to be issued upon the Conversion,
appropriate consideration, as determined by the Board of Directors of the
Corporation and which without limitation may include a fractional share or
scrip, the issuance of a whole share of Common Stock, in lieu of a fractional
share, or cash, shall be issued to such holder.
(G) The Corporation shall pay any and all issuance and transfer taxes which
may be imposed with respect to the issuance and delivery of Common Stock upon
the Conversion of the Series A
Shares as herein provided. The Corporation shall not, however, be
required, in any event, to pay any transfer or other taxes by reason
of the issuance of Common Stock in a name or names other than that
of the holder of the Series A Shares surrendered for Conversion, and
the Corporation shall not be required to issue or deliver any such
stock certificate unless and until the person or persons requesting
the issuance thereof shall have paid to the Corporation the amount
of any such tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(H) If in any case a state of facts occurs wherein in the
opinion of the Board of Directors the other provisions of this Section
7 are not strictly applicable, or if strictly applicable, would not
fairly protect the conversion rights of the Series A Shares in
accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make an adjustment in
the application of such provisions in accordance with such essential
intent and principles so as to protect such conversion rights as
aforesaid.
(I) The Corporation shall at all times reserve and keep
available out of its authorized Common Stock the full number of shares
of Common Stock deliverable upon the Conversion of all outstanding
Series A Shares and shall take all such corporate action as may be
required from time to time in order that it may validly and legally
issue fully paid and non-assessable shares of Common Stock upon
Conversion pursuant to Section 7 of all the outstanding Series A
Shares.
(J) Series A Shares converted pursuant to Section 7 shall not be
reissued as Series A Shares but shall assume the status of authorized
but unissued shares of preferred stock of the Corporation.
V. Section 7 shall be renumbered as Section 8.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its Chief Executive Officer and attested to be its Secretary on this
14th day of May, 1993.
NORTHEAST FEDERAL CORP.
By /s/ George P. Rutland
------------------------------------
George P. Rutland
Chairman and Chief Executive Officer
ATTEST:
By /s/ Craig W. Smith
------------------------
Craig W. Smith
Secretary
July 1990
Certificate of Incorporation
of Northeast Federal Corp.
FIRST: The name of the Corporation is Northeast Federal Corp. (hereinafter
sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. The registered agent of the Corporation at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Delaware General
Corporation Law.
FOURTH:
A. The total number of shares of all classes of stock which the Corporation
shall have authority to issue is forty million (40,000,000), consisting of:
(a) fifteen million (15,000,000) shares of Preferred Stock, par value one
cent ($.01) per share (the "Preferred Stock"); and
(b) twenty five million (25,000,000) shares of Common Stock, par value one
cent ($.01) per share (the "Common Stock").
B. The Board of Directors is authorized, subject to any limitation prescribed
by law, to provide for the issuance of the shares of Preferred Stock in
series, and by filing a certificate pursuant to the applicable law of the
State of Delaware (such certificate being hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
voting powers, preferences, and rights of shares of each such series, and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of
the Preferred Stock, or any series thereof, unless a vote of any such holders
is required pursuant to the terms of any Preferred Stock Designation.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers
and authority expressly conferred upon them by Statute or by this
Certificate of Incorporation or the Bylaws of the Corporation, the
directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
(b) The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
(c) Subject to the rights of holders of any class or series of Preferred
Stock, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
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SIXTH:
A. The Corporation shall be under the direction of a Board of Directors. The
authorized number of directors is stated in Article Eighth D of this
Certificate of Incorporation. The directors shall be divided into three
classes, with the term of office of the first class to expire at the first
annual meeting of stockholders, the term of office of the second class to
expire at the annual meeting of stockholders one (1) year thereafter and the
term of office of the third class to expire at the annual meeting of
stockholders two (2) years thereafter. At each annual meeting of stockholders
following such initial classification and election, directors elected to
succeed those directors whose terms expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election.
B. At all elections of directors of the Corporation commencing with the first
annual meeting of stockholders, a holder of stock of any class or series then
entitled to vote in such election shall be entitled to as many votes as shall
equal the number of votes which (except for this provision as to cumulative
voting) such holder would be entitled to cast for election of directors with
respect to his shares of stock multiplied by the number of directors to be
elected in the election in which his class or series is entitled to vote, and
a stockholder may cast all such votes for a single director or may distribute
them among the number to be voted for, or for any two (2) or more of them, as
he may see fit.
C. Subject to the rights of the holders of any series of Preferred Stock the
outstanding, and unless the Board of Directors otherwise determines, newly
created directorships resulting from any increase in the authorized number of
directors or vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
may be filled only by a majority vote of the directors then in office, though
less than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
D. Advance notice of stockholder nominations for the election of directors and
of business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
E. Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote
of the holders of a majority of the voting power of all of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class.
SEVENTH: The Board of Directors is generally expressly empowered to adopt,
amend or repeal Bylaws of the Corporation. Any adoption, amendment, or repeal
of the Bylaws of the Corporation by the Board of Directors shall require the
approval of a majority of the Directors then in Office. The stockholders
shall also have power to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that any such alteration, amendment or repeal must be
approved by the affirmative vote of the holders of a majority of the voting
power of all of the then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class; provided, however, that none of the provisions of the Bylaws
relating or referring to directors named by the FDIC pursuant to the
Adjustable Rate Cumulative Preferred Stock, Series A Certificate of
Designation may be amended while the FDIC holds any Adjustable Rate Cumulative
Preferred Stock, Series A of the Corporation without the prior written consent
of the FDIC.
EIGHT: The following provisions are inserted for further definition,
limitation and regulation of the powers of the Corporation and of its
directors and stockholders in connection with certain business combinations:
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A. Definitions and Related Matters.
(1) The term "Business Combination" shall mean (a) any merger or consolidation
of this Corporation with or into a Related Person, (b) any sale, lease,
exchange, transfer or other disposition, including without limitation, a
mortgage or any other security device, of all or any Substantial Part of the
assets of this Corporation (including without limitation any voting securities
of a Subsidiary) or of a Subsidiary, to a Related Person, (c) any merger or
consolidation of a Related Person with or into this Corporation or a
Subsidiary of this Corporation, (d) any sale, lease, exchange, transfer or
other disposition of all or any Substantial part of the assets of a Related
Person to the Corporation or a Subsidiary of this Corporation, (e) the
issuance of any securities of this Corporation to a Related Person, (f) the
acquisition by this Corporation or a Subsidiary of this Corporation of any
securities of a Related Person, (g) any reclassification of Common Stock of
this Corporation, or any recapitalization involving Common Stock of this
Corporation, consummated within five years after a Related Person becomes a
Related Person, and (h) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of Business
Combination;
(2) The term "Related Person" shall mean and include any individual,
corporation, partnership or other Person or entity which, together with their
"affiliates" and "associates" (defined below), "beneficially" owns (as this
term is defined in Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934) in the aggregate five percent or more of the
outstanding shares of the Common Stock of this Corporation, and any
"affiliate" or "associate" (as those terms are defined in Rule 12B-2 under the
Securities and Exchange Act of 1934) of any such individual, corporation,
partnership or other Person or entity;
(3) A Related Person shall be deemed to have acquired a share of the
Corporation at the time when such Related Person became the beneficial owner
thereof. With respect to shares owned by affiliates, associates or other
Persons whose ownership is attributed to a Related Person under the foregoing
definition of Related Person, if the price paid by such Related Person for
such shares is not determinable, the price so paid shall be deemed to be the
higher of (i) the price paid upon acquisition thereof by the affiliate,
associate or other Person or (ii) the market price of the shares in question
(as determined by a majority of the Continuing Directors) at the time when the
Related Person became the beneficial owner thereof;
(4) The term "Person" shall have the same meaning as defined by section 2(2)
of the Securities Act of 1933;
(5) Without limitation, any shares of Common Stock of this Corporation which
any Related Person has the right to acquire pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise, shall be
deemed beneficially owned by such Related Person;
(6) For the purposes of subparagraph (2)(A) of Paragraph B of this Article
Eighth, the term "other consideration to be received" shall include, without
limitation, Common Stock of this Corporation retained by its existing public
shareholders in the event of a Business Combination with such Related Person
in which this Corporation is the surviving Corporation; and
(7) With respect to any proposed Business Combination, the term "Continuing
Director" shall mean a director who was a member of the Board of Directors in
this Corporation immediately prior to the time that any Related Person
involved in the proposed Business Combination acquired 5% or more of the
outstanding shares of Common Stock of the Corporation, the term "Outside
Director" shall mean a director who is not (a) an officer or employee of this
Corporation or any relative of any officer or employee, (b) a Related Person
or an officer, director, employee, associate or affiliate of a Related Person,
or a relative of any of the foregoing or (c) a Person having a direct or
indirect material business relationship with this Corporation;
(8) The term "Subsidiary" shall mean any Corporation or other entity of which
the Person in question owns not less than 50% of any class of equity
securities, directly or indirectly;
(9) The term "Substantial Part" shall mean more than ten percent of the total
assets of the Corporation
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in question, as of the end of its most recent fiscal year ending prior to
the time the determination is being made;
(10) The term "Whole Board or Directors" shall mean the total number of
directors which the Corporation would have if there were no vacancies.
B. Approval of Business Combinations. The affirmative vote of the holders
of not less than eighty percent (80%) of each class of stock of the
Corporation shall be required for the approval or authorization of any
Business Combination; provided, however, that such 80% voting requirements
shall not be applicable if either:
(1) The Business Combination was approved by the Board of Directors of the
Corporation by the affirmative vote of at least two thirds of the Continuing
Directors, or
(2) All of the following conditions are satisfied;
(a) The aggregate amount of cash and the fair market value of the
property, securities or other consideration to be received per share of capital
stock (as defined in Section 5 hereof) of the Corporation in the Business
Combination by the holders of capital stock of the Corporation, other than
the Related Person involved in the Business Combination, is not less than
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 such Related Person in acquiring any of its
holdings of the Corporation's capital stock;
(b) The consideration to be received in such Business Combination
by holders of capital stock other than the Related Person involved shall,
except to the extent that a shareholder agrees otherwise as to all or
part of the shares which he or she owns, be in the same form and of the same
kind as the consideration paid by the Related Person in acquiring capital
stock already owned by it; provided, however, if the Related Person has
paid for shares of capital stock with varying forms of consideration,
the form of consideration for shares of capital stock acquired in the Business
Combination by the Related Person shall be either cash or the form used to
acquire the largest number of shares of capital stock previously acquired by
it;
(c) A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934, whether or not this Corporation is then
subject to such requirements, shall be mailed to the public shareholders of
this Corporation for the purpose of soliciting shareholder approval of such
Business Combination, but need not be filed with the Securities and
Exchange Commission unless required under provisions of the Securities
Exchange Act of 1934, and shall contain at 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 not) of the terms of such Business
Combination, from the point of view of the remaining public shareholders
of this Corporation (such investment banking firm to be engaged solely on
behalf of the remaining public shareholders, to be paid a reasonable fee for
their services by this Corporation upon receipt of such opinion, to be one of
the so-called major bracket investment banking firms which has not previously
been associated with such Related Person and, if there are at the time any
such directors, to be selected by a majority of the Continuing Directors);
and
(d) The Business Combination is approved by the affirmative vote of the
holders of not less than two thirds of each class of stock of the Corporation.
C. Standard for Board of Directors Evaluation of Offers. The Board of
Directors of the Corporation, when evaluating any offer of another Person to
(A) make a tender or exchange offer for any equity security of the
Corporation, (B) merge or consolidate the Corporation with another corporation
or entity or (C) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, may, in connection with the exercise
of its judgment in determining what is in the best interest of the Corporation
and its stockholders, give due consideration to all relevant factors,
including, without limitation, the social
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and economic effect of acceptance of such offer on the Corporation's present
and future customers and employees and those of its subsidiaries; on the
communities in which the Corporation and its subsidiaries operate or are
located; on the ability of the Corporation to fulfill its corporate objectives
as a savings and loan holding company; and on the ability of its subsidiary
savings association to fulfill the objectives of a savings association under
applicable statutes and regulations.
D. The authorized number of directors shall be set forth in the Corporation's
Bylaws and shall not be fewer than seven nor more than fifteen subject to the
rights of the holders of any series of Preferred Stock to increase the number
of directors.
E. Amendment and Repeal of this Article. Notwithstanding any other provision
of this Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified by law) any
amendment, change or repeal of this Article Eighth, or any other amendment of
this Certificate of Incorporation or Bylaws of the Corporation which will have
the effect of modifying or permitting circumvention of Article Eighth shall
not be effective, unless such is first proposed by the Board of Directors of
the Corporation and thereafter approved by the Affirmative vote of the holders
of at least 80% of each class of stock of the Corporation, voting separately
as a class, which shall include the affirmative vote of at least 50% of the
outstanding vote of Common Stock held by shareholders other than a Related
Person; provided, however, that this Paragraph E of Article Eighth shall not
apply to and such 80% vote shall not be required for, any such amendment,
change or repeal recommended to shareholders of the Corporation by the
affirmative vote of not less than two thirds of the Continuing Directors and
such amendment, change or repeal so recommended shall require only the vote,
if any, required under the applicable provisions of law. For the purposes of
this Paragraph E of Article Eighth only, if at the time when any such
amendment, change or repeal is under consideration there is no proposed
Business Combination, the term "Continuing Director" shall be deemed to mean
the whole Board of Directors.
NINTH:
A. Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as
a director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to prove broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith; provided, however, that
except as provided in Section C hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such Indemnitee
in connection with a proceeding (or part thereof) initiated by such Indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. For all purposes of this Article NINTH, the
directors of Northeast Savings, F.A., and all officers thereof (as elected or
appointed in the manner provided in the Bylaws of Northeast Savings F.A.)
shall be deemed to be serving at the request of the Corporation as such
directors and officers.
B. The right to indemnification conferred in Section A of this Article shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware
General Corporation
C-5
Law requires, an advancement of expenses incurred by an Indemnitee in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf
of such Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Section or otherwise.
The right to indemnification and to the advancement of expenses conferred in
Sections A and B of this Article shall be contract rights and such rights
shall continue as to an Indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators.
C. If a claim under Section A or B of this Article is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be twenty (20) days, the Indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the Indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the Indemnitee to enforce a right to
an advancement of expenses) it shall be a defense that, and (ii) in any suit
by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the Indemnitee has not met any applicable
standard for indemnification set forth in the Delaware General Corporation
Law. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the Indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct, or in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement or expenses pursuant to the terms of an undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
Corporation.
D. The rights to indemnification and to the advancement of expenses conferred
in this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Corporation's Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
TENTH: A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith
C-6
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
ELEVENTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner prescribed by the
laws of the State of Delaware and all rights conferred upon stockholders are
granted subject to this reservation.
TWELFTH: The names and mailing addresses and the year of the expiration of
their terms of the persons who are to serve as directors until the expiration
of their terms or until their successors are elected and qualify are as
follows:
NAME YEAR OF EXPIRATION OF TERM MAILING ADDRESS
Richard H. Gordon 1991 50 State House Square
Hartford, Connecticut 06103
George P. Rutland 1991 50 State House Square
Hartford, Connecticut 06103
John R. Silber 1991 50 State House Square
Hartford, Connecticut 06103
Beverly Lannquist Hamilton 1992 50 State House Square
Hartford, Connecticut 06103
Thomas P. O'Neill III 1992 50 State House Square
Hartford, Connecticut 06103
George W. Sarney 1992 50 State House Square
Hartford, Connecticut 06103
David W. Clark, Jr. 1993 50 State House Square
Hartford, Connecticut 06103
Abraham D. Gosman 1993 50 State House Square
Hartford, Connecticut 06103
Raymond T. Schuler 1993 50 State House Square
Hartford, Connecticut 06103
C-7
July 1990
Certificate of Designation of
$2.25 Cumulative Convertible Preferred Stock, Series A
of Northeast Federal Corp.
(Pursuant to Section 151 of the General Corporation Law of the State of
Delaware)
1. Designation.
1,610,000 shares of the Preferred Stock of the Corporation are hereby
constituted as a class of Preferred Stock with a par value of $0.01 per share,
designated as $2.25 Cumulative Convertible Preferred Stock, Series A
(hereinafter called "Series A Preferred Stock"). The number of shares of
Series A Preferred Stock may not be increased but may be decreased by a
resolution duly adopted by the Board of Directors, but not below the number of
shares of Series A Preferred Stock.
2. Dividends.
The holders of the Series A Preferred Stock shall be entitled to receive,
when, as, and if declared by the Board of Directors and out of the assets of the
Corporation which are by law available for the payment of dividends, cash
dividends cumulative to the extent not paid, from the date of the last dividend
paid or declared and set apart for payment, on the $2.25 Cumulative Convertible
Preferred Stock, Series A of Northeast Savings, F.A. (the "Northeast Savings
Convertible Preferred Stock"), which Northeast Savings Convertible Preferred
Stock is replaced by the Series A Preferred Stock pursuant to the Plan of
Reorganization dated June 1, 1990, as amended July 6, 1990, involving the
Corporation and Northeast Savings, F.A., and in each case payable quarterly on
the first day of January, April, July and October of each year unless such day
is a nonbusiness day, in which event on the next business day, commencing
October 1, 1990, at the fixed annual rate of $2.25 per share and no more. The
amount of the dividends payable on the Series A Preferred Stock for any period
less than a full dividend period shall be computed on the basis of a 360-day
year of twelve 30-day months. Dividends shall be paid, as and when declared
by the Board of Directors, to holders of Series A Preferred Stock of record on
such dates, not exceeding 60 days preceding such respective dividend payment
dates, as shall be fixed for the purpose by the Board of Directors in advance
of payment of each particular dividend. So long as any Series A Preferred
Stock remains outstanding:
(a) no dividend whatsoever shall be declared or paid upon or set apart for
payment, and no distribution shall be ordered or made in respect of: (i)
the Corporation's $.01 par value common stock or any other outstanding
common stock of the Corporation (the "Common Stock"); or (ii) any other
class of stock or series thereof ranking junior to the Series A Preferred
Stock in the payment of dividends; and
(b) no shares of Common Stock and no shares of any other class of stock
series thereof ranking junior to the Series A Preferred Stock in the
payment or dividends shall be redeemed or purchased by the Corporation or
any subsidiary thereof; and
(c) no moneys, funds or other assets shall be paid to or made available for
a sinking fund for the redemption or purchase of any shares of: (i) Common
Stock; or (ii) any other class of stock or series thereof ranking junior
to the Series A Preferred Stock in the payment of dividends:
Unless, in each instance, full dividends on all outstanding shares of
Series A Preferred Stock: (i) for all past dividend periods shall have been
paid; and (ii) for the then current calendar quarter shall have been paid or
declared and set aside for payment.
In addition, so long as any Series A Preferred Stock remains outstanding,
no dividend whatsoever shall be declared or paid upon or set apart for
payment, and no distribution shall be ordered or made in respect
D-1
of, any share or shares of Series A Preferred Stock or any class of stock or
series thereof ranking on a parity with the Series A Preferred Stock in the
payment of dividends, unless, for the applicable fiscal quarter:
(a) full dividends shall be paid and set apart for payment on all
shares of:(i) the Series A Preferred Stock; and (ii) any class of stock or
series thereof ranking on a parity with the Series A Preferred Stock in the
payment of dividends; or
(b) in the event all such dividends for the applicable calendar
quarter are not or cannot be paid or declared and set apart for payment
in full, a pro rata portion of the full dividends shall be paid or declared
and set apart for payment on all shares of: (i) Series A Preferred Stock; and
(ii) any class of stock or series thereof ranking on a parity with the Series
A Preferred Stock in the payment of dividends. Such pro rata portion shall be
calculated upon the ratio that the total amount available for the payment of
all required dividends on the Series A Preferred Stock and such parity stock
for the applicable fiscal quarter bears to the total required dividends on
the Series A Preferred Stock and such parity stock for such calendar quarter.
Cash dividends upon shares of Series A Preferred Stock shall commence to
accrue from day to day regardless of whether or not the Corporation shall have
funds or assets available for the payment of such dividends, but the
accumulation of dividends on shares of Series A Preferred Stock shall not bear
interest.
3. Preference on Liquidation.
In the event of any dissolution, liquidation or winding up of the affairs
of the Corporation, after payment or provision for payment of any remaining
conversion or liquidation accounts together with the debts and other
liabilities of the Corporation, the holders of the Series A Preferred Stock
shall be entitled to receive the applicable redemption price on each
outstanding share of Series A Preferred Stock, out of the net assets of
the Corporation and before any distribution shall be made to the holders of
the Common Stock or to the holders of any other class of stock or series
thereof ranking junior to the Series A Preferred Stock in the distribution
of assets, plus, in the event of either voluntary or involuntary dissolution,
liquidation or winding up, an amount equal to all dividends accrued and unpaid
on each share of Series A Preferred Stock to the date fixed for distribution,
computed without interest, and no more. If upon such voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Corporation, the
net assets of the Corporation shall be insufficient to permit payment in full
of the amounts required to be paid to the holders of Series A Preferred Stock
and to the holders of any class of stock or series thereof ranking on a parity
with the Series A Preferred Stock in respect of the distribution of assets,
then the holders of Series A Preferred Stock and the holders of any class of
stock or series thereof ranking on a parity with the Series A Preferred Stock
in respect of the distribution of assets shall share ratably, without priority
of one over the other, in payment of dividends, including accumulations, if any,
in the proportion that the amount of dividends, including accumulations, if
any then payable on each share bears to the aggregate of such amounts then
payable on all shares of Preferred Stock, and in any distribution of assets
other than by way of dividends in the proportion that the sum payable on each
share bears to the aggregate of the amounts so payable on all shares of
Preferred Stock.
After such amount is paid in full, no further distributions or payments
shall be made in respect of the Series A Preferred Stock, such Preferred Stock
shall no longer be deemed to be outstanding or be entitled to any privilege
of exchange or conversion or to any other preferences, rights or privileges,
and such Preferred Stock shall be surrendered for cancellation to any transfer
agent for such Preferred Stock or to the Corporation. Once any portion (less
than all) of such distribution or payment is made to any holder of the Series
A Preferred Stock, there shall not be any conversion rights in respect of such
Preferred Stock pursuant to Paragraph 6, below unless the full amount of such
distributions and payments in respect of such Preferred Stock being converted
is remitted to the Corporation, without interest, prior to or
contemporaneously with the conversion of such Preferred Stock.
D-2
Nothing herein contained shall be deemed to prevent redemption of Series A
Preferred Stock by the Corporation in the manner provided in Paragraph 4,
below. Neither the merger nor consolidation of the Corporation into or with
any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation, nor a sale, transfer or lease of all
or part of the assets of the Corporation, shall be deemed to be a dissolution,
liquidation or winding up of the Corporation within the meaning of this
Paragraph 3.
Written notice of any voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Corporation, stating a payment date and the
place where the distribution amounts shall be payable and containing a
statement of or reference to the conversion right set forth in Paragraph 6
below, shall be given by mail, postage prepaid, at least thirty (30) days but
not more than (60) days prior to the payment date stated therein, to the
holders of record of the Series A Preferred Stock at their respective
addresses as the same shall appear on the books of the Corporation.
4. Redemption.
The Corporation shall have the right, at its option and by resolution of its
Board of Directors, to redeem at any time or from time to time any of the
outstanding Series A Preferred Stock, in whole or in part, upon notice given
as hereinafter specified and upon payment in cash in respect of each share
redeemed at the then applicable redemption price set forth below, plus, in
each case, an amount equal to all dividends accrued and unpaid thereon to the
date fixed for redemption if redeemed during the twelve month period ending
prior to October 1, of the year indicated:
Year Redemption Price
1990.......................................... 26.350
1991.......................................... 26.125
1992.......................................... 25.90
1993.......................................... 25.675
1994.......................................... 25.45
1995.......................................... 25.225
If redeemed on or after October 1, 1995 ...... 25.00
If less than all of the outstanding shares of the Series A Preferred Stock
shall be redeemed, the particular shares to be redeemed shall be allocated
among the respective holders of Series A Preferred Stock pro rata or by lot,
as the Board of Directors may determine.
Notice of any redemption specifying the date fixed for said redemption and
the place where the amount to be paid upon redemption is payable and
containing a statement of or reference to the conversion right set forth in
Paragraph 6 below shall be mailed, postage prepaid, at least thirty (30) days
but not more than sixty (60) days prior to said redemption date to the holders
of record of the Series A Preferred Stock to be redeemed at their respective
addresses as the same shall appear on the books of the Corporation. If such
notice of redemption shall have been so mailed, and if on or before the
redemption date specified in such notice all funds necessary for such
redemption shall have been set aside by the Corporation separate and apart
from its other funds, in trust for the benefit of the holders of the shares
so to be redeemed, so as to be and continue notwithstanding that any
certificate for shares of the Series A Preferred Stock so called for
redemption shall not have been surrendered for cancellation, the shares
represented thereby so called for redemption shall be deemed to be no longer
outstanding, or if such notice of redemption shall have been so mailed, and if
prior to the date of redemption specified in such notice said fund shall be
deposited in trust, for the benefit of the holders of the shares of Series A
Preferred Stock to be redeemed (and so as to be and continue to be available
therefore), with a bank or trust company organized in good standing under the
laws of the United States of America
D-3
or any state thereof, named in such notice having capital, surplus and
undivided profits of at least $5,000,000 according to its last published
Statement of Condition (doing business directly or through an agent in the
Borough of Manhattan, the City of New York), thereupon and without awaiting
the redemption date of all shares of Series A Preferred Stock with respect to
which such notice shall have been so mailed and such deposit shall have been
so made shall be deemed to be no longer outstanding, and all rights with
respect to such shares of Series A Preferred Stock shall forthwith upon such
separation or deposit in trust cease and terminate, except only the right of
the holders thereof to convert such shares in accordance with the provisions
of Paragraph 6 below at any time prior to the close of business on the
business day next preceding the redemption date, and the right of the holders
thereof on or after the redemption date to receive from such deposit the
amount payable on the redemption thereof, but without interest. Any funds so
separated or deposited by the Corporation which shall not be required for such
redemption because of the exercise of any right of conversion or exchange
subsequent to the date of such deposit shall be released or repaid to the
Corporation. In the event the holders of shares of Series A Preferred Stock
which shall have been redeemed shall not within six years after the redemption
date claim any amount so deposited in trust for the redemption of such shares,
such bank or trust company shall upon demand pay over to the Corporation any
such unclaimed amount so deposited with it, and shall thereupon be relieved of
all responsibility in respect thereof, and thereafter the holders of such
shares shall look only to the Corporation for payment of the redemption price
thereof, but without interest. Any interest accrued on such funds shall be
paid to the Corporation from time to time.
Any provision of this Paragraph 4 to the contrary notwithstanding, if any
quarterly dividend due on the Series A Preferred Stock or any series of
preferred stock ranking prior thereto or to a parity therewith shall be in
default, and until all such defaults shall have been cured, the Corporation
shall not redeem any shares of Series A Preferred Stock unless all outstanding
shares of Series A Preferred Stock are simultaneously redeemed in accordance
with the provision of this Paragraph 4 and the Corporation shall not purchase
or otherwise acquire any shares of Series A Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same terms to
all holders of record of Series A Preferred Stock.
Shares of Series A Preferred Stock redeemed or otherwise purchased or
acquired by the Corporation shall not be reissued as shares of Series A
Preferred Stock but shall assume the status of authorized but unissued shares
of preferred stock of the Corporation.
5. Voting Rights.
The holders of the Series A Preferred Stock shall have no voting power
except as set forth in this Paragraph 5.
A. If at any time the equivalent of six or more full quarterly dividends
(whether or not consecutive) payable on any series of preferred stock of the
Corporation (hereinafter in this Paragraph 5 called the "preferred stock")
shall be in default, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two, and the holders of all
outstanding preferred stock (whether or not the payment of quarterly dividends
shall be in default on all preferred stock outstanding) shall have the
exclusive right, voting together as one class, to elect two directors to fill
such newly created directorships. This right shall remain vested until all
dividends in default on all outstanding preferred stock have been paid, or
declared and set apart for payment, at which time: (1) the right shall
terminate (subject to revesting in the case of any subsequent default of the
kind described above); (ii) the term of the directors then in office elected
by the holders of all outstanding preferred stock as a class shall terminate;
and (iii) the number of directors constituting the Board of Directors of the
Corporation shall be reduced by two. Any director to be elected by the holders
of preferred stock shall agree, prior to such director's election to office,
to resign upon any termination of the right of the holders of preferred stock
to vote as a class for directors as herein provided, and upon any such
termination of the directors then in office elected by the holders of
preferred stock shall forthwith resign.
D-4
Whenever such right shall vest, it may be exercised initally either at a
special meeting of the holders of preferred stock or at any stockholders'
meeting, but thereafter it shall be exercised only at annual stockholders'
meetings. If the annual meeting of stockholders' of the Corporation is not,
for any reason, held on the date fixed in the Bylaws at a time when the
holders of preferred stock, voting separately and as a class, shall be
entitled to elect directors, or if vacancies shall exist in both of the two
offices of directors elected by the holders of preferred stock, a proper
officer of the Corporation shall, upon the written request of the holders of
record of ten percent of the preferred stock then outstanding addressed to the
Secretary of the Corporation, call a special meeting in lieu of the annual
meeting of stockholders, or, in the event of such vacancies, a special meeting
of the holders of preferred stock, for the purpose of electing directors. Any
director who shall have been elected by the holders of preferred stock as a
class pursuant to this Subparagraph (A) shall hold office for a term expiring
(subject to the earlier termination of the default in dividends) at the next
annual meeting of stockholders, and during such term may be removed at any
time, either for or without cause, by, and only by, the affirmative votes of
the holders of record of a majority of the outstanding shares of preferred
stock given at a special meeting of such stockholders called for such purpose,
and any vacancy created by such removal may also be filled at such meeting.
Any vacancy caused by the death or resignation of a director who shall have
been elected by the holders of preferred stock as a class pursuant to this
Subparagraph (A) may be filled only by the holders of all outstanding
preferred stock at a meeting called for such purpose.
Whenever a meeting of the holders of preferred stock is permitted or
required to be held pursuant to this Subparagraph (A), such meeting shall be
held at the earliest practicable date and the Secretary of the Corporation shall
call such meeting, providing written notice to all holders of record of
preferred stock in accordance with law, upon the earlier of the following:
(a) as soon as reasonably practicable following the occurrence of the event
or events permitting or requiring such meeting hereunder; or
(b) within twenty (20) days following receipt by said Secretary of a
written request for such a meeting, signed by the holders of record of at
least twenty percent (20%) of the shares of preferred stock then
outstanding.
If such meeting shall not be called by the proper corporate officer within
twenty (20) days after the receipt of such request by the Secretary of the
Corporation, or within twenty-five (25) days after the mailing of the same
within the United States of America by registered mail addressed to the
Secretary of the Corporation at its principal office, then the holders of record
of at least twenty percent (20%) of the shares of preferred stock then
outstanding may designate one of the their number to call such a meeting at the
expense of the Corporation, and such meeting may be called by such person in the
manner and at the place provided in this Paragraph 5. Any holder of preferred
stock so designated to call such meeting shall have access to the stock books of
the Corporation for the purpose of causing a meeting of such shareholders to be
so called.
Any provision of this Subparagraph (A) to the contrary notwithstanding, no
special meeting of the holders of shares of preferred stock: (i) shall be held
during the ninety (90) day period next preceding the date fixed for the annual
meeting of stockholders of the Corporation; or (ii) shall be required to be
called or held in violation of any law, rule or regulation.
Any meeting of the holders of all outstanding preferred stock entitled to
vote as a class for the election of directors shall be held at the place at
which the last annual meeting of stockholders was held. At such meeting, the
presence in person or by proxy of the holders of a majority of the outstanding
shares of all outstanding preferred stock shall be required to constitute a
quorum; in the absence of a quorum, a majority of the holders present in person
or by proxy shall have the power to adjourn the meeting from time to time
without notice, other than an announcement at the meeting, until a quorum shall
be present.
D-5
B. So long as any shares of any series of preferred stock are outstanding,
the Corporation shall not:
(i) without the consent of the holders of at least two-thirds (2/3) of
the number of shares of preferred stock at the time outstanding:
(a) create or authorize an additional class of stock ranking prior to
the preferred stock in respect of dividends or distribution of assets on
liquidation; or;
(b) increase the authorized amount of any additional class of stock
ranking prior to the preferred stock in respect of dividends of
distribution of assets on liquidation;or
(c) create or authorize any obligation or security convertible into or
evidencing the right to purchase shares of stock of any additional class
ranking prior to the preferred stock in respect of dividends or
distribution of assets on liquidation; or
(ii) without the consent of the holders of at least two-thirds (2/3) of
the number of shares of Series A Preferred Stock at the time outstanding:
(a) amend, alter or repeal any of the provisions of Article Fourth of
the Certificate of the Corporation or of this resolution so as to affect
adversely the rights, powers or preferences of the Series A Preferred
Stock; or
(b) authorize any merger or consolidation of the Corporation is not
the surviving corporation, unless the terms of the merger or consolidation
require that the holders of the Series A Preferred Stock receive
securities of the surviving corporation having the same terms and
preferences as the Series A Preferred Stock; except in instances required
by the Federal Home Loan Bank Board or the Federal Savings and Loan
Insurance Corporation (or any successor thereto); or
(c) authorize the sale, lease or conveyance (other than by mortgage or
pledge) of all or substantially all of the Corporation's properties or
business in exchange for securities of another corporation unless the
terms of the sale, lease or conveyance require that the holders of the
Series A Preferred Stock receive securities of the surviving corporation
having the same terms and preferences as the Series A Preferred Stock.
Any vote or consent required or permitted by this Subparagraph (B) may be
given in person or by proxy, either in writing or by vote at an annual or
special meeting called therefore.
C. Any action specified in this Paragraph 5 as requiring the consent of the
specified proportion of the votes of the shares of the preferred stock at the
time outstanding or represented at a meeting may be taken with such consent
and with such additional vote or consent, if any, of stockholders as may be
from time to time required by law.
D. For the purposes of the voting rights set forth in this Paragraph 5, the
holders of the Series A Preferred Stock shall be entitled to one vote for each
share held.
6. Convertibility.
Shares of the Series A Preferred Stock (hereinafter in this Paragraph 6
called "Shares") shall be convertible into Common Stock on the following terms
and conditions:
A. Subject to and upon compliance with the provisions of this Paragraph 6,
the holder of any Shares may at such holder's option convert any such Shares
into such number of fully paid and non-assessable shares of Common Stock as
are issuable pursuant to the formula set forth in Subparagraphs (C) and (D) of
this Paragraph 6. No allowance or adjustments shall be made for dividends
accrued on any Shares that shall be converted or for dividends on any Common
Stock that shall be issuable upon the conversion of such Shares, but all
dividends accrued and unpaid on any Shares up to and including the dividend
payment date immediately preceding the date of conversion shall constitute a
debt of the Corporation payable to the converting holders, and no dividend
shall be paid upon any shares of Common Stock or any other class of stock or
series thereof ranking junior to the Shares until such debt
D-6
shall be paid or sufficient fund set aside for payment thereof.
B. The surrender of any Shares for conversion shall be made by the holder
thereof to the Corporation at the office of the Conversion Agent for the Series
A Preferred Stock, and such holder shall give written notice to the Corporation
at said office that such holder elects to convert such Shares in accordance
with the provisions thereof and of this Paragraph 6. Such notice also shall
state the name or names (with addresses) in which the certificate or
certificates for Common Stock which shall be issuable on such conversion shall
be issued. Subject to the provisions of Subparagraph (A) of this Paragraph 6,
every such notice of election to convert shall constitute a contract between
the holder of such Shares and the Corporation, whereby such holders shall be
deemed to subscribe for the number of shares of Common Stock which such holder
will be entitled to receive upon such conversion and, in payment and
satisfaction of such subscription, to surrender such Shares and to release the
Corporation from all obligations thereof, and whereby the Corporation shall be
deemed to agree that the surrender of such Shares and the extinguishment of
its obligations thereon shall constitute full payment for the Common Stock
subscribed for and to be issued upon such conversion.
As soon as practicable after the receipt of such notice and Shares, the
Corporation shall issue and shall deliver at said office of the Conversion
Agent to the person for whose account such Shares were so surrendered, or on
such holder's written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such Shares and a
check or cash for the payment (if any) to which such person is entitled
pursuant to Subparagraph (E) of the Paragraph 6, together with a certificate
or certificates representing the Shares, if any, which are not to be
converted, but which constituted part of the Shares represented by the
certificate or certificates surrendered by such person. Such conversion shall
be deemed to have been effected on the date on which the Corporation shall
have received such notice and such Shares, and the person or persons in whose
name or names any certificate or certificates for Common Stock shall be
issuable upon such conversion shall be deemed to have become on said date the
holder or holders of record of the shares represented thereby.
C. The initial Conversion Rate shall be a price of $18.375 per share of
Common Stock (approximately 1.36 shares of Common Stock for each Share
surrendered for conversion). The effective conversion price per share as of
any date shall be $25.00 per share plus accrued and unpaid dividends as of
such date, divided by the number of shares of Common Stock into which such
share of preferred stock is then convertible.
D. The Conversion Rate shall be subject to adjustment from time to time as
follows:
(1) If the Corporation shall (i) pay a dividend on its Common Stock in
shares of the Corporation or distribute shares of the Corporation, (ii)
subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares
of Common Stock (whether pursuant to a merger or consolidation or
otherwise) any shares of its capital stock, then the Conversion Rate in
effect immediately prior thereto shall be adjusted so that the holder of a
Share surrendered for conversion after the record date fixing stockholders
to be affected by such event shall be entitled to receive upon conversion
the number of such shares of the Corporation which such holder would have
been entitled to receive after the happening of such event had such Shares
been converted immediately prior to such record date. Such adjustment
shall be made whenever any of such events shall happen, and shall also be
effective retroactively as to Shares converted between such record date
and the date of the happening of any such event.
(2) If the Corporation shall issue rights or warrants to the holders of
its Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the then Current Market Price
per share of Common Stock (as defined in subsection (D)(5) of this
Paragraph 6) on the record date for the determination of shareholders
entitled to receive such rights or warrants, the number of shares of
Common Stock into which each Share shall thereafter be convertible shall
be determined by multiplying the number of shares of Common Stock into
which such Shares were theretofore convertible by a fraction, the
numerator
D-7
of which shall be the number of shares of Common Stock outstanding on the date
of the issuance of such rights or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase, and the
denominator of which shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of shares of Common Stock which the aggregate offering price of the total
number of Shares so offered would purchase at such Current Market Price (as
defined in subsection (D)(5) of this Paragraph 6). For the purposes of this
subdivision (2), the issuance of rights or warrants to subscribe for or
purchase shares or securities convertible into Common Stock shall be deemed to
be the issuance of rights or warrants to purchase the Common Stock into which
such Shares or securities are convertible at an aggregate offering price equal
to the aggregate offering price of such shares or securities plus the minimum
aggregate amount (if any) payable upon conversion of such Shares or securities
into Common Stock. Such adjustment shall be made whenever such rights or
warrants are issued and shall also be effective retroactively as to Shares
converted between the record date for determination of stockholders entitled
to receive such rights or warrants and the date such rights or warrants are
issued.
(3) If the Corporation shall distribute to the holders of its Common Stock
(whether pursuant to a merger or consolidation or otherwise) evidence of its
indebtedness or assets (excluding cash dividends or distributions made out of
current or retained earnings), capital stock other than Common Stock or rights
or warrants to subscribe other than as referred to in subsection (D)(2) of
this Paragraph 6, then in each such case the number of shares of Common Stock
into which each Share shall thereafter be convertible shall be determined by
multiplying the number of shares of Common Stock into which such Share was
theretofore convertible by a fraction, the numerator of which shall be the
Current Market Price per share of Common Stock (as defined in subsection
(D)(5) of this Paragraph 6) on the date of such distribution, and the
denominator of which shall be such Current Market Price per share of the
Common Stock, less the then fair market value (as determined by the Board of
Directors of the Corporation, whose determination shall be conclusive and
described in a statement filed with the Conversion Agent maintained by the
Corporation pursuant to Subparagraph (B) of the Paragraph 6) of the portion of
assets, or capital stock or cash or evidence of indebtedness, subscription
rights or warrants so distributed applicable to one share of the Common Stock.
Such adjustment shall be made whenever any such distribution is made, and
shall also be effective retroactively as to the Shares converted between the
record date for the determination of stockholders entitled to receive such
distribution and the date such distribution is made.
(4) Notwithstanding the foregoing, in the event of any consolidation or
merger of the Corporation (including, without limitation, a merger in which
the Corporation is the surviving corporation), or in the event of any sale,
conveyance, lease, exchange or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property or assets
of the Corporation to another corporation, or in the case of any
reorganization of the Corporation, or reclassifications or changes of the
shares of Common Stock, the holder of each Share then outstanding upon
exercise of the conversion privilege thereof shall have the right thereafter
to convert such Share into the kind and amount of shares of stock and other
securities and property, including cash, which would have been deliverable to
such holder upon such consolidation, merger, sale, conveyance, exchange,
transfer or reorganization if such holder had converted such holder's Shares
into Common Stock immediately prior to such consolidation, merger, sale,
conveyance, exchange, transfer or reorganization. In any such event,
effective provision shall be made in the instrument effecting or providing for
such consolidation, merger, sale, conveyance, exchange, transfer or
reorganization so that the provisions set forth herein for the protection of
the conversion rights of the Shares shall thereafter be applicable, as nearly
as may be practicable, in relation to any shares of stock or other securities
or property including cash, deliverable after such consolidation, merger,
sale, conveyance, exchange, transfer or reorganization upon the conversion of
the Series A Preferred Stock, or such other securities as shall have been
issued to the holders thereof in lieu thereof or in exchange therefor. The
provisions of this subsection (D)(4) shall similarly apply to successive
consolidations, mergers, sales, leases, conveyances, exchanges, transfers and
reorganizations.
(5) For the purpose of any computation under Paragraph 4 above and subsection
(D)(2) and (D)(3) of this Paragraph 6, (i) 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 30 consecutive trading days commencing 45 business
days before such date. The closing
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price for each day shall be the last reported sale price as reported on
NASDAQ or any successor thereto on such day, or, if listed or admitted to
trading on any securities exchange, as reported regular way on the
consolidated transactions reporting service for securities listed on the
principal securities exchange on which the Common Stock is then listed, or,
in the case no such reported sale takes place on such day, the average of
the last reported bid and asked prices regular way on the composite
quotations service for securities listed on the principal securities
exchange on which the Common Stock is then listed, or, if not so reported
or listed or admitted to trading on any securities exchange, the average of
the highest reported bid and the lowest reported asked prices on such day
as furnished by the National Quotation Bureau Incorporated or such other
nationally recognized quotation services as may be selected by the
Corporation for the purpose if said Bureau is not at the time furnishing
quotations.
(6) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent
(1%) in such Rate, subject to an adjustment in the event the Corporation
issues a stock dividend in Common Stock or subdivides or combines the
outstanding shares of Common Stock; provided, however, that any adjustments
which by reason of this subsection (D)(6) are not required to be, and are
not, made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this subsection (D)(6) shall be made to
the nearest cent or one-hundredth of a share, as the case may be.
(7) Whenever the Conversion Rate shall be adjusted as provided in this
Paragraph 6, the Corporation shall forthwith file at the office of the
Conversion Agent maintained by the Corporation pursuant to Subparagraph (B)
of this Paragraph 6, a statement signed by the Chairman of the Board or the
President of the Corporation and by its Chief Financial Officer stating the
adjusted Conversion Rate determined as provided herein. Such statement
shall show in detail the adjustment and the method of calculation used and
the facts requiring such adjustment. Whenever the Conversion Rate is
adjusted, the Corporation shall cause a notice stating the adjustment and
the new Conversion Rate to be mailed to each holder of record of Shares as
of the effective date of such adjustment.
(8) For purposes of this Paragraph 6(D) the term "Corporation" shall be
deemed to include, in addition to the Corporation, Northeast Savings, F.A.
during the period from the date of issuance by Northeast Savings, F.A. of
its Northeast Savings Convertible Preferred Stock until the date such stock
was replaced by the Series A Preferred Stock pursuant to the Plan of
Reorganization dated June 1, 1990, as amended July 6, 1990, involving the
Corporation and Northeast Savings, F.A.
E. No fractional shares or scrip representing fractional shares shall be
issued upon the conversion of any Shares. If more than one Share shall be
surrendered for conversion at one time by the same holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of such shares so surrendered. If the conversion of any
Shares results in a fraction, an amount equal to such fraction multiplied by
the closing price (determined as provided in the last sentence of subsection
(D)(5) of this Paragraph 6) of the Common Stock on the business day next
preceding the date of conversion shall be paid to such holder in cash by the
Corporation.
F. If any Share shall be called for redemption, the right to convert such
Share shall terminate and expire at the close of business on the business day
next preceding the date fixed for said redemption, unless the Corporation
shall default in the payment of the redemption price determined as provided in
Paragraph 4 above, provided, that if such day shall not be a business day in
New York, the right to convert such shares may be exercised on the next
succeeding business day.
G. The Shares shall be deemed to have been converted and the person converting
the same to have become the holder of record of Common Stock, for the purpose
of receiving dividends and for all other purposes whatever, as of the date
when a certificate or certificates for such Shares are surrendered to the
Corporation as aforesaid. The Corporation shall not be required to make any
such conversion, and no surrender of the Shares shall be effective
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for such purpose, while the books for the transfer of either the Shares or the
Common Stock are closed for any purpose or during the 15 days preceding any
selection of Shares to be redeemed or thereafter until the mailing of the
redemption notice, but the surrender of such Shares for conversion during any
such period shall become effective for all purposes of conversion immediately
upon the reopening of such books as if the conversion had been made on the
date such Shares were surrendered.
H. The Corporation shall pay any and all taxes which may be imposed upon it
with respect to the issuance and delivery of Common Stock upon the conversion
of the Shares as herein provided. The Corporation shall not, however, be
required to pay any transfer or other taxes which may be payable in respect of
any transfer involved in the issue and delivery of stock in a name other than
that of the holder of the Shares converted, and the Corporation shall not be
required to issue or deliver any such stock certificate unless and until the
person or persons requesting the issuance thereof shall have paid to the
Corporation the amount of any such tax or shall have established to the
satisfaction of the Corporation that such tax has been paid.
I. If in any case a state of facts occurs wherein in the opinion of the Board
of Directors the other provisions of this Paragraph 6 are not strictly
applicable, or if strictly applicable, would not fairly protect the conversion
rights of the Shares in accordance with the essential intent and principles of
such provisions, then the Board of Directors shall make an adjustment in the
application of such provisions in accordance with such essential intent and
principles so as to protect such conversion rights as aforesaid.
J. The Corporation shall at all times reserve and keep available out of its
authorized Common Stock the full number of shares of Common Stock deliverable
upon the conversion of all outstanding Shares and shall take all such
corporate action as may be required from time to time in order that it may
validly and legally issue fully paid and non-assessable shares of Common Stock
upon conversion of all the outstanding Shares.
K. Shares converted shall not be reissued as Shares but shall assume the
status of authorized but unissued shares of preferred stock of the
Corporation.
L. For purposes of this Paragraph 6:
(1) "Conversion Rate" at any time shall mean the amount of Common Stock
of the Corporation into which at such time one Share shall be convertible
in accordance with the provisions of this Paragraph 6.
(2) "Common Stock" shall mean stock of the Corporation of any class,
whether now or hereafter authorized, which has the right to participate in
the distribution of either earnings or assets of the Corporation without
limit or preference as to the amount or percentage. If by reason of the
operation of subsection (D)(4) of this Paragraph 6, the Shares shall be
convertible into any other shares of stock or other securities or property
of the Corporation or of any other corporation, any reference herein to the
conversion of Shares will be a reference to a conversion into such other
shares of stock or other securities or property.
(3) "Conversion Agent" shall mean an agent of the Corporation located in
the Borough of Manhattan, City and State of New York. So long as the
shares of Series A Preferred Stock remain outstanding, the Corporation
shall maintain such an agency for the purposes contemplated by this Para-
graph 6.
7. Sinking Fund.
No sinking funds shall be established for the retirement or redemption of
the Series A Preferred Stock.
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Certificate of Designation of
$8.50 Cumulative Preferred Stock, Series B
of Northeast Federal Corp.
(Pursuant to Section 151 of the General Corporation Law of the State of
Delaware)
Northeast Federal Corp., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance
with the provision of Section 151(g) thereof.
HEREBY CERTIFIES:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the Corporation (the "Certificate"), the Board
of Directors on May 5, 1992, adopted the following resolution creating a fourth
series of 540,000 shares of preferred stock designated as $8.50 Cumulative
Preferred Stock, Series B:
RESOLVED, that pursuant to the authority granted to the Board of Directors by
Article Fourth, Paragraph B of the Certificate, there is hereby created and the
Corporation be, and it hereby is, authorized to issue 540,000 shares of the
preferred stock, designated "$8.50 Cumulative Preferred Stock, Series B" (the
"Series B Preferred Stock"), which fourth series of preferred stock shall rank
junior, as to dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, to the $2.25 Cumulative
Convertible Preferred Stock, Series A (the "Convertible Preferred Stock"), the
Adjustable Rate Cumulative Preferred Stock, Series A (the "Series A Adjustable
Preferred Stock"), and the Adjustable Rate Cumulative Preferred Stock, Series B
(the "Series B Adjustable Preferred Stock"), and shall have the following
terms, conditions, designation, preferences and privileges, relative,
participating, optional and other special rights, and qualifications,
limitations and restrictions:
1. Designation.
540,000 shares of authorized serial preferred stock of the Corporation are
hereby constituted as a series of preferred stock, having a par value of $0.01
per share, designated as $8.50 Cumulative Preferred Stock, Series B
(hereinafter called "Series B Preferred Stock"). In accordance with the terms
hereof, each share of Series B Preferred Stock shall have the same relative
rights as and be identical in all respects with each other share of Series B
Preferred Stock. The number of shares of Series B Preferred Stock may not be
increased but may b decreased by a resolution duly adopted by the Board of
Directors, but not below the number of shares of Series B Preferred Stock then
outstanding.
2. Dividends.
The holders of the shares of Series B Preferred Stock shall be entitled to
receive dividends, when, as, and if declared by the Board of Directors out of
funds legally available for payment of dividends, cumulative to the extent not
paid in the annual amount of $8.50, per share and no more, payable quarterly on
the first day of January, April, July and October of each year, unless such day
is a nonbusiness day, in which event the next business day each such date being
hereinafter referred to as a "Payment Date"), commencing on the first Payment
Date after the issuance of the Series B Preferred Stock, to holders of record on
the date not exceeding 60 days preceding the Payment Date as may be determined
by the Board of Directors in advance of payment of each particular dividend.
Dividends payable on the Series B Preferred Stock for any period less than a
full quarter shall be computed on the basis of a 360-day year of twelve 30-day
months.
Dividends payable on or prior to July 1, 1997 whether or not paid on or
prior to that date shall be paid at the election of the Corporation, in cash or
in shares of Series B Preferred Stock (which may include
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fractional shares if necessary) at the rate of one share for each $100 of the
amount of the dividend payable. Dividends payable after July 1, 1997 shall be
paid in cash out of funds legally available therefor.
No dividends shall be declared and paid in cash on the shares of Series B
Preferred Stock in respect of any quarterly dividend period unless there shall
likewise be or have been declared and set apart for payment, on all shares of
Convertible Preferred Stock, Series A Adjustable Preferred Stock and Series B
Adjustable Preferred Stock and any other Series of preferred stock ranking, as
to dividends, prior to the Series B Preferred Stock then outstanding,
dividends for all quarterly periods coinciding with or ending before such
quarterly period. No dividends shall be declared and paid on the shares of
the Series B Preferred Stock in respect of any quarterly dividend period if
such payment is prohibited by the terms of preferred stock then outstanding
ranking, as to dividends, prior to the Series B Preferred Stock. No dividends
shall be declared on any other series or class or classes of stock ranking on
a parity with the Series B Preferred Stock as to dividends in respect of any
quarterly dividend period unless there shall likewise be or have been declared
and set apart for payment, on all shares of Series B Preferred Stock at the
time outstanding, dividends for all quarterly periods coinciding with or
ending before such quarterly period, ratably in proportion to the respective
annual dividend rates per annum fixed therefor. 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.
Unless all cumulative dividends on all outstanding shares of Series B
Preferred Stock which are payable or in arrears have been paid in full to the
holders of shares of Series B Preferred Stock:
(i) no dividends or other distributions shall be paid or declared and set
aside for payment with respect to (i) shares of $0.01 par value common stock
of the Corporation (hereinafter referred to as the "Common Stock") or (ii)
shares of any class or series of stock ranking junior as to dividends to the
Series B Preferred Stock (hereinafter referred to as the "Junior Stock"); and
(ii) no shares of Common Stock, Junior Stock, or any class or series of
stock on a parity as to dividends with the Series B Preferred Stock
(hereinafter referred to as "Parity Stock") shall be purchased or redeemed by
the Corporation or any subsidiary thereof;
provided, however, that the foregoing prohibitions shall not prevent the
Corporation from declaring a stock dividend of Common Stock on such Common
Stock, or of any class or series of Junior Stock on such class or series of
Junior Stock. No dividends shall be paid or declared and set aside for
payment to holders of Parity Stock unless such dividends are also
simultaneously paid or declared and an amount set aside sufficient for
payment to the holders of the Series B Preferred Stock.
3. Voting.
(a) Except as expressly provided hereinafter in this Section 3 or as
otherwise from time to time required by Delaware law, the Series B Preferred
Stock shall have no voting rights.
(b) Notwithstanding any provisions in the Amended Certificate of
Designation of the $2.25 Cumulative Convertible Preferred Stock, Series A (the
"Convertible Preferred Stock Certificate") to the contrary, the Series B
Preferred Stock shall have no right to vote on any election of directors or on
any other matters pursuant to the provisions set forth in the Convertible
Preferred Stock Certificate.
(c) Except as otherwise set forth herein, any amendment to the provisions
of this Certificate of Designation of the Series B Preferred Stock which
requires the approval of the holders of the Series B Preferred Stock may be
approved by such holders by the written consent or the affirmative vote, at a
meeting of the holders of the Series B Preferred Stock called for such
purpose, by the holders of at least a majority of the aggregate number of
shares of Series B Preferred Stock at the time outstanding.
(d) Without either the written consent or the affirmative vote at a
meeting of the holders of at least two-thirds of the aggregate number of
Series B Preferred Stock shares at the time outstanding, consenting or
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voting (as the case may be) separately as a single class, the Corporation
shall not create, authorize or issue a new series of preferred stock (or
increase the authorized amount of an existing series of preferred stock) or a
class of other stock after the date hereof with preference or priority over
or on a parity with the Series B Preferred Stock shares as to the right to
receive either dividends or amounts distributable upon liquidation,
dissolution or winding up of the Corporation.
(e) (i) Upon the issuance of at least 211,020 shares of Series B
Preferred Stock to the Rhode Island Depositors Economic Protection
Corporation or any Nominee as defined in the Stock and Warrant Purchase
Agreement between the Rhode Island Depositors Economic Protection Corporation
and the Corporation dated as of April 21, 1992 (the "Purchase Agreement")
(collectively,"DEPCO"), the number of directors constituting the Board of
Directors of the Corporation shall be increased by two and one directorship
shall be known as the 211,020 share position ("211,020 Position") and the
other directorship shall be known as the 105,510 share position ("105,510
Position"). DEPCO shall have the right to elect a director of the Corporation
to each one of the specified positions provided above as long as DEPCO shall
hold 211,020 or more shares of the Series B Preferred Stock. However , if
DEPCO shall hold less than 211,020 but 105,510 shares or more of Series B
Preferred Stock, the right to elect one director to the 211,020 Position
shall terminate, the term of the director in the 211,020 Position shall
terminate, and the number of directors constituting the Board of Directors
shall be reduced by one. In such event, DEPCO shall continue to have the
right to elect one director to the 105,510 Position. If DEPCO shall hold less
than 105,510 shares of Series B Preferred Stock, the right to elect one
director shall terminate, the term of the director in the 105,510 Position
shall terminate and the number of directors constituting the Board of
Directors of the Corporation shall be reduced by one.
In either case, (so long as DEPCO continues to have a right to elect one
or two directors) DEPCO shall have the right to fill any vacancies (created
by the death, resignation, removal or departure from the Board for any other
reason) of a director originally elected by DEPCO pursuant to this Section
3(e)(i): provided, however, (A) that any director elected by DEPCO shall be
acceptable to the Board of Directors of the Corporation in its reasonable
prudent judgment, and (B) that such director shall not be objected to by the
Office of Thrift Supervision (the "OTS"), after 20 days prior written notice
and, if required, shall have been approved prior to election by the OTS. For
purposes of this Section, the OTS shall be deemed to include any successor
federal agency regulating financial institutions and having jurisdiction over
the Corporation.
(ii) Any nomination and election pursuant to this Section 3(e) shall
be by written notice signed by the chairman of DEPCO and attested to by its
Secretary.
(f) If DEPCO has sold and transferred sufficient shares of Series B
Preferred Stock so that DEPCO is no longer entitled to elect a director
pursuant to Section 3(e) hereof, and if at any such time the equivalent of
six or more full quarterly dividends (whether or not consecutive and whether
or not declared) payable on the Series B Preferred Stock shall be in default,
the number of directors of the Corporation shall be increased by two and the
holders of the Series B Preferred Stock, shall have the right, voting together
as one class, to elect two directors to fill such newly created directorships.
Notwithstanding the foregoing provisions of this Section 3(f), to the extent
at any time the holders of Series B Preferred Stock otherwise would have the
right to elect two directors pursuant to the foregoing provisions of this
Section 3(f), and any other series of preferred stock of the Corporation
outstanding shall have an equivalent right, which may be or permits such right
to be exercisable upon a vote not only by the holders of such other series of
preferred stock but also of the holders of the Series B Preferred Stock, then
the number of directors shall be increased by a total of two for any and all
of such series of preferred stock (including the Series B Preferred Stock),
and the holders of all shares of such preferred stock, voting as a single
class, shall have the right to elect such directors, each share of preferred
stock so voting being entitled to one vote per share. The holders of the
Series B Preferred Stock shall have no right to cumulate votes for the
election of directors. The right to
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elect directors conferred by this Section 3(f) shall remain vested until all
accumulated dividends on the Series B Preferred Stock have been paid, or
declared and set apart for payment, at which time: (i) the right shall
terminate (subject to revesting in the case of any subsequent default of the
kind described above): (ii) the term of the directors then in office elected
by the holders of the Series B Preferred Stock as a class shall terminate,
(except that if such directors were also elected by holders of another series
of preferred stock, and such other series still retains the right to elect two
directors, such directors shall remain in office): and (iii) (subject to the
aforesaid exception), the number of directors constituting the Board of
Directors of the Corporation shall be reduced by two. Any director to be
elected by the holders of the Series B Preferred Stock (or, if applicable, by
the holders of all outstanding preferred stock with such right) shall agree,
prior to such director's election to office, to resign upon any termination of
the right of the holders of preferred stock to vote as a class for directors
as herein provided, and upon termination of any such right, the directors then
in office elected by the holders of preferred stock shall forthwith resign.
Whenever such right to elect directors as set forth in Section 3(f) shall
vest, it may be exercised initially either at a special meeting of the holders
of Series B Preferred Stock (or, if applicable, of the holders of all
outstanding preferred stock with such right) or at any annual stockholders'
meeting, but thereafter it shall be exercised only at annual stockholders'
meetings. If the annual meeting of stockholders of the Corporation is not,
for any reason, held on the date fixed in the Bylaws at a time when the
holders of Series B Preferred Stock (or, if applicable, the holders of all
outstanding preferred stock with such right), voting as a class, shall be
entitled to elect directors, or if vacancies shall exist in both of the two
offices of directors elected by the holders of Series B Preferred Stock (or,
if applicable, by the holders of all outstanding preferred stock with such
right), a proper officer of the Corporation shall, upon the written request of
the holders of record of ten percent of the Series B Preferred Stock (or, if
applicable, the holders of 10% of all outstanding preferred stock with such
right), then outstanding, addressed to the Secretary of the Corporation, call
a meeting of stockholders, or, in the event of such vacancies, a special
meeting of the holders of Series B Preferred Stock (or, if applicable, of the
holders of all outstanding preferred stock with such right), for the purpose
of electing directors. Any director who shall have been elected by the
holders of Series B Preferred Stock (or, if applicable, by the holders of any
other outstanding preferred stock with such right) as a class pursuant to this
Section 3(f) shall hold office for a term expiring (subject to the earlier
termination of the default in dividends) at the next annual meeting of the
stockholders, and during such term may be removed at any time, either for or
without cause, by, and only by, the affirmative votes of the holders of record
representing a majority of the outstanding shares of Series B Preferred Stock
(or, if applicable, of the holders representing a majority of all outstanding
preferred stock with such right) given at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal
may also filled at such meeting. Any vacancy caused by the death or
resignation of a director who shall have been elected by the holders of Series
B Preferred Stock (or, if applicable, by the holders of all outstanding
preferred stock with such right) as a class pursuant to this Section 3(f) may
be filled only by the holders representing a majority of all the Series B
Preferred Stock (or, if applicable, by the holders representing a majority of
all outstanding preferred stock with such right) at a meeting called for such
purpose. The holders of Series B Preferred Stock may act by written consent.
Whenever, a meeting of the holders of Series B Preferred Stock (or, if
applicable, of the holders of all outstanding preferred stock with such right)
is permitted or required to be held pursuant to this Section 3(f), such
meeting shall be held at the earliest practicable date and the Secretary of
the Corporation shall call such meeting, providing written notice to all
holders of record of Series B Preferred Stock (or, if applicable, to the
holders of all outstanding preferred stock with such right) in accordance with
law, upon the earlier of the following:
(a) as soon as reasonably practicable following the occurrence of the
event or events permitting or requiring such meeting hereunder; or
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(b) within twenty (20) days following receipt by said Secretary of a
written request for such a meeting, signed by the holders of record of at
least twenty percent (20%) of the shares of Series B Preferred Stock (or,
if applicable, by the holders of record of at least 20% of all
outstanding preferred stock with such right) then outstanding.
If such meeting required by Subsection (b) above shall not be called by
the proper corporate officer within twenty (20) days after the receipt of such
request by the Secretary of the Corporation, or within twenty-five (25) days
after the mailing of the same within the United States of America by
registered mail addressed to the Secretary of the Corporation at its principal
office, then the holders of record representing at least twenty percent (20%)
of the shares of Series B Preferred Stock (or, if applicable, the holders of
at least 20% of all outstanding preferred stock with such right) then
outstanding may designate one of their number to call such a meeting at the
expense of the Corporation, and such meeting may be called by such person in
the manner and at the place provided in this Section 3. Any holder of Series B
Preferred Stock so designated (or, if applicable, any holders of any other
outstanding preferred stock so designated) to call such meeting shall have
access to the stock books of the Corporation for the purpose of causing a
meeting of such shareholders to be so called.
Any provision of this Section 3(f) to the contrary notwithstanding, no
special meeting of the holders of shares of Series B Preferred Stock (or, if
applicable, of the holders of all outstanding preferred stock with such right):
(i) shall be required to be held during the ninety (90) day period next
preceding the date fixed for the annual meeting of stockholders of the
Corporation; or (ii) shall be required to be called or held in violation of
any law, rule or regulation.
At such meeting, the presence in person or by proxy of the holders
representing a majority of all outstanding shares of Series B Preferred Stock
(or, if applicable, of the holders of all outstanding preferred stock with
such right) shall be required to constitute a quorum for the purpose of
electing directors; in the absence of a quorum, such holders representing a
majority of those shares of preferred stock entitled to vote as provided herein
and present in person or by proxy shall have the power to adjourn the meeting
from time to time without notice, other than an announcement at the meeting,
until a quorum shall be present.
4. Redemption At Option of Corporation.
Share of Series B Preferred Stock may be redeemed, at the option of the
Corporation, in whole or in part, at any time at the redemption price of $100
per share (the "Redemption Price") plus accumulated and unpaid dividends
(whether or not declared) to the date fixed for redemption (the "Redemption
Date").
If at any time less than all of the outstanding shares of Series B
Preferred Stock shall be called for redemption, the shares to be redeemed
shall be selected by lot or in such other reasonable manner as the Board of
Directors shall determine. Not less than forty-five (45) days prior to the
Redemption Date of any Series B Preferred Stock pursuant to this Section 4,
notice specifying the time and place thereof shall be sent by mail, postage
prepaid, to the holders of record of the Series B Preferred Stock selected for
redemption, at their respective addresses appearing on the stock register.
5. Redemption Procedure.
Notice of any redemption specifying the Redemption Date and the place
where the Redemption Price plus accumulated and unpaid dividends (whether or
not declared) to the Redemption Date is payable shall be mailed, postage
prepaid, at least thirty (30) days but not more than sixty (60) days prior to
said Redemption Date to the holders of record of Series B Preferred Stock to
be redeemed at their respective addresses as the same shall appear on the
books of the Corporation. If (i) such notice of redemption shall have been so
mailed, and if on or before the Redemption Date specified in such notice all
funds necessary for such redemption shall have been set aside by the
Corporation separate and apart from its other funds, in trust for the benefit
of the holders of the shares so to be redeemed, so as to be and continue to be
available therefor
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notwithstanding that any certificate for shares of the Series B Preferred
Stock so called for redemption shall not have been surrendered for
cancellation, or (ii) if such notice of redemption shall have been so mailed,
and if prior to the Redemption Date specified in such notice said funds shall
be deposited in trust, for the benefit of the holders of the shares of Series
B Preferred Stock to be redeemed (and so as to be and continue to be available
therefor), with a bank or trust company organized in good standing under the
laws of the United States of America or any state thereof, named in such
notice having capital, surplus and undivided profits of at least $5,000,000
according to its last published Statement of Condition (doing business
directly or through an agent in the Borough of Manhattan, the City of New
York): thereupon and without awaiting the Redemption Date of all shares of
Series B Preferred Stock with respect to which such notice shall have been so
mailed and such set aside or deposit shall have been so made shall be deemed
to be no longer outstanding, and all rights with respect to such shares of
Series B Preferred Stock shall forthwith upon such separation or deposit in
trust cease and terminate, except the right of the holders thereof on or after
the Redemption Date to receive from such deposit the amount payable on the
redemption thereof including any dividends accrued on or before the Redemption
Date, but without interest. Any interest accrued on such funds shall be paid
to the Corporation from time to time. In the event the holders of shares of
Series B Preferred Stock which shall have been redeemed shall not within five
years after the Redemption Date claim any amount so deposited in trust for the
redemption of such shares, such bank or trust company shall upon demand pay
over to the Corporation any such unclaimed amount so deposited with it, and
shall thereupon be relieved of all responsibility in respect thereof, and
thereafter the holders of such shares shall look only to the Corporation for
payment of the redemption price thereof, but without interest. Any interest
accrued on such funds shall be paid to the Corporation from time to time.
Any provision of Sections 4 and 5 to the contrary notwithstanding, if any
quarterly dividend due on the Series B Preferred Stock or any series of
preferred stock ranking prior thereto or on a parity therewith shall be in
default, and until all such defaults shall have been cured, the Corporation
shall not redeem any shares of Series B Preferred Stock unless all outstanding
shares of Series B Preferred Stock are simultaneously redeemed in accordance
with the provisions of Sections 4 and 5 and the Corporation shall not purchase
or otherwise acquire any shares of Series B Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same terms to
all holders of record of Series B Preferred Stock.
Shares of Series B Preferred Stock redeemed or otherwise purchased or
acquired by the Corporation shall not be reissued as shares of Series B
Preferred Stock but shall assume the status of authorized but unissued shares
of preferred stock of the Corporation.
6. Liquidation Preference.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus)
shall be made to or set apart for the holders of any series or class or
classes of stock of or other securities having an equity interest in the
Corporation ranking junior to the Series B Preferred Stock upon liquidation,
dissolution or winding up and after any such payment or distribution to the
holders of the shares of the Convertible Preferred Stock, Series A Adjustable
Preferred Stock, Series B Adjustable Preferred Stock, and any other series of
preferred stock ranking prior, upon liquidation, dissolution or winding up, to
the Series B Preferred Stock, the holders of the shares of Series B Preferred
Stock shall be entitled to receive $100 per share plus an amount equal to all
dividends (whether or not earned or declared) accumulated and unpaid thereon
to the date of final distribution to such holders; but such holders shall not
be entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the shares of the Series B
Preferred Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other capital stock ranking as to
liquidation, dissolution or winding up, on a parity with the Series B
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Preferred Stock, then such assets or the proceeds thereof, should be
distributed among the holders of Series B Preferred Stock and any such other
capital stock ratably in accordance with the respective amounts which would be
payable upon liquidation, dissolution or winding up on such shares of Series B
Preferred Stock and any such other capital stock if all amounts payable
thereon were paid in full.
After such amount is paid in full, no further distributions or payments
shall be made in respect of the Series B Preferred Stock, such Series B
Preferred Stock shall no longer be deemed to be outstanding or be entitled to
any privilege of exchange or conversion or to any other preferences, rights or
privileges, and such Series B Preferred Stock shall be surrendered for
cancellation to any transfer agent for such Series B Preferred Stock or to the
Corporation.
Nothing herein contained shall be deemed to prevent redemption of Series B
Preferred Stock by the Corporation in the manner provided in Section 4, above.
Neither the merger nor consolidation of the Corporation into or with any
other corporation, nor the merger or consolidation of any other corporation
into or with the Corporation, nor a sale, transfer or lease of all or any part
of the assets of the Corporation, shall be deemed to be a dissolution,
liquidation or winding up of the Corporation within the meaning of this
Section 6.
Written notice of any voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Corporation, stating a payment date and the
place where the distribution shall be paid shall be given by mail, postage
prepaid, at least thirty (30) days but not more than sixty (60) days prior to
the payment date stated therein, to the holders of record of the Series B
Preferred Stock at their respective addresses as the same shall appear on the
books of the Corporation.
7. No Preemptive Rights.
The holders of Series B Preferred Stock shares shall not have any
preemptive right (i) to subscribe for or to acquire any unissued or treasury
shares of any class of stock of the Corporation or (ii) to subscribe for or
acquire any bonds, certificates or indebtedness, debentures or other
securities convertible into, or carrying options or warrants to purchase or
acquire any stock or other securities of the Corporation, except as otherwise
provided by resolution of the Board of Directors.
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Bylaws of Northeast Federal Corp.
Article I
Stockholders
Section 1. The annual meeting of the stockholders of the Corporation shall be
held on such date and time and at such place within or without the State of
Delaware, as may be fixed by the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may be
properly brought before the meeting.
Section 2. Special meetings of the stockholders may be held at such time and
at such place within or without the State of Delaware as may be stated in the
notice of the meeting.
Section 3. Notice of the time and place of every meeting of stockholders
shall be delivered personally or mailed at least ten days and not more than
sixty days prior thereto to each stockholder of record entitled to vote at his
address as it appears on the records of the Corporation. Such further notice
shall be given as may be required by law. Business transacted at any special
meeting shall be confined to the purpose or purposes stated in the notice of
such special meeting. Meetings may be held without notice if all stockholders
entitled to vote are present or if notice is waived by those not present.
Section 4. At all meetings of stockholders any stockholder entitled to vote
may vote in person or by proxy. Such proxy or any revocation or amendment
thereof shall be in writing, but need not be sealed, witnessed or
acknowledged, and shall be filed with the Secretary at or before the meeting.
Section 5. Except as otherwise provided by law or by the Certificate of
Incorporation, the presence, in person or by proxy, of the holders of record
of shares of capital stock of the Corporation entitling the holders thereof to
cast a majority of the votes entitled to be cast by the holders of shares of
capital stock of the Corporation entitled to vote shall constitute a quorum at
all meetings of the stockholders. Where a separate vote by a class or classes
is required, a majority of the shares of such class or classes present in
person or represented by proxy shall constitute a quorum entitled to take
action with respect to that vote on that matter. The chairman of the meeting
or the holders of record of a majority of such shares present or represented
may adjourn the meeting from time to time, whether or not there is such a
quorum. No notice of the time and place of adjourned meetings need be given
except as required by law.
Section 6. Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot, and except as otherwise set
forth in any Preferred Stock Designation with respect to the right of the
holders of any class or series of Preferred Stock to elect additional
directors under specified circumstances, a plurality of the votes cast thereat
shall elect. Except as otherwise provided by law, the Certificate of
Incorporation, any Preferred Stock Designation, these Bylaws or any resolution
adopted by a majority of the total number of directors which the corporation
would have if there were no vacancies on the Board of Directors (hereinafter
the "Whole Board"), all matters other than the election of directors submitted
to the stockholders at any meeting shall be decided by the vote of a majority
of the shares present in person or represented by proxy and entitled to vote
with respect thereto.
Section 7. (a) At any annual meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting (i) by or at
the direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote with respect thereto and who complies with
the notice
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procedures set forth in this Section 7(a). For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered or mailed to and received at
the principal executive offices of the Corporation not less than 60 days prior
to the date of the annual meeting; provided, however that in the event that
less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be received not later than the close of business on the 10th
day following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter such stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the Corporation's capital stock that are
beneficially owned by such stockkholder and (iv) any material interest of such
stockholder in such business. Notwithstanding anything in these Bylaws to the
contrary, no business shall be brought before or conducted at an annual
meeting except in accordance with the provisions of this Section 7(a). The
officer of the Corporation or other person presiding over the annual meeting
shall, if the facts so warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Section 7(a) and, if he should so determine, he shall so
declare to the meeting and any such business so determined to be not properly
brought before the meeting shall not be transacted.
At any special meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting by or at the direction
of the Board of Directors.
(b) Only persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders at which directors are to
be elected only (i) by or at the direction of the Board of Directors or (ii)
by any stockholder of the Corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this Section 7(b). Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made by timely notice in writing
to the Secretary of the Corporation. To be timely, a stockholder's notice
shall be delivered or mailed to and received at the principal executive
offices of the Corporation not less than 60 days prior to the date of the
meeting; provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or made to the
stockholders, notice by the stockholder to be timely must be received not
later than the close of business on the 10th day on which such notice of the
date of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (i) as to each person whom such
stockholder proposes to nominate for election or re-election as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected);
and a description of all arrangements or understandings among the stockholder
making the nomination and the nominee and any other person or persons (naming
such person or persons) pursuant to which such nomination is made and (ii) as
to the stockholder giving the notice (x) the name and address, as they appear
on the Corporation's books, of such stockholder and (y) the class and number
of shares of the Corporation's capital stock that are beneficially owned by
such stockholder. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a director shall furnish
to the Secretary of the Corporation that information required to be set forth
in a stockholder's notice of nomination which pertains to the nominee. No
person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the provisions of this Section 7(b). The officer
of the Corporation or other person presiding at the meeting
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shall, if the facts so warrant, determine that a nomination was not made in
accordance with such provisions and, if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
Section 8. There shall be appointed, for all meetings of the stockholders,
two inspectors of the vote. Such inspectors shall first take and subscribe an
oath of affirmation faithfully to execute the duties of inspector at such
meeting with strict impartiality and in accordance to the best of their
ability. Unless appointed in advance of any such meeting by the Board of
Directors, such inspectors shall be appointed for the meeting by the person
presiding thereat. No director or candidate for the office of director shall
be appointed as such inspector. Such inspectors shall receive, examine and
tabulate all ballots and proxies, including proxies filed with the Secretary,
shall determine the presence or absence of a quorum and shall be responsible
for tallying and certifying the vote taken on any matter at each meeting which
is required to be tallied and certified by them in the resolution of the Board
of Directors appointing them or the appointment of the person presiding at
such meeting, as the case may be.
Article II
Directors
Section 1. (a) Subject to the rights of the holders of any class or series of
Preferred Stock to elect directors under specified circumstances, the number
of directors shall consist of twelve members. The directors, other than those
who may be elected by the holders of any class or series of Preferred Stock,
shall be divided, with respect to the time of which they severally hold office,
into three classes, with the term of office of the first class to expire at the
first annual meeting of stockholders, the term of office of the second class to
expire at the annual meeting of stockholders one year thereafter and the term of
office of the third class to expire at the annual meeting of the stockholders
two years thereafter, with each director to hold office until his or her
successor shall have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his or her successor have been duly elected and qualified.
(b) A whole number of directors equal to at least one half of the
Whole Board shall constitute a quorum for the transaction of business, but if
at any meeting of the Board of Directors there shall be less than a quorum
present a majority of those present may adjourn the meeting from time to time
until a quorum shall have been obtained.
(c) Subject to the rights of the holders of any class or series of
Preferred Stock, and unless the Board of Directors otherwise determines, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office of other cause
may be filled only by a majority vote of the directors then in office, though
less than a quorum, and a director so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the
number of authorized directors constituting the Whole Board shall shorten the
term of any incumbent director.
(d) Subject to the rights of the holders of any class or series of
Preferred Stock, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the
affirmative vote of the holders of a majority of the voting power of all the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock") voting together as
a single class.
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Section 2. Meetings of the Board of Directors shall be held at such place
within or without the State of Delaware as may from time to time be fixed by,
or determined in the manner provided by, resolution of the Board or as may be
specified in the notice of any meeting. Regular meetings of the Board of
Directors shall be held at such times as may from time to time be fixed by, or
determined in the manner provided by, resolution of the Board of Directors,
and special meetings may be held at any time upon the call of a majority of
the directors or of the Chairman of the Board of Directors by oral,
telegraphic or written notice, duly served on or sent or mailed to each
director not less than two days before such meeting. A meeting of the Board
of Directors may be held without further notice immediately after the annual
meeting of stockholders at the same place at which such meeting was held.
Notice need not be given of regular meetings of the Board of Directors held at
times and places fixed by resolution of the Board of Directors. A meeting may
be held at any time without notice if all directors are present or if those
not present waive notice of the meeting in writing, either before or after
such meeting.
Members of the Board of Directors may participate in meetings by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other. Such participation shall
constitute presence in person but shall not constitute attendance for purposes
of compensation.
Section 3. The Board of Directors, may in its discretion, by resolution
passed by a majority of the Whole Board, designate an Executive Committee to
consist of the Chief Executive Officer of the Corporation and such number of
other directors as a majority of the Whole Board may from time to time
determine (not less than three), which Committee, to the extent provided in
said resolution, shall have, and may exercise when the Board of Directors is
not in session, the powers of the Board of Directors in the management of the
business and affairs of the Corporation, except the power to change the
members or to fill vacancies in the Board of Directors of said Committee and
except as limited by applicable law. The Board of Directors shall have the
power at any time to change the membership of the said Committee (subject to
the requirement that the Chief Executive Officer be a member thereof), to fill
vacancies in it, or to dissolve it. The Executive Committee may make rules
for the conduct of its business and may appoint such committees as it shall
from time to time deem necessary. One-half of the members of such Committee
shall deem a quorum.
Section 4. The Board of Directors, by a vote of a majority of the Whole
Board, may from time to time designate committees of the Board of Directors,
with such lawfully delegable powers and duties as it thereby confers, to serve
at the pleasure of the Board of Directors and shall, for those committees and
others provided for herein, elect a director or directors to serve as the
member or members, designating, if it desires, other directors as alternate
members who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of any member of any
committee and any alternate member in his place, the member or members of the
committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may by unanimous vote appoint
another member of the Board of Directors to act at the meeting in the place of
the absent or disqualified member.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be
made for notice to members of all meetings: one-third of the members shall
constitute a quorum unless the committee shall consist of one or two members,
in which event one member shall constitute a quorum: and all matters shall be
determined by a majority vote of the members present. Action may be taken by
any committee without a meeting if all members thereof consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of such committee.
Section 5. The Executive Committee, and any other committee, if the
resolution which designates such committee or a supplemental resolution of the
Board of Directors shall so provide, may exercise the power
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and authority of the Board of Directors to declare a dividend, to authorize
the issuance of stock or adopt a certificate of ownership and merger pursuant
to Section 253 of the Delaware General Corporation Law.
Article III
Officers
Section 1. The Board of Directors as soon as may be practicable after the
annual meeting of stockholders shall choose a Chief Executive Officer of the
Corporation, a President, who may also be the Chairman of the Board of
Directors and Chief Executive Officer, a Secretary and a Chief Financial
Officer, and from time to time may choose such other officers as it may deem
proper. The Chairman of the Board of Directors shall be chosen from the
directors.
Section 2. The term of office of all officers shall be until the next annual
election of officers and until their respective successors are chosen but any
officer may be removed from office at any time by the affirmative vote of a
majority of the members of the Whole Board.
Section 3. Officers chosen by the Board of Directors shall have such powers
and duties as generally pertain to their respective offices, subject to the
specific provisions of this ARTICLE III. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board of
Directors or by any committee thereof.
Section 4. The Chief Executive Officer of the Corporation shall, subject to
the control of the Board of Directors, have general power over the management
and oversight of the administration and operation of the Corporation's
business and general supervisory power and authority over its policies and
affairs. He shall see that all orders and resolutions of the Board of
Directors and of any committee thereof are carried into effect.
Section 5. The President shall act in a general executive capacity and shall
assist the Chief Executive Officer of the Corporation in the administration
and operation of the Corporation's business and in the supervision of its
policies and affairs. During the absence or disability of the Chief Executive
Officer, the President shall have and exercise all the powers of the Chief
Executive Officer.
Each meeting of the stockholders and the Board of Directors shall be
presided over by the Chief Executive Officer or, in his absence, the President
or, in his absence, by such officer as has been designated by the Board of
Directors or, in his absence, by such officer or other person as is chosen at
the meeting. The Secretary or, in his absence, the General Counsel of the
Corporation or such officer as has been designated by the Board of Directors
or, in his absence, such officer or other person as is chosen by the person
presiding, shall act as secretary of each such meeting.
Section 6. The Secretary or an Assistant Secretary shall issue notices of
meetings, shall keep their minutes, shall have charge of the seal and the
corporate books, shall perform such other duties and exercise such other
powers as are usually incident to such offices and/or such other duties and
powers as are properly assigned thereto by the Board of Directors, the Chief
Executive Officer or the President.
Section 7. The Chief Financial Officer shall have charge of all monies and
securities of the Corporation, other than monies and securities of any
division of the Corporation which has a treasurer or financial officer
appointed by the Board of Directors, and shall keep regular books of account.
The funds of the Corporation shall be deposited in the name of the
Corporation by the Chief Financial Officer with such banks or trust companies
as the Board of Directors or the Executive Committee from time to time shall
designate. He shall sign or countersign such instruments as require his
signature, shall perform all such duties and have all such powers as are
usually incident to such office and/or such duties and powers as are properly
assigned to him by the Board of Directors, the Chief Executive Officer or the
President, and may be required to give bond
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for the faithful performance of his duties in such sum and with such surety as
may be required by the Board of Directors.
Section 8. The Board of Directors may appoint one or more vice presidents, a
secretary, a treasurer, one or more assistant secretaries and one or more
assistant treasurers, or one appointee to both such positions, which officers
shall have such powers and shall perform such duties as are provided in the
Bylaws or as may be assigned to them by the Board of Directors, the Chief
Executive Officer or the President.
Article IV
Certificates of Stock
Section 1. The interest of each stockholder of the Corporation shall be
evidenced by certificate(s) for shares of stock in such form as the Board of
Directors may from time to time prescribe. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof
of the authenticity of the signature as the Corporation or its agents may
reasonably require.
Section 2. The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution
prescribe, which resolution may permit all or any of the signatures on such
certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar
at the date of issue.
Section 3. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, or to receive
payment of any dividend or other distribution or allotment of any rights or to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix
a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date shall not
be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for such other action
as hereinbefore described; provided, however, that if no record date is fixed
by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held, and, for determining stockholders
entitled to receive payment of any dividend or other distribution or allotment
of rights or to exercise any rights of change, conversion or exchange of stock
or for any other purpose, the record date shall be at the close of business on
the day on which the Board of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 4. The Board of Directors may determine the conditions upon which a
new certificate of stock will be issued to replace a certificate which is
alleged to have been lost, stolen, mutilated or destroyed, and the Board of
Directors may delegate to any officer of the Corporation the power to make
such determinations and to cause such replacement certificates to be issued.
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Article V
Checks, Notes, Etc.
All checks on the Corporation's bank accounts and all drafts, bills of
exchange and promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed by such person or
persons as shall be thereunto authorized from time to time by the Board of
Directors or by the Committee or officer or officers of the Corporation to
whom the Board shall have delegated the power to authorize such signing;
provided, however, that the signature of any person authorized on checks and
drafts drawn on the Corporation's dividend and special accounts may be in
facsimile if the Board of Directors or the Committee or officer or officers,
whichever shall have authorized such person to sign such checks or drafts,
shall have authorized such person to sign in facsimile; and provided further
that in case notes or other instruments for the payment of money (other than
notes, bonds or debentures issued under a trust instrument of the Corporation)
are required to be signed by two persons, the signature thereon of only one of
the persons signing any such note or other instrument may be in facsimile, and
that in the case of notes, bonds or debentures issued under a trust instrument
of the Corporation and required to be signed by two officers of the
Corporation, the signatures of both such officers may be in facsimile if
specifically authorized and directed by the Board of Directors of the
Corporation and if such notes, bonds or debentures are required to be
authenticated by a corporate trustee which is a party to the trust instrument;
and provided further that in case any person or person who shall have signed
any such note or other instrument, either manually or in facsimile, shall have
ceased to be a person or persons so authorized to sign any such note or other
instrument, whether because of death or by reason of any other fact or
circumstance, before such note or other instrument shall have been delivered
by the Corporation, such note or other instrument may, nevertheless, be
adopted by the Corporation and be issued and delivered as though the person or
persons who so signed such a note or other instrument had not ceased to be such
a person or persons.
Article VI
Offices
The Corporation may have offices outside of the State of Delaware at such
places as shall be determined from time to time by the Board of Directors.
Article VII
Amendments
These Bylaws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors, provided notice of the proposed change was
given in the notice of the meeting given not less than two days prior to the
meeting, or by the stockholders by the affirmative vote of the holders of at
least a majority of the voting power of all the then-outstanding shares of
Voting Stock voting together as a single class.
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