Exhibit 3.i
CERTIFICATE OF INCORPORATION
OF
NSS BANCORP, INC.
The undersigned incorporator, Norwalk Savings Society, a Connecticut stock
savings bank, hereby forms a Corporation under the Connecticut Business
Corporation Act.
I. CORPORATE NAME. The name of the Corporation is NSS Bancorp, Inc. The
principal office of the Corporation shall be located in the City of Norwalk,
County of Fairfield, and State of Connecticut.
II. PURPOSES. The nature of the business to be transacted and the purposes to
be promoted, carried out or engaged in by the Corporation are the following
activities:
A. To acquire, invest in or hold stock in any subsidiary permitted under
the Bank Holding Company Act of 1956 or sections 36a-180, et. seq., of the
Connecticut General Statutes, as such statutes may be amended from time to time,
and engaging in any other enterprise or activity which may be lawfully conducted
under said statutes; and
B. To engage generally in any business activity that may be lawfully
carried on by a corporation organized under the Connecticut Business Corporation
Act.
III. CAPITAL STOCK. The amount of capital stock of the Corporation hereby
authorized shall consist of 7,000,000 million shares of Common Stock, par value
$0.01 per share, and 500,000 shares of Serial Preferred Stock, par value $0.01
per share. A description of the different classes and series of the
Corporation's capital stock and a statement of the powers, designations,
preferences, limitations and relative rights of the shares of each class of and
series of capital stock are as follows:
A. Common Stock. Except as provided in this Article Third (or in any
resolution or resolutions adopted by the Board of Directors pursuant hereto),
the holders of the Common Stock shall exclusively possess all voting power. Each
holder of shares of Common Stock shall be entitled to one vote for each share
held by such holder. There shall be no cumulative voting rights in the election
of directors. Each share of Common Stock shall have the same relative rights as
and be identical in all respects with all other shares of Common Stock.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the Common Stock as to the payment of dividends, the full amount
of dividends or sinking fund or retirement fund or other retirement payments, if
any, to which such holders are respectively entitled in preference to the Common
Stock, then dividends may be paid on the Common Stock and on any class or series
of stock entitled to participate therewith as to dividends, out of any assets
legally available for the payment of dividends; but only when and as declared by
the Board of Directors.
In the event of any liquidation, dissolution or winding up of the
Corporation after there shall have been paid to or set aside for the holders of
any class having preferences over the Common Stock in the event of liquidation,
dissolution or winding up of the full preferential amounts of which they are
respectively entitled, the holders of the Common Stock, and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets, shall be entitled after payment or provision for payment
of all debts and liabilities of the Corporation, to receive the remaining assets
of the Corporation available for distribution, in cash or in kind.
B. Serial Preferred Stock. The Board of Directors of the Corporation is
authorized, subject to limitations prescribed by law and the provisions of this
Article Third, to provide by resolution for the issuance of Serial Preferred
Stock in series, including convertible preferred Stock, and by filing a
certificate pursuant to the applicable law of the State of Connecticut, to
establish from time to time the number of shares to be included in each such
series, and to fix the designations, powers, preferences and relative,
participating, optional and other special rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(1) The number of shares constituting that series and the distinctive
designation of that series;
(2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and if so, the terms of such voting rights,
including but not limited to providing voting rights which are more or less
heavily weighted than other series of Preferred Stock and/or of Common Stock;
(4) Whether that series shall have conversion privileges, and, if so, the
terms and conditions of such conversion, including provision for adjustment of
the conversion rate in such events as the Board of Directors shall determine;
(5) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in case or redemption, which amount
may vary under different conditions and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amounts of such
sinking fund;
(7) The rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution, or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(8) Any other relative rights, preferences, and limitations of that
series.
To the extent that this Certificate of Incorporation does not fix or
determine the terms, limitations and relative rights and preferences of any
shares of Preferred Stock, or does not establish series and fix and determine
the variations as among series, the Board of Directors shall have the authority
to do so from time to time.
C. Series A Junior Participating Preferred Stock:
(1) Designation and Amount. The shares of such series shall be designated
as "Series A Junior Participating Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A Preferred Stock shall
be 50,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
(2) Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock of the
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (i) $1 or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (a) of this Section immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than sixty days prior to the date fixed for the payment
thereof.
(3) Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or as otherwise provided by law,
if the Board of Directors creates a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law, holders
of Series A Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
(4) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
(5) Reacquired Shares. Any shares of Series A Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein or in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
(6) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (a)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (b) to the holders of shares of stock
ranking on a parity (either as to dividends upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made ratably
on the Series A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (a) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(7) Consolidation, Merger, etc. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case each share of Series A
Preferred Stock shall at amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(8) No Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
(9) Rank. The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.
IV. QUORUM. Unless otherwise provided in this Certificate of Incorporation or
by law, to constitute a quorum for the transaction of business on any matter at
a meeting of shareholders, there must be present, in person or by proxy, the
holders of a majority of the shares of voting stock of the Corporation entitled
to vote thereon.
The shareholders present at a duly held meeting at which a quorum was
present may continue to transact business notwithstanding the withdrawal of
enough shares to leave less than a quorum.
V. DIRECTORS; BYLAWS. All the powers of the Corporation, insofar as the same
may be lawfully vested by this Certificate of Incorporation in the Board of
Directors, are hereby conferred upon the Board of Directors of the Corporation.
In furtherance and not in limitation of that power, the Board of Directors shall
have the power to make, adopt, alter, amend and repeal from time to time Bylaws
of the Corporation, subject to the right of the shareholders entitled to vote
with respect thereto to adopt, alter, amend and repeal Bylaws made by the Board
of Directors. Any shareholder action effecting an amendment or repeal of or an
adoption of a provision inconsistent with the Corporation's Bylaws shall
require:
(i) the affirmative vote of the holders of not less than 60% of the voting
power of the issued and outstanding shares entitled to vote for the election of
Directors, and (ii) if there is an Interested Shareholder (as defined in Article
Seventh hereof), the affirmative vote of not less than 60% of the voting power
of the issued and outstanding shares entitled to vote for the election of
Directors held by shareholders other than the Interested Shareholder.
The business, property and affairs of the Corporation shall be managed by
and under the direction of its Board of Directors. The number of directors shall
be not less than seven and not more than eleven as fixed from time to time by
the Board of Directors pursuant to the Corporation's Bylaws, except as a greater
number may be required to give effect to the rights of the holders of the
Preferred Stock or any series thereof to elect additional Directors.
The Board of Directors, other than those who may be elected by the holders
of Preferred Stock or any series thereof, shall be divided into three classes,
as nearly equal in number as possible. At each annual meeting of the
shareholders of the Corporation, the successors of the class of directors whose
terms expire at that meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following their
year of election. Each director shall hold office until his or her successor
shall have been duly elected and qualified. The election of directors need not
be by ballot unless the Bylaws so provide. No decrease in the number of
directors shall shorten the term of any incumbent director. If the number of
director is not evenly divisible by three, the remaining director(s) shall be
allocated first to Class Two, and then to Class Three.
The names, addresses and occupations of those persons of each class to
initially serve on the Board of Directors and the year of expiration of their
respective initial terms (which should expire on the date of the annual meeting
in the year shown below) shall be as follows:
Class One: 1998
Charles F. Howell
Alan R. Staack
Herbert L. Jay
Class Two: 1999
Donald St. John
Robert T. Judson
Edward J. Kelley
Class Three: 2000
Brian A. Fitzgerald
John L. Segall
The terms, classifications, qualifications, and election of the Board of
Directors, and the method of filling vacancies thereon shall be provided herein
and in the Bylaws.
VI. BUSINESS COMBINATIONS. The shareholder vote required to approve any
Business Combination shall be set forth in this Article Sixth. The term
"Business Combination" is used as defined in Section B of this Article Sixth.
All other capitalized terms not otherwise defined in this Article Seventh or
elsewhere in this Certificate of Incorporation are used as defined in Section 4
of this Article Sixth.
A. Higher Vote for Business Combinations. In addition to any affirmative
vote required by law or this Certificate of Incorporation, and except as
otherwise expressly provided in Section C of this Article Sixth;
(1) any merger or consolidation of the Corporation or any Subsidiary with
(a) any Interested Shareholder or (b) any other corporation (whether or not
itself an Interested Shareholder) which is or after such merger or consolidation
would be, an Affiliate or Associate of an Interested Shareholder that was an
Interested Shareholder prior to the transaction; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition other than in the usual and regular course of business, in one
transaction or a series of transactions in any twelve-month period to or with
any Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder, other than the Corporation or any of its Subsidiary having,
measured at the time the transaction or transactions are approved by the Board
of Directors of the Corporation, an aggregate book value as of the end
of the Corporation's most recent fiscal quarter of 10% or more of the total
Market Value of the outstanding shares of the Corporation or of its retained
earnings as of the end of its most recent fiscal quarter; or
(3) the issuance of transfer by the Corporation or any Subsidiary in one
transaction or a series of transactions of any equity securities of the
Corporation or any Subsidiary having an aggregate Market Value of 5% or more of
the total Market Value of the outstanding shares of the Common Stock of the
Corporation to any Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder, other than the Corporation or any of its Subsidiaries,
except pursuant to the exercise of warrants, rights or options to subscribe to
or purchase securities offered, issued or granted pro rata to all holders of the
Voting Stock of the Corporation or any other method affording substantially
proportionate treatment to the holders of Voting Stock; or
(4) the adoption of any resolution for the liquidation or dissolution of
the Corporation or any Subsidiary proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder, other
than the Corporation or any of its Subsidiaries; or
(5) any reclassification of securities, including any reverse stock split,
or recapitalization of the Corporation, or any merger, consolidation or share
exchange of the Corporation with any of its Subsidiaries which has the effect,
directly or indirectly, in one transaction or a series of transactions, of
increasing by 5% or more of the total number of outstanding shares, the
proportionate amount of the outstanding shares of any class or equity or
convertible securities of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any Affiliate or Associate of
any Interested Shareholder, other than the Corporation or any of its
subsidiaries; shall first be approved by the Board of Directors and then be
approved by the affirmative vote of: (a) the holders of at least 80% of the
voting power of the then outstanding shares of Voting Stock of the Corporation,
and (b) the holders of at least two-thirds of the voting power of the then
outstanding shares of Voting Stock, exclusive of any shares of Voting Stock held
by or on behalf of such Interested Shareholder or any Affiliate or Associate of
such Interested Shareholder. Such affirmative votes shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, in any agreement with any national
securities exchange, or otherwise.
B. Definition of "Business Combination". The term "Business Combination"
as used in this Article Sixth shall mean any transaction which is referred to in
any one or more of paragraphs (1) through (5) of Section A of this Article
Sixth.
C. When Higher Vote is Not Required. The provision of Section A of this
Article Sixth shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by law, any other provision of this
Certificate of Incorporation, or otherwise if in the case of any Business
Combination defined in paragraph (1) of Section A of this Article Sixth the
conditions specified in either of the following paragraphs (1) or (2) are met,
or in the case of any other Business Combination the condition specified in the
following paragraph A is met:
(1) Approval by Board of Directors. If such Business Combination involves
transactions with a particular Interested Shareholder or its existing or future
Affiliates, or Associates, such Business Combination shall have been approved by
a resolution of the Board of Directors at any time prior to the time that the
Interested Shareholder first became an Interested Shareholder.
(2) Price and Procedure Requirements. All of the following conditions
shall have been met:
(a) The aggregate amount of the cash and the Market Value as of the
Valuation Date of the consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be an amount at least
equal to the highest of the following (it being intended that the requirements
of this paragraph (a) shall be required to be met with respect to all shares of
Common Stock outstanding, whether or not the Interested Shareholder has
previously acquired any shares of the Common Stock):
(i) the highest per share price, including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of Common Stock acquired by it (a) within the two-year period
immediately prior to the first public announcement of the proposed Business
Combination (the "Announcement Date") or (2) in the transaction in which it
became an Interested Shareholder, whichever is higher; or
(ii) the Market Value per share of Common Stock on the Announcement Date
or on the date on which the Interested Shareholder became an Interested
Shareholder (the "Determination Date"), whichever is higher; or
(iii) the price per share equal to the Market Value per share of Common
Stock determined pursuant to subsection (a) (ii) hereof, multiplied by the
fraction of (1) the highest per share price, including any brokerage commission
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of Common Stock acquired by it within the two-year period
immediately prior to the Announcement Date, over (2) the Market Value per share
of Common Stock on the first day in such two-year period on which the Interested
Shareholder acquired any shares of Common Stock.
(b) The aggregate amount of the cash and The Market Value as of the
Valuation Date of the consideration other than cash to be
received per share by holders of shares of any class or series of outstanding
Voting Stock, other than the Common Stock, shall be an amount at least equal to
the highest of the following:
(i) the highest per share price including any brokerage commissions,
transfer taxes and soliciting dealers' fees, paid by the Interested Shareholder
for any shares of such class or series of Voting Stock acquired by it (1) within
the two-year period immediately prior to the Announcement Date or (2) in the
transaction in which it becomes an Interested Shareholder, whichever is higher;
or
(ii) the highest preferential amount per share to which the holders of
shares of such class or series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; or
(iii) the Market Value per share of such class or series of Voting Stock on
the Announcement Date or on the Determination Date, whichever is higher; or
(iv) the price per share equal to the Market Value per share of such class
or series of stock determined pursuant to subsection (b)(iii) hereof multiplied
by the fraction of: (1) the highest per share price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the Interested
Shareholder for any shares of any class or series of Voting Stock acquired by it
within the two-year period immediately prior to the Announcement Date, over (2)
the Market Value per share of the same class or series of Voting Stock on the
first day in such two-year period on which the Interested Shareholder acquired
any shares of the same class or series of Voting Stock.
(c) The consideration to be received by holders of a particular class or
series of outstanding Voting Stock shall be in cash or in the same form as the
Interested Shareholder has previously paid for shares of such class or series of
Voting Stock.
If the Interested Shareholder has paid for shares of any class or series of
Voting Stock with varying forms of consideration, the form of consideration for
such class or series of Voting Stock previously acquired by it.
(d) After such Interested Shareholder has become an Interested Shareholder
and prior to the consummation of such Business Combination: (i) there shall have
been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any outstanding Preferred
Stock; (ii) there shall have been no reduction in the annual rate of dividends
paid on the Common Stock, except as necessary to reflect any subdivision of the
Common Stock; and there shall have been an increase in such annual rate of
dividends as necessary to reflect any reclassification including any reverse
stock split, recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of Common Stock; and
(iii) such Interested Shareholder shall not have become the beneficial owner of
any additional shares of Voting Stock except as part of the transaction which
resulted in such Interested Shareholder or by virtue of proportionate stock
splits or stock dividends.
The provisions of subdivisions (d)(i) and (d)(ii) of this subsection do not
apply if no Interested Shareholder and no Affiliate or Associate of any
Interested Shareholder voted as a director of the Corporation in a manner
inconsistent with such subdivisions and the Interested Shareholder, within ten
days after any act or failure to act inconsistent with such subdivisions,
notifies the Board of Directors of the Corporation in writing that the
Interested Shareholder disapproves thereof and requests in good faith that the
Board of Directors rectify such act or failure to act.
(e) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the benefit,
directly or indirectly, except proportionately as a shareholder, of any loans,
advances, guarantees, pledges or other financial assistance of any tax credits
or other tax advantages provided by the Corporation or any of its Subsidiaries,
whether in anticipation of or in connection with such Business Combination or
otherwise.
(f) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder, or any subsequent provisions
replacing such Act, rules or regulations, shall be mailed to the shareholders of
the Corporation at least thirty days prior to the consummation of such Business
Combination, whether or not such proxy or registration statement is required to
be mailed pursuant to such Act or subsequent provisions.
D. Definitions. For the purposes of this Article Sixth:
1. "Affiliate" means a person that directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, a specified person.
2. "Associate", when used to indicate a relationship with any person,
means: (a) any domestic or foreign corporation or organization, other than the
Corporation or a subsidiary of the Corporation, of which such person is an
officer, director or partner or is, directly or indirectly, the beneficial owner
of 10% or more of any class of equity securities; (b) any beneficial interest or
as to which such person serves as a trustee or in a similar fiduciary capacity;
and (c) any relative or spouse of such person, or any relative of such spouse,
who has the same home as such person or who is a director or officer of the
Corporation or any of its Affiliates.
3. "Beneficial Owner", when used with respect to any Voting Stock, means
a person:
(a) which, or any of its Affiliates or Associates of which, beneficially
owns Voting Stock directly or indirectly; or
(b) which has (a) the right to acquire Voting Stock, whether such right is
exercisable immediately or only after passage of time, pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; or (b) the right to
vote or direct the voting of Voting Stock pursuant to any agreement, arrangement
or understanding; or (c) the right to dispose of or to direct the disposition of
Voting Stock pursuant to any agreement, arrangement or understanding; or
(c) which, or any of its Affiliates or Associates of which, has an
agreement, arrangement or understanding for the purposes of acquiring, holding,
voting or disposing of Voting Stock with any other person that beneficially owns
or whose Affiliates or Associates beneficially own, directly or indirectly, such
shares of Voting Stock.
4. "Interested Shareholder" means any person, other than the Corporation
or any Subsidiary, who or which:
(a) is the beneficial owner, directly or indirectly, of 10% or more of the
voting power of the then outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the combined voting power of the then
outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately prior to the
date in question beneficially owned by any person described in (i) or (ii)
above, if such assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving one of the following: a
public offering within the meaning of the Securities Act of 1933, a transfer of
shares on the open market, or a transfer of shares made with the approval of the
Connecticut Banking Commissioner.
5. For the purposes of determining whether a person is an Interested
Shareholder pursuant to paragraph 4 of this Section D, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph 3 of this Section D, but shall not include any other
shares of voting Stock which may be issuable to persons other than the person in
question pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or
otherwise.
6. "Market Value" as of any date means: (a) in the case of stock, the
highest closing sale price during the thirty-day period immediately preceding
the date in question of a share of such stock on the composite tape for New York
Stock Exchange-Listed Stocks, or, if such stock is not quoted on the composite
tape, on the New York Stock Exchange, or, if such stock is not listed on such
exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid or last sale
quotation with respect to a share of such stock during the thirty-day period
preceding the date in question on the National Association of Securities
Dealers, Inc. Automated Quotations System or any similar system then in use, or
if no such quotations are available, the Fair Market Value on the date in
question of a share of such stock as determined by a majority of the Board of
Directors in good faith; and (b) in the case of property other than cash or
stock, the Fair Market Value of such property on the date in question as
determined by a majority of the Board of Directors in good faith.
7. A "person" means any natural person, company, partnership, trust,
unincorporated organization or other entity, and any two or more of the
foregoing acting together or in concert.
8. "Subsidiary" means any natural person, company, partnership, trust,
unincorporated organization or other entity, and any two or more of the
foregoing acting together or in concert.
9. "Valuation Date" means: (a) for a Business Combination voted on by
shareholders, the latter of the day prior to the date of the shareholders vote
or the date twenty days prior to the consummation of the Business Combination;
and (b) for a Business Combination not voted upon by the shareholders, the date
of the consummation of the Business Combination.
10. "Voting Stock" means the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors.
11. In the event of any Business Combination in which the Corporation is
the surviving corporation, the phrase "consideration other than cash to be
received" as used in paragraph 2(a) and 2(b) of Section 2 of this Article Sixth
shall include the shares of Common Stock and/or the shares of any other class or
series of outstanding Voting Stock retained by the holders of such shares.
E. Powers of the Board of Directors. A majority of the Board of
Directors of the Corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article Sixth, including without limitation:
(A) whether a person is an Interested Shareholder, (B) the number of shares of
Voting Stock beneficially owned by any person, (C) whether a person is an
Affiliate or Associate of another, and (D) whether the requirements of paragraph
B of Section 3 have been met with respect to any Business Combination; and the
good faith determination of a majority of the Board of Directors on such matters
shall be conclusive and binding for all the purposes of this Article Sixth.
F. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article Sixth shall be construed to relieve the Board
of Directors or any Interested Shareholder form any fiduciary obligation imposed
by law.
VII. SPECIAL MEETING OF SHAREHOLDERS. Special meetings of Shareholders may be
called at any time but only by the Chairman of the Board, the President or a
majority of the Board of Directors of the Corporation, unless otherwise required
by law.
VIII. VACANCIES ON THE BOARD. Vacancies created by an increase in the number of
directors may be filled by action of the Board of Directors. Vacancies occurring
by reasons other than by an increase in the number of directors may be filled
until the next shareholders meeting at which directors are elected by a
concurring vote of a majority of the Directors remaining in office, even though
such remaining Directors may be less than a quorum, even though the number of
Directors at the meeting may be less than a quorum and even though such majority
may be less than a quorum. Any Director elected in accordance with the preceding
sentence shall hold office until the next shareholders' meeting at which
Directors are elected, provided that he shall serve until such Director's
successor shall have been elected and qualified or until there is a decrease in
the number of Directors. No decrease in the number of Directors constituting the
Board of Directors shall shorten the term of any incumbent Director.
Any voting requirement provided for under Connecticut law or under the
Bylaws of the Corporation may be amended by the affirmative vote of the
Shareholder provided that the adoption of any such Bylaw must meet the same
quorum requirement and be approved by the same vote then effective or proposed
to be adopted, whichever is greater.
IX. DIRECTOR LIABILITY. The personal liability to the Corporation or its
shareholders of a person who is or was a director of the Corporation for
monetary damages for breach of duty as a director shall be limited to the amount
of the compensation received by the director for serving the corporation during
the year of the violation if such breach did not: (1) involve a knowing and
culpable violation of law by the director; (2) enable the director or an
associate, as defined in subdivision (3) of Section 33-843 of the Connecticut
General Statutes, as amended to receive an improper personal economic gain; (3)
show a lack of good faith and a conscious disregard for the duty of the director
to the Corporation under circumstances in which the director was aware that his
or her conduct or omission created an unjustifiable risk
of serious injury to the Corporation; (4) constitute a sustained and unexcused
patter of inattention that amounted to an abdication of the director's duty to
the Corporation; or (5) create liability under Section 33-757, as amended, or
Section 36a-58 of the Connecticut General Statutes. This paragraph shall not
limit or preclude the liability of a person who is or was a director for any act
or omission occurring prior to the effective date hereof. Any lawful repeal or
modification of this paragraph or the adoption of any provision inconsistent
herewith by the Board of Directors and the shareholders of the Corporation shall
not, with respect to a person who is or was a director, adversely affect any
limitation of liability, right or protection existing at or prior to the
effective date of such repeal, modification or adoption of a provision
inconsistent herewith.
X. REMOVAL OF DIRECTORS.
Any Director may be removed from office at any time for cause by the
affirmative vote of at least two-thirds of the Directors then in office.
XI. NOMINATIONS FOR DIRECTOR.
Not less than twenty days advance notice of nominations for the election
of Directors, other than by the Board of Directors or a committee thereof, shall
be given in the manner provided in the Bylaws.
XII. ACTION BY SHAREHOLDERS.
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
XIII. APPROVAL FOR CERTAIN ACQUISITIONS AND OFFERS TO ACQUIRE
VOTING STOCK.
No person, acting singly or together with any Affiliates, Associates or
group of persons acting in concert with such person, shall acquire 10% or more
of the issued and outstanding stock of the Corporation entitled to vote for the
election of directors ("Voting Stock") at any time, unless: (a) such acquisition
has been approved prior to its consummation by the affirmative vote of the
holders of at least two-thirds of the outstanding Voting Stock entitled to vote
at a duly constituted meeting of shareholders called for such purpose, and (b)
all federal and state regulatory approvals required under the Change in Bank
Control Act of 1978 (the "Change in Control Act"), the Bank Holding Company Act
of 1956 (the "Holding Company Act") and any similar Connecticut law (including
but not limited to The Connecticut Bank Holding Company and Bank Acquisition
Act) and in the manner provided by all applicable regulations of the Federal
Deposit Insurance Corporation (the "FDIC"), the Federal Reserve Board (the
"FRB") and the
Connecticut Banking Commissioner have been obtained (or, as applicable, with
regard to each such agency, any required filings has not been disapproved within
the applicable time period). Notwithstanding any provision of this Certificate
of Incorporation, nothing in this Certificate shall be construed to restrict any
authority of the Connecticut Banking Commissioner to authorize an acquisition as
provided in The Connecticut Bank Holding Company and Bank Acquisition Act. The
Corporation shall be entitled to institute a private right of action to enforce
such statutory and regulatory provisions.
Moreover, no person may make an offer to acquire 10% or more of the then
outstanding Voting Stock of the Corporation unless such person has notified the
Board of Directors of the Corporation in writing of its intention to so offer
and the Board of Directors has not, within fifteen days after receipt of such
notice, disapproved such offer or, before the offer is made, obtained prior
approval of the acquisition by the FDIC or the FRB and the Banking Commissioner
(or, as applicable, with regard to each such agency, any required filings with
such regulatory agency have been made in a timely fashion and the action or
proposed action set forth therein has not been disapproved within applicable
time period.)
All shares of Voting Stock owned by any person violating the foregoing
provisions of this Article Thirteenth shall be considered from and after the
date of the acquisition by such Person to be "excess shares" to the extent such
shares exceed 10%, of the Voting Stock issued and outstanding. Such excess
shares shall thereafter no longer be entitled to vote on any matter or to take
other shareholder action or be counted in determining the total number of
outstanding shares for purposes of any matter involving shareholder action, and
the Board of Directors may cause such excess shares to be transferred to an
independent trustee for sale on the open market or otherwise, with the expenses
of such trustee to be paid out of the proceeds from such sale.
The term "person" shall include any individual, group acting in concert,
firm, corporation, partnership, association, joint stock company, trust,
unincorporated organization thereof, syndicate, or other entity. When any
person, directly or indirectly, acquires beneficial ownership of more than 10%
of the then outstanding voting stock of the Corporation without the prior
written approval of said Commissioner as required by this Article Thirteenth,
any voting stock beneficially owned by said person in excess of said 10% shall
not be counted as shares of voting stock entitled to notice, to vote or to take
any other shareholder action and shall not be voted by any person or be counted
in determining the total number of outstanding shares for purposes of any matter
involving shareholder action. The term "group acting in concert" includes
persons seeking to combine or pool their voting or other interests in the
securities of the Corporation for a common purpose, pursuant to any contract,
trust, understanding, relationship, agreement, or other arrangement, whether
written or otherwise. The term "offer" includes every offer to buy or
acquire, solicitation of an offer to sell, tender offer for, or request or
invitation for tender of, a security or interest in a security for value.
XIV. CONSIDERATIONS FOR MERGER, CONSOLIDATION OR OTHER OFFERS.
The Board of Directors of the Corporation, when evaluating any tender or
exchange offer for stock of the Corporation, offer or proposal to merge or
consolidate the Corporation with another institution, or an offer or proposal to
purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, shall, in connection with the exercise of its
judgment in determining what is in the best interests of the Corporation and its
shareholders, give due consideration to all relevant factors, including without
limitation what he reasonably believes to be in the best interests of the
Corporation, including (a) the long-term as well as the short-term interests of
the Corporation; (b) the long-term and short-term interests of shareholders,
including the possibility that those interests may be best served by continued
independence; (c) the interests of the Corporation's employees, customers,
creditors and suppliers; (d) community and societal considerations including
those of any community in which any office or other facility of the Corporation
is located; and (e) any other factor which the director determines in his or her
discretion to be appropriate in determining what he reasonably believes to be in
the best interests of the Corporation.
XV. CERTAIN AMENDMENTS.
Notwithstanding the provisions of Article Sixteenth, the provisions set
forth in this Article Fifteenth and in Articles Third, Fifth, Sixth, Seventh,
Eighth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth herein may not be
repealed or amended in any respect and no article imposing cumulative voting in
the election of Directors may be added, nor may any other provision be amended,
adopted or repealed which would have the effect of modifying or permitting
circumvention of such provisions or which would be inconsistent with such
provisions, unless such action is approved by, in addition to any vote specified
by law or the Bylaws or these Articles of Incorporation: (i) the affirmative
vote of the holders of not less than 60% of the voting power of the issued and
outstanding shares of the Corporation entitled to vote for the election of
directors, and (ii) if there is an Interested Shareholder (as defined in Article
Seventh), the affirmative vote of not less than 60% of the voting power of the
issued and outstanding shares of the Corporation entitled to vote for the
election of Directors held by shareholders other than the Interested
Shareholder.
XVI. AMENDMENTS.
Subject to the provisions of Article Fifteenth, the Corporation reserves
the right to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in
the manner now or hereafter prescribed by statute and these Articles of
Incorporation, and all rights conferred upon shareholders herein are granted
subject to this reservation.
XVII. REGISTERED AGENT.
The registered agent for the Corporation shall be Robert T. Judson, having
a business address of Norwalk Savings Society, 48 Wall Street, Norwalk,
Connecticut 06852 and having a residence address of 21 Bald Hill Road, Wilton,
Connecticut 06897.
I hereby declare, under the penalties of false statement, that the
statements made in the foregoing certificate are true.
Dated at Norwalk, Connecticut this 20th day of May, 1997.
Norwalk Savings Society, Incorporator
By:
Robert T. Judson
Its President
Street Address of Incorporator:
48 Wall Street
Norwalk, Connecticut