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 divi
dends 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