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No. 00068086 EXHIBIT 3(b)
STATE OF MISSOURI
SEAL OF THE SECRETARY OF STATE
MISSOURI
REBECCA McDOWELL COOK
SECRETARY OF STATE
CORPORATION DIVISION
CERTIFICATE OF DESIGNATION
I, REBECCA McDOWELL COOK, SECRETARY OF STATE OF THE
STATE OF MISSOURI, DO HEREBY CERTIFY THAT DUPLICATE
COPIES OF A RESOLUTION OF
BOATMEN'S BANCSHARES, INC.
A MISSOURI CORPORATION RELATING TO DESIGNATION OF PREFERRED
STOCK, HAVE BEEN RECEIVED IN THIS OFFICE.
THE SUBSTANCE THEREOF IS:
DESIGNATING 250,000 SHARES OF PREFERRED STOCK AS "CUMULATIVE
CONVERTIBLE PREFERRED STOCK, SERIES A", WITH A STATED VALUE
OF $100.00.
SAID RESOLUTION IS FOUND TO CONFORM TO LAW. ACCORDINGLY, I,
BY THE VIRTUE OF THE AUTHORITY VESTED IN ME
BY LAW, HEREBY ISSUE THIS CERTIFICATE OF
DESIGNATION.
THE GREAT SEAL OF THE
IN TESTIMONY WHEREOF, I HAVE SET MY STATE OF MISSOURI
HAND AND IMPRINTED THE GREAT SEAL OF
THE STATE OF MISSOURI, ON THIS, THE
10TH DAY OF JANUARY, 1996.
/s/ Rebecca McDowell Cook
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Secretary of State
$25.00
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CERTIFICATE OF DESIGNATION
OF
CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES A
OF
BOATMEN'S BANCSHARES, INC.
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BOATMEN'S BANCSHARES, INC., a corporation organized and
existing under the laws of the State of Missouri (herein referred
to as the "Corporation"), in accordance with the provisions of
Section 381.180 of The General and Business Corporation Law of
Missouri and Article III of the Corporation's Restated Articles
of Incorporation, does hereby CERTIFY:
I. The Restated Articles of Incorporation of the
Corporation fix the total number of shares of all classes of
capital stock which the Corporation shall have the authority to
issue as Two Hundred Ten Million Three Hundred Thousand
(210,300,000) shares, of which Ten Million Three Hundred Thousand
(10,300,000) shares shall be shares of preferred stock without
par value ("Preferred Stock") and Two Hundred Million
(200,000,000) shares shall be shares of common stock of the par
value of $1.00 per share ("Common Stock").
II. The Restated Articles of Incorporation of the
Corporation expressly grant to the Board of Directors of the
Corporation the authority to cause such shares of Preferred Stock
to be issued from time to time, by resolution adopted prior to
such issue, fixing and determining the designations, preferences,
qualifications, limitations, restrictions and special or relative
rights applicable to such shares.
III. Pursuant to the authority conferred upon the Board of
Directors of the Corporation by the Restated Articles of
Incorporation of the Corporation, the Board of Directors, by
actions duly taken on November 14, 1995, authorized and adopted
the following resolutions providing for an issue of a series of
its Preferred Stock to be designated as the Cumulative
Convertible Preferred Stock, Series A, $100 stated value, of the
Corporation:
BE IT RESOLVED, that the Board of Directors of Boatmen's
Bancshares, Inc. (the "Corporation"), in accordance with the
provisions of the Restated Articles of Incorporation of the
Corporation, hereby approves the issuance of a series of
Cumulative Convertible Preferred Stock, Series A, $100 stated
value, of the Corporation and hereby fixes and determines the
designations, preferences, qualifications, limitations,
restrictions and special or relative rights thereof in addition
to those set forth in the Restated Articles of Incorporation of
the Corporation, as follows:
1. DESIGNATION. The designation of the series of
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Preferred Stock created by this resolution shall be Cumulative
Convertible Preferred Stock, Series A, $100 stated value, of the
Corporation (hereinafter referred to as "Series A Preferred
Stock"), and the number of shares constituting such series shall
be 250,000, which number may be increased (but not above the
total number of shares of Preferred Stock of the Corporation then
authorized by the Restated Articles of Incorporation, as amended
from time to time) or decreased (but not below the number of
shares then outstanding) from time to time by the Board of
Directors. The Series A Preferred Stock shall rank prior to the
Common Stock and the 7% Cumulative Redeemable Preferred Stock,
Series B, $100 stated value per share, and the Junior
Participating Preferred Stock, Series C, $1 stated value per
share of the Corporation with respect to the payment of dividends
and the distribution of assets.
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2. DIVIDEND RIGHTS.
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(a) The holders of shares of Series A Preferred Stock
shall be entitled to receive, when and as declared by the Board
of Directors, out of funds legally available therefor, cash
dividends, accruing from the date of initial issuance, at the
annual rate of 7.00% of the liquidation preference per annum, and
no more, payable, when and as declared by the Board of Directors,
quarterly on March 1, June 1, September 1, and December 1 of each
year (each quarterly period ending on any such date being
hereinafter referred to as a "dividend period"), commencing on
the first March 1, June 1, September 1, or December 1 to occur
after the Issue Date (as hereafter defined), at such annual rate.
Each dividend will be payable to holders of record as they appear
on the stock books of the Corporation on such record dates as
shall be fixed by the Board of Directors of the Corporation. The
date of initial issuance of shares of Series A Preferred Stock is
hereinafter referred to as the "Issue Date". Dividends payable
on the Series A Preferred Stock (i) for any period other than a
full dividend period shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and (ii) for each full
dividend period shall be computed by dividing the annual dividend
rate by four.
(b) Dividends on shares of Series A Preferred Stock
shall be cumulative from the Issue Date whether or not there
shall be funds legally available for the payment thereof. If
there shall be outstanding shares of any other series of
Preferred Stock ranking junior to or on a parity with the
Series A Preferred Stock as to dividends, no dividends shall be
declared or paid or set apart for payment on any such other
series for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment
on the Series A Preferred Stock for all dividend periods
terminating on or prior to the date of payment of such dividends.
If dividends on the Series A Preferred Stock and on any other
series of Preferred Stock ranking on a parity as to dividends
with the Series A Preferred Stock are in arrears, in making any
dividend payment on account of such arrears, the Corporation
shall make payments ratably upon all outstanding shares of the
Series A Preferred Stock and shares of such other series of
Preferred Stock in proportion to the respective amounts of
dividends in arrears on the Series A Preferred Stock and on such
other series of Preferred Stock to the date of such dividend
payment. Holders of shares of the Series A Preferred Stock shall
not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends on such
shares. No interest or sum of money in lieu of interest shall be
payable in respect of any dividend payment or payments which may
be in arrears.
(c) Unless full cumulative dividends on all
outstanding shares of the Series A Preferred Stock shall have
been paid or declared and set aside for payment for all past
dividend periods, no dividend (other than a dividend in Common
Stock or in any other stock ranking junior to the Series A
Preferred Stock as to dividends and the distribution of assets
upon liquidation, dissolution or winding up) shall be declared
upon the Common Stock or upon any other stock ranking junior to
the Series A Preferred Stock as to dividends and the distribution
of assets upon liquidation, dissolution, or winding up, nor shall
any Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Series A Preferred Stock as to
dividends or upon the distribution of assets upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of
any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to the
Series A Preferred Stock as to dividends and the distribution of
assets upon liquidation, dissolution or winding up).
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3. LIQUIDATION PREFERENCES.
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(a) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of Series A Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution to stockholders an amount equal to
$400.00 per share plus an amount equal to any accrued and unpaid
dividends thereon to and including the date of such distribution,
and no more, before any distribution shall be made to the holders
of Common Stock or any other class of stock of the Corporation
ranking junior to the Series A Preferred Stock as to the
distribution of assets. After payment of such liquidating
distributions, the holders of shares of Series A Preferred Stock
will not be entitled to any further participation in any
distribution of assets by the Corporation.
(b) In the event the assets of the Corporation
available for distribution to stockholders upon any liquidation,
dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, shall be insufficient to pay in
full the amounts payable with respect to the Series A Preferred
Stock and any other shares of Preferred Stock ranking on a parity
with the Series A Preferred Stock as to the distribution of
assets, the holders of Series A Preferred Stock and the holders
of such other Preferred Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled.
(c) The merger or consolidation of the Corporation
into or with any other corporation, the merger or consolidation
of any other corporation into or with the Corporation or the sale
of the assets of the Corporation substantially as an entirety
shall not be deemed a liquidation, dissolution or winding up of
the affairs of the Corporation within the meaning of this
Section 3.
4. REDEMPTION.
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(a) Subject to obtaining the prior approval of the
Board of Governors of the Federal Reserve System, the
Corporation, at its option, may redeem any or all shares of
Series A Preferred Stock, at any time or from time to time, on or
after March 1, 1997 at a redemption price of $400.00 per share,
plus an amount equal to accrued and unpaid dividends thereon to
and including the date of redemption (the "Redemption Price").
(b) If less than all the outstanding shares of
Series A Preferred Stock are to be redeemed, the shares to be
redeemed shall be selected pro rata as nearly as practicable or
by lot, or by such other method as the Board of Directors may
determine to be fair and appropriate.
(c) Notice of any redemption shall be given by first
class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the date fixed for redemption to the
holders of record of the shares of Series A Preferred Stock to be
redeemed, at their respective addresses appearing on the books of
the Corporation. Notice so mailed shall be conclusively presumed
to have been duly given whether or not actually received. Such
notice shall state: (i) the date fixed for redemption; (ii) the
Redemption Price; (iii) that the holder has the right to convert
such shares into Common Stock until the close of business on the
tenth day preceding the redemption date; (iv) the then-effective
conversion price and the place where certificates for such shares
may be surrendered for conversion; (v) the number of shares of
Series A Preferred Stock to be redeemed and if less than all the
shares held by such holder are to be redeemed, the number of such
shares to be so redeemed from such holder; (vi) the place where
certificates for such shares are to be surrendered for payment of
the Redemption Price; and (vii) that after
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such date fixed for redemption the shares to be redeemed shall not
accrue dividends. If such notice is mailed as aforesaid, and if on
or before the date fixed for redemption funds sufficient to redeem
the shares called for redemption are set aside by the Corporation
in trust for the account of the holders of the shares to be
redeemed, notwithstanding the fact that any certificate for shares
called for redemption shall not have been surrendered for
cancellation, on and after the redemption date the shares
represented thereby so called for redemption shall be deemed to be
no longer outstanding, dividends thereon shall cease to accrue and
all rights of the holders of such shares as stockholders of the
Corporation shall cease (except the right to receive the Redemption
Price, without interest, upon surrender of the certificate
representing such shares). Upon surrender in accordance with the
aforesaid notice of the certificate for any shares so redeemed
(duly endorsed or accompanied by appropriate instruments of
transfer, if so required by the Corporation in such notice), the
holders of record of such shares shall be entitled to receive the
Redemption Price, without interest. Notwithstanding the foregoing,
however, as and to the extent that the Corporation is required or
permitted under the abandoned property laws of any jurisdiction to
escheat any redemption funds held in trust for the benefit of any
holder, the Corporation shall be absolved of any further obligation
or liability to such holder to the full extent provided by any such
law. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder
thereof.
(d) At the option of the Corporation, if notice of
redemption is mailed as aforesaid, and if prior to the date fixed
for redemption funds sufficient to pay in full the Redemption
Price are deposited in trust, for the account of the holders of
the shares to be redeemed, with a bank or trust company named in
such notice doing business in the State of Kansas, the State of
Missouri or the Borough of Manhattan, The City of New York, State
of New York, and having capital and surplus of at least
$50 million (which bank or trust company also may be the transfer
agent and/or paying agent for the Series A Preferred Stock)
notwithstanding the fact that any certificate(s) for shares
called for redemption shall not have been surrendered for
cancellation, on and after such date of deposit the shares
represented thereby so called for redemption shall be deemed to
be no longer outstanding, and all rights of the holders of such
shares as shareholders of the Corporation shall cease, except the
right of the holders thereof to convert such shares in accordance
with the provisions of Section 5 at any time prior to the close
of business on the tenth day preceding the redemption date and
the right of the holders thereof to receive out of the funds so
deposited in trust the Redemption Price, without interest, upon
surrender of the certificate(s) representing such shares. Any
funds so deposited with such bank or trust company in respect of
shares of Series A Preferred Stock converted before the close of
business on the tenth day preceding the redemption date shall be
returned to the Corporation upon such conversion. Unless
otherwise required by law, any funds so deposited with such bank
or trust company which shall remain unclaimed by the holders of
shares called for redemption at the end of two years after the
redemption date shall be repaid to the Corporation, on demand,
and thereafter the holder of any such shares shall look only to
the Corporation for the payment, without interest, of the
Redemption Price. Notwithstanding the foregoing, however, as and
to the extent that the Corporation is required or permitted under
the abandoned property laws of any jurisdiction to escheat any
redemption funds held in trust for the benefit of any holder, the
Corporation shall be absolved of any further obligation or
liability to such holder to the full extent provided by any such
laws.
(e) Any provision of this Section 4 to the contrary
notwithstanding, in the event that any quarterly dividend payable
on the Series A Preferred Stock shall be in arrears and until all
such dividends in arrears shall have been paid or declared and
set apart for payment, the Corporation shall not redeem any
shares of Series A Preferred Stock unless all outstanding shares of
Series A Preferred Stock are simultaneously redeemed and shall not
purchase or otherwise acquire any shares of Series A Preferred
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Stock except in accordance with a purchase or exchange offer made on the
same terms to all holders of record of Series A Preferred Stock for the
purchase of all outstanding shares thereof.
5. CONVERSION RIGHTS. The holders of shares of Series A
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Preferred Stock shall have the right, at their option, to convert
such shares into shares of Common Stock on the following terms
and conditions:
(a) Shares of Series A Preferred Stock shall be
convertible at any time into fully paid and nonassessable shares
of Common Stock at a conversion price of $29.00 per share of
Common Stock (the "Conversion Price"). For purposes of this
Section 5, references to shares of Series A Preferred Stock shall
apply equally to fractional shares thereof, but only to the
extent that such fractional shares are integral multiples of 1/16
of one share. The Conversion Price shall be subject to
adjustment from time to time as hereinafter provided. For
purposes of such conversion, each share of Series A Preferred
Stock will be valued at $400. No payment or adjustment shall be
made on account of any accrued and unpaid dividends on shares of
Series A Preferred Stock surrendered for conversion prior to the
record date for the determination of stockholders entitled to
such dividends or on account of any dividends on the shares of
Common Stock issued upon such conversion subsequent to the record
date for the determination of stockholders entitled to such
dividends. If any shares of Series A Preferred Stock shall be
called for redemption, the right to convert the shares designated
for redemption shall terminate at the close of business on the
tenth day preceding the date fixed for redemption unless default
is made in the payment of the Redemption Price. In the event of
default in the payment of the Redemption Price, the right to
convert the shares designated for redemption shall terminate at
the close of business on the business day immediately preceding
the date that such default is cured.
(b) In order to convert shares of Series A Preferred
Stock into Common Stock, the holder thereof shall surrender the
certificates therefor, duly endorsed if the Corporation shall so
require, or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the transfer
agent for the Series A Preferred Stock, or at such other office
as may be designated by the Corporation, together with written
notice that such holder irrevocably elects to convert such shares
or any fraction of a share of Series A Preferred Stock having a
denominator of 16, each such fractional interest, measured in
1/16 of a share, being valued for purposes of conversion at $25;
references in this Section 5 to the conversion of any share of
Series A Preferred Stock shall also apply, mutatis mutandis, to
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such fractional interests. Such notice shall also state the name
and address in which such holder wishes the certificate for the
shares of Common Stock issuable upon conversion to be issued. As
soon as practicable after receipt of the certificates
representing the shares of Series A Preferred Stock to be
converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate
for the number of whole shares of Common Stock issuable upon
conversion of the shares of Series A Preferred Stock surrendered
for conversion, together with a cash payment in lieu of any
fraction of a share, as hereinafter provided, to the person
entitled to receive the same. If more than one stock certificate
for Series A Preferred Stock shall be surrendered for conversion
at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed
on the basis of the aggregate number of shares represented by all
the certificates so surrendered. Shares of Series A Preferred
Stock shall be deemed to have been converted immediately prior to
the close of business on the date such shares are surrendered for
conversion and notice of election to convert the same is received
by the Corporation in accordance with the foregoing provision,
and the person entitled to receive the Common Stock issuable upon
such conversion shall be deemed for all purposes as the record
holder of such Common Stock as of such date.
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(c) In the case of any share of Series A Preferred
Stock which is converted after any record date with respect to
the payment of a dividend on the Series A Preferred Stock and on
or prior to the date on which such dividend is payable by the
Corporation (the "Dividend Due Date"), the dividend due on such
Dividend Due Date shall be payable on such Dividend Due Date to
the holder of record of such shares as of such preceding record
date notwithstanding such conversion. Shares of Series A
Preferred Stock surrendered for conversion during the period from
the close of business on any record date with respect to the
payment of a dividend on the Series A Preferred Stock next
preceding any Dividend Due Date to the opening of business on
such Dividend Due Date shall (except in the case of shares of
Series A Preferred Stock which have been called for redemption on
a redemption date within such period) be accompanied by payment
in New York Clearing House funds or other funds acceptable to the
Corporation of an amount equal to the dividend payable on such
Dividend Due Date on the shares of Series A Preferred Stock being
surrendered for conversion. The dividend with respect to a share
of Series A Preferred Stock called for redemption on a redemption
date during the period from the close of business on any record
date with respect to the payment of a dividend on the Series A
Preferred Stock next preceding any Dividend Due Date to the
opening of business on such Dividend Due Date shall be payable on
such Dividend Due Date to the holder of record of such share on
such dividend record date, notwithstanding the conversion of such
share of Series A Preferred Stock after such record date and
prior to such Dividend Due Date, and the holder converting such
share of Series A Preferred Stock called for redemption need not
include a payment of such dividend amount upon surrender of such
share of Series A Preferred Stock for conversion. Except as
provided in this subsection, no payment or adjustment shall be
made upon any conversion on account of any dividends accrued on
shares of Series A Preferred Stock surrendered for conversion or
on account of any dividends on the shares of Common Stock issued
upon conversion.
(d) No fractional shares of Common Stock shall be
issued upon conversion of any shares of Series A Preferred Stock.
If more than one share of Series A Preferred Stock is surrendered
at one time by the same holder, the number of full shares
issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares so surrendered. If the
conversion of any shares of Series A Preferred Stock results in a
fractional share of Common Stock, the Corporation shall pay cash
in lieu thereof in an amount equal to such fraction multiplied by
the closing price, determined as provided in subsection (vi) of
Section 5(e) below, on the date on which the shares of Series A
Preferred Stock were duly surrendered for conversion, or if such
date is not a trading date, on the next succeeding trading date.
(e) The Conversion Price shall be adjusted from time
to time as follows:
(i) In case the Corporation shall pay or make a
dividend or other distribution on shares of Common Stock in
Common Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of
such number of shares and the total number of shares
constituting such dividend or other distribution, such
reduction to become effective immediately after the opening
of business on the day following the date fixed for such
determination. For purposes of this subsection, the number
of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common
Stock. The Corporation will not pay any dividend or make
any distribution on shares of Common Stock held in the
treasury of the Corporation.
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(ii) In case the Corporation shall issue
additional rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the then current
market price per share (determined as provided in
subsection (vi) below) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive
such rights or warrants (other than pursuant to a dividend
reinvestment plan), the Conversion Price in effect at the
opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination
plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or
purchase would purchase at such current market price
(determined as provided in subsection (vi) below) and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business
on the day following the date fixed for such determination.
For the purposes of this subsection (ii), the number of
shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Corporation but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common
Stock. The Corporation will not issue any rights or
warrants in respect of shares of Common Stock held in the
treasury of the Corporation during the period so held.
(iii) In case outstanding shares of Common Stock
shall be subdivided into a greater number of shares of
Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such
subdivision becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon
which such combination becomes effective shall be
proportionately increased, such reduction or increase, as
the case may be, to become effective immediately after the
opening of business on the day following the day upon which
such subdivision or combination becomes effective.
(iv) In case the Corporation shall, by dividend
or otherwise, distribute to all holders of its Common Stock
evidences of its indebtedness or assets (including
securities, but excluding (1) any rights or warrants
referred to in subsection (ii) above, (2) any dividend or
distribution paid in cash out of the retained earnings of
the Corporation and (3) any dividend or distribution
referred to in subsection (i) above), the Conversion Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed
for the determination of stockholders entitled to receive
such distribution by a fraction of which the numerator shall
be the current market price per share (determined as
provided in subsection (vi) below) of the Common Stock on
the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and shall be described in
a statement filed with the transfer agent for the Series A
Preferred Stock) of the portion of the evidences of
indebtedness or assets so distributed applicable to one
share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such
distribution.
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(v) For the purposes of this Section 5, the
reclassification of Common Stock into securities including
securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which
Section 5(g) below applies) shall be deemed to involve (A) a
distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for
the determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination"
within the meaning of subsection (iv) above), and (B) a
subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of
Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to
be "the day upon which such subdivision became effective" or
"the day upon which such combination becomes effective" as
the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of
subsection (iii) above).
(vi) For the purpose of any computation under
subsections (ii) and (iv) above, the current market price
per share of Common Stock on any day shall be deemed to be
the average of the daily closing prices for the 30
consecutive trading days commencing 45 trading days before
the day in question. The closing price for each day shall
be the reported last sale price or, in case no such reported
sale takes place on such day, the average of the reported
closing bid and asking prices, in either case on the
National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is
no longer quoted to trading on such system, on the principal
national securities exchange on which the Common Stock is
then listed or admitted to trading or, if the Common Stock
is not quoted on such National Market System or listed or
admitted to trading on any national securities exchange, the
average of the closing bid and asked prices in the over-the-
counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Board of
Directors for that purpose.
(vii) Notwithstanding the foregoing, no
adjustment in the Conversion Price for the Series A
Preferred Shares shall be required unless such adjustment
would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by
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reason of this subsection (vii) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section
shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(f) Whenever the Conversion Price shall be adjusted as
herein provided (i) the Corporation shall forthwith make
available at the office of the transfer agent for the Series A
Preferred Stock a statement describing in reasonable detail the
adjustment, the facts requiring such adjustment and the method of
calculation used; and (ii) the Corporation shall cause to be
mailed by first class mail, postage prepaid, as soon as
practicable to each holder of record of shares of Series A
Preferred Stock a notice stating that the Conversion Price has
been adjusted and setting forth the adjusted Conversion Price.
(g) In the event of any consolidation of the
Corporation with or merger of the Corporation into any other
corporation (other than a merger in which the Corporation is the
surviving corporation) or a sale, lease or conveyance of the
assets of the Corporation as an entirety or substantially as an
entirety, or any statutory exchange of securities with another
corporation, the holder of each share of Series A Preferred Stock
shall have the right, after such consolidation, merger, sale or
exchange to convert such share into the number and kind of shares
of stock or other securities and the amount and
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kind of property which such holder would have been entitled to
receive upon such consolidation, merger, sale or exchange of the
number of shares of Common Stock that would have been issued to
such holder had such shares of Series A Preferred Stock been
converted immediately prior to such consolidation, merger or sale.
The provisions of this Section 5(g) shall similarly apply to
successive consolidations, mergers, sales or exchanges.
(h) The Corporation shall pay any taxes that may be
payable in respect of the issuance of shares of Common Stock upon
conversion of shares of Series A Preferred Stock, but the
Corporation shall not be required to pay any taxes which may be
payable in respect of any transfer involved in the issuance of
shares of Common Stock in the name other than that in which the
shares of Series A Preferred Stock so converted are registered,
and the Corporation shall not be required to issue or deliver any
such shares unless and until the person requesting such issuance
shall have paid to the Corporation the amount of any such taxes,
or shall have established to the satisfaction of the Corporation
that such taxes have been paid.
(i) The Corporation may (but shall not be required to)
make such reductions in the Conversion Price, in addition to
those required by subsections (i) through (iv) of Section 5(e)
above, as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of stock or
stock rights shall not be taxable to the recipients.
(j) The Corporation shall at all times reserve and
keep available out of its authorized but unissued Common Stock
the full number of shares of Common Stock issuable upon the
conversion of all shares of Series A Preferred Stock then
outstanding.
(k) In the event that:
(i) the Corporation shall declare a dividend or
any other distribution on its Common Stock, payable
otherwise than in cash out of retained earnings; or
(ii) the Corporation shall authorize the granting
to the holders of its Common Stock of rights to subscribe
for or purchase any shares of capital stock of any class or
of any other rights; or
(iii) any capital reorganization of the
Corporation, reclassification of the capital stock of the
Corporation, consolidation or merger of the Corporation with
or into another corporation (other than a merger in which
the Corporation is the surviving corporation), or sale,
lease or conveyance of the assets of the Corporation as an
entirety or substantially as an entirety to another
corporation occurs; or
(iv) the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation occurs, the
Corporation shall cause to be mailed to the holders of
record of Series A Preferred Stock at least 15 days prior to
the applicable date hereinafter specified a notice stating
(x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or, if a
record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined or (y) the date
on which such reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up is expected to take place, and the
date, if any is to be fixed, as of which holders of Common
Stock of record shall be entitled to exchange their shares
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of Common Stock for securities or other property deliverable
upon such reorganization, reclassification, consolidation,
merger, sale, lease, conveyance, dissolution, liquidation or
winding up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such
dividend, distribution, reorganization, reclassification,
consolidation, merger, sale, lease, conveyance, dissolution,
liquidation or winding up.
6. VOTING RIGHTS. Other than as required by applicable
-------------
law, the Series A Preferred Stock shall not have any voting
powers either general or special, except that:
(a) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of the Series A Preferred Stock, and any one or
more other series of preferred stock of the Corporation similarly
affected, at the time outstanding, given in person or by proxy,
either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of the Series A Preferred
Stock and any such other series of preferred stock shall vote
together as a separate class, shall be necessary for authorizing,
effecting or validating the amendment, alteration or repeal of
any of the provisions of the Restated Articles of Incorporation,
as amended, or of any amendment or supplement thereto (including
any certificate of designation or any similar document relating
to any series of preferred stock) of the Corporation, which would
adversely affect the preferences, rights, powers or privileges,
qualifications, limitations and restrictions of the Series A
Preferred Stock.
(b) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the
affirmative vote or consent of the holders of at least 66-2/3% of
all of the shares of the Series A Preferred Stock and any other
series of preferred stock of the Corporation ranking on a parity
with shares of the Series A Preferred Stock, either as to
dividends or the distribution of assets upon liquidation,
dissolution or winding up, at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting
called for the purpose at which the holders of shares of the
Series A Preferred Stock and any such other series of preferred
stock of the Corporation shall vote together as a single class
without regard to series, shall be necessary to create, authorize
or issue, or reclassify any authorized stock of the Corporation
into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, any shares of
any class of stock of the Corporation ranking prior to the
Series A Preferred Stock or ranking prior to any other series of
preferred stock of the Corporation which ranks on a parity with
the Series A Preferred Stock as to dividends or upon the
distribution of assets upon liquidation, dissolution or winding
up. Subject to the foregoing, the Corporation's Restated
Articles of Incorporation, as amended, may be amended to increase
the number of authorized shares of preferred stock without the
vote of the holders of preferred stock, including the Series A
Preferred Stock.
(c) Whenever, at any time or times, dividends payable
on the shares of Series A Preferred Stock shall be in arrears in
an amount equal to at least six full quarterly dividends on
shares of the Series A Preferred Stock at the time outstanding,
the holders of the outstanding shares of Series A Preferred Stock
shall have the exclusive right, voting separately as a class
together with holders of shares of any one or more other series
of preferred stock ranking on a parity with the Series A
Preferred Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are exercisable, to
elect two directors of the Corporation for one-year terms at the
Corporation's next annual meeting of stockholders and at each
subsequent annual meeting of stockholders. At elections for such
directors, each holder of Series A Preferred Stock shall be
entitled to one vote for each share held (the holders of shares
of any other series of preferred
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stock ranking on such a parity being entitled to such number of votes,
if any, for each share of stock held as may be granted to them). Upon
the vesting of such right of the holders of Series A Preferred Stock,
the maximum authorized number of members of the Board of Directors
shall automatically be increased by two and the two vacancies so
created shall be filled by vote of the holders of the outstanding
shares of Series A Preferred Stock (either alone or together with
the holders of shares of any one or more other series of
preferred stock ranking on such a parity) as hereinafter set
forth. The right of the holders of Series A Preferred Stock,
voting separately as a class to elect (either alone or together
with the holders of shares of any one or more other series of
preferred stock ranking on such a parity) members of the Board of
Directors of the Corporation as aforesaid shall continue until
such time as all dividends accumulated on the Series A Preferred
Stock shall have been paid in full or declared and set apart for
payment, at which time such right shall immediately terminate,
except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of
the character above mentioned.
(d) Upon termination of such special voting rights
attributable to all holders of the Series A Preferred Stock and
any other series or preferred stock ranking on a parity with the
Series A Preferred Stock as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are exercisable, the
term of office of each director elected by the holders of shares
of Series A Preferred Stock and such parity preferred stock (a
"Preferred Stock Director") pursuant to such special voting
rights shall immediately terminate and the number of directors
constituting the entire Board of Directors shall be reduced by
the number of Preferred Stock Directors. Any Preferred Stock
Director may be removed by, and shall not be removed otherwise
than by, the vote of the holders of record of a majority of the
outstanding shares of Series A Preferred Stock and all other
series of preferred stock ranking on a parity with the Series A
Preferred Stock with respect to dividends who were entitled to
participate in such Preferred Stock Director's election, voting
as a separate class, at a meeting called for such purposes. If
the office of any Preferred Stock Director becomes vacant by
reason of death, resignation, retirement, disqualification,
removal from office, or otherwise, the remaining Preferred Stock
Director may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
7. REACQUIRED SHARES. Shares of Series A Preferred Stock
-----------------
converted, redeemed, or otherwise purchased or acquired by the
Corporation shall be restored to the status of authorized but
unissued shares of Series A Preferred Stock without designation
as to series.
8. RANKING. Any class or classes of stock of the
-------
Corporation shall be deemed to rank:
(i) prior to the Series A Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of the Series A Preferred Stock;
(ii) on a parity with the Series A Preferred
Stock, as to dividends or as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Series A Preferred Stock, if the holders of such
class of stock and the Series A Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in proportion to their respective
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amounts of accrued and unpaid dividends per share or
liquidation prices, without preference or priority one over
the other; and
(iii) junior to the Series A Preferred Stock, as
to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock shall
be Common Stock or if the holders of Series A Preferred
Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to
the holders of shares of such stock.
9. NO SINKING FUND. Shares of Series A Preferred Stock
---------------
are not subject to the operation of a sinking fund or other
obligation of the Corporation to redeem or retire the Series A
Preferred Stock.
FURTHER RESOLVED, that the officers of the Corporation, and
each of them, are hereby authorized, for and on behalf of and in
the name of the Corporation, to file a copy of the foregoing
resolution with the Secretary of State of the State of Missouri
in accordance with the provisions of Section 381.180 of The
General and Business Corporation Law of Missouri.
IN WITNESS WHEREOF, BOATMEN'S BANCSHARES, INC. has caused
this Certificate of Designation to be signed by Andrew B. Craig
III, its Chairman of the Board and Chief Executive Officer, and
attested by David L. Foulk, its Secretary, this 8th day of
January, 1996.
BOATMEN'S BANCSHARES, INC.
By: /s/ A. B. Craig, III
---------------------------
Andrew B. Craig III
Chairman of the Board and
Chief Executive Officer
Attest: /s/ David L. Foulk
-----------------------
David L. Foulk
Secretary
FILED AND CERTIFICATE
ISSUED
JANUARY 10, 1996
/s/ Rebecca McDowell Cook
SECRETARY OF STATE
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ACKNOWLEDGMENT
--------------
STATE OF MISSOURI )
) ss.
CITY OF ST. LOUIS )
I do hereby certify that on this 8th day of January, 1996,
before me, a Notary Public within and for the City and State
aforesaid, came Andrew B. Craig III, Chairman of the Board and
Chief Executive Officer, and David L. Foulk, Secretary, of
Boatmen's Bancshares, Inc., a Missouri corporation, who are
personally known to me and known to me to be the same persons who
executed the foregoing Certificate of Designation as Chairman of
the Board and Chief Executive Officer and Secretary, and said
persons duly acknowledged to me their execution of the same as
and for their free and voluntary act and deed, for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my notarial seal at St. Louis, Missouri, the day, month, and year
last above written.
/s/ Susan M. Hill
-----------------------------
Notary Public
My Appointment Expires:
9-9-98
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