EXHIBIT 3
Articles of Amendment to the Restated Articles of Incorporation
of Fiserv, Inc.
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
FISERV, INC.
Fiserv, Inc., a corporation organized and existing under Chapter 180 of the
Wisconsin Business Corporation Law (the "Corporation"), does hereby certify that
the Board of Directors of the Corporation (the "Board") duly adopted the
necessary resolutions to create a new series of Preferred Stock consisting
1,500,000 shares designated as Series A Junior Participating Preferred Stock, no
par value per share, pursuant to Section 180.0602 of the Wisconsin Business
Corporation Law ("WBCL") and the authority conferred upon the Board by the
Restated Articles of Incorporation; and to effectuate the foregoing, further
approved the amendment of Article III of the existing Articles of Incorporation,
to read as follows:
ARTICLE III
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The total number of shares of stock which the Corporation shall
have authority to issue is 175,000,000 shares, of which 150,000,000 shares
shall be designated Common Stock, having a par value of $.01 per share;
and, 25,000,000 shares shall be designated as Preferred Stock, having no
par value per share. Authority is hereby vested in the Board of Directors
from time to time to issue the Preferred Stock as Preferred Stock in one or
more series of any number of shares and, in connection with the creation of
such series, to fix, by resolution providing for the issue of shares
thereof, the voting rights, if any; the designations, preferences,
limitations and relative rights of such series in respect to the rate of
dividend, the price, the terms and conditions of redemption; the amounts
payable upon such series in the event of voluntary or involuntary
liquidation; sinking fund provisions for the redemption or purchase of such
series of shares; and, if the shares of any series are issued with the
privilege of conversation, the terms and conditions on which such series of
shares may be converted. In addition to the foregoing, to the full extent
now or hereafter permitted by Wisconsin law, in connection with each issue
thereof, the Board of Directors may at its discretion assign to any series
of the Preferred Stock such other terms, conditions, restrictions,
limitations, rights and privileges as it may deem appropriate. The
aggregate number of preferred shares issued and not cancelled of any and
all preferred series shall not exceed the total number of shares of
Preferred Stock hereinabove authorized. Each series of Preferred Stock
shall be distinctively designated by letter or descriptive words or both.
Section 1. Designation of Series A Junior Participating
Preferred Stock: Number of Shares. There is designated a series of
Preferred Stock titled as "Series A Junior Participating Preferred
Stock," no par value per share (the "Series A Preferred Stock"), and
the
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authorized number of shares constituting the Series A Preferred Stock
shall be 1,500,000. Such number of authorized shares may be increased
or decreased, from time to time, by resolution of the Board; provided,
however, that no such decrease shall reduce the number of authorized
shares of the Series A Preferred Stock to a number less than the
number of shares of the Series A Preferred Stock then outstanding,
plus the number of such shares then reserved for issuance upon the
exercise of any outstanding options, warrants or rights or the
exercise of any conversion or exchange privilege contained in any
outstanding security issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of shares of any
other series of Preferred Stock (or shares of any other class of
capital stock of the Corporation) ranking senior to the Series A
Preferred Stock with respect to dividends, the holders of shares of
the Series A Preferred Stock, in preference to the holders of shares
of Common Stock and of any other class of capital stock of the
Corporation ranking junior to the Series A Preferred Stock with
respect to dividends, shall be entitled to receive, when, as and if
declared by the Board out of funds legally available therefor, such
dividends, subject to the provision for adjustment hereinafter set
forth, equal to 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 subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock. In the event the Company shall at any
time after February 23, 1998 (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event 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 Board shall declare, out of funds legally available
therefor, a dividend or distribution on the Series A Preferred Stock,
as provided in paragraph (A) of this Section 2, immediately after it
has declared a dividend or distribution on the Common Stock (other
than a dividend payable in shares of Common Stock).
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Section 3. Voting Rights. In addition to any other voting
rights required by applicable law, the holders of shares of the Series
A Preferred Stock shall have the following voting rights:
(A) Each share of the 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. The multiple of 100 (the "Voting
Multiple") set forth in the preceding sentence shall be adjusted from
time to time as hereinafter provided in this paragraph (A). In the
event that the Corporation shall at any time after the effective date
of this Resolution of the Board ("Resolution") (i) declare or pay any
dividend on Common Stock payable in shares of Common Stock, or (ii)
effect a subdivision, 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
Voting Multiple thereafter applicable to the determination of the
number of votes per share to which the holders of shares of the Series
A Preferred Stock shall be entitled shall be the Voting Multiple in
effect immediately prior to such event multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided in this Resolution, in any
other resolution establishing another series of Preferred Stock (or
any series of any other class of capital stock of the Corporation) or
by applicable law, the holders of the Series A Preferred Stock, the
holders of Common Stock and the holders of any other class of capital
stock of the Corporation having general voting rights shall vote
together as a single class on all matters submitted to a vote of the
shareholders of the Corporation.
(C) Except as otherwise provided in this Resolution or by
applicable law, the holders of the Series A Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent provided in paragraph (B) of this Section 3 for
the taking of any corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or other 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 outstanding shares of the
Series A Preferred Stock shall have been paid in full, the Corporation
shall not:
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(i) Declare or pay dividends or make any other distributions
on any shares of any class of capital stock of the Corporation ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up of the Corporation) to the Series A Preferred Stock;
(ii) Declare or pay dividends, or make any other
distributions, on any shares of any class of capital stock of the
Corporation ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up of the Corporation) 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
accrued and unpaid in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) Redeem, purchase or otherwise acquire for
consideration any shares of any class of capital stock of the
Corporation ranking junior (either as to dividends or upon
liquidation, dissolution or winding up of the Corporation) to the
Series A Preferred Stock, except that the Corporation may at any time
redeem, purchase or otherwise acquire any shares of such junior stock
in exchange for other shares of any class of capital stock of the
Corporation ranking junior (both as to dividends and upon dissolution,
liquidation or winding up of the Corporation) to the Series A
Preferred Stock; or
(iv) Purchase or otherwise acquire for consideration any
shares of the Series A Preferred Stock or any shares of any class of
capital stock of the Corporation ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up of the
Corporation) with the Series A Preferred Stock, or redeem any shares
of such parity stock, except in accordance with a purchase offer made
in writing or by publication to the holders of all such shares upon
such terms and conditions as the Board, after taking into
consideration the respective annual dividend rates and the other
relative powers, preferences and rights of the respective series and
classes of such shares, shall determine in good faith will result in
fair and equitable treatment among the respective holders of shares of
all such series and classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of any class of capital 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.
Section 5. Reacquired Shares. Any shares of the Series A
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after
such purchase or acquisition. All such cancelled shares shall
thereupon become
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authorized and unissued shares of Preferred Stock and may be reissued
as part of any new series of Preferred Stock, subject to the
conditions and restrictions on issuance set forth in the Restated
Articles of Incorporation of the Corporation, from time to time, in
any other resolution establishing another series of Preferred Stock
(or any series of any other class of capital stock of the Corporation)
or in any applicable law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation (whether voluntary or otherwise), dissolution or winding
up of the Corporation, no distribution shall be made (a) to the
holders of shares of any class of capital stock of the Corporation
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up of the Corporation) to the Series A
Preferred Stock unless, prior thereto, the holder of each outstanding
share of the Series A Preferred Stock shall have received an amount
equal to the accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, plus an amount
equal to the greater of (i) $1.00, and (ii) an aggregate amount,
subject to adjustment as hereinafter provided in this Section 6, equal
to 100 times the aggregate per share amount to be distributed to the
holders of Common Stock, or (b) to the holders of shares of any class
of capital stock of the Corporation ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up of the
Corporation) 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 that the Corporation shall at any time after the
effective date of this Resolution (a) declare or pay any dividend on
Common Stock payable in shares of Common Stock, or (b) effect a
subdivision, 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 aggregate amount
per share to which the holders of shares of the Series A Preferred
Stock would have been entitled to receive immediately prior to such
event pursuant to clause (a)(ii) of the preceding sentence shall be
adjusted by multiplying such aggregate per share amount by a fraction,
the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In the event that the
Corporation shall be a party to any consolidation, merger, combination
or other transaction in which the outstanding shares of Common Stock
are converted or changed into or exchanged for other capital stock,
securities, cash or other property, or any combination thereof, then,
in each such case, each share of the Series A Preferred Stock shall at
the same time be
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similarly converted or changed into or exchanged for an aggregate
amount, subject to adjustment as hereinafter provided in this Section
7, equal to 100 times the aggregate amount of capital stock,
securities, cash and/or other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is being
converted or changed or exchanged. In the event that the Corporation
shall at any time after the effective date of this Resolution declare
or pay any dividend on Common Stock payable in shares of Common Stock
or effect a subdivision, 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 aggregate amount per share to which the holders of shares of
the Series A Preferred Stock would have been entitled to receive
immediately prior to such event pursuant to the preceding sentence
shall be adjusted by multiplying such aggregate per share amount by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of the Series A Preferred
Stock shall not be redeemable at any time.
Section 9. Rank. Unless otherwise provided in the resolution
establishing another series of Preferred Stock after the effective
date of this Resolution, the Series A Preferred Stock shall rank, as
to the payment of dividends and the making of any other distribution
of assets of the Corporation, senior to the Common Stock, but junior
to all other series of the Preferred Stock.
Section 10. Amendments. The Restated Articles of Incorporation
of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences and rights of the
Series A Preferred Stock so as to adversely affect any thereof without
the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the Series A Preferred Stock, voting separately
as a single class.
Section 11. Fractional Shares. Fractional shares of the Series
A Preferred Stock may be issued, but, unless the Board shall otherwise
determine, only in multiples of one one-hundredth of a share. The
holder of any fractional share of the Series A Preferred Stock shall
be entitled to receive dividends, participate in distributions,
exercise voting rights and have the benefit of all other powers,
preferences and rights relating to the Series A Preferred Stock in the
same proportion as such fractional share bears to a whole share.
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The foregoing constitutes the text of this Amendment. None of the shares
of Series A Junior Participating Preferred Stock authorized thereby has been
issued as of the date hereof.
This Amendment to the Restated Articles of Incorporation of the Corporation
was adopted by the Board of Directors of the Corporation at a meeting of the
Board of Directors held on February 23, 1998 in accordance with Section 180.0602
of the Wisconsin Business Corporation Law. Shareholder approval of this
Amendment was not required.
Dated as of the 23rd day of February, 1998.
By: /s/ Charles W. Sprague
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Charles W. Sprague
Secretary
This document was drafted by and is returnable to:
Frank J. Pelisek, Esq.
Michael Best & Friedrich LLP
100 East Wisconsin Avenue
Suite 3300
Milwaukee, WI 53202
(414) 271-6560
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