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EXHIBIT 4(n)
ASSISTANT SECRETARY'S
CERTIFICATE
I, Jorge A. Junquera, Senior Executive Vice President of Popular, Inc.,
and I, Ramon D. Lloveras San Miguel, Assistant Secretary of the Board of
Directors of Popular, Inc., a duly organized and existing corporation under the
laws of the Commonwealth of Puerto Rico, by this certification certify that
pursuant to the authority granted to the Board of Directors by the Certificate
of Incorporation of such Corporation, said Board of Directors on July 10, 1997
adopted the following resolutions increasing the series of preferred stock
designated as Series A Participating Cumulative Preferred Stock from 700,000
shares to 1,400,000 shares.
"RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the
Corporation was created pursuant to a resolution adopted by the Board
of Directors on August 11, 1988, as amended on November 8, 1990, on
November 12, 1992, and April 26, 1996, and the number of shares
constituting said series shall be and is hereby increased to 1,400,000
shares.
RESOLVED FURTHER, that the directors have determined that the
preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, as stated and expressed herein,
are under the circumstances prevailing on the date hereof fair and
equitable to all the existing stockholders of the Corporation.
RESOLVED FURTHER, that the designation and amount of such series and
the voting powers, preferences and relative, participating, optional or
other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Cumulative Preferred Stock (no
par value)" and the number of shares constituting such series is hereby
increased from 700,000 to 1,400,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and
superior to the Series A Participating Cumulative Preferred
Stock with respect to dividends, the holders of shares of
Series A Participating Cumulative Preferred Stock, in
preference to the shares of Common Stock, par value $6 per
share, of the Corporation (the "Common Stock") and any other
stock of the Corporation junior to the Series A Participating
Cumulative Preferred Stock with respect to dividends, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally
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available for the purpose, quarterly dividends payable in cash
on March 15, June 15, September 15 and December 31 of 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 issuance of a share or
fraction of a share of Series A Participating Cumulative
Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1.00 or (b) subject
to the provision for adjustment hereinafter set forth, 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 of
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 Participating Cumulative Preferred Stock. In the
event the Corporation shall at any time after August 31, 1988
(the "Rights Declaration Date") (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
Participating Cumulative Preferred Stock were entitled
immediately prior to such event under clause (b) 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 Participating Cumulative Preferred Stock as
provided in paragraph (A) above 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
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the Series A
Participating Cumulative 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 Participating Cumulative
Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A
Participating Cumulative Preferred Stock, 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, 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 Participating
Cumulative 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 Participating
Cumulative Preferred Stock in an
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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
Participating Cumulative Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which
record date shall be no more than 50 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
required by law, the holders of shares of Series A Participating
Cumulative Preferred Stock shall have only the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Participating Cumulative
Preferred Stock shall entitle the holder thereof to one vote
on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Participating Cumulative Preferred Stock
and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Participating
Cumulative Preferred Stock shall be in arrears in an amount
equal to six quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time
when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly
dividend period on all shares of Series A Participating
Cumulative Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including
holders of Series A Participating Cumulative Preferred Stock)
with dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two Directors.
(ii) During any default period, such voting right of the
holders of Series A Participating Cumulative Preferred Stock
may be exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such voting
right nor the right of the holders of any other series of
Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the
holders of ten percent in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The
absence of a quorum of the holders of Common Stock shall not
affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred
Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting as
a class, to elect Directors to fill such vacancies, if any, in
the Board of Directors as may then exist up to two Directors
or, if such right is exercised at an annual meeting, to elect
two Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the
holders of the Preferred Stock shall have the right to make
such increase in the
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number of Directors as shall be necessary to permit the
election by them of the required number. After the holders of
the Preferred Stock shall have exercised their right to elect
Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A
Participating Cumulative Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an
existing default period, have previously exercised their right
to elect Directors, the Board of Directors may order, or any
stockholder or stockholders owning in aggregate not less than
ten percent of the total number of shares of Preferred Stock
outstanding, irrespective of series, may request, the calling
of a special meeting of the holders of Preferred Stock which
meeting shall thereupon be called by the President, a
Vice-President or the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this
paragraph (C) (iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not
earlier than 20 days and not later than 50 days after such
order or request or in default of the calling of such meeting
within 50 days after such order or request, such meeting may
be called on similar notice by any stockholder or stockholders
owning in the aggregate not less than ten percent of the total
number of shares of Cumulative Preference Stock outstanding.
Notwithstanding the provisions of this paragraph (C) (iii), no
such special meeting shall be called during the period within
50 days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall
continue to be entitled to elect the whole number of Directors
until the holders of Preferred Stock shall have exercised
their right to elect two (2) Directors voting as a class,
after the exercise of which right (x) the Directors so elected
by the holders of Preferred Stock shall continue in office
until their successors shall have been elected by such holders
or until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in
paragraph (C) (ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore elected the
Director whose office shall have become vacant. References in
this paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by
such Directors to fill vacancies as provided in clause (y) of
the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to
elect Directors shall cease, (y) the term of any Directors
elected by the holders of Preferred Stock as a class shall
terminate, and (z) the number of Directors shall be such
number as may be provided for in the certificate of
incorporation of by-laws irrespective of any increase made
pursuant to the provisions of paragraph (C) (ii) of this
Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the
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certificate of incorporation of by-laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y)
and (x) in the preceding sentence may be filled by a majority
of the remaining Directors.
(D) Unless the vote or consent of the holders of a greater
number of shares of Preferred Stock (including shares of the
Series A Participating Cumulative Preferred Stock) shall then
be required by law, the consent of the holders of at least a
majority of all shares of Preferred Stock (including shares of
the Series A Participating Cumulative Preferred Stock) at the
time outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for such purpose in
accordance with the provisions of subparagraph (iii) of
Section 3(C) (as if a default period had occurred and was
continuing) at which the holders of all shares of Preferred
Stock shall vote together as a class without regard to series,
shall be necessary for authorizing, effecting or validating
(i) the merger or consolidation of the Corporation into or
with any other corporation, if such merger or consolidation
would adversely affect the powers, preferences or rights of
any shares of any series of Preferred Stock or (ii) the
amendment, alteration or repeal of any of the provisions of
the Certificate of Incorporation or of any amendment thereof
or supplement thereto (including any Certificate of
Designation, Preferences and Rights or any similar document
relating to any series of Preferred Stock) so as to affect
adversely the powers, preferences, or rights, of any series of
Preferred Stock. The increase of the authorized amount of the
Preferred Stock, or the creation, authorization or issuance of
any shares of any other class of stock of the Corporation
ranking prior to or on a parity with the shares of any series
of Preferred Stock as to dividends or upon liquidation, or the
reclassification of any authorized or outstanding stock of the
Corporation into any such prior or parity shares, or the
creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase
any such prior or parity shares shall not be deemed to affect
adversely the powers, preferences or rights of any series of
Preferred Stock.
(E) Except as set forth herein, holders of Series A
Participating Cumulative 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.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Participating Cumulative
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
Participating Cumulative Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Participating Cumulative Preferred Stock;
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(ii) declare or pay dividends on 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 Participating Cumulative
Preferred Stock, except dividends paid ratably on the Series A
Participating Cumulative 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 on a parity (either
as to dividends or upon liquidation, dissolution or winding
up) with the Series A Participating Cumulative Preferred
Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution,
liquidation or winding up) with the Series A Participating
Cumulative Preferred Stock, or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Participating Cumulative Preferred
Stock, or any shares of stock ranking on a parity with the
Series A Participating Cumulative 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 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.
Section 5. Reacquired Shares. Any shares of Series A Participating
Cumulative Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
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 to
be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth in the
Certificate of Incorporation.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Participating Cumulative Preferred Stock
unless, prior thereto, the holders of shares of Series A Participating
Cumulative Preferred Stock shall have received $100.00 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 Series A Participating Cumulative 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 stock ranking on a Stock, or (2) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A
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Participating Cumulative Preferred Stock, except distributions made
ratably on the Series A Participating Cumulative Preferred Stock and
all other 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 after the Rights Declaration Date declare or pay any dividend on
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 aggregate amount to which
holders of shares of Series A Participating Cumulative Preferred Stock
were entitled immediately prior to such event under the provision in
clause (1) 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.
Section 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 the shares of Series A Participating Cumulative Preferred
Stock shall at the same time be similarly exchanged or changed in an
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
after the Rights Declaration Date (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 set forth
in the preceding sentence with respect to the exchange or change of
shares of Series A Participating Cumulative 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.
Section 8. No Redemption. The shares of Series A Participating
Cumulative Preferred Stock shall not be redeemable.
Section 9. Rank. The Series A Participating Cumulative Preferred Stock
shall rank junior with respect to payment of dividends and on
liquidation to all other series of the Corporation's preferred stock
outstanding on the date hereof and to all such other series that
specifically provide that they shall rank senior to the Series A
Participating Cumulative Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series
A Participating Cumulative Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority or
more of the outstanding shares, if any, of Series A Participating
Cumulative Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Participating Cumulative
Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares,
to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of
Series A Participating Cumulative Preferred Stock.
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IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and sealed it with the seal of the Corporation in San Juan, Puerto Rico,
Associated Free State of Puerto Rico, this 3rd day of August, 1999.
/s/ JORGE A. JUNQUERA
-----------------------------------------
Jorge A. Junquera
Senior Executive Vice President
/s/ RAMON D. LLOVERAS SAN MIGUEL
-----------------------------------------
Ramon D. Lloveras San Miguel
Assistant Secretary
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Affidavit No. 1184
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Sworn and subscribed to before me by Jorge A. Junquera of legal age, married and
resident of Guaynabo, PR, in his capacity of Senior Executive Vice President of
Popular, Inc. and Ramon D. Lloveras San Miguel of legal age, married and
resident of Guaynabo, Puerto Rico, in his capacity of Assistant Secretary of
Popular, Inc. who are personally known to me, in San Juan, Puerto Rico, on this
3rd day of August, 1999.
/s/ ESTELA MARTINEZ
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Notary Public