EXHIBIT 3.1
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
WEBSTER FINANCIAL CORPORATION
Webster Financial Corporation, a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Webster Financial
Corporation and the name under which the corporation was originally incorporated
is Webster Financial Corp. The date of filing of its original Certificate of
Incorporation with the Secretary of State of Delaware was September 10, 1986. A
Restated Certificate of Incorporation was filed with the Secretary of State of
Delaware on December 17, 1986.
2. This Second Restated Certificate of Incorporation only
restates and integrates and does not further amend the provisions of the
Restated Certificate of Incorporation of this corporation as heretofore amended
or supplemented and there is no discrepancy between those provisions and the
provisions of this Second Restated Certificate of Incorporation.
3. The text of the Restated Certificate of Incorporation as
amended or supplemented heretofore, including the Certificate of Designation for
the Series C Participating Preferred Stock filed with the Secretary of State of
Delaware on February 20, 1996 attached to the Second Restated Certificate of
Incorporation as Exhibit A, is hereby restated without further amendments or
changes to read as set forth in full in the attachment hereto.
4. This Second Restated Certificate of Incorporation was duly
adopted by the board of directors in accordance with Section 245 of the General
Corporation Law of the State of Delaware.
-2-
IN WITNESS WHEREOF, said Webster Financial Corporation has
caused this certificate to be signed by James C. Smith, its Chairman and Chief
Executive Officer, and attested by Harriet Munrett Wolfe, its Secretary, this
10th day of June, 1998.
WEBSTER FINANCIAL CORPORATION
By: /s/ James C. Smith
---------------------------------
James C. Smith
Chairman and Chief Executive Officer
ATTEST:
By: /s/ Harriet Munrett Wolfe
-----------------------------
Harriet Munrett Wolfe
Secretary
-3-
STATE OF DELAWARE
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
WEBSTER FINANCIAL CORPORATION
ARTICLE 1. CORPORATE TITLE. The name of the corporation is Webster
Financial Corporation (the "Corporation").
ARTICLE 2. DURATION. The duration of the Corporation is perpetual.
ARTICLE 3. PURPOSE. The purpose or purposes for which the Corporation
is organized are to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE 4. CAPITAL STOCK. The total number of shares of all classes of
the capital stock which the Corporation has authority to issue is fifty-three
million (53,000,000), of which fifty million (50,000,000) shall be common stock,
par value $.01 per share, amounting in the aggregate to five hundred thousand
dollars ($500,000), and three million (3,000,000) shall be serial preferred
stock, par value $.01 per share, amounting in the aggregate to thirty thousand
dollars ($30,000). The shares may be issued by the Corporation from time to time
as approved by its board of directors without the approval of its shareholders.
The consideration for the issuance of the shares shall be paid in full before
their issuance and shall not be less than the par value per share. Neither
promissory notes nor future services shall constitute payment or part payment
for the issuance of the shares of the Corporation. The consideration for the
shares shall be cash, services actually performed for the Corporation, personal
property, real property, leases of real property or any combination of the
foregoing. In the absence of actual fraud in the transaction, the value of such
property, labor or services, as determined by the board of directors of the
Corporation, shall be conclusive. Upon payment of such consideration such shares
shall be deemed to be fully paid and nonassessable.
Nothing contained in this Article 4 (or in any resolution or
resolutions adopted by the board of directors pursuant hereto) shall entitle the
holders of any class or series of capital stock to more than one vote per share.
A description of the different classes and series of the Corporation's
capital stock and a statement of the designations, and the powers, preferences
and rights, and the qualifications, limitations and restrictions of the shares
of each class of and series of capital stock are as follows:
A. Common Stock. Except as provided in this Article 4 (or in
any resolution or resolutions adopted by the board of directors
pursuant hereto), the holders of the common stock shall exclusively
possess all voting power.
Each holder of shares of common stock shall be entitled to one vote for
each share held by such holder, including the election of directors.
There shall be no cumulative voting rights in the election of
directors. Each share of common stock shall have the same relative
rights as and be identical in all respects with all the other shares of
common stock.
Whenever there shall have been paid, or declared and set aside
for payment, to the holders of the outstanding shares of any class of
stock having preference over the common stock as to the payment of
dividends, the full amount of dividends and of sinking fund or
retirement fund or other retirement payments, if any, to which such
holders are respectively entitled in preference to the common stock,
then dividends may be paid on the common stock and on any class or
series of stock entitled to participate therewith as to dividends, out
of any assets legally available for the payment of dividends; but only
when and as declared by the board of directors.
In the event of any liquidation, dissolution or winding up of
the Corporation, after there shall have been paid to or set aside for
the holders of any class having preferences over the common stock in
the event of liquidation, dissolution or winding up of the full
preferential amounts of which they are respectively entitled, the
holders of the common stock, and of any class or series of stock
entitled to participate therewith, in whole or in part, as to
distribution of assets, shall be entitled after payment or provision
for payment of all debts and liabilities of the Corporation, to receive
the remaining assets of the Corporation available for distribution, in
cash or in kind.
B. Serial Preferred Stock. Except as provided in this Section
4, the board of directors of the Corporation is authorized by
resolution or resolutions from time to time adopted and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
provide for the issuance of serial preferred stock in series and to fix
and state the voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or
other special rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. Each share of
each series of serial preferred stock shall have the same relative
rights as and be identical in all respects with all the other shares of
the same series.
ARTICLE 5. PREEMPTIVE RIGHTS. Holders of the capital stock of the
Corporation shall not be entitled to preemptive rights with respect to any
shares or other securities of the Corporation which may be issued.
ARTICLE 6. DIRECTORS. The Corporation shall be under the direction of a
board of directors. The board of directors shall consist of not less than seven
2
directors nor more than 15 directors. The number of directors within this range
shall be as stated in the Corporation's bylaws, as may be amended from time to
time, and shall initially consist of seven directors. The board of directors
shall divide the directors into three classes and, when the number of directors
is changed, shall determine the class or classes to which the increased or
decreased number of directors shall be apportioned; provided, that the directors
in each class shall be as nearly equal in number as possible, commencing with
the 1987 annual meeting of shareholders; provided, further, that no decrease in
the number of directors shall affect the term of any director then in office.
The classification shall be such that the term of one class shall
expire each succeeding year. The Corporation's board of directors shall
initially be divided into three classes named Class I, Class II and Class III,
with Class I initially consisting of one director and Classes II and III each
initially consisting of three directors. The terms, classifications,
qualifications and election of the board of directors and the filling of
vacancies thereon shall be as provided herein and in the bylaws.
Subject to the foregoing, at each annual meeting of shareholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting and until their successors shall be elected and qualified.
Any vacancy occurring in the board of directors, including any vacancy
created by reason of an increase in the number of directors, shall be filled for
the unexpired term by the concurring vote of a majority of the directors then in
office, whether or not a quorum, and any director so chosen shall hold office
for the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
No director may be removed except for cause and then only by an
affirmative vote of at least two-thirds of the total votes eligible to be voted
by shareholders at a duly constituted meeting of shareholders called for such
purpose. At least 30 days prior to such meeting of shareholders, written notice
shall be sent to the director or directors whose removal will be considered at
such meeting.
No director shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of a fiduciary duty as a director
other than liability (i) for any breach of the director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
any payment of a dividend or approval of a stock repurchase that is illegal
under ss. 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
3
ARTICLE 7. BYLAWS. The board of directors or the shareholders may from
time to time amend the bylaws of the Corporation. Such action by the board of
directors shall require the affirmative vote of at least two-thirds of the
directors then in office at a duly constituted meeting of the board of directors
called for such purpose. Such action by the shareholders shall require the
affirmative vote of at least two-thirds of the total votes eligible to be voted
at a duly constituted meeting of shareholders called for such purpose.
ARTICLE 8. SPECIAL MEETINGS. Special meetings of shareholders may be
called at any time but only by the chairman of the board or the president of the
Corporation or by the board of directors of the Corporation.
ARTICLE 9. REGISTERED OFFICE. The street address of the Corporation's
initial registered office in the State of Delaware is 1209 Orange Street, City
of Wilmington, County of New Castle, and the name of its initial registered
agent at such address is The Corporation Trust Company.
ARTICLE 10. APPROVAL FOR ACQUISITIONS OF CONTROL AND OFFERS TO ACQUIRE
CONTROL. The provisions of this Article 10 shall become effective upon the
consummation of the conversion of First Federal Savings and Loan Association of
Waterbury (the "Association") to a capital stock savings and loan association
and the Association concurrently becoming a wholly-owned subsidiary of the
Corporation. In the event that thereafter the Association (or any successor
institution) ceases to be a majority-owned subsidiary of the Corporation, this
Article 10 shall thereupon cease to be effective.
Subsection 1. Five-Year Restrictions on Acquisitions of
Control and Offers to Acquire Control.
For a period of five years after the consummation of the conversion of
the Association to a capital stock savings and loan association, no Person shall
acquire control of the Corporation, or make any Offer to acquire Control of the
Corporation, unless such acquisition or Offer has received the prior approval of
at least two-thirds of the directors then in office at a duly constituted
meeting of the board of directors of the Corporation called for such purpose.
The terms "Person," "Control" and "Offer" as used in this Article 10 are defined
in subsection 5 hereof.
Subsection 2. Shareholder Vote and Regulatory Approval
Required for Acquisition of Control at any Time.
No Person shall acquire Control of the Corporation at any time, unless
such acquisition has been approved prior to its consummation by the affirmative
vote of the holders of at least two-thirds of the outstanding shares of Voting
Stock (as defined in Subsection 5 hereof) at a duly constituted meeting of
shareholders called for such purpose. In addition, no Person shall acquire
Control of the Corporation at any time without obtaining prior thereto all
federal regulatory approvals required
4
under the Change in Savings and Loan Control Act (the "Control Act") and the
Savings and Loan Holding Company Act (the "Holding Company Act"), or any
successor provisions of law, and in the manner provided by all applicable
regulations of the Federal Savings and Loan Insurance Corporation (the "FSLIC").
In the event that Control is acquired without obtaining all such regulatory
approvals, such acquisition shall constitute a violation of this Article 10 and
the Corporation shall be entitled to institute a private right of action to
enforce such statutory and regulatory provisions.
Subsection 3. Excess Shares.
In the event that Control of the Corporation is acquired in violation
of this Article 10, all shares of Voting Stock owned by the Person so acquiring
Control in excess of the number of shares the beneficial ownership of which is
deemed under subsection 5 hereof to confer Control of the Corporation shall be
considered from and after the date of their acquisition by such Person to be
"excess shares" for purposes of this Article 10. Such excess shares shall
thereafter no longer (i) be entitled to vote on any matter, (ii) be entitled to
take other shareholder action, (iii) be entitled to be counted in determining
the total number of outstanding shares for purposes of any matter involving
shareholder action, or (iv) be transferable except with the approval of the
board of directors or by an independent trustee appointed by the board of
directors for the purpose of having such excess shares sold on the open market
or otherwise. The proceeds from the sale by the trustee of such excess shares
shall be paid (i) first, to the trustee in an amount equal to the trustee's
reasonable fees and expenses, (ii) second, to the "beneficial owner" (as defined
in Article 12, Subsection 3, paragraph B hereof) of such excess shares in an
amount up to such owner's federal income tax basis in such excess shares, and
(iii) third, to the Corporation as to any remaining balance.
Subsection 4. Approval Required for Offers to Acquire
Control after Five Years.
After five years from the consummation of the conversion of the
Association to a capital stock savings and loan association, no Person shall
make any Offer to acquire Control of the Corporation, if the common stock is
then traded on a national securities exchange or quoted on the National
Association of Securities Dealers, Inc. Automated Quotation System, unless such
Person has received prior approval to make such Offer by complying with either
of the following procedures:
1. The Offer shall have been approved by at least two-thirds
of the directors then in office at a duly constituted meeting of the board of
directors of the Corporation called for such purpose, or
2. The Person proposing to make such Offer shall have obtained
approval from the FSLIC, pursuant to the Control Act, the Holding Company Act,
or any successor provisions of law, to acquire control of the Corporation.
5
Subsection 5. Certain Definitions.
For purposes of this Article 10:
A. "Control" means the sole or shared power to vote or to
direct the voting of, or to dispose or to direct the disposition of, 10 percent
or more of the Voting Stock; provided, that the solicitation, holding and voting
of proxies obtained by the board of directors of the Corporation pursuant to a
solicitation under Regulation 14A of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") shall not
constitute "Control."
B. "Group Acting in Concert" includes Persons seeking to
combine or pool their voting or other interests in the Voting Stock for a common
purpose, pursuant to any contract, understanding, relationship, agreement or
other arrangement, whether written or otherwise; provided, that a "Group Acting
in Concert" shall not include the board of directors of the Corporation in its
solicitation, holding and voting of proxies obtained by it pursuant to a
solicitation under Regulation 14A of the General Rules and Regulations under the
Exchange Act.
C. "Offer" means every offer to buy or acquire, solicitation
of an offer to sell, tender offer for, or request or invitation for tender of,
Voting Stock.
D. "Person" means any individual, firm, corporation or other
entity including a Group Acting in Concert.
E. "Voting Stock" means the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors.
Subsection 6. Inapplicability to Public Offering or Employee
Benefit Plans.
This Article 10 shall not apply to an acquisition or offer to acquire
securities of the Corporation (i) by underwriters in connection with a public
offering of such securities or (ii) by any employee stock purchase plan or other
employee benefit plan of the Corporation or any of its subsidiaries.
Subsection 7. References to FSLIC.
In the event that the accounts of the Association (or any successor
institution) become insured by the Federal Deposit Insurance Corporation
("FDIC") in lieu of the FSLIC, all references in this Article 10 to the FSLIC
shall be deemed to refer to the FDIC, and related references to the Control Act
and the Holding Company Act shall be deemed to be references to applicable
statutes relating to banks the accounts of which are insured by the FDIC.
6
ARTICLE 11. CRITERIA FOR EVALUATING CERTAIN OFFERS. The board of
directors of the Corporation, when evaluating any offer to (i) make a tender or
exchange offer for the common stock of the Corporation, (ii) merge or
consolidate the Corporation with another institution, or (iii) purchase or
otherwise acquire all or substantially all of the properties and assets of the
Corporation, shall, in connection with the exercise of its judgment in
determining what is in the best interests of the Corporation and its
shareholders, give due consideration to all relevant factors, including without
limitation the economic effects of acceptance of such offer on (a) depositors,
borrowers and employees of the insured institution subsidiary or subsidiaries of
the Corporation, and on the communities in which such subsidiary or subsidiaries
operate or are located and (b) the ability of such subsidiary or subsidiaries to
fulfill the objectives of an insured institution under applicable federal
statutes and regulations.
ARTICLE 12. CERTAIN BUSINESS COMBINATIONS.
The votes of shareholders and directors required to approve any
Business Combination shall be as set forth in this Article 12. The term
"Business Combination" is used as defined in subsection 1 of this Article 12.
All other capitalized terms not otherwise defined in this Article 12 or
elsewhere in this Certificate of Incorporation are used as defined in subsection
3 of this Article 12.
Subsection 1. Vote Required for Certain Business
Combinations.
A. Higher Vote for Certain Business Combinations. In addition
to any affirmative vote required by law or this Certificate of Incorporation,
and except as otherwise expressly provided in subsection 2 of this Article 12:
(i) any merger, consolidation or share exchange of
the Corporation or any Subsidiary (as hereinafter defined)
with (a) any Interested Shareholder (as hereinafter defined)
or (b) any other corporation (whether or not itself an
Interested Shareholder) which is, or after the merger,
consolidation or share exchange would be, an Affiliate or
Associate (as those terms are hereinafter defined) of such
Interested Shareholder prior to the transaction; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition other than in the usual and
regular course of business (in one transaction or a series of
transactions in any twelve-month period) to any Interested
Shareholder or any Affiliate or Associate of such Interested
Shareholder, other than the Corporation or any of its
Subsidiaries, of any assets of the Corporation or any
Subsidiary having, measured at the time the transaction or
transactions are approved by the board of
7
directors of the Corporation, an aggregate book value as of
the end of the Corporation's most recent fiscal quarter of ten
percent or more of the total Market Value (as hereinafter
defined) of the outstanding shares of the Corporation or of
its net worth as of the end of its most recent fiscal quarter;
or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
transactions) of any equity securities of the Corporation or
any Subsidiary having an aggregate Market Value of five
percent or more of the total Market Value of the outstanding
shares of the Corporation to any Interested Shareholder or any
Affiliate or Associate of any Interested Shareholder, other
than the Corporation or any of its Subsidiaries, except
pursuant to the exercise of warrants, rights or options to
subscribe for or purchase securities offered, issued or
granted pro rata to all holders of the Voting Stock (as
hereinafter defined) of the Corporation or any other method
affording substantially proportionate treatment to the holders
of Voting Stock; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or any
Subsidiary proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of such Interested
Shareholder, other than the Corporation or any of its
Subsidiaries; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any of
its Subsidiaries or any other transaction (whether or not with
or into or otherwise involving an Interested Shareholder)
which has the effect, directly or indirectly, in one
transaction or a series of transactions, of increasing the
proportionate amount of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder, other than the Corporation or any of
its Subsidiaries;
shall be approved by affirmative vote of the holders of at least 80 percent of
the total number of outstanding shares of Voting Stock Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or that
a lesser percentage may be specified, by law.
8
B. Definition of "Business Combination." The term "Business
Combination" as used in this Article 12 shall mean any transaction which is
referred to in any one or more of clauses (i) through (v) of paragraph A of this
subsection 1.
Subsection 2. When Higher Vote Is Not Required.
The provisions of subsection 1 of this Article 12 shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by law and any other
provision of this Certificate of Incorporation, if all of the conditions
specified in either paragraph A or paragraph B are met:
A. Approval by Continuing Directors. The Business Combination
shall have been approved by at least two-thirds of the Continuing Directors (as
hereinafter defined) then in office at a duly constituted meeting of the board
of directors of the Corporation called for such purpose.
B. Price and Procedure Requirements. All of the following
conditions shall have been met:
(i) The aggregate amount of the cash and the Market
Value as of the Valuation Date (as hereinafter defined) of the
Business Combination of consideration other than cash to be
received per share by holders of common stock in such Business
Combination shall be at least equal to the highest of the
following:
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder
for any shares of common stock acquired by it (1) within the
two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date") or (2) in the transaction in which it
became an Interested Shareholder, whichever is higher; or
(b) the Market Value per share of common stock of the
same class or series on the Announcement Date or on the date
on which the Interested Shareholder became an Interested
Shareholder (such latter date is referred to in this Article
12 as the "Determination Date"), whichever is higher; or
(c) the price per share equal to the Market Value per
share of common stock of the same class or series determined
pursuant to subdivision (i)(b) hereof, multiplied by the
fraction
9
of (1) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers fees) paid
by the Interested Shareholder for any shares of common stock
of the same class or series acquired by it within the two-year
period immediately prior to the Announcement Date, over (2)
the Market Value per share of common stock of the same class
or series on the first day in such two-year period on which
the Interested Shareholder acquired shares of common stock.
(ii) The aggregate amount of the cash and the Market
Value as of the Valuation Date of consideration other than
cash to be received per share by holders of shares of any
class or series of outstanding Voting Stock, other than common
stock, shall be at least equal to the highest of the following
(it being intended that the requirements of this paragraph
B(ii) shall be required to be met with respect to every class
of outstanding Voting Stock, whether or not the Interested
Stockholder has previously acquired any shares of a particular
class of Voting Stock):
(a) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder
for any shares of such class or series of Voting Stock
acquired by it: (1) within the two-year period immediately
prior to the Announcement Date or (2) in the transaction in
which it became an Interested Shareholder, whichever is
higher; or
(b) (if applicable) the highest preferential amount
per share to which the holders of shares of such class or
series of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation; or
(c) the Market Value per share of such class or
series of Voting Stock on the Announcement Date or on the
Determination Date, whichever is higher; or
(d) the price per share equal to the Market Value per
share of such class or series of stock determined pursuant to
subdivision (ii)(c) hereof multiplied by the fraction of (1)
the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid
by the Interested Shareholder for any shares of any class or
series of Voting Stock acquired by it within the two-year
period immediately prior to
10
the Announcement Date over (2) the Market Value per share of
the same class or series of Voting Stock on the first day in
such two-year period on which the Interested Shareholder
acquired any shares of the same class or series of Voting
Stock.
(iii) The consideration to be received by holders of
a particular class or series of outstanding Voting Stock shall
be in cash or in the same form as the Interested Shareholder
has previously paid for shares of such class or series of
Voting Stock. If the Interested Shareholder has paid for
shares of any class or series of Voting Stock with varying
forms of consideration, the form of consideration for such
class or series of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such
class or series of Voting Stock previously acquired by it.
(iv) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination: (a) there shall have been no failure to
declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any
outstanding preferred stock of the Corporation; (b) there
shall have been (1) no reduction in the annual rate of
dividends paid on any class or series of the capital stock of
the Corporation (except as necessary to reflect any
subdivision of the capital stock), and (2) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction
which has the effect of reducing the number of outstanding
shares of common stock; and (c) such Interested Shareholder
shall have not become the beneficial owner of any additional
shares of capital stock except as part of the transaction
which results in such Interested Shareholder becoming an
Interested Shareholder or by virtue of proportionate stock
splits or stock dividends.
The provisions of subdivisions (iv)(a) and (iv)(b) of this
subsection do not apply if the Interested Shareholder or any Affiliate or
Associate of the Interested Shareholder voted as a director of the Corporation
in a manner inconsistent with such subdivisions, and the Interested Shareholder,
within ten days after any act or failure to act inconsistent with such
subdivisions, notifies the board of directors of the Corporation in writing that
the Interested Shareholder disapproves thereof and requests in good faith that
the board of directors rectify such act or failure to act.
11
(v) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not
have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation or
any of its Subsidiaries (whether in anticipation of or in
connection with such Business Combination or otherwise).
(vi) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public shareholders of the Corporation at least 20 days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
Subsection 3. Certain Definitions.
For the purposes of this Article 12:
A. "Interested Shareholder" shall mean any person (other than
the Corporation or any Subsidiary or any employee stock purchase plan or other
employee benefit plan of the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of 10 percent or more of the voting power of the then
outstanding Voting Stock; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the date
in question was the beneficial owner, directly or indirectly,
of 10 percent or more of the voting power of the then
outstanding Voting Stock.
B. "Beneficial owner," when used with respect to any Voting
Stock, means a person:
(i) that, individually or with any of its Affiliates
or Associates, beneficially owns Voting Stock directly or
indirectly; or
(ii) that, individually or with any of its Affiliates
or Associates, has (a) the right to acquire Voting Stock
(whether
12
such right is exercisable immediately or only after passage of
time), pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; (b) the right to vote or
direct the voting of Voting Stock pursuant to any agreement,
arrangement or understanding; or (c) the right to dispose of
or to direct the disposition of Voting Stock pursuant to any
agreement, arrangement or understanding; or
(iii) that, individually or with any of its
Affiliates or Associates, has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting,
or disposing of Voting Stock with any other person that
beneficially owns, or whose Affiliates or Associates
beneficially own, directly or indirectly, such shares of
Voting Stock.
C. For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph A of this subsection 3, the number
of shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of paragraph B of this subsection 3 but shall not
include any other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
D. "Affiliate" means a person that directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, a specified person.
E. "Associate," when used to indicate a relationship with any
person, means: (1) any domestic or foreign corporation or organization, other
than the Corporation or a subsidiary of the Corporation, of which such person is
an officer, director or partner or is, directly or indirectly, the beneficial
owner of ten percent or more of any class of equity securities; (2) any trust or
other estate in which such person has a substantial beneficial interest or as to
which such person serves as a trustee or in a similar fiduciary capacity; and
(3) any relative or spouse of such person, or any relative of such spouse who
has the same home as such person or who is a director or officer of the
Corporation or any of its Affiliates.
F. "Subsidiary" means any corporation of which Voting Stock
having a majority of the votes entitled to be cast is owned, directly or
indirectly, by the Corporation.
G. "Continuing Director" means any member of the board of
directors of the Corporation who is unaffiliated with the Interested Shareholder
and was a member of the board of directors of the Corporation prior to the time
that the Interested Shareholder (including any Affiliate or Associate of such
Interested
13
Shareholder) became an Interested Shareholder, and any successor of a Continuing
Director who is unaffiliated with the Interested Shareholder and is recommended
to succeed a Continuing Director by a majority of Continuing Directors then on
the board of directors of the Corporation.
H. "Market Value" means:
(i) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date
in question of a share of such stock on the composite tape for
New York Stock Exchange - listed stocks, or, if such stock is
not quoted on the composite tape, or the New York Stock
Exchange, or, if such stock is not listed on such exchange,
the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock
is listed, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotation System or any
system then in use, or if no such quotations are available,
the fair market value on the date in question of a share of
such stock as determined by the board of directors of the
Corporation in good faith; and
(ii) in the case of property other than cash or
stock, the fair market value of such property on the date in
question as determined by a majority of the board of directors
of the Corporation in good faith.
I. "Valuation Date" means: (A) for a Business Combination
voted on by shareholders, the latter of the day prior to the date of the
shareholders' vote or the date twenty days prior to the consummation of the
Business Combination; and (B) for a Business Combination not voted upon by the
shareholders, the date of the consummation of the Business Combination.
J. "Voting Stock" means the then outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors.
K. In the event of any Business Combination in which the
Corporation is the surviving corporation, the phrase "consideration other than
cash to be received" as used in paragraphs B(i) and B(ii) of Section 2 of this
Article 12 shall include the shares of common stock and/or the shares of any
other class or series of outstanding Voting Stock retained by the holders of
such shares.
14
Subsection 4. Powers of the Board of Directors.
A majority of the Corporation's directors then in office shall have the
power and duty to determine for the purposes of this Article 12, on the basis of
information known to them after reasonable inquiry, (A) whether a person is an
Interested Shareholder, (B) the number of shares of Voting Stock beneficially
owned by any person, (C) whether a person is an Affiliate or Associate of
another, and (D) whether the requirements of paragraph B of Section 2 have been
met with respect to any Business Combination; and the good faith determination
of a majority of the board of directors on such matters shall be conclusive and
binding for all the purposes of this Article 12.
Subsection 5. No Effect on Fiduciary Obligations of
Interested Shareholders.
Nothing contained in this Article 12 shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
ARTICLE 13. ANTI-GREENMAIL. Any direct or indirect purchase or other
acquisition by the Corporation of any Voting Stock (as defined in Article 12
hereof) from any Significant Shareholder (as hereinafter defined) who has been
the beneficial owner (as defined in Article 12 hereof) of such Voting Stock for
less than two years prior to the date of such purchase or other acquisition
shall, except as hereinafter expressly provided, require the affirmative vote of
the holders of at least a majority of the total number of outstanding shares of
Voting Stock, excluding in calculating such affirmative vote and the total
number of outstanding shares all Voting Stock beneficially owned by such
Significant Shareholder. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage may be
specified, by law, but no such affirmative vote shall be required (i) with
respect to any purchase or other acquisition of Voting Stock made as part of a
tender or exchange offer by the Corporation to purchase Voting Stock on the same
terms from all holders of the same class of Voting Stock and complying with the
applicable requirements of the Securities Exchange Act of 1934 and the rules and
regulations thereunder or (ii) with respect to any purchase of Voting Stock,
where the Board of Directors has determined that the purchase price per share of
the Voting Stock does not exceed the fair market value of the Voting Stock. Such
fair market value shall be calculated on the basis of the average closing price
or the mean of the bid and ask prices of a share of Voting Stock for the 20
trading days immediately preceding the execution of a definitive agreement to
purchase the Voting Stock from a Significant Shareholder.
For the purposes of this Article 13, "Significant Shareholder" shall
mean any person (other than the Corporation or any corporation of which a
majority of any class of Voting Stock is owned, directly or indirectly, by the
Corporation) who or
15
which is the beneficial owner, directly or indirectly, of five percent or more
of the voting power of the outstanding Voting Stock.
ARTICLE 14. SHAREHOLDER ACTION. Any action required or permitted to be
taken by the shareholders of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be affected by any consent
in writing by such holders, unless such consent is unanimous.
ARTICLE 15. AMENDMENT OF CERTIFICATE OF INCORPORATION. Except as set
forth in this Article 15 or as otherwise specifically required by law, no
amendment of any provision of this Certificate of Incorporation shall be made
unless such amendment has been first proposed by the board of directors of the
Corporation upon the affirmative vote of at least two-thirds of the directors
then in office at a duly constituted meeting of the board of directors called
for such purpose and thereafter approved by the shareholders of the Corporation
by the affirmative vote of the holders of at least a majority of the shares
entitled to vote thereon at a duly called annual or special meeting; provided,
however, that if such amendment is to the provisions set forth in this clause of
Article 15 or in Article 6, 7, 8, 10, 11, 13 or 14 hereof, such amendment must
be approved by the affirmative vote of the holders of at least two-thirds of the
shares entitled to vote thereon rather than a majority; provided, further, that
if such amendment is to the provisions set forth in this clause of Article 15 or
in Article 12 hereof, such amendment must be approved by the affirmative vote of
the holders of at least 80 percent of the shares entitled to vote thereon rather
than a majority.
16
Exhibit A
CERTIFICATE OF DESIGNATION
OF THE
SERIES C PARTICIPATING PREFERRED STOCK
OF
WEBSTER FINANCIAL CORPORATION
----------------------
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
----------------------
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted on February 5, 1996, by the Board of Directors (the
"Board") of WEBSTER FINANCIAL CORPORATION, a Delaware corporation (the
"Corporation"), acting pursuant to the authority granted to the Board in
accordance with the provisions of Section 151(g) of the General Corporation Law
of the State of Delaware, at a duly convened meeting of the Board at which a
quorum was present and active throughout (the "Authorizing Board Resolution"):
RESOLVED, that pursuant to authority expressly granted to and
vested in the Board by the provisions of the Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation"), there is hereby created a
series of serial preferred stock, par value $.01 per share, which shall consist
of 14,000 of the 3,000,000 shares of serial preferred stock. Such series shall
have the following powers, designations, preferences and relative,
participating, optional and other special rights, and the qualifications,
limitations and restrictions (in addition to the powers, designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, set forth in the
Certificate of Incorporation which may be applicable to the serial preferred
stock) as follows:
Section 1. Designation and Amount. The shares of such series,
par value .01 per share, shall be designated as "Series C Participating
Preferred Stock" (hereinafter "Series C Stock") and the number of shares
constituting such series shall be 14,000. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series C Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series C Stock.
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of
any shares of any series of Serial Preferred Stock ranking prior and superior to
the shares of Series C Stock with respect to dividends, the holders of shares of
Series C Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the 1st day of February, May, August and November
in each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share of Series C Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, one thousand times the aggregate
per share amount of all cash dividends declared on Common Stock, and one
thousand times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on 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 of Series
C Stock. In the event the Corporation shall at any time after February 5, 1996
(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 C 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 Corporation shall declare a dividend or distribution
on the Series C 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, subject to the requirements
of applicable law and the Amended and Restated Certificate of Incorporation, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share on
the Series C 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 C Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series C Stock, unless the
date of issue of such shares is prior to the record date for the first Quarterly
Dividend
2
Payment Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series C 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 C Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series C Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be no more than 60
days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series C
Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Stock shall entitle the holder thereof to one
thousand votes on all matters submitted to a vote of the stockholders of the
Common Stock. 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 number of votes per share to which holders of shares of Series C Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided herein or by law, the holders
of shares of Series C 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) Except as set forth herein, holders of Series C 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 C Stock as provided in Section 2 are in
arrears,
3
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series C 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 C Stock;
(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 C Stock, except
dividends paid ratably on the Series C 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 C 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) to the Series C Stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series C Stock, or any shares of stock ranking on a parity with the
Series C Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective Series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series C 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
Serial Preferred Stock and may be reissued as part of a new series of Serial
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
4
Section 6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Stock unless, prior thereto, the
holders of shares of Series C Stock shall have received $100,000 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series C Liquidation
Preference"). Following the payment of the full amount of the Series C
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series C Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series C Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in subparagraph
(c) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
C Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series C Stock and Common Stock, respectively, holders of Series C
Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to one (1) with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series C Liquidation
Preference and the liquidation preferences of all other series of Serial
Preferred Stock, if any, which rank on a parity with the Series C Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In the event,
however, that there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such remaining assets shall be distributed
ratably to the holders of Common Stock.
(c) 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 Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
5
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 C Stock shall at the same time be similarly exchanged or charged in an
amount per share (subject to provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of 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 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 C 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 C Stock shall
not be redeemable.
Section 9. Ranking. The Series C Stock shall rank junior to
all other series of the Corporation's Serial Preferred Stock as to the payment
of dividends and the distribution of assets, unless the terms of such series
shall provide otherwise.
Section 10. Amendment. The Amended and Restated Certificate of
Incorporation of the Corporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special rights
of the Series C Stock so as to affect them adversely without the affirmative
vote of the holders of a majority of the outstanding shares of Series C Stock,
voting separately as a class.
6