Exhibit 3.3
CERTIFICATE OF AMENDMENT
RIGHTS AND PREFERENCES
OF THE
SERIES B 8.625% CUMULATIVE REDEEMABLE PREFERRED STOCK
PAR VALUE $1.00 PER SHARE
OF
WEBSTER PREFERRED CAPITAL CORPORATION
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Pursuant to Section 33-666(d) of the
Connecticut Business Corporation Act
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WEBSTER PREFERRED CAPITAL CORPORATION (the "Corporation"), a
corporation organized and existing under the Connecticut Business
Corporation Act, as amended,
DOES HEREBY CERTIFY:
FIRST: The Amended and Restated Certificate of Incorporation of the
Corporation authorizes the issuance of 3,000,000 shares of the Corporation's
preferred stock, par value $1.00 per share, in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof.
SECOND: The Board of Directors of the Corporation at a meeting held on
December 22, 1997, did duly adopt this Certificate of Amendment providing for
the designation, powers, preferences and rights, and the qualifications,
limitations and/or restrictions thereof, of the Series B 8.625% Cumulative
Redeemable Preferred Stock, par value $1.00 per share, of the Corporation.
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NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors, in accordance
with the provisions of the Amended and Restated Certificate of Incorporation of
the Corporation, hereby approves the issuance of Series B 8.625% Cumulative
Redeemable Preferred Stock, par value $1.00 per share, of the Corporation and
hereby fixes the designation of such series and the powers, preferences, rights,
and qualifications, limitations and restrictions thereof in addition to those
set forth in said Amended and Restated Certificate of Incorporation as follows:
1. Designation; Ranking.
(a) The designation of the series of Preferred Stock created by this
Certificate of Amendment shall be "Series B 8.625% Cumulative Redeemable
Preferred Stock," par value $1.00 per share, of Webster Preferred Capital
Corporation (the "Corporation") (hereinafter referred to as "Series B Preferred
Shares"), and the number of shares constituting such series shall be 1,000,000,
which number may be increased (but not above the total number of shares of
Preferred Stock of the Corporation) or decreased (but not below the number of
shares then outstanding) from time to time by the Board of Directors.
(b) The Series B Preferred Shares shall rank prior to the common stock
of the Corporation, par value $.01 per share (the "Common Stock") as to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation (the Common Stock, together with
any other class or series of stock of the Corporation ranking junior to the
Series B Preferred Shares as to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up of the Corporation, being
hereinafter referred to as "Junior Stock"). The Series B Preferred Shares are on
a parity with the shares of Series A 7.375% Cumulative Preferred Stock of the
Corporation, par value $1.00 per share (the "Series A Preferred Shares"), as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation (the Series A Preferred Shares,
together with any other class or series of stock of the Corporation ranking on a
parity with the Series B Preferred Shares (other than the Series B Preferred
Shares) as to the payment of dividends and the distribution of assets upon the
liquidation, distribution or winding up of the Corporation being hereinafter
referred to as "Parity Stock").
2. Dividend Rights.
(a) The holders of Series B Preferred Shares shall be entitled to
receive, if, when and as declared by the Board of Directors of the Corporation,
out of assets of the Corporation legally available therefor, cash dividends,
accruing from the Issue Date (as defined below) at the rate of 8.625% per annum
of the $10 liquidation preference (an amount equal to $.8625 per share per
annum), and no more, payable, if, when and as declared by the Board of
Directors, quarterly on January 15, April 15, July 15, and October 15 in each
year (each quarterly period ending on
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any such date being hereinafter referred to as a "dividend period"), at such
annual rate, commencing January 15, 1998. Dividends in each quarterly period
shall accrue from the day following the previous dividend payment date (except
that dividends payable on January 15, 1998 shall accrue from the Issue Date),
whether or not declared or paid for the prior quarterly period. Each declared
dividend will be payable to holders of record as they appear at the close of
business on the stock register of the Corporation on such record dates, not
exceeding 45 days preceding the payment dates thereof, as shall be fixed by the
Board of Directors of the Corporation. The date of original issuance of Series B
Preferred Shares is referred to herein the "Issue Date." Dividends payable on
the Series B Preferred Shares (i) for any period other than a full dividend
period, shall be computed on the basis of a 360-day year consisting of twelve
30-day months and (ii) for each full dividend period, shall be computed by
dividing the annual dividend rate by four.
(b) Dividends on Series B Preferred Shares shall be cumulative from
the Issue Date, whether or not there shall be funds legally available for the
payment of such dividends. If there shall be outstanding shares of any shares of
Junior Stock or Parity Stock, no dividends shall be declared or paid or set
apart for payment on any such series for any period unless full cumulative
dividends which are then required to have been paid have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Shares for
all dividend periods terminating on or prior to the date of payment of such
dividends. If dividends on the Series B Preferred Shares and on any series of
Parity Stock are in arrears, in making any dividend payment on account of such
arrears, the Corporation shall make payments ratably upon all outstanding Series
B Preferred Shares and shares of such series of Parity Stock in proportion to
the respective amounts of dividends in arrears on the Series B Preferred Shares
and on such series of Parity Stock to the date of such dividend payment. Holders
of Series B Preferred Shares shall not be entitled to any dividend, whether
payable in cash, property or stock, in excess of full cumulative dividends on
such shares. No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments which may be in arrears.
(c) Unless full cumulative dividends on all outstanding Series B
Preferred Shares and shares of Parity Stock which are then required to have been
paid shall have been or contemporaneously are declared and paid or set aside for
payment for all past dividend periods, no dividend (other than a dividend in
Common Stock or in any other Junior Stock) shall be declared upon the Common
Stock or upon any other Junior Stock, nor shall any Common Stock or any other
Junior Stock be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for Junior Stock).
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3. Covenant. The Corporation shall not take any action in respect of any
Common Stock or any Junior Stock or Parity Stock if, as a result thereof, the
amount of the Corporation's shareholders' equity (as determined in accordance
with generally accepted accounting principles) would be less than 250% of the
aggregate liquidation preference of the issued and outstanding Series A
Preferred Shares and Series B Preferred Shares.
4. Liquidation Preferences.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Series B Preferred Shares shall be entitled to receive out of the assets of the
Corporation available for distribution to shareholders an amount equal to $10
per share plus an amount equal to all accrued and unpaid dividends, if any,
thereon to the date of such distribution, and no more (the "Liquidation
Preference"), before any distribution shall be made to the holders of Junior
Stock. After payment of the full amount of such liquidating distributions, the
holders of Series B Preferred Shares will not be entitled to any further
participation in any distribution of the remaining assets of the Corporation.
(b) In the event that the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Series B
Preferred Shares and any other shares of Parity Stock, the holders of Series B
Preferred Shares and the holders of such Parity Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the full respective
preferential amounts to which they would otherwise be entitled.
(c) The merger or consolidation of the Corporation with or into any
other entity, the merger or consolidation of any other entity with or into the
Corporation, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation, shall not be deemed to constitute a
liquidation, dissolution or winding up of the affairs of the Corporation within
the meaning of this Section 3.
5. Redemption. Except upon the occurrence of a Tax Event, the Series B
Preferred Shares are not redeemable prior to January 15, 2003. Upon the
occurrence of a Tax Event, the Corporation, at its option, may redeem the Series
B Preferred Shares, at any time or from time to time, in whole but not in part,
at the Series B Early Redemption Price. On or after January 15, 2003, the
Corporation, at its option, may redeem the Series B Preferred Shares, at any
time or from time to time, in whole or in part, at a redemption price of $10 per
share plus accrued and unpaid dividends, if any, thereon, to the date of
redemption.
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The "Series B Early Redemption Price" shall equal the greater of (i)
the Liquidation Preference for each Series B Preferred Share to be redeemed or
(ii) the sum, as determined by a Quotation Agent, of the present values of (x),
the Liquidation Preference at January 15, 2003 plus (y) the remaining scheduled
payments of dividends on the Series B Preferred Shares to January 15, 2003,
discounted to the redemption date on a quarterly basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in the
case of each of clauses (i) and (ii) and without duplication, accrued and unpaid
dividends, if any, thereon to the date of redemption.
"Tax Event" means the receipt by the Corporation of an opinion of a
nationally recognized law firm experienced in such matters to the effect that,
as a result of (i) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or treaties (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation or of any state, (ii) any
judicial decision, official administrative pronouncement, published or private
ruling, regulatory procedure, notice or announcement (including any notice or
announcement of intent to adopt such procedures or regulations) ("Administrative
Action") or (iii) any amendment to, clarification of, or change in the official
position or the interpretation of such Administrative Action or judicial
decision or any interpretation or pronouncement that provides for a position
with respect to such Administrative Action or judicial decision that differs
from the theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body, irrespective
of the manner in which such amendment, clarification or change is made known,
which amendment, clarification, or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the Series B Preferred
Shares, there is a substantial risk that (a) dividends paid or to be paid by the
Corporation with respect to the capital stock of the Corporation are not, or
will not be, fully deductible by the Corporation for United States federal
income tax purposes, (b) the Corporation is, or will be, subject to more than a
de minimis amount of other taxes, duties or other governmental charges or (c)
dividends received or to be received by Webster Bank from the Corporation are
not, or will not be, fully deductible by Webster Bank for Connecticut
corporation income tax purposes.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date plus .25%.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the period
from the date of redemption through January 15, 2003 that would be utilized, at
the time of selection and in accordance with customary financial practice, in
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pricing new issues of corporate fixed-income securities of comparable maturity
for such remaining period.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Corporation.
"Reference Treasury Dealer" means a nationally-recognized U.S. government
securities dealer in New York, New York selected by the Corporation.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Corporation obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Corporation, of the bid and asked prices for the Comparable Treasury
Issue(expressed in each case as a percentage of its principal amount) quoted in
writing to the Corporation by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such redemption date.
(b) If less than all the outstanding Series B Preferred Shares are to be
redeemed, the shares to be redeemed shall be selected pro rata as nearly as
practicable or by lot, or by such other method as the Board of Directors may
determine to be fair and appropriate.
(c) Notice of any redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the date fixed
for redemption to each holder of record of the Series B Preferred Shares to be
redeemed, at their respective addresses appearing on the stock books of the
Corporation. Notice so mailed shall be conclusively presumed to have been duly
given whether or not actually received. Such notice shall state: (i) the date
fixed for redemption; (ii) the redemption price; (iii) the number of Series B
Preferred Shares to be redeemed and if less than all the shares held by such
holder are to be redeemed, the number of such shares to be so redeemed from such
holder; (v) the place where certificates for such shares are to be surrendered
for payment of the
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redemption price; and (vi) that after such date fixed for redemption the shares
to be redeemed shall not accrue dividends. If such notice is mailed as
aforesaid, and if on or before the date fixed for redemption funds sufficient to
redeem the shares called for redemption are set aside by the Corporation in
trust for the account of the holders of the shares to be redeemed,
notwithstanding the fact that any certificate for shares called for redemption
shall not have been surrendered for cancellation, on and after the redemption
date the shares represented thereby so called for redemption shall be deemed to
be no longer outstanding, dividends thereon shall cease to accrue, and all
rights of the holders of such shares as stockholders of the Corporation shall
cease, except the right to receive the redemption price, without interest, upon
surrender of the certificate representing such shares. Upon surrender in
accordance with the aforesaid notice of the certificate for any shares so
redeemed (duly endorsed or accompanied by appropriate instruments of transfer,
if so required by the Corporation in such notice), the holders of record of such
shares shall be entitled to receive the redemption price, without interest. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(d) Any provision of this Section 4 to the contrary notwithstanding,
in the event that any quarterly dividend payable on the Series B Preferred
Shares shall be in arrears and until all such dividends in arrears shall have
been paid or declared and set apart for payment, the Corporation shall not
redeem any Series B Preferred Shares unless all outstanding Series B Preferred
Shares are simultaneously redeemed and shall not purchase or otherwise acquire
any Series B Preferred Shares except in accordance with a purchase or exchange
offer made on the same terms to all holders of record of Series B Preferred
Shares for the purchase of all outstanding shares thereof.
6. Voting Rights. Other than as expressly required by applicable law, the
Series B Preferred Shares shall not have any voting powers either general or
special, except that:
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of the aggregate liquidation preference of the
Series B Preferred Shares and of the shares of any one or more series of Parity
Stock at the time outstanding, given in person or by proxy, either in writing or
by a vote at a meeting called for the purpose at which the holders of Series B
Preferred Shares and any such other series of Parity Stock shall vote together
as a separate class, shall be necessary for authorizing, effecting or validating
the amendment, alteration or repeal of any of the provisions of the Amended and
Restated Certificate of Incorporation or of any amendment or supplement thereto
(including any certificate of amendment or any similar document relating to any
series of Preferred Stock) of the Corporation, so as to adversely affect the
powers, preferences, rights, privileges,
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qualifications, limitations and restrictions of the Series B Preferred Shares
and any such other series of Parity Stock.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of the aggregate liquidation preference of the
Series B Preferred Shares and any other series of Parity Stock at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of Series B Preferred Shares
and any such other series of Parity Stock shall vote together as a single class
without regard to series, shall be necessary to create, authorize or issue, or
reclassify any authorized stock of the Corporation into, or create, authorize or
issue any obligation or security convertible into or evidencing a right to
purchase, any shares of any class of stock of the Corporation ranking prior to
both the Series B Preferred Shares and any other series of Parity Stock. Subject
to the foregoing, the Corporation's Amended and Restated Certificate of
Incorporation may be amended to increase the number of authorized shares of
Preferred Stock without the vote of the holders of Preferred Stock, including
the Series B Preferred Shares.
(c) If at any time the Corporation has failed to pay or declare and
set aside for payment the full amount of any quarterly dividend then required to
be paid on the Series B Preferred Shares, the holders of the outstanding Series
B Preferred Shares shall have the exclusive right, voting separately as a class
together with holders of shares of any one or more other series of Parity Stock
and upon which like voting rights have been conferred and are exercisable, to
elect two directors of the Corporation at the Corporation's next annual meeting
of shareholders. At elections for such directors, each holder of Series B
Preferred Shares shall be entitled to one vote for each share held or, if the
holders of shares of any series of Parity Stock are entitled vote, holders shall
vote based on the respective liquidation preferences of the Series B Preferred
Shares and such series of Parity Stock. Upon the vesting of such right in the
holders of Series B Preferred Shares, the maximum authorized number of members
of the Board of Directors shall automatically be increased by two and the two
vacancies so created shall be filled by vote of the holders of the outstanding
Series B Preferred Shares (either alone or together with the holders of shares
of any one or more series of Parity Stock) as hereinafter set forth. The right
of the holders of Series B Preferred Shares, voting separately as a class to
elect (either alone or together with the holders of shares of any one or more
series of Parity Stock) members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accrued on the Series
B Preferred Shares shall have been paid in full or declared and set apart for
payment, at which time such right shall terminate, except as herein or by law
expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
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(d) Each director elected by the holders of Series B Preferred Shares
shall continue to serve as such director until the later of (i) the expiration
of the full term for which he or she shall have been elected or (ii) all accrued
and unpaid dividends on the Series B Preferred Shares shall have been paid in
full or declared and set aside for payment. If the office of any director
elected by the holders of Series B Preferred Shares voting as a class becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office, or otherwise, the remaining director elected by the holders of
Series B Preferred Shares voting as a class may choose a successor who shall
hold office for the unexpired term in respect of which such vacancy occurred.
Whenever the term of office of the directors elected by the holders and the
special voting powers vested in the holders of Series B Preferred Shares as
provided in this subsection (d) shall have expired, the number of directors
shall be such number as may be provided for in the Amended and Restated
Certificate of Incorporation or the Amended and Restated By-Laws, irrespective
of any increase made pursuant to the provisions of this subsection (d).
7. Reacquired Shares. Series B Preferred Shares redeemed, or otherwise
purchased or acquired by the Corporation shall be restored to the status of
authorized but unissued shares of Preferred Shares without designation as to
series.
8. No Sinking Fund. Series B Preferred Shares are not subject to the
operation of a sinking fund or any other obligation of the Corporation to
redeem, repurchase or retire the Series B Preferred Shares.
9. No Conversion Rights. Series B Preferred Shares are not convertible into
any other securities of the Corporation and are not exchangeable into capital
stock or any other securities of Webster Bank or Webster Financial Corporation.
10. Reporting Company. For so long as there are any Series B Preferred
Shares outstanding, the Corporation shall maintain its status as a reporting
company under the Securities Exchange Act of 1934, as amended, and will furnish
shareholders with annual reports containing audited financial statements.
11. Ownership and Transfer Restrictions.
(a) During the period commencing on the date of the initial public
offering and prior to the Restriction Termination Date, no person shall
beneficially own more than 5,000 shares of Series B Preferred Stock (determined
without reference to any rules of attribution). "Beneficial Ownership" shall
mean ownership of shares of the capital stock of the Corporation by a person who
is treated or would be treated as an owner of such capital stock either directly
or indirectly or constructively through the application of Section 544 of the
Internal Revenue Code of 1986, as amended (the "Code"), as modified by Section
856(h)(1)(B)of the Code.
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"Initial Public Offering" means the closing of the sale of Series B Preferred
Shares and Series A Preferred Shares pursuant to the Corporation's first
effective registration statement for such Preferred Stock, filed under the
Securities Act of 1933, as amended. "Restriction Termination Date" shall mean
the first day after the date of the closing of the Initial Public Offering on
which the Corporation determines that it is no longer in the best interest of
the Corporation to attempt to, or continue to qualify as a real estate
investment trust.
(b) Each certificate for Series B Preferred Shares shall bear
substantially the following legend: "The shares represented by this certificate
are subject to restrictions on transfer and ownership for the purpose of the
Corporation's maintenance of its status as a Real Estate Investment Trust under
the Internal Revenue Code of 1986, as amended. Subject to certain further
restrictions and except as expressly provided in the Corporation's Amended and
Restated Certificate of Incorporation, no Person may Beneficially Own shares of
Capital Stock of the Corporation if, as a result of such Acquisition or
Beneficial Ownership, (i) such Person would Beneficially Own Series B 8.625 %
Cumulative Redeemable Preferred Stock of the Corporation in excess of 5,000
shares, (ii) the Corporation would be "closely held" within the meaning of
Section 856(h) of the Code, or (iii) the Capital Stock would be held by less
than 100 Persons. Any Person who Beneficially Owns or attempts to Beneficially
Own shares of Capital Stock in excess of the above limitations must immediately
notify the Corporation, any shares of Capital Stock so held may be subject to
mandatory sale in certain events, certain purported acquisitions of shares of
Capital Stock in excess of such limitations shall be void ab inito, and any
shares of Capital Stock purported to be Acquired or Beneficially Owned in excess
of such limitation will be automatically transferred to a Trust for the benefit
of Charitable Beneficiary. A Person who attempts to Beneficially Own shares of
Capital Stock in violation of the ownership limitations set forth in Section
7(b) of the Amended and Restated Certificate of Incorporation of the Corporation
shall have no claim, cause of action, or any other recourse whatsoever against a
transferor of shares. All capitalized terms in this legend have the meanings
defined in the Corporation's Amended and Restated Certificate of Incorporation,
a copy of which, including the restrictions on transfer, will be sent without
charge to each shareholder who so requests.
FURTHER RESOLVED, that the officers of the Corporation, and each of
them, are hereby authorized, for and on behalf of and in the name of the
Corporation, to file a copy of the foregoing with the Secretary of State of the
State of Connecticut in accordance with the provisions of Sections 33-608 and
33-666 of the Connecticut Business Corporation Act.
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IN WITNESS WHEREOF, WEBSTER PREFERRED CAPITAL CORPORATION, has caused
this Certificate of Amendment to be signed by John V. Brennan, its President and
Gregory S. Madar, its Secretary, and its Corporate Seal to be hereunder affixed
this 23rd day of December, 1997.
WEBSTER PREFERRED CAPITAL
CORPORATION
[Seal]
By
/s/ John V. Brennan
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John V. Brennan
President
Attest:
/s/ Gregory S. Madar
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Gregory S. Madar
Secretary
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